Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) - The Court finds that Japan's whaling programme in the Antarctic (JARPA II) is not in accordance with three provisions of the Sc

INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org

Press Release

Unofficial

No. 2014/14
31 March 2014

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)

The Court finds that Japan’s whaling programme in the Antarctic (JARPA II) is not in
accordance with three provisions of the Schedule to the International
Convention for the Regulation of Whaling

THE HAGUE, 31 March 2014. The International Court of Justice (ICJ), the principal
judicial organ of the United Nations, has today rendered its Judgment in the case concerning
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening).

In that Judgment, which is final, without appeal and binding on the Parties, the Court,

(1) finds, unanimously, that it has jurisdiction to entertain the Application filed by Australia on
31 May 2010;

(2) finds, by 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, paragraph 1, of the International
Convention for the Regulation of Whaling;

(3) finds, by twelve votes to four, that Japan, by granting special permits to kill, take and treat fin,
humpback and Antarctic minke whales in pursuance of JARPA II, has not acted in conformity
with its obligations under paragraph 10 (e) of the Schedule to the International Convention for
the Regulation of Whaling;

(4) finds, by twelve votes to four, that Japan has not acted in conformity with its obligations under
paragraph 10 (d) of the Schedule to the International Convention for the Regulation of Whaling
in relation to the killing, taking and treating of fin whales in pursuance of JARPA II;

(5) finds, by twelve votes to four, that Japan has not acted in conformity with its obligations under
paragraph 7 (b) of the Schedule to the International Convention for the Regulation of Whaling
in relation to the killing, taking and treating of fin whales in the “Southern Ocean Sanctuary” in
pursuance of JARPA II;

(6) finds, by thirteen votes to three, that Japan has complied with its obligations under
paragraph 30 of the Schedule to the International Convention for the Regulation of Whaling

with regard to JARPA II; - 2 -

(7) decides, by twelve votes to four, that Japan shall revoke any extant authorization, permit or
licence granted in relation to JARPA II, and refrain from granting any further permits in
pursuance of that programme.

I. URISDICTION OF THE COURT

The Court notes that Australia invokes as the basis of the Court’s jurisdiction the
declarations made by both Parties under Article 36, paragraph 2, of the Court’s Statute. Japan
contests the jurisdiction of the Court over the dispute submitted by Australia, arguing that it falls
within Australia’s reservation (b) contained in its declaration, which refers to disputes concerning
“the delimitation of maritime zones” or “arising out of, concerning, or relating to the exploitation

of any disputed area of or adjacent to any such maritime zone pending its delimitation”. The Court
considers that the existence of a dispute concerning maritime delimitation between the Parties to
the case is required for the reservation to be applicable. Since there is no maritime delimitation
dispute between the Parties in the Antarctic Ocean and since the current dispute is only about the
compatibility or not of Japan’s whaling activities with its obligations under the Convention, the

Court concludes that Japan’s objection to the Court’s jurisdiction cannot be upheld.

II. NTERPRETATION OF A RTICLE VIII, PARAGRAPH 1,OF THE INTERNATIONAL
CONVENTION FOR THE REGULATION OF W HALING

The interpretation and application of Article VIII of the Convention is central to the current
case. In the view of the Court, while this Article gives discretion to a State party to the Convention
to reject the request for a special permit or to specify the conditions under which a permit will be
granted, the question of whether the killing, taking and treating of whales pursuant to a requested
special permit is for purposes of scientific researchcannot depend simply on that State’s
perception.

The Court then turns to the meaning of the phrase “for purposes of scientific research” in
Article VIII of the Convention. In the view of the Court, the two elements of this phrase are
cumulative. As a result, 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. Therefore, the Court does not consider it
necessary to offer a general definition of “scientific research” and focuses its attention on the
meaning of the term “for purposes of”.

In order to ascertain, in particular, whether a programme’s use of lethal methods is “for
purposes of” scientific research, the Court considers whether the elements of such a programme’s

design and implementation are reasonable in relation to its stated research objectives. As shown by
the arguments of the Parties, these elements may include: decisions regarding the use of lethal
methods; the scale of the programme’s use of lethal sampling; the methodology used to select
sample sizes; a comparison of the target sample sizes and the actual take; the time frame
associated with a programme; the programme’s scientific output; and the degree to which a

programme co-ordinates its activities with related research projects.

III. PPLICATION OF A RTICLE VIII,PARAGRAPH 1,TO JARPA II

The Court finds that JARPA II can broadly be characterized as “scientific research”. It then
examines whether its design and implementation are reasonable in relation to achieving the

programme’s stated research objectives. - 3 -

Examining Japan’s decisions regarding the use of lethal methods, the Court finds no

evidence of any studies of the feasibility or practicability of non-lethal methods, either in setting
the JARPA II sample sizes or in later years in which the programme has maintained the same
sample size targets. The Court also finds no evidence that Japan examined whether it would be
feasible to combine a smaller lethal take and an increase in non-lethal sampling as a means to
achieve JARPA II’s research objectives.

Turning to the scale of the use of lethal methods in JARPA II, the Court notes that a

comparison between the Research Plans in JARPA II and JARPA, its predecessor programme,
reveals a considerable overlap between the two programmes’ subjects, their objectives, and their
methods. For the Court, these resemblances cast doubt on Japan’s argument that the JARPA II
objectives relating to ecosystem monitoring and multi-species competition are distinguishing
features of JARPA II that call for a significant increase in the minke whale sample size and the
lethal sampling of two additional species. The Court also notes that Japan launched JARPA II

without waiting for the final review of JARPA by the Scientific Committee (a body established by
the International Whaling Commission created under the Convention), which analyses the results
of research conducted under special permits and reviews and comments on special permits before
they are issued by States parties. The Court considers that weaknesses in Japan’s explanation for
the decision to proceed with the JARPA II sample sizes prior to the final review of JARPA lend
support to the view that those sample sizes and the launch date for JARPA II were not driven by
strictly scientific considerations.

After an extensive examination of the determination of species-specific sample sizes, the
Court notes that the evidence relating to JARPA II provides scant analysis and justification for the
underlying decisions that generate the overall sample size, raising further concerns about whether
the design of JARPA II is reasonable in relation to achieving its stated research objectives.

The Court also observes a significant gap between the JARPA II target sample sizes and the

actual take. In the view of the Court, the gap between the target sample sizes for fin and humpback
whales in the JARPA II Research Plan and the actual take of these two species undermines Japan’s
argument that the objectives relating to ecosystem research and multi-species competition justify a
larger target sample size for minke whales, as compared to that in JARPA.

The Court notes that there are three additional aspects of JARPA II which cast further doubt
on its characterization as a programme for purposes of scientific research: the open-ended time

frame of the programme, its limited scientific output to date, and the lack of co-operation between
JARPA II and other domestic and international research programmes in the Antarctic Ocean.

Taken as a whole, the Court considers that JARPA II involves activities that can broadly be
characterized as scientific research, but that “the evidence does not establish that the programme’s
design and implementation are reasonable in relation to achieving its stated objectives”. The Court

concludes that 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.

IV. E XAMINATION OF ALLEGED VIOLATIONS OF THE S CHEDULE

The Court turns next to the implications of that conclusion, in light of Australia’s contention

that Japan has breached several provisions of the Schedule. As regards paragraphs 7 (b), 10 (d) and
10 (e) of the Schedule, the Court considers that, although the wording of these provisions differs,
all whaling that falls outside Article VIII, paragraph 1, other than aboriginal subsistence whaling, is
subject to all three provisions. The Court therefore concludes that Japan has violated: (i) the
moratorium on commercial whaling in each of the years during which it has set catch limits above
zero for minke whales, fin whales and humpback whales under JARPA II; (ii) the factory ship - 4 -

moratorium in each of the seasons during which fin whales were taken, killed and treated under
JARPA II; and (iii) the prohibition of commercial whaling in the Southern Ocean Sanctuary in
each of the seasons during which fin whales have been taken under JARPA II.

The Court then turns to Australia’s allegation that Japan violated paragraph 30 of the
Schedule, which requires that Contracting Governments provide the Secretary to the International

Whaling Commission with proposed scientific permits before they are issued and in sufficient time
to allow the Scientific Committee to review and comment on them. In this regard, the Court
observes that Japan submitted the JARPA II Research Plan for review by the Scientific Committee
in advance of granting the first permit for the programme and also submitted for review all
subsequent permits. The Court also finds that the JARPA II Research Plan sets forth all the

information specified by that provision. For these reasons, the Court considers that Japan has met
the requirements of paragraph 30 as far as JARPA II is concerned.

V. REMEDIES

The Court observes that JARPA II is an ongoing programme. Under these circumstances,
measures that go beyond declaratory relief are warranted. The Court therefore orders that Japan
revoke any extant authorization, permit or licence to kill, take or treat whales in relation to
JARPA II, and refrain from granting any further permits under Article VIII, paragraph 1, of the
Convention, in pursuance of that programme. The Court sees no need to order the additional
remedy requested by Australia, which would require Japan to refrain from authorizing or

implementing any special permit whaling which is not for purposes of scientific research within the
meaning of Article VIII, since that obligation already applies to all States parties.

Composition of the Court

The Court was composed as follows: President Tomka; Vice-President Sepúlveda-Amor;
Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood,
Xue, Donoghue, Gaja, Sebutinde, Bhandari; Judges ad hoc Charlesworth; Registrar Couvreur.

Judges OWADA and A BRAHAM append dissenting opinions to the Judgment of the Court;
Judge K EITH appends a declaration to the Judgment of the Court; Judge ENNOUNA appends a

dissenting opinion to the Judgment of the Court; JudgeANÇADO T RINDADE appends a separate
opinion to the Judgment of the Court; JudgeUSUF appends a dissenting opinion to the Judgment
of the Court; Judges GREENWOOD , XUE , EBUTINDE and BHANDARI append separate opinions to
the Judgment of the Court; Judge ad hoc C HARLESWORTH appends a separate opinion to the
Judgment of the Court.

*

A summary of the Judgment appears in the document “Summary No. 2014/3”. This press

release, the summary and the full text of the Judgment can be found on the Court’s website
(www.icj-cij.org), under the heading “Cases”.

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Note: The Court’s press releases are prepared by its Registry for information purposes only and do
not constitute official documents.

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