The Regulation of International Whaling: Will Australia v. Japan Mark a Turning Point?

The International Court of Justice (ICJ) accepted Australia’s case against Japan for breaching obligations under the International Convention for the Regulation of Whaling (ICRW) and other international treaties related to the preservation of marine mammals.[1] However, the ICJ has limited enforcement mechanisms and any ruling on the legality of Japanese fishing programs will likely have little impact on both Japanese behavior and international norms pertaining to fishing. Rather than taking Japan to court, where any rulings would at best reiterate the recommendations of the International Whaling Commission (IWC), Australia might be better served to seek alternative dispute resolution or to coordinate with other countries in economic sanctions against Japan.

The ICRW was signed in 1946 to “provide for the proper conservation of whale stocks.”[2] The IWC was established pursuant to the convention as the primary instrument for the realization of this aim. In 1982, the IWC incorporated paragraph 10(e) of the Schedule into the convention and effectively created a moratorium on commercial whaling.[3] The IWC further incorporated paragraph 7(b) of the Schedule, which reads that “commercial whaling […] is prohibited in a region designated as the Southern Ocean Sanctuary.”[4]

Japan responded to the fishing moratorium by ceasing whaling for commercial purposes, but subsequently launched the Japanese Whale Research Program (JARPA I & II) under a special permit. Japan argues that this research program is valid under its international legal obligations because it is not commercial and therefore is not under the scope of paragraphs 7(b) and 10(e). Under Article VIII of the ICRW, “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 subject to such restrictions […] as the Contracting Government thinks fit.”[5]

The initial question, as to the merits of the case, is whether Japan has breached its obligations and should be enjoined from continuing JARPA II. On its face, it appears that this will be a difficult case for Australia to win. Article VIII of the ICRW creates an open-ended provision for research programs that enables governments to grant special permits as it “thinks fit.”[6]

Australia will need to make a compelling argument that JARPA is an unprecedented research program whose killing and taking of whales greatly outweighs any previous practices undertaken on the basis of scientific permits.[7] Australia will need to demonstrate that Japan’s program is not confined to research, which is supported by the fact that JARPA I killed approximately 6,800 Antarctic minke whales in comparison to the 840 whales killed by Japan for scientific research in the 31 years prior to JARPA I.[8] Moreover, JARPA II started in the 2005-06 season and expands JARPA I to include fin and humpback whales.[9]

Australia will also argue that Japan’s research program is commercial because DNA analyses have found whale meat from researched whales on sale in the Japanese market.[10] Japan has and will contest this fact by arguing that the sale of the meat is not commercial because it is a byproduct of research and does not create a profit in the state. Japan has suggested that a non-profit research institute carries out the research and sells by-products to cover a portion of the research costs.[11]

The ICRW fails to define either “commercial whaling” or “research whaling,” and the ICJ may decide not to construct a narrow interpretation of “research” because the court lacks an enforcement mechanism and Japan’s program engages in research on its face. If the drafters of the ICRW were so concerned with exploitative research programs they would not have written Article VIII in such broad terms.

Regardless of how the judges on the ICJ determine the facts in the case, the second and perhaps most important question pertains to what effect a decision against Japan would have on state behavior. The reality is that a decision against Japan will likely have little effect on international fishing norms.

Article VIII creates such a broad provision for scientific research, that even if the ICJ finds that Japan has exceeded the scope of the provision, Japan could tailor its program and continue its operations. Japan faces international pressure to remain party to the ICRW, but Japan could also simply refuse to accept the decision of the ICJ. Given that the IWC has already issued countless recommendations to Japan to limit its program, and the U.S. tried to pressure Japan by limiting Japanese fishing rights within the U.S. exclusive economic zone,[12] there is little reason to believe that the ICJ decision will fundamentally alter state behavior regarding fishing.

Rather than taking its case to the ICJ, there were several other avenues Australia could have pursued that might have more effectively addressed its environmental concerns. First, Australia could have sought some form of alternative dispute resolution with Japan to hammer out the facts and to reach a mutual compromise. Given the difficulties in monitoring international waters, any decisions relating to fishing rights would likely be better served through mutual agreements rather than the compulsion of an international court.

In 10(e) to the Schedule, the ICW agreed to keep the fishing moratorium under review and to consider modification of the provision in 1990. The ICW has not modified the provision and Japan would be more likely to comply if it were given reasonable quotas that allowed it to capture and kill certain non-endangered whales.

Absent the success of alternative dispute resolution, more heavy economic sanctions against Japan would probably prove more successful than a non-enforceable decision from the ICJ. For instance, Australia could solicit heavier trade sanctions from the US, which might be sustainable in the World Trade Organization under the “species conservation” provision of GATT Article XX.[13]

—-Eric Merron is a general member with MJEAL.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Application Instituting Proceedings: Whaling in the Antarctic, May 31 2010, available at http://www.icj-cij.org/docket/files/148/15951.pdf.

[2] International Convention for the Regulation of Whaling, Dec. 2, 1946.

[3] Application Instituting Proceedings: Whaling in the Antarctic, May 31 2010, available at http://www.icj-cij.org/docket/files/148/15951.pdf

[4] Id. at 6.

[5] International Convention for the Regulation of Whaling art.8, Dec. 2, 1946.

[6] Id.

[7] Application Instituting Proceedings: Whaling in the Antarctic, May 31 2010, available at http://www.icj-cij.org/docket/files/148/15951.pdf

[8] Id. at 8.

[9] Id. at 8.

[10] Reuben B. Ackerman, Japanese Whaling in the Pacific Ocean: Defiance of International Whaling Norms in the Name of “Scientific Research,” Culture, and Tradition, 25 B.C. Int’l & Comp. L. Rev. 323 (2002).

[11] Hyun-soo Kim, Eric Yong Joong Lee, & John Riley, The Whaling Dispute in the South Pacific: A Japanese Perspective, 4 J. E. Asia & Int’l L. 449, 455 (2011).

[12] Reuben B. Ackerman, Japanese Whaling in the Pacific Ocean: Defiance of International Whaling Norms in the Name of “Scientific Research,” Culture, and Tradition, 25 B.C. Int’l & Comp. L. Rev. 323 (2002).

[13] Id.