The Case concerning Whaling in the Antarctic(Australia v. Japan; New Zealand intervening)

The Case Concerning Whaling in the Antarctic is primarily based on a dispute over the interpretation of the International Convention for the Regulation of Whaling (ICRW). Article VIII provides that “any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research . . . .” (emphasis added). Utilizing this exception, Japan announced the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA) in the 1987/88 season. Japan commenced the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) during the 2005/6 season. The stated objectives of JARPA II include monitoring the Antarctic ecosystem, modeling competition among whale species, clarifying changes in stock structure, and improving the management of minke whale stocks. After research is conducted, meat from harvested whales is sold for consumption and profits are used to support the Institute for Cetacean Research. On 31 May 2010, Australia instituted proceedings against Japan in the ICJ. Australia filed its memorial on May 9, 2011, and Japan filed a counter-memorial on March 9, 2012. On 20 November 2012, New Zealand filed a Declaration of Intervention in the Registry, and the Court granted permission to intervene on 6 February 2013. Australia claims that Japan’s large scale whaling under JARPA II violates its obligations under the ICRW, as well as its other international obligations for the preservation of marine mammals and marine environment under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Biological Diversity (CBD). Japan however argues that the Court lacks jurisdiction over Australia’s claims, and that, as a result, New Zealand’s application to intervene lapses. In the alternative, Japan argues that Australia’s claims should be rejected because the whaling activities are conducted for the purposes of scientific research, which is permitted under the ICRW. Australia counters that Japan is engaging in commercial whaling under the guise of “research.”A public hearing was held from on 26 June to 16 July 2013. The Court’s judgment will be rendered at a public sitting but is not expected for several months. This is the first time for Japan to appear as a party to a dispute at the ICJ. For Australia, it is the first time since the 1973 Nuclear Test case for the country to institute proceedings; it last appeared in the ICJ as the Respondent in the East Timor case which began in 1991. If the judgment is unfavorable to Japan, the country might withdraw from the IWC. In the past, Japan has threatened to do so and form an alternative – and presumably more whaling-friendly – organization. Such actions will probably initiate a domino effect among other pro-whaling countries. Alternatively, if the judgment favors Japan, the IWC may regain credibility among pro-whaling countries that feel isolated due to the organization’s increasingly conservationist stance. In addition, such a decision may encourage anti-whaling countries to be more flexible in their stance against whaling.