The Whaling Dispute in the South Pacific: An Australian Perspective

• Author: Ruth Davis
• Position: Member of Australian National Centre for Ocean Resources and Security ( 'ANCORS'); lecturer in the Faculty of Law at University of Wollongong. BEc/LL.B./LL.M.(Sydney).
• Pages: 419-447

REGIONAL FOCUS & CONTROVERSIES

The Whaling Dispute

in the South Pacific:

An Australian Perspective

Ruth Davis



In May 2010 Australia commenced litigation against Japan in the International

Court of Justice over the legality of Japanese scientific whaling in the Southern

Ocean. This article considers the background to the litigation, the basis of

Australia



s opposition to whaling, and the grounds upon which Australia is

mounting its challenge. The interpretation of the 1946 International Convention for

the Regulation of Whaling and the operation of the International Whaling

Commission are considered in light of the precautionary principle. The article

concludes that Australia



s success depends upon a broad reading of the Convention

that takes into account its objects and purposes, as well as wider developments in

international law. Any guidance that the International Court of Justice can provide

on the modern interpretation of this now dated Convention is to be welcomed.

Keywords

International Convention for the Regulation of Whaling, Scientific

Whaling, Japanese whaling, Southern Ocean, International Whaling

Commission, Whaling Litigation

1. Introduction

On May 31, 2010, Australia instituted legal proceedings against Japan before the

KFBJM3)3122*  419

* Member of Australian National Centre for Ocean Resources and Security (ANCORS); lecturer in the Faculty of Law

at University of Wollongong. BEc/LL.B./LL.M.(Sydney). The author would like to thank Quentin Hanich for

comments on an earlier draft of this paper. The views expressed, and any errors or omissions, are those of the author.

The author may be contacted at: rdavis@uow.edu.au/Address: University of Wollongong, Faculty of Law, Wollongong,

NSW 2522, Australia.

International Court of Justice (ICJ) on the question of Whaling in the Antarctic.

1

The

litigation concerns the second phase of Japans Whale Research Program under Special

Permit in the Antarctic (JARPA II).

2

Since Australia ended commercial whaling in the

late 1970s, it has actively campaigned to put an end to the practice internationally.

Australia opposes whaling on a number of grounds and has been dismayed by the

escalation of whaling under scientific permit since the introduction of the moratorium in

1982. Australia has worked extensively through the International Whaling Commission

(IWC) to pursue its conservation agenda and in particular to promote the use of non-

lethal techniques for scientific research while seeking an end to lethal scientific research.

As diplomatic efforts have so far failed to have any impact on the conduct of JARPA,

3

Australia has instituted proceedings in the ICJ to enforce various international legal

obligations which, in Australias view, are not being met by the continuance of the

research program.

The Australian arguments may broadly be divided into two: those based on the 1946

International Convention for the Regulation of Whaling (ICRW),

4

and those based

upon other international environmental law agreements. This paper will focus upon the

former of these two lines of argument. In relation to the ICRW, the application argues as

follows. First, Japan is in breach of its obligation under Paragraph 10(e) of the ICRW

Schedule to observe in good faith the zero catch limit in relation to the killing of whales

for commercial purposes.Second, Japan is in breach of its obligation under Paragraph

7(b) of the ICRW Schedule to act in good faith to refrain from undertaking commercial

whaling of humpback and fin whales in the Southern Ocean Sanctuary.Third, the

JARPA II program cannot be justifiedunder the scientific whaling provision in

Article VIII of the ICRW.

5

In addition, the application argues that Japan is in breach of

multiple obligations under the Convention on International Trade in Endangered

420 

1

See

Application Instituting Proceedings (hereinafter Australian Application),

available at

http://www.haguejusticeportal.net/

Docs/Court%20Documents/ICJ/Australia%20against%20Japan_Applications%20instituting%20proceedings.pdf (last

visited on Oct. 1, 2011).

2

See

JARPA II Research Plan,

available at

http://www.icrwhale.org/JARPA IIResearchPlan.htm (last visited on Oct.

1, 2011). The case concerns JARPA II, Japans Antarctic research program, although the application notes that in

Australias opinion, the northern hemisphere JARPA II program raises similar concerns and is also in breach of

Japans international obligations.

See

Australian Application, para. 34.

3Within the IWC, both Japan and Australia have participated in the discussions of the Small Working Group on the

Future of the IWC in 2008.

See

IWC, Future of the IWC: Meeting of the Small Working Group on the Future of the

IWC and associated documents,

available at

http://www.iwcoffice.org/commission/future.htm (last visited on Oct. 1,

2011). Australia has also appointed a Special Envoy on Whale Conservation whose role is to engage with Japan 

with a view to progressing Australias position on Japans special permit whaling programs.

See

Australian

Application, para. 33.

4The International Convention for the Regulation of Whaling of 1946, entered into force on Nov. 10, 1948.

5

See

Australian Application paras. 36-37.