PUBLIC INTERNATIONAL LAW: CASE ANALYSIS OF AUSTRAILA V. JAPAN (THE WHALING CASE)

FACTS

Procedures were organized on 31 May 2010 by Australia, which blamed Japan for seeking after “a huge scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’)”, in break of commitments expected by Japan under the 1946 International Convention for the Regulation of Whaling and of other worldwide commitments for the protection of marine warm blooded creatures and the marine condition. In this case the Hon’ble ICJ further recalled that on 20th November 2012, New Zealand pursuant to Article 63 para 2, of the statute, filed in the declaration of the court a declaration of  its intervention in the case. In its declaration New Zealand stated that “it availed itself of the right to intervene as a non-party in the proceedings brought by Australia against Japan in this case”

Japan’s Scientific Whaling Programme

JAPRA-II Described by Japan as ‘a long term research programme’ with no specified termination date commenced in the year 2005/06 Whaling season and followed immediately upon Japan’s previous Scientific Whaling Programme, known as JAPRA. Both programmes entailed lethal methods and relied upon the granting by Japan of special permits which authorized the killing of Whales for ‘purposes of scientific research’ in terms of Article VIII, para 1 of ICRW(International Convention on Regulation of Whaling).

Australia claimed that JAPRA-II cannot be characterized as a programme for purposes of scientific research within the meaning of Article VIII Para 1 of the ICRW. Instead it was submitted that the programme amounted to commercial Whaling under the guise of Scientific Research. Australia further argued that the granting of special permits by Japan u/a VIII Para 1 permitting the killing and taking of whales pursuant to this programme resulted in the breach of several substantial treaty obligations, including inter alia, the obligation to respect the moratorium on commercial whaling of all the Whale species.

ISSUES

In Whaling in the Antarctica case, the international Court of Justice was confronted with a highly technical issue, requiring the appraisal of the scientific elements. The court evaluated the claim of Australia who considered that Japan with its Whaling Programme JAPRA-II was hiding commercial purposes behind ‘false’ scientific research. The question arose at an interesting moment, increasing attention being paid in the international agenda to the relationship between law and science. The court had the opportunity to take a stance on this issue afer coming under criticism for its handling of technical cases. Questions have arisen as to its ability to rule on disputes involving factual complexity in a sound way. Basically, the court had to avoid two main hurdles: limiting its assessment to legal aspects or becoming a judge of science by itself performing the technical analysis. Both are criticized positions taken by the courts in the former instances. Thus, the court initiated an original approach, by elaborating a comprehensive methodology, some elements of which may appear at first sight inspired by the WTO practice.

LAWS

The first question regarding the law in this case was related to the jurisdiction of this court over this case. The court found that it had jurisdiction to decide this case on the basis of Japan’s and Australia’s declaration of the acceptance of court’s compulsory jurisdiction under the ICJ statute Article 36, Para 2.

To decide this matter the Hon’ble ICJ interpreted Article VIII of the ICRW which states that:

1) Notwithstanding anything contained in this Convention 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 to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.

2) Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.

3) Each Contracting Government shall transmit to such body as may be designated by the Commission, in so far as practicable, and at intervals of not more than one year, scientific information available to that Government with respect to whales and whaling, including the results of research conducted pursuant to paragraph 1 of this Article and to Article IV.

4) Recognizing that continuous collection and analysis of biological data in connection with the operations of factory ships and land stations are indispensable to sound and constructive management of the whale fisheries, the Contracting Governments will take all practicable measures to obtain such data.

 

ANALYSIS

In this case, the ICJ found Japan in breach of its international obligations under the International Convention for the Regulation of Whaling (the Convention) on several counts for its whaling programme. 17 This Convention has regulated whaling since 1946. In 1982, a moratorium on commercial whaling was adopted.  The killing and treating of whales is since then only permitted to satisfy aboriginal subsistence or for scientific purposes according to Article VIII of the Convention.  In 2005, Japan granted a special permit to the Whale Research Programme in the Antarctic (JARPA II  ) as developed by the Institute of cetacean research.  Australia claimed that Japan was hiding its commercial whaling activities behind a scientific smoke-screen and challenged before the Court the programme under Article VIII of the Convention. In support of their statements that involved extremely detailed descriptions of JARPA II, Australia and Japan submitted a substantive volume of scientific evidence and presented analyses of experts.

In response, the Court developed what seems to be a special method to deal with this scientific dispute, breaking with some of its traditional practices. Following the Pulp Mills judgment, the presentation of scientific evidence was made by experts or witnesses, and not by scientists acting as counsels as has previously been the case. In addition, the Court changed its legal approach with the articulation of a standard of review described as ‘objective’. The Judges devoted an entire section to describe this decision-making tool, which appears to have determined a large part of the Court’s reasoning in the case. Finally, the Court seems to have developed an innovative approach to evidentiary issues with a possible reversal of the burden of proof.

In the Pulp Mills case, experts were involved as ‘scientific advisers and experts’ within the delegations, following common practice.  On this occasion, the judges individually criticized this method and the bench itself expressed in the judgment the desire for this practice to end: the parties’ experts’ appearing before the Court should be involved as experts or witness-experts,  and not as members of a national delegation. Following these observations, in the Whaling case the parties presented their scientific arguments through experts speaking at the hearing as ‘experts’, and not as advisers. The ‘testimony’ of experts was therefore collected following the procedure of cross-examination, allowing a more adversarial presentation of the scientific facts of the case. According to the general approach developed by the Court in the decision, this review by confrontation of opinions appears necessary for a proper understanding of science by the Judge, leading to an appropriate assessment of the facts. One should note that, this is not the first time that experts addressed the Court. It should be remembered that the presence of experts before the Court began with the Corfu Channel case ,the first case entered in the General List. However since then, cases where scholars and technicians testified as experts (or witness-experts) were particularly rare. In only nine occasions, experts were subjected to cross-examination. The same observation must be made for the witnesses.  The Court rests on a very restricted practice in the matter of cross-examination. The decision in the Whaling case is thus noteworthy in this regard. The Whaling case is also the first case in which scientists spoke as experts before the Court.

CONCLUSION

This judgment is an important advancement in the ICJs approach to environmental disputes for its thoughtful method of addressing the scientific issue on which the dispute hinged. The Court established an efficient procedure to elicit expert opinion from the parties, allowing judges and counsel to interrogate and clarify their understanding. It also developed an analytical approach that distinguishes the judge’s role from the scientist’s, respecting both.

Although it imposes a hiatus on Japan’s whaling activities, the decision does not resolve the fundamental cultural conflict between those who believe whales should not be hunted and those who are willing to restrict hunting as part of a wildlife management program. The Court affirmed that the objectives and structure of the ICRW are oriented toward both conservation of whale stocks and management of the whaling industry and to the extent that there is no other international law that prohibits killing whales it is up to the parties to the ICRW, acting together, to determine when and how whales can be killed. The Court, however, examined only the ICRW, which provided a sufficient answer to the question posed by this dispute. It left for another day how CITES, the Convention on Biological Diversity, customary international law, or evolving environmental norms would reply.

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