Australia Succeeds In ICJ Bid to Stop Japanese Whaling
Tuesday 1 April 2014 @ 9.56 a.m. | Crime | Legal Research
Yesterday (31 March 2014), the International Court of Justice (ICJ) handed down its decision in the long running "Whaling in the Antarctic (Australia v Japan)" case. The court found that Japan’s whaling programme in the Antarctic (JARPA II) violated three provisions of the Schedule to the International Convention for the Regulation of Whaling (ICRW) and ruled that it must immediately cease all whaling under JARPA II.
Former Environment Minister Peter Garrett was "absolutely over the moon" at the successful conclusion to the case he launched in May 2010. He told ABC News:
"To have this ruling from the international court, which is absolutely clear and totally comprehensive, vindicates the decision that we took in taking Japan to the court."
Previously, Prime Minister Tony Abbott had expressed concerns about the case, saying that while he was not in favour of whaling:
"We don’t want to needlessly antagonise our most important trading partner, a fellow democracy, an ally."
However, Attorney-General George Brandis has today played down these concerns, ahead of the upcoming free trade talks between the two nations. He stressed to the Sydney Morning Herald that the whaling question was a "single issue" and stated that it was a "testament to the strength of the relationship" that both Australia and Japan understood it as such.
The International Court of Justice Decision
As previously reported on TimeBase (see Australia Attacks Scientific Basis of Japanese Whaling in International Court), the case revolved around jurisdictional disputes and the interpretation of Article VIII of the ICRW.
Japan firstly claimed that the ICJ should not have jurisdiction to hear the case because Australia had previously made a reservation to the Court’s jurisdiction which referred to disputes concerning "the delimitation of maritime zones" or "arising out of, concerning, or relating to the exploitation of any dispute area of or adjacent to any such maritime zone pending its delimitation." The Court rejected this argument as it did not feel the current dispute fell into the category of maritime delimitation, which was necessary to activate the exemption.
The Court then examined the exception under Article VIII, paragraph 1 of the ICRW, which allows some whaling "for purposes of scientific research." The Court determined that there were two cumulative elements to this phrase – the whaling programme must involve scientific research and the activities must be "for purposes of" this research. Although it found that JARPA II could be broadly characterized as "scientific research", it considered that its design and implementation were not reasonable in relation to achieving its stated objectives. The Court found that there was:
"no evidence of any studies of the feasibility or practicability of non-lethal methods, either in setting the JARPA II sample sizes or in later years in which the programme has maintained the same sample size targets."
The Court also highlighted additional flaws in the programme – the gap between target sample sizes and the actual take, the open-ended time frame, the limited scientific output, and the lack of co-operation with other research programmes in the Antarctic Ocean.
As a result, the Court found that JARPA II did not fall under the scientific research exception. It therefore found that Japan had violated:
- "the moratorium on commercial whaling in each of the years during which it has set catch limits above zero for minke whales, fin whales and humpback whales under JARPA II;
- the factory ship moratorium in each of the seasons during which fin whales were taken, killed and treated under JARPA II; and
- the prohibition of commercial whaling in the Southern Ocean Sanctuary in each of the seasons during which fin whales have been taken under JARPA II."
Australia failed to establish a separate allegation that Japan had additionally violated another requirement to provide the Secretary to the International Whaling Commission with proposed scientific permits, and the Court found that Japan had complied with these requirements.
The 16-judge panel, which was led by presiding judge Peter Tomka of Slovakia, split twelve votes to four on most of its findings.
Reaction from Japan
ABC News reported that while Japan had said it is "deeply disappointed" with the decision, it will comply with the ruling, which is final and cannot be appealed.
The case has been a very controversial one. Japan’s counsel, Payam Akhavan, is reported in the Sydney Morning Herald as saying:
"[Australia] has politicised science in order to impose Australian values on Japan in disregard for international law."
Former Attorney-General Mark Dreyfus previously told the Sydney Morning Herald that the case was not a "civilising mission" but was simply about "one country’s failure to comply with its legal obligation".
According to the International Fund for Animal Welfare, Japanese whalers killed 10,439 minkes and 15 fin whales from the 1986 moratorium until the end of the 2013 season, with the number for last season yet to be released.
The case was a significant one for international environmental law – as Shadow Attorney-General Mark Dreyfus told ABC News, it marked:
"the first time that there had been litigation in the International Court of Justice about an environmental treaty"
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
