Australia wins against Japan in the ICJ

Nearly four years after the initial application, Australia[1] has won its case against Japan regarding “Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II)”.

Japan fought Australia’s action on two major grounds:

I Jurisdiction:

The court rejected Japan’s argument about jurisdiction in their entirety. Japan argued that Australia didn’t have sovereignty over the areas from which the whales were taken and that the ICJ jurisdiction didn’t apply. The court simply pointed out that that it was basically immaterial whose sovereign waters the whales were taken from as the present dispute was about whether or not Japan’s activities were compatible with its obligations under the International Convention for the Regulation of Whaling (ICRW).

Japan’s objection to jurisdiction is therefore rejected unanimously.

II Article VIII of the ICRW:

Article VIII of the ICRW allows states to take whales for scientific research and so the interpretation of this provision was a large part of the court’s reasoning. Firstly, the court decided that whether the rationale is scientific or not ‘cannot depend on that state’s perception’ and so undertook examination of the program themselves. The court found that, broadly speaking, JARPA II can be characterised as scientific research. However, it was further found that when taken as a whole “the evidence does not establish that the programme’s design and implementation are reasonable in relation to achieving its stated objectives”.

Therefore, the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the Convention.

Implications:

Japan was found to have breached (i) the moratorium on whaling every year that it ‘set catch limits of more than zero for minke, fin and humpback whales’, (ii) the factory ship moratorium, and (iii) the prohibition on commercial whaling in the Southern Ocean Sanctuary. There were no real further implications of this, the court simply declared a series of breaches.

Remedies:

The Court ordered that all licenses under JARPA II be revoked and to grant no further permits under Art VIII of the ICRW.

Notes on the judgment.

The ICJ sits as a panel of 16 judges in each case. It should be noted here that aside[2] from the jurisdictional issue which was unanimously held, Judges Owada (Japan), Abraham (France), Bennouna (Morocco) and Yusuf (Somalia) dissented on every point.

[1] New Zealand was also involved after availing itself of the right to participate as a non-party.

[2] And one minor point on Japan’s compliance with other treaties.