Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
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Overview of the case
On 31 May 2010, Australia instituted proceedings against Japan in respect of “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’), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (‘ICRW’), as well as its other international obligations for the preservation of marine mammals and the marine environment”.
As basis for the jurisdiction of the Court, Australia invoked the provisions of Article 36, paragraph 2, of the Court’s Statute, referring to the declarations recognizing the Court’s jurisdiction as compulsory made by Australia and Japan on 22 March 2002 and 9 July 2007, respectively.
On 20 November 2012, New Zealand filed in the Registry a declaration of intervention in the case. Relying on Article 63, paragraph 2, of the Statute, it contended that, as a party to the ICRW, it had a direct interest in the construction that might be placed upon the Convention by the Court in its decision in the proceedings.
In an Order of 13 February 2013, having noted that New Zealand met the requirements set out in the Statute and the Rules of Court, the Court found that the declaration of intervention was admissible. Public hearings were held from 26 June to 16 July 2013, during which oral arguments were presented by Australia and Japan, and the experts that each Party had asked to be called were heard by the Court. New Zealand presented oral observations on the subject‑matter of its intervention.
In its Judgment rendered on 31 March 2014, the Court first found that it had jurisdiction to entertain the case, rejecting Japan’s argument that the dispute fell within the scope of a reservation contained in Australia’s declaration recognizing the Court’s jurisdiction as compulsory. It then turned to the question of the interpretation and application of Article VIII of the 1946 Convention, paragraph 1 of which states that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research”.
With respect to the interpretation of this provision, the Court noted that even if a whaling programme involves scientific research, the killing, taking and treating of whales pursuant to such a programme does not fall within Article VIII unless these activities are “for purposes of” scientific research. To determine this point and, in particular, to ascertain whether a programme’s use of lethal methods is for purposes of scientific research, the Court considered whether the elements of a programme’s design and implementation were reasonable in relation to its stated scientific objectives.
Regarding the application of Article VIII, paragraph 1, the Court noted that JARPA II could broadly be characterized as “scientific research”. However, it considered that the evidence before it did not establish that the programme’s design and implementation were reasonable in relation to achieving its stated objectives. The Court concluded that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II were not “for purposes of scientific research”, pursuant to Article VIII, paragraph 1, of the 1946 Convention.
The Court then turned to the implications of that conclusion, in light of Australia’s contention that Japan had breached several provisions of the Schedule annexed to the Convention. Having found that Japan had indeed breached some of the provisions invoked (namely the moratoriums on commercial whaling and factory ships, and the prohibition on commercial whaling in the Southern Ocean Sanctuary), it considered the question of remedies. Since JARPA II was an ongoing programme, it ordered Japan to revoke any extant authorization, permit or licence to kill, or take or treat whales in relation to it, and to refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme.
This overview is provided for information only and in no way involves the responsibility of the Court.