The United Nations International Court of Justice (ICJ) ruled on 31 March 2014 that Japan’s large-scale whaling programme in the Antarctic was in breach of the International Convention for the Regulation of Whaling, as well as other international obligations for the preservation of marine mammals and the marine environment.
International Conventions on Whaling
Whaling is regulated by the 1946 International Convention for the Regulation of Whaling (“ICRW”). In 1982 the International Whaling Commission adopted a “moratorium” on whaling for commercial purposes. Having joined ICRW in 1951, Japan objected to the moratorium initially, but subsequently withdrew its objection. To justify its continued whale hunts, Japan claimed it was necessary to collect data to ensure sustainable use of marine resources.
Australia initiated the ICJ proceedings in 2010, arguing that Japan was in fact performing commercial whaling in disguise. According to the judgment, Japan’s programme was not reasonable “for purposes of scientific research”.
The International Court of Justice (ICJ) did not rule on the legality of whaling. It interpreted the exemption “for purposes of scientific research”. According to Article VIII of the ICRW any contracting government may grant a special permit authorizing the killing or capture of whales for the purposes of scientific research. The respective governments also decide themselves the number and conditions for granting such permits.
The ICJ found that the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (“JARPA II”) could be considered “scientific research”. This programme concerns the Southern Ocean Whale Sanctuary around Antarctica, a large reserve established by the International Whaling Commission.
The ICJ then examined whether the programme’s design and implementation were reasonable in relation to achieving its stated research objectives. Examining Japan’s decisions regarding the use of lethal methods, the ICJ did not find evidence that Japan had seriously studied using non-lethal methods either when setting the JARPA II sample sizes or afterwards when the programme maintained the same sample size targets. The ICJ also saw no evidence that Japan examined the possibility to kill fewer whales and increase non-lethal sampling as a means to achieve JARPA II’s research objectives.
The judgment obliges Japan to revoke any existing authorisation, permit or licence granted in relation to JARPA II, and to grant no further permits in pursuance of that programme.
Japanese activities and reactions
Japan has been widely criticised for using the legal loophole that allows whaling to continue in order to gather scientific data. Since 2005 only two research papers have been published, using data from only a tiny number of the whales actually killed. During this time, some 3600 minke whales have been killed, with meat being sold to restaurants or shops ostensibly to finance the costs of the whaling programme. However, consumption has been decreasing and it is suggested that the judgment might give the government an impetus to scale down the industry.
So far this year Japan has hunted 251 minke whales in Antarctic waters. Japan has confirmed that it is cancelling the second part of its Antarctic programme for 2014. It will scale back the mission and review other details for whaling to be resumed in Antarctic waters in late 2015. The committee on fisheries in Japan’s National Diet has urged the government to prepare a new whaling programme that could be acceptable under the research exception.. Japan also has another whaling programme for the Northern Pacific Ocean, which falls under an ICRWC provision allowing “small scale indigenous whaling”.
Iceland and Norway
Since Iceland and Norway no longer claim to be carrying out research but hunt whale meat for commercial purposes, the ICJ’s ruling has no immediate consequences for them. In 1993 Norway resumed commercial whaling under the objection it lodged in 1982 and advocates settingcatch limits for stocks capable of withstanding harvesting. Iceland has resumed its commercial whaling practice under its reservation to the 2006 moratorium. However, Icelandic legislators have proposed a study on the economic contributions of whaling and, in turn, on losses for tourism and international standing. The US government has declared that it would take measures against Iceland over its whaling practices.
Greenpeace, which has sent anti-whaling expeditions on several occasions, claims that the market for whale meat in Japan is collapsing and that the Antarctic hunt has not been profitable for a long time.
Whale and Dolphin Conservation, a charity dedicated to the protection of whales and dolphins, has welcomed the ICJ judgment.