ICJ Whaling Win a Hollow Victory?
Monday 14 April 2014 @ 11.03 a.m. | Legal Research
Timebase recently reported on Australia’s successful challenge to the validity of Japanese scientific whaling in the International Court of Justice ("ICJ") (see Australia Succeeds In ICJ Bid to Stop Japanese Whaling). Japan commented at the time that they would abide by the decision, despite their disappointment in the outcome. However, commentators noted that Japan could use a number of avenues to continue whaling, and there are already some indicators that whaling in the Antarctic is not over.
Withdrawal?
The most obvious option would be for Japan to withdraw from the International Convention for the Regulation of Whaling (“the Convention”) altogether, which could be done by giving notice under Article XI of the treaty. The ABC noted that this would incur "significant political and diplomatic costs", but:
"a country outside of the main legal regulatory regime in relation to whaling may seek to undertake any type of whaling it sees fit, and it would be a much more difficult legal argument to successfully halt that program."
A More “Reasonable” Program
A report in the Sydney Morning Herald suggests that Japan will take a less dramatic route, but nonetheless one that involves the continuation of lethal whaling in the Antarctic. While the Fisheries Agency of Japan has said scheduled "research whaling" will be cancelled this year, the Institute of Cetacean Research apparently has plans for it to recommence as early as next year. Filings in a US case against Sea Shepherd for harassment of whaling ships apparently state that:
"Plaintiffs expect that they will be conducting a Southern Ocean research program for subsequent seasons that would be in accord with the ICJ decision.”
The ICJ decision found that Japan’s JARPA II program did not satisfy the scientific research exception set out in the Convention, but also clearly indicated the areas in which it fell short. Japan could continue whaling if it adjusts its program so as to comply with the requirements - for example, Japan would have to ensure it considered non-lethal methods of research and more thoroughly justified the catch numbers it reported. The ABC reports that the ICJ decision effectively:
"allows for the possibility of legitimate and ‘institutionalised’ killing of whales, as long as it falls within the ‘reasonableness’ standard set out by the Court."
Convention Update Needed
In an article in The Conversation, Peter Bridgewater, a former chair of the International Whaling Commission, argues that the Convention is sorely in need of an update, as it "still refers to whales as a resource for industry" and "struggle[s] to deliver the strong protection much of the world now expects". He argues that the Convention, which was agreed upon in 1946, needs to be modernised so as to refocus on conservation, or it runs the risk of "declining towards irrelevance". He hopes that Australian and Japan can work together on a non-lethal research program.
It is clear that while the ICJ decision is binding and cannot be appealed, it is far from the end of the debate about whaling. The next steps taken by both Australian and Japan will be crucial.
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