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ICJ Halts Antarctic Whaling – Japan Starts Again

  • Cymie R. Payne (a1)
Abstract

The International Court of Justice (ICJ) judgment in Whaling in the Antarctic, a dispute brought by Australia against Japan, found that Japan had violated the International Convention for the Regulation of Whaling (ICRW) moratoria on all commercial whaling and the use of factory ships to process whales, and also the prohibition on whaling in the Southern Ocean Sanctuary. In the course of analyzing whether special permits issued by Japan qualified for the scientific whaling exemption under Article VIII ICRW, the Court benefited from a more robust scientific fact-finding process than at times in the past. The judgment emphasized the mutual obligations of this multilateral agreement by taking the view that the provisions of the ICRW’s scientific whaling exemptions are neither self-judging nor subject to a ‘margin of appreciation’ in favour of a state party claiming the exemption. The case was driven by conflicting attitudes towards commercial whaling, and also towards global common spaces. The ICJ’s decision and Japan’s response indicate the limits of the ICRW in resolving those differences.

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I thank Timo Koivurova, Anastasia Telesetsky, and three anonymous reviewers for their thoughtful comments and suggestions; any errors are my own. This commentary is based on an article previously published in 18(9) ASIL Insights (Apr. 2014).

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1 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, 31 Mar. 2014, available at: http://www.icj-cij.org/docket/files/148/18136.pdf (Judgment).

2 Washington, DC (US), 2 Dec. 1946, in force 10 Nov. 1948, available at: https://iwc.int/convention.

3 These requirements are found in para. 30 of the ICRW Schedule, Panama City (Panama), 2 Jul. 2012, in force 4 Feb. 2013, available at: http://iwc.int/private/downloads/1lv6fvjz06f48wc44w4s4w8gs/Schedule-February-2013.pdf. See also Judgment, para. 242. Judge Sebutinde voted against this because in her view Japan had breached its ‘substantive duty of meaningful co-operation with the IWC and its subordinate organs such as the Scientific Committee’: Judgment, Separate Opinion of Judge Sebutinde, para. 15, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. Judge Bandhari dissented from this part of the judgment, viewing Japan’s formal compliance with para. 30 by submitting its permits to the IWC as falling short of substantive compliance, which would have entailed ‘an on-going dialogue with the Scientific Committee’: Judgment, Separate Opinion of Judge Bhandari, paras 18–9, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. Judge Bhandari would also have preferred the Court to make a finding that JARPA II is a commercial whaling programme: Judgment, Separate Opinion of Judge Bhandari, ibid., paras 21–36. Judge Charlesworth also dissented, seeing Japan as having breached para. 30 by failing to satisfy the duty of cooperation, which she viewed as central to the structure of the ICRW: Judgment, Separate Opinion of Judge Charlesworth, paras 11–7, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

4 Judgment, para. 227.

5 Ibid., para. 246.

6 See Mare, W. de la, Gales, N. & Mangel, M., ‘Applying Scientific Principles in International Law on Whaling’ (2014) 345(6201) Science, pp. 11251126. Note that Gales and Mangel acted as scientific expert witnesses for Australia in this case.

7 On 6 Feb. 2013, the ICJ confirmed New Zealand’s right to intervene based on its status as a party to the ICRW. Japan did not object to New Zealand’s intervention, but it did raise a number of concerns that it urged the ICJ to consider in that Australia was obtaining a form of double representation (i) through New Zealand’s identical interest in the dispute, and (ii) by having a judge of New Zealand nationality on the ICJ as well as a judge appointed ad hoc by Australia. For Australia, New Zealand’s intervention was admissible. The IWC was informed of Australia’s application by the ICJ and replied that it would not submit observations, which would have been allowed under Art. 69(3) of the ICJ Rules of Court.

8 ICRW Schedule, n. 3 above.

9 Art. V(3) ICRW, in which a party may object within 90 days after a Schedule amendment is voted upon, which will delay the coming into effect of the amendment for a further 90 days; further objections may be made during this period, which can be further extended to 30 days after the last received objection; the amendment is then ineffective for any objector until the objection is withdrawn.

10 Japan explained that ‘[t]he proceeds obtained through the sales of by-products are allocated to the expenditure associated with conducting special permit whaling: the sales do not seek commercial gain’: Counter-Memorial of the Government of Japan, Whaling in the Antarctic (Australia v. Japan), 9 Mar, 2012, para. 37.

11 Chair’s Report of the 65th Meeting, 31 Oct. 2014, para. 27 (Chair’s Report).

12 A South Atlantic Whale Sanctuary is under discussion, with a Scientific Committee report due in 2016: ibid., at para. 28. This new sanctuary proposal is opposed by a number of countries, including Japan: ibid., at paras 81–2.

13 ICRW Schedule, n. 3 above, notes to paras 6 and 7(b). A brief history of Japan’s objections is provided in the Judgment, para. 100. Japan’s legal argument in this case is, however, that ‘this dispute is not about the legality of JARPA II under any rules of international law other than Article VIII of the ICRW’: Counter-Memorial of Japan, n. 10 above, para. 9.

14 JARPN II (Second Phase of the Japanese Whale Research Program under Special Permit in the Western North Pacific) also uses lethal take, which in 2012 included 74 common minke, 100 sei, 34 Bryde’s and three sperm whales: International Whaling Commission (IWC), ‘Report of the Scientific Committee’, SC/65a, 2013, at p. 79, available at: http://tinyurl.com/IWCReport.

15 Judgment, para. 202.

16 UN, San Francisco, CA (US), 26 June 1945, in force 24 Oct. 1945, available at: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.

17 Judgment, paras 32–3.

18 Ibid., paras 34–5.

19 Ibid., paras 36–41.

20 Application, para. 36.

21 Ibid., para. 38. CITES, Washington, DC (US), 3 Mar. 1973, in force 1 July 1975, available at: http//:www.cites.org; CBD, Rio de Janeiro (Brazil), 5 June 1992, in force 29 Dec. 1993, available at: http://www.cbd.int/convention/text. Sand, P.H., ‘Japan’s “Research Whaling” in the Antarctic Southern Ocean and the North Pacific Ocean in the Face of the Endangered Species Convention’ (2008) 17 Review of European Community and International Environmental Law, pp. 5671.

22 Judgment, para. 131.

23 Ibid., para. 52.

24 Declaration of Intervention pursuant to Article 63 of the Statute by the Government of New Zealand, Whaling in the Antarctic (Australia v. Japan), 20 Nov. 2012, para. 16.

25 Judge Xue’s Separate Opinion offers an alternative analysis that gives greater weight to the discretion afforded states by Art. VIII, limited by the regulatory regime of the Convention and a duty of good faith. In her view, JARPA II is a programme for scientific research; Japan is in breach of its obligation because the scale of permits it granted under JARPA II may have an adverse impact on the moratorium on commercial whaling: see Judgment, Separate Opinion of Judge Xue, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

26 Judgment, para. 61.

27 Ibid., para. 67.

28 Ibid., paras 89–97. Judge Yusuf differed from this approach; in his view, it was ‘paradoxical that a programme that is broadly characterized as scientific research is considered by the majority not to be “for purposes of scientific research”, particularly without its qualification as commercial whaling under Article VIII, paragraph 4, of the ICRW and without a definition of the words “scientific research”’: Judgment, Dissenting Opinion of Judge Yusuf, para. 5, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

29 Judgment, para. 67. Judge Owada objected to the entire investigation, writing ‘it would be impossible for the Court to establish that certain activities are objectively reasonable or not, from a scientific point of view, without getting into a techno-scientific examination and assessment of the design and implementation of JARPA/JARPA II, a task which this Court could not and should not attempt to do’: Judgment, Dissenting Opinion of Judge Owada, para. 25, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. In his view, the role of the Court is ‘to assess whether this determination of the Contracting Government in question is objectively reasonable, in the sense that the programme of research is based upon a coherent reasoning and supported by respectable opinions within the scientific community of specialists on whales, even if the programme of research may not necessarily command the support of a majority view within the scientific community involved’: ibid., para. 42.

30 Judgment, para. 67.

31 Ibid., para. 89.

32 Ibid., paras 73–86.

33 Ibid., para. 74. A related question is the admissibility of scientific evidence proffered by a party – that is, does it pass a threshold test of reliability so that it may be considered as part of the case? Caroline Foster contrasts international adjudication where ‘free admissibility of evidence is the guiding principle’ and the approach used in domestic courts of the US that, based on the influential writings of Karl Popper and Carl Hempel, assesses the admissibility of scientific evidence according to whether it is ‘derived by scientific method, and indicators of its validity include its testability or falsifiability, subjection to peer review, publication, the error rate in the techniques used, as well as the broader acceptance of the opinion in the scientific community’: Foster, C.E., Science and the Precautionary Principle in International Courts and Tribunals (Cambridge University Press, 2011), at pp. 12–14.

34 Judgment, para. 75.

35 Ibid., para. 127.

36 Judge Charlesworth explained that in her view the ICJ should have interpreted this issue according to the precautionary approach, endorsed by both parties, to find that non-lethal methods of research should be used whenever possible: Judgment, Separate Opinion of Judge Charlesworth, n. 3 above, paras 6–10.

37 Judgment, para. 137 (summary), and paras 138–44 (discussing Japan’s failure to provide evidence that its scientists had analyzed the use of lethal versus non-lethal methods or size of lethal take and Japan’s use of cost as a factor).

38 Ibid., paras 177–8, 194, 196.

39 Ibid., para. 179.

40 Ibid., paras 180–1.

41 Ibid., paras 188–9, 193.

42 Ibid., paras 209–12.

43 Ibid., para. 94.

44 Ibid., para. 134.

45 Ibid., paras 223–7. Judge Abraham dissented chiefly on the basis that Australia bore a heavy burden of proof for its claim that Japan had acted in bad faith, and had failed to carry its burden: ibid., Dissenting Opinion of Judge Abraham, paras 28 and 23, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. While he agreed with several conclusions of the majority – stating, inter alia, that whether Art. VIII permits are ‘for the purposes of science’ is subject to the judgment of the bodies created by the ICRW and competent judicial bodies – Judge Abraham viewed the majority as too exigent in its demands for evidence from Japan. See also ibid., Dissenting Opinion of Judge Bennouna, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. Judge Keith, in contrast, said: ‘Nor is it for the Court to decide on the scientific merit of the programme’s objectives nor whether its design and implementation are the best possible means of achieving those objectives. But it does have the role of assessing, in the light of the features of the power mentioned in the previous paragraph, the evidence to see whether it demonstrates coherent scientific reasoning supporting central features of the programme’: ibid., Declaration of Judge Keith, para. 8, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

46 Judgment, paras 231–3.

47 Ibid., para. 245.

48 Ibid., para. 246.

49 Australia and New Zealand v. Japan (Jurisdiction and Admissibility), Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea, Award of 4 Aug. 2000, available at: http://www.worldbank.org/ icsid/bluefintuna/award080400.pdf.

50 Counter-Memorial of Japan, n. 10 above, para. 9.16 (citing Peel, J., Science and Risk Regulation in International Law (Cambridge University Press, 2010), at pp. 347–357; Button, C., The Power to Protect: Trade, Health and Uncertainty in the WTO (Hart, 2004), at. pp. 163–191, 227–35; Foster, n. 33 above, at pp. 14–7).

51 Oral Proceedings, CR 2013/17, 8 July 2013, para. 33.

52 Australia referred to a slightly different formulation of the concept of judicial deference, citing Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 6 Nov. 2003, ICJ Reports (2003), at p. 196 (‘the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any measure of discretion’).

53 E.g., Kratochvíl, J., ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29(3) Netherlands Quarterly of Human Rights, pp. 324–357.

54 Foster, n. 33 above, at p. 16. Foster discusses the consideration of deference to national decision making by the World Trade Organization (WTO) Appellate Body and in the Southern Bluefin Tuna arbitration in which Japan argued that deference should be shown to its decisions regarding its ‘experimental’ tuna fishing: ibid., at pp. 14–7. Yuval Shany argues that the ‘margin of appreciation’ doctrine has a role in fact-intensive cases, but says ‘I believe it would be deplorable if application of the margin of appreciation doctrine were to result in a significant dilution of the degree of objective legal certainty which appertains to important international law norms – for instance … whether the release of “greenhouse” gases violates environmental law. Perpetuating normative ambiguity in these and other areas of the law might encourage states to evade inconvenient legal obligations and render such obligations meaningless’: Shany, Y., ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2006) 16(5) European Journal of International Law, pp. 907–940, at 913.

55 Judgment, para. 61.

56 See Payne, C.R., ‘Pulp Mills on the River Uruguay (Argentina v. Uruguay)’ (2011) 105 American Journal of International Law, pp. 94–100.

57 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 Apr. 2010, ICJ Reports (2010) (Pulp Mills), at para. 167, available at: http://www.icj-cij.org/docket/files/135/15877.pdf.

58 Ibid., Joint Dissenting Opinion of Judges Al-Khasawneh and Simma; Declaration of Judge Yusuf, available at: http://www.icj-cij.org/docket/index.php?&case=135&code=au&p3=4.

59 Judgment, paras 14–17, 20–1.

60 Statute of the International Court of Justice, n. 16 above.

61 This former practice is discussed in Pulp Mills, n. 57 above, para. 14.

62 Chair’s Report, n. 11 above, paras 240, 243, 244–8.

63 Ibid., para. 243.

64 Ibid., para. 262.

65 Ibid., paras 299, 395.

66 Ibid., paras 252, 257, 267; Government of Japan, Minister for Agriculture, Forestry and Fisheries, ‘Policy towards the Future Whale Research Programs’, 18 Apr. 2014, available at: http://www.jfa.maff.go.jp/e/pdf/danwa.pdf.

67 Ibid., at p. 2.

68 Correspondence from J. Morishita, IWC Commissioner for Japan, to S. Brockington, Executive Secretary, IWC: ‘Letter to Dr Simon Brockington from Joji Morishita’; 19 Nov. 2014, available at: http://iwc.int/private/downloads/eweo3qmbr4ocosc48sscsg0kc/Letter%20to%20IWC%20from%20Mr.%20Morishita.pdf; Government of Japan, Proposed Research Plan for New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A).

69 A ‘discourse shift that involved a reconceptualization of whales as beautiful sentient creatures with intrinsic value’ in contrast to ‘an older industrialist treatment of whales as a source of useful products for human consumption’ is an equally important element underlying the dispute, but it was not an element of the legal arguments: see Dryzek, J.S., ‘Paradigms and Discourses’, in D. Bodansky, J. Brunnée & E. Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2007), pp. 4562, at 61.

70 J. Brunnée, ‘Common Areas, Common Heritage, and Common Concern’, in Bodansky, Brunnée & Hey, ibid., pp. 550–73, at 557.

71 Art. 136, UN Convention on the Law of the Sea (UNCLOS), Montego Bay (Jamaica), 10 Dec. 1982, in force 16 Nov. 1994, available at: http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf; Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 1 Feb. 2011, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf.

72 Judgment, Separate Opinion of Judge Cançado Trindade, para. 71, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

73 Judgment, Separate Opinion of Judge Sebutinde, n. 3 above, para. 3.

74 Chair’s Report, n. 11 above, at para. 47. Greenland is allowed to hunt whales under the aboriginal subsistence whaling exception and its most recent request is for 164 minke whales, 2 bowhead whales, 19 fin whales and 10 humpback whales off West Greenland, and 12 minke whales off East Greenland: ibid., at para. 49. Argentina criticized Greenland’s aboriginal whaling programme as having a strong commercial component: ibid., at paras 57, 66.

75 Judgment, para. 57.

76 Ibid., para. 26. Judge Cançado Trindade, in his Separate Opinion to the Order allowing New Zealand’s intervention, observed that New Zealand’s intervention was appropriate to the ICRW’s embodiment of a collective interest and that the Court should allow intervention particularly in the case of a ‘multilateral treaty like the ICRW, aiming above all at the conservation of all whales species, to the benefit of future generations in all nations’: Judgment, Separate Opinion of Judge Cançado Trindade, n. 72 above, para. 61.

77 Indeed, Judge Cançado Trindade noted that ‘the Court does not dwell upon the precautionary principle or approach in the present Judgment’, but that the parties and the intervenor did address the precautionary principle and approach: Judgment, Separate Opinion of Judge Cançado Trindade, ibid., para. 60. Judge Charlesworth discussed the relevance of the precautionary approach to the conditions in which lethal take might be used for research: Judgment, Separate Opinion of Judge Charlesworth, n. 3 above, paras 6–10.

I thank Timo Koivurova, Anastasia Telesetsky, and three anonymous reviewers for their thoughtful comments and suggestions; any errors are my own. This commentary is based on an article previously published in 18(9) ASIL Insights (Apr. 2014).

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