International Court of Justice (ICJ) on the question of Whaling in the Antarctic.
litigation concerns the second phase of Japans Whale Research Program under Special
Permit in the Antarctic (JARPA II).
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,
Australia has instituted proceedings in the ICJ to enforce various international legal
obligations which, in Australias view, are not being met by the continuance of the
The Australian arguments may broadly be divided into two: those based on the 1946
International Convention for the Regulation of Whaling (ICRW),
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 justifiedunder the scientific whaling provision in
Article VIII of the ICRW.
In addition, the application argues that Japan is in breach of
multiple obligations under the Convention on International Trade in Endangered
Application Instituting Proceedings (hereinafter Australian Application),
visited on Oct. 1, 2011).
JARPA II Research Plan,
http://www.icrwhale.org/JARPA IIResearchPlan.htm (last visited on Oct.
1, 2011). The case concerns JARPA II, Japans Antarctic research program, although the application notes that in
Australias opinion, the northern hemisphere JARPA II program raises similar concerns and is also in breach of
Japans international obligations.
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.
IWC, Future of the IWC: Meeting of the Small Working Group on the Future of the
IWC and associated documents,
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 Australias position on Japans special permit whaling programs.
Application, para. 33.
4The International Convention for the Regulation of Whaling of 1946, entered into force on Nov. 10, 1948.
Australian Application paras. 36-37.