International Court of Justice orders Japan to suspend its Antarctic whaling program

japan-whaling-e1270007253119The International Court of Justice has today upheld Australia’s bid to ban Japan’s Antarctic whaling program.

ICJ president Peter Tomka said the court concluded the scientific permits granted by Japan for its whaling program were not scientific research as defined under International Whaling Commission rules.  The Court had found, by a majority of twelve votes, that Japan had conducted a program for logistical and political considerations, rather than scientific research. There is of course no appeal against an ICJ ruling and Japan has officially said that it will comply with the ruling.

The following is based on the ICJ’s press release.

Findings of the Court

First, the Court dismissed Japan’s argument that the Court had no jurisdiction over the dispute, submitted by Australia.  The only reason why Court would not have such jurisdiction was if the dispute concerned the exploitation of any disputed area of a maritime zone. Since there was no maritime delimitation dispute between the Parties in the Antarctic Ocean and since the current dispute was only about the compatibility or not of Japan’s whaling activities with its obligations under the International Convention for the Regulation of Whaling (ICRW), the Court concluded that Japan’s objection to the Court’s jurisdiction could not be upheld.

In relation to the purpose of the whaling mission, the Court found that the question of whether the killing, taking and treating of whales pursuant to a requested special permit was indeed “for purposes of scientific research” could not depend simply on that perception of the state responsible for granting a whaling permit.

The Court then went on to consider how to ascertain whether a programme’s use of lethal methods was really “for the purposes of” scientific research. Looking at Japan’s decisions regarding the use of lethal methods, the Court found no evidence that it had undertaken any studies of the feasibility or practicability of non-lethal methods. The Court also found 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 its own programme’s research objectives.

After an extensive examination of the determination of species-specific sample sizes, the Court noted that the evidence provided by Japan under its whaling program provided “scant analysis and justification” for the underlying decisions that generated the overall sample size, raising further concerns about whether the design of the program, “JARPA II” was “reasonable in relation to achieving its stated research objectives”.

There were additional aspects of Japan’s whaling program  which cast further doubt on its characterization as a programme for purposes of scientific research:

  1. the open-ended time frame of the programme,
  2. its limited scientific output to date, and
  3. 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 considered that JARPA II involved activities that could broadly be considered 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 therefore concluded that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II were not “for purposes of scientific research” pursuant to the Regulation of Whaling Convention.

Furthermore, the Court found that Japan had violated

  1. the moratorium on commercial whaling
  2. the factory ship moratorium in each of the seasons during which fin whales were killed
  3. the prohibition on commercial whaling in the Southern Ocean Sanctuary.

Remedies

Since JARPA II is an ongoing programme under which whales continue to be taken and killed, measures that went beyond declaratory relief were warranted. The Court therefore ordered that Japan revoke any extant authorisation, permit or licence to kill, treat or take whales under the JARPA II programme.

Comment

This is the first time that the ICJ has made a definitive ruling against whaling operations and it is rightly welcomed as a significant victory by conservation groups. It is also the first time that Japan has been a respondent at the ICJ, being accused of being in breach of the moratorium on commercial whaling. However, this battle may be won but the war still rages, since this ruling is restricted to the Antarctic whale sanctuary. Japan also has an ongoing “scientific whaling” program in the North Pacific, as well as commercial whaling in their  territorial waters. And the ICRW does not cover the killing small cetaceans, such as the dolphin drive-hunt fishery depicted in the documentary The Cove.

Whaling isn’t even the most serious threat to whale populations, just the most visible. More lethal is the effect of pollution and noise on whales, as well depletion of populations by-catches and ship strikes. But it is important that a respected international court has called Japan out on their dubious claims for the legitimacy of their scientific research program, particularly at times when a plethora of other methods exist for examining such data.  It should be possible for researchers to collect shed skin from whales, blubber and decal matter, and samples that whales exhale through their blowholes. DNA sampling would then reveal all the scientists need to know about the animals’ own DNA, contaminant or pathogen loads.  According to Professor Chris Parsons at George Mason University, quoted on the Southern Fried Science Explainer Blog,

 The ending of so-called scientific whaling really will be zero loss to science. Much of the data they were collecting was pretty much already known, most of the rest could be gathered by non-lethal means, and the methods that were being used were often controversial and heavily criticized by leading whale researchers”

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