The laws of whaling

The recent International Court of Justice ruling in Australia’s favour, over the lawfulness of Japan’s program of ‘scientific whaling’ in the Southern Ocean, sets a powerful example of how complex environmental and technical disputes can be resolved using legal mechanisms.

Four years ago, Australia instituted proceedings against Japan in the International Court of Justice, challenging the legality of its large-scale program of whaling in the Southern Ocean — the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II).

This ‘Special Permit’ refers to Article VIII of the 1946 International Convention for the Regulation of Whaling, which enables Contracting Governments to issue special permits to its nationals to ‘kill, take and treat whales for purposes of scientific research’.

The Article operates as an exception to the obligations under the Convention, including the global moratorium on commercial whaling, which was established under the Convention in 1986 to regulate coastal and pelagic whaling.

The International Whaling Commission (IWC) established a mechanism for its Scientific Committee to review and provide advice on proposed research programs under Article VIII. Whilst Contracting Governments must heed this advice, the issuing of special permits is ultimately a decision for the Contracting Government concerned. However, the Contracting Government must still act in accordance with Article VIII; a point expressly confirmed by the Court.

Despite disagreements within the IWC Scientific Committee over Japan’s research — including the need for lethal catches, inconsistent methods used for sample size selection, and the scientific output of the program — Japan has pursued JARPA II since 2005, issuing special permits to catch up to 850 minke whales and 50 each of humpback and fin whales.

One of Australia’s expert witnesses during the court case, Australian Antarctic Division Chief Scientist, Dr Nick Gales, said that machinations within the IWC’s Scientific Committee weakened the scientific review process.

‘Criticisms were often dismissed as politically motivated or matters of opinions, rather than serious scientific commentary, making many scientists reluctant to take sides,’ he said.

One of the main disagreements was that lethal research was not required to obtain the scientific information sought by JARPA II. Australia and others had built a significant body of research on the use of non-lethal technology, including satellite tagging, biopsy sampling, photographic identification and acoustic tracking, to obtain much of the scientific information sought by the Japanese program. Based on this research, Australia was able to build a strong case to challenge the legality of JARPA II.

On 31 March 2014, the International Court of Justice issued its judgment [PDF], in which it determined that JARPA II was illegal. It concluded that ‘the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not “for the purposes of scientific research” pursuant to Article VIII, paragraph 1, of the Convention’.

In its reasoning, the court shifted its focus away from the technical detail of whether Japan’s program was ‘scientific research’.

‘Instead, the Court considered whether the activities were “for purposes of scientific research”, by examining if the program’s design and implementation were reasonable to achieve its stated objectives,’ Dr Gales said.

The Court concluded that JARPA II used lethal sampling on a greater scale than was reasonable, given its research objectives. The Court pointed to Japan’s failure to consider non-lethal alternatives and to problems with how Japan set the sample sizes.

‘In the end, Japan couldn’t defend why they were taking up to 850 minke whales,’ Dr Gales said.

The ruling provides an example of how complex environmental and technical disputes involving scientific principles might be resolved in a legal setting. By using a test for ‘reasonableness’ the Court avoided differences in scientific opinion, policy or philosophy.

‘The exploitation of scientific uncertainty and complexity to advance non-science agendas is a common feature of environmental disputes where science informs the law,’ Dr Gales said.

‘The Court’s independent approach, based on the non-technical principle of reasonableness, represents an ideal model for resolving such disputes.’

Article written by Wendy Pyper, with assistance from the Australian Antarctic Division Science Branch and Attorney General’s Department.