By Meredith James
In May 2010, Australia launched legal proceedings against Japan in the International Court of Justice (ICJ) alleging that:
“Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling . . . , as well as its other international obligations for the preservation of marine mammals and the marine environment”.
In decision released on March 31, the ICJ ruled in Australia’s favour – concluding that the JARPA II Program is unscientific and revoking Japan’s authority to issue further research permits.
The International Convention for the Regulation of Whaling sets zero catch limits for the killing of whales from all stocks for commercial purposes. Since 2005, however, Japan has issued JARPA II permits it claimed were for the purposes of scientific research, which is exempted from the ban. Australia alleged that under JARPA II and earlier “scientific research” programs, Japan has killed more than 10,000 whales since 1988.
In its decision, the ICJ found that although it may be reasonable to conduct scientific research that requires killing whales, the number of whales killed in the JARPA II program was not reasonable:
224. The Court finds that the use of lethal sampling per se is not unreasonable in relation to the research objectives of JARPA II. However, as compared to JARPA, the scale of lethal sampling in JARPA II is far more extensive with regard to Antarctic minke whales, and the programme includes the lethal sampling of two additional whale species. Japan states that this expansion is required by the new research objectives of JARPA II, in particular, the objectives relating to ecosystem research and the construction of a model of multi-species competition. In the view of the Court, however, the target sample sizes in JARPA II are not reasonable in relation to achieving the programme’s objectives.
227. Taken as a whole, the Court considers that JARPA II involves activities that can broadly be characterized as scientific research (see paragraph 127 above), 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 concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the Convention.
In the result, the ICJ revoked Japan’s authorization to issue any further JARPA II permits, or other scientific research permits:
245. The Court observes that JARPA II is an ongoing programme. Under these circumstances, measures that go beyond declaratory relief are warranted. The Court therefore will order that Japan shall revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme.
Dianne Saxe, Ontario Environmental LawyerReprinted with permission from the Environmental Law and Litigation Blog.
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