The ICJ Got it Right: Why Japan’s Whaling Practices Could Not Pass as Scientific Research
In a case that took almost four years to play out, the International Court of Justice (ICJ) has finally handed down a decision in Whaling in the Antarctic (Australia v. Japan). On May 31, 2010, Australia filed its application instituting proceedings against Japan over Japan’s controversial JARPA II (Japanese Whale Research Program under Special Permit in the Antarctica) program, which commenced in late 2005. Australia alleged that Japan was breaching its obligations under international law, specifically, those obligations outlined in the International Convention for the Regulation of Whaling (ICRW). As remedies, Australia requested that the ICJ declare Japan to be in breach of their international obligations in their implementation of JARPA II, to cease JARPA II activities, to revoke any authorizations and permits allowing activities, and to have Japan provide assurances and guarantees that they will take no further action under JARPA II—essentially Australia was looking for the immediate cessation of whaling activities by Japan in the regions in question.
The portions of the ICRW in question are Article VIII, paragraph 1; paragraph 10(e) of the Schedule to the ICRW; paragraph 10(d) of the Schedule; and paragraph 7(b) of the Schedule. For the purposes of laying a foundation, a summary of each is provided:
|Article VIII, paragraph 1||Party may grant to its nationals a special permit authorizing that national to kill, take or treat whales for scientific research; actions pursuant to this Article are exempt from the operation of the Convention.|
|Paragraph 10(e) of Schedule||Catch limits for the killing for commercial purposes of whales from all stocks, starting with the 1985/1986 season shall be ZERO. Japan objected at first then withdrew its objection.|
|Paragraph 10(d) of Schedule||No taking, killing or treating whales, except minke whales, by factory ships or whale catchers attached to factor ships.|
|Paragraph 7(b) of Schedule||Prohibits commercial whaling in the Southern Ocean Sanctuary region. Objected to by Japan.|
Australia believed that Japan was conducting commercial whaling activities under the guise of scientific research. By way of example and explanation for that hypothesis, Australia noted the following in its Application:
- Around the same time that Japan purportedly ceased commercial whaling, they launched JARPA, under the context of Article VIII, paragraph 1 of the Convention.
- In the seasons between 1987 and 2005, Australia alleged that Japan had killed approximately 6,800 Antarctic minke whales, compared to the 840 Japan had killed globally for scientific research in the thirty-one (31) years prior to the moratorium (prior to the limit being set at zero by paragraph 10(e) of the Schedule to the Convention).
- JARPA II commenced in 2005, this time including fin and humpback whales along with minke whales, in the quota numbers.
- Japan refused to consider or comply with recommendations of the International Whaling Commission (IWC).
Japan continued to contend that the purpose of JARPA II was to “undertake research on the appropriate means of managing whaling.”
The ICJ was faced with a task of applying the Convention and its Schedule to Japan’s controversial JARPA II program. The ICJ, in doing so, did not find it necessary, and did not feel that it was called upon, to resolve any matters of scientific or whaling policy, as the court understood that the global community’s views differ on whaling. Therefore, the ICJ carefully articulated the appropriate standard of review for examining a grant of a special permit that authorizes the killing, taking and treating of whales pursuant to Article VIII, paragraph 1 of the Convention—they must determine 1) whether scientific research is involved and 2) whether the program’s design and implementation are reasonable, in the use of lethal methods, to achieving the program’s stated objectives. While Australia provided a set of characteristics of scientific research, the ICJ declined to agree or provide their own list of criteria. Instead, they focused on whether the use of lethal methods is for purposes of scientific research. Considerations for this include any decisions regarding use of lethal methods, the scale of lethal sampling, the methodology Japan used in determining sample sizes, target sample sizes versus actual take, timeline of the program, the scientific output of the program, and how much, if at all, the program coordinates with other scientific research programs or activities that are related to the object of Japan’s program. Note that the intentions of the government officials are not included in the list of considerations posited by the Court.
In applying these considerations to the Japan’s JARPA II program, the ICJ faulted Japan in many areas:
- There was no finding that Japan conducted any studies on the possibility of using non-lethal methods, in setting sample sizes, or maintaining sample sizes.
- There was no finding that Japan conducted studies regarding whether fewer lethal samples and more non-lethal samples.
- The objectives and methods were quite similar between JARPA and JARPA II, so the court questioned why Japan was doubling the sample sizes for Antarctic minke whales and now also including samples of fin whales and humpback whales.
- Japan was taking significantly fewer whales than what the target sample sizes called for, but still maintained those targets without any explanation.
- The timeframe is not determinable and does not have a terminating date in sight.
- Only two papers resulted from the first 6-year phase of the program, and the court found that the papers do not even relate to the stated objectives of JARPA II.
- The level of cooperation with other research projects and programs was insufficient.
Because the objectives between JARPA and JARPA II were so closely related and similar, the ICJ found it unreasonable for such an increase in sample sizes and the inclusion of two additional species. Furthermore, the take levels, with the exception of the first two seasons of the JARPA II program, had been significantly less than the target sample levels, with no adjustment to the target levels to match the actual take numbers while Japan continued to rely upon JARPA II’s research objectives to justify the use and extent of lethal sampling called for in the program. Furthermore, the open-ended timeframe of the JARPA II program along with the lack of scientific contribution or output and lack of cooperation with other related scientific projects did not give the impression of a legitimate scientific research program.
For the foregoing reasons, the ICJ found, in a 12-4 decision, that even though the activities of the program could generally be deemed as scientific research, the evidence demonstrated that the design and implementation of the program were not reasonable to meet the stated objectives of JARPA II. What does this mean for Japan? The activities associated with JARPA II are not being conducted for the purposes of scientific research, and therefore, the exception permitted within Article VIII, paragraph 1, of the ICRW, does not apply to Japan’s program. Because Japan’s activities cannot legally be characterized as scientific research, Japan is in breach of paragraph 10(e), 10(d), and 7(b) of the Schedule of the ICRW. As such, the ICJ ordered Japan to revoke all permits issued under JARPA II and to refrain from granting any more. 
The ICJ seemed to be extremely cautious to avoid delving into the intricacies of scientific explanation and reasoning. The Court believed, as they echoed in their judgment, that they can reach a decision through objective reasoning regarding whether the design and implementation of the program in question were reasonable in light of the program’s objectives, without conducting a scientific analysis of the activities, methods, or policy themselves. Leaving science to scientists seemed to be the goal of the ICJ in this case—and that was probably a wise decision. Having the history of the JARPA program certainly assisted the Court in its analysis of the reasonableness of JARPA II’s methods. However, because the Court did not rely solely on the comparison between the two programs in their analysis of whether the methods were reasonable to the objectives, I believe that the standard of review articulated by the ICJ in Whaling in the Antarctic will still be applicable to future situations and cases where the program potentially in question is the first of its kind for that country—meaning that there would be no historical program perspective. I am of the opinion that the ICJ got the analysis correct. Taking all of the evidence together, Japan’s design and implementation of JARPA II combined with the lethal sampling were not reasonable in achieving the program’s stated objectives. I believe that Japan was utilizing Article VIII, paragraph 1, of the ICRW as a loophole to the moratorium on commercial whaling, to which they originally objected but then withdrew.
Whether or not Japan will adhere to the ICJ ruling is a question that will be answered in the coming years. The ICJ and the international community anticipate Japan’s adherence to the decision. Japan has halted their whaling plans for the upcoming 2014-2015 season. However, there are already reports of plans to head back to the Antarctic to conduct whaling activities following the 2014-2015 season.
Jillian Bokey is a CICL Fellow for 2013/2014 and is a fourth-year, part-time evening student at the University of Baltimore School of Law. She is a graduate of the Pennsylvania State University where she received a B.S. in Business Management with a minor in the Legal Environment of Business. Jillian is the Managing Editor for the University of Baltimore Journal of International Law. While in law school, she was Director of Client Employee Relations at Tidewater Property Management, Inc. However, she has now begun her transition into a legal career, accepting a position as a law clerk at a firm in Annapolis as of January 2014. For Jillian, studying international law is interesting because it applies across different areas of practice. She is also interested in how various countries view and interpret international law and how that affects the progression of international law.
 Whaling in the Antarctic (Austl. v. Japan: NZ intervening), Application Instituting Proceedings [hereinafter Application] (May 31, 2010), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=0.
 Id.; International Convention for the Regulation of Whaling [hereinafter ICRW], art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72; ICRW, Schedule, ¶¶ 7(b), 10(e), 10(d).
 Application, supra note 1.
 Whaling in the Antarctic (Austl. v. Japan: NZ intervening), Summary of the Judgment of 31 March 2014, 4 (Mar. 31, 2014), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=5
 Id. at 5.
 Id. at 6.
 Id. at 6-7.
 Id. at 7.
 Id. at 8.
 Id. at 8-9.
 Id. at 9.
 Id. at 9-10. Note that they are in breach of paragraph 7(b) only as to the taking of fin whales and not to Antarctic minke whales since Japan objected to this paragraph at the time it was created. Id.
 Id. at 10.
 See Japan Cancels Next Antarctic Whaling Hunt after ICJ Ruling, Global Times (Apr. 3, 2014, 11:38pm), http://www.globaltimes.cn/content/852633.shtml.
 See Andrew Darby, Japanese Whalers Plan New Antarctic Hunt, sydney morning herald (Apr. 12, 2014, 1:56pm), http://www.smh.com.au/environment/japanese-whalers-plan-new-antarctic-hunt-20140412-36jnf.html; See Japan Cancels Next Antarctic Whaling Hunt after ICJ Ruling, Global Times (Apr. 3, 2014, 11:38pm), http://www.globaltimes.cn/content/852633.shtml.