Whaling In The Antarctic: Going Through The New Zealand Intervening Case
Updated: Jan 20
Australia .v. Japan
International Convention for the Regulation of Whaling is an agreement signed in 1946 to conserve whales and manage the whaling industry. The International Whale Commission is an intergovernmental body that aims at the conservation of whales and the management of whaling set up under the convention. Article VIII of the Convention allows the contracting government to grant special permits to kill whales for scientific purposes. In 1950, the Commission established a Scientific Committee which reviews and comments on special permits before they are issued by States parties to their nationals, for scientific research under Article VIII of the Convention. In 1982, the IWC amended the Schedule of the Convention to adopt a moratorium on commercial whaling.
The JARPA program was granted special permits under Article VIII, paragraph 1, of the Convention. The 1987 JARPA Research Plan was a program for research on the southern hemisphere minke whale and preliminary research on the marine ecosystem in the Antarctic. For over 18 years of JARPA I, around 6,700 minke whales were killed. In 2005, Japan submitted the JARPA II plan to the Scientific Committee that contemplates lethal sampling of three whale species (Antarctic Minke whales, fin whales, and humpback whales). It launched the program in November 2005, although the review from the scientific committee came only around in December 2006.
Australia alleged in ICJ that Japan through its JARPA II program has violated its obligations under the convention, such as the obligation to respect the moratorium on the killing of whales and not to undertake commercial whaling of fin whales in the Southern Ocean Sanctuary. Japan Contests all of these allegations.
Whether the design and implementation of JARPA II are reasonable with achieving the program's stated research objectives?
Whether JAPAN has violated the moratorium on commercial whaling, Factory ships, and southern ocean sanctuary?
The court finds with twelve votes to four that the special permits granted by Japan in connection with JARPA II do not fall within the provisions of Article VIII of the convention.
The court decides by twelve votes to four that Japan shall revoke any permit or alike granted for JARPA II, and refrain from granting any further permits in pursuance of that program.
The court finds that lethal sampling is not reasonable with its research objectives. The sample size in JARPA II has extensively increased compared to JARPA I and has included two new whale species and therefore not in line with achieving the objectives of the program. Evidence shows that the objectives could be achieved with the far less same size and the experts called from both sides agree that the determination of sample size lacks transparency. The limited scientific output from the program and the absence of cooperation between JARPA II and other related research projects cast doubt on the intent of the program. Therefore the court concluded that the special permits granted by Japan are not for purposes of research as per Article VIII.
Through the JARPA II program, the catch limit has been set at 850 Minke whales, 50 fin whales, and 50 humpback whales. Japan has not acted in conformity with the moratorium on commercial whaling as it requires it to maintain it's catch limit at zero. Regarding the Factory shop moratorium, Japan has not acted in its conformity as factory ships and other vessels have been used to hunt, tow, and hold whales. With regards to the Southern Ocean Sanctuary that has been established, JARPA II operates in the sanctuary and therefore not in conformity with the same either.
In his dissenting opinion, hon’ble Otawa.J states that the issue was to ascertain whether the activities of JARPA II were for scientific purposes and not to whether it has achieved excellence as a project. Agreed that the program has its defects and is far from perfect but that cannot be the sole reason to attribute the activities as commercial whaling, hon’ble Abraham.J in his dissenting opinion disagrees with the court and states that there is no mismatch between the sample size and the JARPA II objectives and the program was for purposes of scientific research.
The judgment had carefully separated legal issues from scientific ones. It had called upon experts from Japan and Australia and agreed on what both of them commonly agreed to on questions involving scientific interpretation. The interpretation of purposes of scientific research was done as part of treaty interpretation and also taking into consideration the expert opinions. The Government of Japan however has withdrawn from the International Convention for Regulation of Whaling back in 2019. It has also resumed commercial whaling activities in its territorial waters and exclusive economic zones although it can no more kill in the High seas for scientific purposes as it has withdrawn from the convention that allows it to do so.
ABOUT THE AUTHOR
Santhiya KS is currently pursuing Law at the Tamil Nadu National Law University.
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Edited By: Swathi. Ashok. Nair
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