The ICJ’s Decision on Whaling in the Antarctic: Background and Implications

On 31st of March 2014, the International Court of Justice (ICJ) delivered a landmark judgement in the case involving Australia, Japan and New Zealand. The subject matter of the case centred on the violation of international obligations enshrined in the International Convention for the Regulation of Whaling. In 2010 Australia filed an application with the ICJ alleging that the Japan’s scientific whaling programme violated several provisions of the schedule International Convention for the Regulation of Whaling. It implored the ICJ to order Japan to halt the programme. There are several issues in contention in the case, including the jurisdiction of the Court, interpretation of Article VIII, Paragraph 1 of the International Convention for the Regulation of Whaling, application of Article VIII, Paragraph 1 to JARPA II and examination of alleged violations of the Schedule.

In a case of this nature jurisdiction plays a critical role. This is because any country filling applications with the ICJ must accept its compulsory jurisdiction. At the same time, the respondent state must accept the ICJ’s jurisdiction (Art. 36(2) ICJ Statute). Since 2002, Australia had deposited its declarations accepting the compulsory jurisdiction of the ICJ with the exception of any dispute “relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf” while Japan accepted the court’s jurisdiction in 2007. As a result, Japan contended that the court lacked jurisdiction to determine the application because it fell within Australia’s reservation contained in its declaration, which referred to disputes concerning “the delimitation of maritime zones”. However, the court overruled the objection on the ground that the subject matter of the case was not expressly related to the delimitation of maritime zones, although it could be argued that the delimitation of maritime zones was implied in the subject matter. Japan’s exploitation of whales for scientific research covered maritime areas under the sovereign jurisdiction of Australia or adjacent to it.

In questions regarding the jurisdiction of the court, the ICJ has the power to determine whether it has jurisdiction over a dispute or not even where the parties think otherwise. A state may consent directly or indirectly to the ICJ’s jurisdiction. Direct consent to the jurisdiction of the ICJ may come by way of declaration whereas indirect consent may be derived from a bilateral agreement which vests jurisdiction on the ICJ or a treaty where a state is a party and the treaty adopts compulsory jurisdiction of the ICJ. For example, in Mexico v. United States of America, the ICJ assumed jurisdiction, despite the withdrawal of the US from the court’s compulsory jurisdiction in 1986. The ICJ assumed jurisdiction simply because ‘Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes, which accompanied the Vienna Convention on Consular Relations’ vested jurisdiction on the ICJ.

In a similar dispute involving Japan, Australia and New Zealand, the merits centred on the unilateral experimental fishing programme (UEFP) for Southern Bluefin Tuna population engaged by Japan. New Zealand and Australia claimed that the UEFP violated the provisions of United Nations convention for the Law of the Sea (UNCLOS) and Convention for the Conservation of Southern Bluefin Tuna (CCSBT). The question at issue was whether the International Tribunal for the Law of the Sea (ITLOS) would have jurisdiction under UNCLOS or whether the dispute should be settled according to the dispute procedure agreed under the CCSBT. However, the parties agreed to submit the dispute to arbitral tribunal VII under UNCLOS, but pending the constitution of the arbitral tribunal, New Zealand and Australia applied for order of Provisional Measures at ITLOS to stop Japan from engaging in UEFP. Japan argued that ITLOS could not exercise jurisdiction or prescribe provisional measures because, there was procedure agreed under the CCSBT for settlement of dispute. ITLOS overruled Japan’s argument by prescribing provisional measures. However, the arbitral tribunal which later determined the case ruled otherwise by revoking the preceding orders for provisional measures granted by ITLOS. The arbitral tribunal ruled that it lacked jurisdiction to determine the merit of the case because in its view the CCSBT had precluded the application Article 281(1) of UNCLOS. Unlike the ICJ, the Arbitral Tribunal failed to adjudicate on the merits of the dispute but instead, focused on a mere legal technicality regarding jurisdiction.

Another issue of contention in the instant case was the interpretation of Article VIII, Paragraph 1 of the International Convention for the Regulation of Whaling and its application to JARPA II. Article VIII, Paragraph 1 provides that:
“Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.”

Japan’s scientific whaling programme, JARPA II, derived its power from this section. The purposes of conducting whaling scientific research are to achieve the core objectives of the convention. However, serious allegations have been made against Japan on its hunt for whales and other related marine mammals by conservationists as not serving the purposes of scientific research but commercial gains. The decision of the ICJ confirmed this allegation. The court observed that killing of 3,600 minke whales and a number of fin whales from 2005 had limited contribution to scientific research. Instead the whaling hunt served Japan’s political and economic interests. The lethal method of hunting whales employed by Japan was criticised by the court. Japan’s hunting of whales also failed the interpretation “for purposes of scientific research”. This is not the first time that Japan has misused exceptions accorded for the purposes of scientific research by engaging in commercial whaling or fishing. There was a similar allegation against Japan in the Southern Bluefin Tuna Case.

The court, however, held that the JARPA II Research Plan engaged by Japan amounted to scientific research but failed characterization as a programme for purposes of scientific research, as JARPA II lacked co-operation with other domestic and international research programmes in the Antarctic Ocean.

The Implication of the Court Decisions
The decisions of the ICJ have halted scientific whaling by Japan on grounds of it being a cover-up for commercial whaling. In this dispute, the ICJ remains a United Nations court of repute for taking a decisive decision that will reshape global responses in conservation of marine mammals such as whales. The failure of the UNCLOS’s Arbitral Tribunal Southern Bluefin Tuna Case to take decisions on the merits of the dispute will limit the application of UNCLOS as a framework convention on issues relating to the marine environment. This decision remains a strong ruling, which was not unexpected by the ICJ and it will affect the image of Japan abroad. Japan’s penchant for whales and other related animals such as Bluefin Tuna has been criticised by several environmental groups. For example, environmental groups such as the Sea Shepherd Conservation Society “[have] sent several ships to the remote and icy waters to block and harass Japan’s whaling fleet”. Compliance with this decision will reduce the costs of preservation and conversation of marine resources by various environmental groups.

Settlement of international disputes through litigation after diplomatic means have failed is a welcome development in International Law. Since the decisions of the ICJ are binding, it demonstrates how responses to international obligations by state actors can be reshaped. Noriyuki Shikata, the spokesman of Japanese Foreign Ministry said, “as a state that respects the rule of law … and as a responsible member of the global community, Japan will abide by the ruling of the court”. It is hoped that this decision will strengthen the protection and preservation of the living marine resources.