June 26, 2013
Whales in the Courtroom
Australia v. Japan re: whaling in the Southern Ocean
June 26, 2013 saw the opening of a landmark case about whaling at the International Court of Justice  in The Hague in the Netherlands. The case will ultimately be decided upon by the ICJ’s presiding judges and there is no appeal mechanism.
In 1982, the International Whaling Commission agreed to a moratorium on commercial whaling, which came into force in 1986.
Some countries, as is their legal right, took formal objections to this decision and so were not bound by it. Japan did not stop whaling and since 1987, it has characterized its whaling as "scientific research."
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Article VIII of the International Convention for the Regulation of Whaling allows countries to self-allocate quotas by issuing "special permits" to their own nationals for research. When the convention was agreed upon in 1946, many modern non-lethal techniques for study were not available and many believe that Japan has used this clause to circumvent the commercial whaling ban, in breach thereby of its obligations under the convention.
Japan’s "scientific whaling" has led to the deaths of more than 10,000 whales in the Southern Ocean Sanctuary, which the IWC established and intended to be a no-whaling zone.
Proceedings and arguments
Australia’s main points were:
- that Japan has continued commercial whaling and had inappropriately re-branded its activity as scientific;
- that Japan has acted in bad faith and failed to abide by the decisions and resolutions of the IWC.
New Zealand—allowed to join the case to make a short intervention—essentially supported Australia in its interpretation of the relevant treaty law.
- that Australia and its allies are seeking to change the meaning of the treaty;
- that its research is "applied science" and important for whale management;
- that the matter is outside of the jurisdiction of the ICJ.
Key issues in the debate included the refusal in 2005 of a large number of the scientists on the IWC’s Scientific Committee to review the Japanese proposal for the current phase of its Southern Ocean "research" and also why Japan had not developed non-lethal approaches in its investigations.
A landmark case
This case is precedent-setting for several reasons:
- Australia has brought a unique case on the behalf of a group of animals to the highest court on the planet.
- It is the first case that relates to endangered species that has been heard by the ICJ.
- It has focused on a debate about what does and does not constitute science (with experts being called by both sides).
- Whatever the judges decide, it is likely to change the situation at the IWC forever, with probable knock-on effects for other treaties and aspects of international law.
HSI is strongly supportive of the arguments being made by Australia and in fact first put forward the idea for this case more than a decade ago. We are grateful to Australia for taking this matter forward and hope that this will lead to the permanent end of commercial whaling in the Southern Ocean.