Japanese Whaling and the International Court of Justice

Yesterday, the International Court of Justice ruled that the Japanese government must halt its whaling program in the Antarctic pursuant to its obligations under the International Convention for the Regulation of Whaling.

At issue in this case was Article VIII of the Convention, which allows a member state to issue permits authorizing the killing of whales when it is done “for purposes of scientific research.”   (Commercial whaling has been prohibited since the International Whaling Commission, which implements the Convention, adopted a moratorium in 1982).

Under the Article VIII exception, Japan had established a research program that issued permits for the lethal sampling of Antarctic minke whales, fin whales, and humpback whales.  The program was meant to serve four research objectives: monitoring of the Antarctic ecosystem, modeling competition among whale species and future management objectives, elucidating temporal and spatial changes in stock structure, and improving the management procedure for Antarctic minke whale stocks.   Under the program, Japan had set a kill target of 850 minke whales, 50 humpback whales, and 50 fin whales.   Most of the whale meat from the hunts was sold in Japan, where it is considered a delicacy.

Australia brought suit against Japan in the International Court of Justice, alleging that its program simply cloaked commercial whaling in the veil of science, and the Court agreed.  It is worth noting, however, the Court did not base its decision on a rejection of the scientific merit of the program’s objectives or methods.  (On this score, it held that the program could “broadly be characterized as ‘scientific research” and that lethal methods of sampling could be justified).  Rather, the Court based its decision on its determination that the permits were not issued “for purposes” of scientific research.

In explaining its determination that the permits were not issued for valid purposes, the Court cited several factors.  First, Japan provided no evidence about why it had significantly increased its permits for lethal sampling for the most recent phase of its research program.  Second, based on Japan’s own calculations, the sample sizes for fin and humpback whales was too small to provide the information desired.  Third, the process used to determine the sample size for minke whales lacked transparency.  Fourth, evidence suggested that the program could have been adjusted to achieve a far smaller sample size, and that funding considerations, rather than scientific criteria, played a role in the decision to use lethal rather than non-lethal methods.   Fifth, although the actual numbers of whales taken was significantly lower than planned under the program, Japan had not modified the objectives or the methods accordingly, nor had it explained how those research objectives remained viable.  Sixth, the program had produced very little scientific output (two peer reviewed articles since 2005) and was not connected to any other relevant research programs.

On the basis of these considerations, the Court concluded that although the program could “broadly be characterized as scientific research,…. the evidence does not establish that the programme’s design and implementation are reasonable in relation to achieving its stated objectives.”  In short, the permits were not issued “for purposes of scientific research,” and were therefore not authorized by Article VIII of the Convention. The ruling is not subject to appeal.   Although sovereign countries have at time ignored ICJ rulings, both Japan and Australia had pledged to abide by this decision.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.