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ICJ Halts Antarctic Whaling – Japan Starts Again

Published online by Cambridge University Press:  07 April 2015

Cymie R. Payne
Cymie R. Payne*
Affiliation:
Rutgers University, Department of Human Ecology, New Brunswick, NJ, and Camden Law School, Camden, NJ (United States). Email: cp@cymiepayne.org.
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Abstract

The International Court of Justice (ICJ) judgment in Whaling in the Antarctic, a dispute brought by Australia against Japan, found that Japan had violated the International Convention for the Regulation of Whaling (ICRW) moratoria on all commercial whaling and the use of factory ships to process whales, and also the prohibition on whaling in the Southern Ocean Sanctuary. In the course of analyzing whether special permits issued by Japan qualified for the scientific whaling exemption under Article VIII ICRW, the Court benefited from a more robust scientific fact-finding process than at times in the past. The judgment emphasized the mutual obligations of this multilateral agreement by taking the view that the provisions of the ICRW’s scientific whaling exemptions are neither self-judging nor subject to a ‘margin of appreciation’ in favour of a state party claiming the exemption. The case was driven by conflicting attitudes towards commercial whaling, and also towards global common spaces. The ICJ’s decision and Japan’s response indicate the limits of the ICRW in resolving those differences.

Keywords

WhalingInternational Court of Justice (ICJ)Global CommonsScience fact finding (law)

Information

Type
Commentary
Information
Transnational Environmental Law , Volume 4 , Issue 1 , April 2015 , pp. 181 - 194
Copyright
© Cambridge University Press 2015 

1. Introduction

The judgment of the International Court of Justice (ICJ) in Whaling in the Antarctic,Footnote 1 a dispute brought by Australia against Japan, was at least as important for the ICJ’s approach to scientific issues as for the effect it will have on Japan’s whaling practices. This case was driven by conflicting attitudes towards whaling, and also towards global common spaces. The ICJ’s decision and Japan’s response indicated the limits of the International Convention for the Regulation of Whaling (ICRW)Footnote 2 in resolving those differences. The judgment emphasized the mutual obligations of this multilateral agreement by taking the view that the provisions of the ICRW’s scientific whaling exemptions are neither self-judging nor subject to a ‘margin of appreciation’ in favour of a state party claiming the exemption.

On 31 March 2014, the ICJ declared that Japan must halt its current whaling programme in the Southern Ocean. The decision did not apply directly to Japan’s whale hunt in the northern Pacific and it did not foreclose Japan from all whaling in the future provided it is conducted within the requirements of the ICRW as interpreted by the ICJ. Nor did this decision affect the other two nations that currently conduct commercial whaling operations – Norway and Iceland – which, though parties to the ICRW, have objected to and are therefore not bound by the zero quota for all commercial whaling activity that it imposes. States that engage in aboriginal subsistence whaling, including the United States (US) and Denmark (Greenland) are also unaffected by this decision.

Japan violated three provisions of the ICRW by conducting large-scale whaling under the second phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II). They were:

  • • the moratorium on all commercial whaling;

  • • the moratorium on the use of factory ships to process whales; and

  • • the prohibition on whaling in the Southern Ocean Sanctuary.

The ICJ found that Japan had met the procedural requirements for the review of permits by the International Whaling Commission (IWC, Commission),Footnote 3 and that JARPA II could ‘broadly be characterized as scientific research’, but that it was not a programme ‘for purposes of scientific research’ and therefore did not qualify for exemption under Article VIII(1) ICRW.Footnote 4

For these reasons, Japan was required to 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 in pursuance of JARPA II. The ICJ observed that ‘[i]t is to be expected that Japan will take account of the reasoning and conclusions contained in this judgment as it evaluates the possibility of granting any future permits under Article VIII, paragraph 1, of the Convention’.Footnote 5

The judgment was based on the ICJ’s interpretation of the ICRW and its factual examination of Japan’s whaling programme as scientific research.Footnote 6 In so doing, the ICJ demonstrated its willingness and ability to address past criticisms of its treatment of scientific evidence. Moreover, the ICJ decided that it did not need to discuss several theories of international law as applied to the issue areas of the environment and wildlife, which were advanced by Australia and New Zealand (as intervenor);Footnote 7 and it did not discuss the question raised by Japan of whether the moratoria were based on science.

2. The icrw, the whaling moratorium and article viii exceptions

The ICRW established the IWC, which comprises representatives of its 88 state parties and a Scientific Committee. By amending its ScheduleFootnote 8 the IWC sets catch limits for commercial and aboriginal whaling – which may be zero catch – and addresses other aspects of research and hunting. Parties that object to an amendment are not bound by it.Footnote 9

This dispute focused on the interpretation of Article VIII ICRW, the operative paragraph of which reads:

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.

Other paragraphs of Article VIII require research results to be communicated and encourage the ‘processing’ of whales taken for research, with the state to use the proceeds.Footnote 10 The ICRW does not require states to obtain the approval of other parties or of treaty bodies in authorizing whale hunts under Article VIII, but paragraph 30 of the Schedule requires states to provide the IWC with ‘proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them’. Japan and Iceland have both issued special permits under this provision.Footnote 11

Australia, Japan and New Zealand are parties to the ICRW. In 1982, the IWC established zero catch limits for all whaling, with two exceptions: aboriginal whaling and special permit scientific whaling under Article VIII ICRW. In 1994, the IWC established the Southern Ocean Whale Sanctuary in which all whaling is prohibited.Footnote 12 It also banned the use of factory ships. Japan has a current objection to the moratorium on killing minke whales and to the Southern Ocean Sanctuary to the extent that it applies to the Antarctic minke whale stocks.Footnote 13 Japan conducted two whaling programmes – JARPA II and JARPN II (in the North Pacific Ocean, which was not at issue in this case)Footnote 14 – which it justified as falling within the Article VIII exception for special permit scientific whaling. JARPA II included the lethal sampling of fin, humpback and minke whales within and outside the Southern Ocean Sanctuary; it used a factory ship to process the meat. Its research objectives were: (i) monitoring the Antarctic ecosystem; (ii) modelling competition among whale species and future management objectives; (iii) elucidating temporal and spatial changes in stock structure; and (iv) improving the management of Antarctic minke whale stocks. On average, 450 minke whales were killed annually under JARPA II – about half the target sample size of 850 minke whales, 50 fin whales, and 50 humpback whales per season.Footnote 15

3. Jurisdiction and claims

The ICJ found that it had jurisdiction on the basis of the declarations of acceptance by Japan and Australia of the Court’s compulsory jurisdiction under Article 36(2) of the ICJ Statute.Footnote 16 Japan contested jurisdiction on the grounds that Australia’s declaration included a reservation excluding disputes ‘arising out of, concerning, or relating to the exploitation of’ maritime zones’.Footnote 17 Australia argued that the reservation was intended only to address maritime boundary delimitations.Footnote 18 Accepting this, the ICJ concluded that the reservation did not apply in this case as there were no overlapping maritime claims between Japan and Australia.Footnote 19

Australia claimed that Japan had failed to act in good faith by ignoring the zero catch limit for commercial whaling, pursuant to paragraph 10(e) of the ICRW Schedule, and the prohibition on commercial hunting for humpback and fin whales in the Southern Ocean Sanctuary, pursuant to paragraph 7(b) of the ICRW Schedule.Footnote 20 Australia’s application also argued that Japan breached its obligations to preserve marine mammals and the marine environment under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the Convention on Biological Diversity (CBD).Footnote 21 Australia accepted that, under some circumstances, killing whales for scientific research can be necessary and lawful.Footnote 22

Japan, on the other hand, argued that Article VIII whaling was wholly outside the ICRWFootnote 23 and that the ICJ did not have the power to judge the character of the special permits that Japan granted under JARPA II. It further argued that the species it hunted were not endangered and that the moratorium on hunting whales was not based on science.

New Zealand contended that Article VIII was a limited exception, that whaling pursuant to JARPA II was not scientific research, and that JARPA II therefore did not qualify as an exemption from the moratorium under Article VIII.Footnote 24

4. Decision: interpretation of article viii – standard of review

The ICJ viewed the dispute over Article VIII as an objective question of science and not as a matter entirely left to state discretion or a question of whaling policy.Footnote 25 If a permit satisfies Article VIII conditions then the whaling it authorizes is exempt from the moratoria and the prohibition on whaling in the Southern Ocean Sanctuary. Japan argued that it was entitled to a ‘margin of appreciation’ in issuing the permits on the basis that the state issuing the permit is best able to evaluate the research proposed. In contrast, Australia and New Zealand submitted that permit requirements must conform with an objective standard. The ICJ agreed with their contention and concluded that ‘whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that State’s perception’.Footnote 26

The ICJ stated that the standard of review was an objective assessment of the reasonableness of Japan’s authorization of JARPA II.Footnote 27 It found that it did not need to consider whether JARPA II constituted commercial whaling, which might have involved looking at factors such as the amount of whale meat sales, employment, and capital return.Footnote 28 Instead, the ICJ examined, firstly, whether JARPA II involved scientific research and, secondly, the purposes of the programme.Footnote 29 For the latter analysis, the Court considered ‘whether, in the use of lethal methods, the programme’s design and implementation are reasonable in relation to achieving its stated objectives’.Footnote 30 All parties agreed that the design and implementation of a research programme would differ from that of a commercial whaling programme.Footnote 31

As ‘scientific research’ is not defined in the ICRW, the ICJ considered the views of the party experts and the relevant law, but declined to adopt a specific set of standards.Footnote 32 The scientific expert offered by Australia proposed four criteria:

defined and achievable objectives (questions or hypotheses) that aim to contribute to knowledge important to the conservation and management of stocks; ‘appropriate methods’, including the use of lethal methods only where the objectives of the research cannot be achieved by any other means; peer review; and the avoidance of adverse effects on stock.Footnote 33

Japan rejected these criteria, arguing that a scientific expert could not be used to interpret a treaty; Japan’s own scientific expert was in partial agreement with Australia’s expert.Footnote 34 The ICJ found that JARPA II could be characterized as scientific research based on its objectives, which are within the scope of the Scientific Committee’s research categories, and its activities, which are the systematic collection and analysis of data by scientists.Footnote 35

The second part of the ICJ’s analysis is key: it found that important aspects of the design and implementation of JARPA II (that is, lethal take) were not reasonable in relation to its research objectives. In general, the ICJ found that lethal methods would be necessary to obtain evidence from internal organs and were not per se unreasonable.Footnote 36 However, it found that Japan’s failure to assess the use of non-lethal alternatives was unreasonable in light of its obligations to cooperate with the IWC, its own scientific policy, and the advent of new technologies to improve non-lethal whale research.Footnote 37 Also, several aspects of the study were not reasonably related to the objectives of the research programme; these included the following:

  • • different durations for three studies of minke, fin and humpback whales that were supposed to produce related data;Footnote 38

  • • sample sizes for some species that were insufficient for statistical analysis;Footnote 39

  • • weaknesses in the fin whale studies identified by Japan’s own expert;Footnote 40

  • • failure to demonstrate a reasonable basis for questionable study parameters;Footnote 41 and

  • • failure to adjust the study protocol when actual take was less than half of the study’s required sample size.Footnote 42

The ICJ also said that ‘a State party may not, in order to fund the research for which a special permit has been granted, use lethal sampling on a greater scale than is otherwise reasonable in relation to achieving the programme’s stated objectives’.Footnote 43 Moreover, the ICJ refused to engage with the parties’ dispute over the scientific value of the data sought, which it characterized as a matter of scientific opinion.Footnote 44

Concluding that the special permits granted by Japan were not ‘for purposes of scientific research’,Footnote 45 the ICJ’s final findings were straightforward. Deprived of the Article VIII exception for scientific research, Japan was in breach of its legal obligations by issuing permits for JARPA II; by allowing the use of a factory ship to take, kill and treat fin whales; and by allowing JARPA II’s operations within the Southern Ocean Sanctuary regarding fin whales.Footnote 46 The ICJ ordered Japan to terminate all aspects of JARPA II.Footnote 47 It further stated that ‘[i]t is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII, paragraph 1, of the Convention’.Footnote 48

5. Science and the icj approach

The claims in this case hinged on the facts alleged by each party regarding the scientific nature of JARPA II, understood in light of the more philosophical ‘what is science’ analysis discussed above. The ICJ’s initial decision to apply an objective standard of review to Japan’s issuance of special permits under Article VIII resulted in a rejection of Japan’s ‘margin of appreciation’ argument, which it had made previously in the Southern Bluefin Tuna case.Footnote 49 The ICJ then applied procedures to its review that encouraged the parties to develop the scientific evidence.

Japan argued that it is ‘an axiom of international law and relations’ that ‘States must have a margin of appreciation in cases such as this’.Footnote 50 Australia observed that margin of appreciation is a concept recognized only in the European Court of Human Rights and is not a rule of international law;Footnote 51 indeed, Australia pointed out that the ICJ had previously rejected such judicial deference in the Oil Platforms (Iran v. US) case.Footnote 52 The doctrine has been controversial, even in its original setting,Footnote 53 and commentators have argued that its application to transnational environmental matters, in Caroline Foster’s words, ‘would leave international resources relatively unprotected and would leave without recourse the populations of states affected by others’ decisions’.Footnote 54 As noted above, the ICJ found that, while Article VIII gives a state discretion to place conditions upon or to reject permit applications, the state cannot make a unilateral judgment on ‘whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research’.Footnote 55

In an earlier case, the Pulp Mills dispute between Argentina and Uruguay, the ICJ criticized the parties and was, in turn, sharply criticized by some of its own judges, as well as public opinion, for poor handling of significant scientific and technical issues.Footnote 56 In Pulp Mills, the ICJ reprimanded the parties for presenting their experts as witnesses, thus forestalling cross-examination by the adversary party and the ICJ.Footnote 57 Dissenting judges in the Pulp Mills case complained that the ICJ had not prevented these shortcomings and had not availed itself of various provisions in the ICJ Statute that would have allowed examination of party witnesses, more assertive demands for information from the parties, and appointment by the ICJ of its own expert.Footnote 58Whaling in the Antarctic presented a fresh approach by the ICJ by adopting procedures that facilitated the presentation of expert scientific evidence.

The procedure for scientific evidence in the oral proceedings of the case followed a strict and rapid schedule – written submissions from party experts had already been included in the memorial and counter-memorial.Footnote 59 The parties needed to inform the ICJ by 28 December 2012 of the expert evidence that they intended to present, including a list of experts to be called at the hearing. Parties then had one month in which to comment on each other’s information and to amend their own. The experts’ statements were required to be provided to the ICJ within two and a half months of that; they were also provided to New Zealand. The ICJ then gave the parties approximately one month in which to respond in writing. The oral hearings were held about one month later (26 June to 16 July 2014) at which time all written submissions were made public. Two experts were called by Australia, one by Japan; the experts were examined and cross-examined and they responded to questions posed by the judges. The Court did not appoint its own expert, which it is authorized to do under Article 50 of the ICJ Statute;Footnote 60 nor did it indicate whether it was assisted by its own advisers as it had been in the past.Footnote 61

6. Japan’s response, and looking to the future for the iwc scientific committee

The parties disputed the meaning of the judgment, which promises rough waters ahead for the IWC Scientific Committee. Japan interpreted the judgment as requiring it to withdraw existing permits and to draw up its next research plan taking into account paragraph 88 of the judgment concerning the meaning of ‘for the purposes of’.Footnote 62 New Zealand viewed the case as sending a signal that Japan should reconsider its whaling programme altogether. Australia, supported by several IWC members, argued that the ICJ provided objective criteria that the Scientific Committee must use in its review of scientific whaling proposals. Specifically, Australia contended that four parameters should be assessed by the Scientific Committee:

  • • that each of two cumulative elements in Article VIII – ‘scientific research’ and ‘for purposes of’ – must be satisfied;

  • • that the elements of a programme’s design and implementation are reasonable in relation to its stated scientific objectives;

  • • the use of lethal methods; and

  • • that the scale of lethal sampling cannot be greater than is otherwise reasonable in relation to achieving the objectives of the programme.Footnote 63

At a meeting of the IWC several months after the ICJ judgment, this difference of views extended to a conflict over whether the IWC would endorse an expert panel review of JARPA II conducted prior to the ICJ judgment.Footnote 64 The IWC finally agreed that whales killed in the course of JARPA II would not be recorded in the IWC database as infractions but that a special note would be made referring to the ICJ judgment.Footnote 65

Japan stated that it would abide by the ICJ judgment and cancel JARPA II, reduce the scale of JARPN II, forgo the 2014–15 whaling season, and develop a new whaling programme for the Southern Ocean that takes into account the ICJ judgment, particularly paragraph 88.Footnote 66 This paragraph of the judgment lists elements of the design and implementation of the programme that the ICJ assessed for reasonableness in relation to the programme’s stated scientific objectives, specifically:

  • • decisions regarding the use of lethal methods;

  • • the scale of the programme’s use of lethal sampling;

  • • the methodology used to select sample sizes;

  • • a comparison of the target sample sizes and the actual take;

  • • the time frame associated with a programme;

  • • the programme’s scientific output; and

  • • the degree to which a programme coordinates its activities with related research projects.

Japan further said that it would study the feasibility of using non-lethal methods for its research in the western North Pacific, taking account of the judgment.Footnote 67

Japan submitted a plan, on 18 November 2014, entitled ‘New Scientific Whale Research Program in the Antarctic Ocean’ (NEWREP-A) to the IWC for review by the Scientific Committee.Footnote 68 The stated objectives of this plan are to improve biological and ecological information for the IWC’s management procedure, with the eventual goal of lifting the moratorium; and to investigate the structure and dynamics of the Antarctic marine ecosystem through modelling. The plan proposes to kill 333 minke whales to collect data on age and maturity. Although the plan includes testing by non-lethal methods, it notes that this will not necessarily reduce the lethal take. Reviews will be undertaken after six years and again after twelve years.

7. Different views of oceans and whales

Fundamental understandings about property rights in ocean life are at the heart of this dispute.Footnote 69 When humans exercised limited dominion over the oceans there was a common understanding that ocean life belonged to no-one and could be made one’s own property by capture. Human expansion has since compelled a generally accepted move from considering the high seas as a no-man’s land (res nullius) to seeing it as a common area (res communis), and the more recent view that it may require regulation to avoid a ‘tragedy of the commons’.Footnote 70 Legal rules have developed to reflect these changing appreciations; for example, the regime governing exploitation of a non-living resource – deep seabed minerals – in areas beyond national jurisdiction defines those resources as the ‘common heritage of humankind’.Footnote 71

Nonetheless, progress down this road has been halting and this judgment does not characterize whales in innovative terms. Note, however, that Judge Cançado Trindade remarked in his Separate Opinion that:

[I]n respect of the ICRW Convention in particular, there has occurred, with the passing of time, a move towards conservation of living marine resources as a common interest … by the operation of the system of collective guarantee, collective decision making and collective regulation under the ICRW Convention.Footnote 72

The ICRW represents a step along this path. Judge Sebutinde stated:

[T]he ICRW was intended to replace unregulated unilateral whaling by individual States with a system of collective regulation whereby States parties to the ICRW chose to work collectively and to abide by the obligations they assumed thereunder, in order to protect their common interests and achieve their common goals.Footnote 73

For some states, it follows that no other state has the unilateral right to take what it wants from the common resource – minerals or whales alike.

Yet, these changes are slow, and fishers and whalers continue to see ocean life as ‘open access’ resources available for exploitation. The 2014 IWC meeting report noted Denmark’s observation that ‘whaling has taken place in Greenland for thousands of years and that having to justify it to the IWC is a recent obligation’.Footnote 74 Japan based its approach to the case on ‘the freedom to engage in whaling enjoyed by states under customary international law’.Footnote 75

In contrast, Australia and New Zealand focused on the collective nature of the ICRW as an instrument to enable the international community to manage the global populations of whales for present and future generations. The crux of New Zealand’s interpretation of Article VIII was that it forms ‘an integral part of the system of collective regulation established by the Convention, not an exemption from it’.Footnote 76 The conflict between Australia and Japan reflects these different views.

8. Conclusion

The Whaling in the Antarctic judgment advances the ICJ’s approach to environmental disputes with its thoughtful method of addressing the scientific issue on which the dispute hinged. It affirmed that an objective standard of review applies in this type of case, eschewing the margin of appreciation doctrine. The ICJ 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 role of the judge from the role of the scientist, while respecting both.

Throughout the decision the ICJ was at pains to distinguish the tools that it found appropriate for legal interpretation of the treaty from the methods used within scientific disciplines. Future cases may not find this as helpful as it appears at first sight – in this case the central question was ‘is this science?’, whereas a more characteristic question in an environmental dispute is whether a particular activity caused a particular claimed harm. Argentina’s claim in the Pulp Mills case that water pollution resulted from Uruguay’s pulp mill activities may have been more typical. Nonetheless, determining the reliability of scientific evidence in other cases calls for the kinds of question that the ICJ applied to JARPA II, such as whether the programme design and implementation were reasonable to achieve its scientific objectives according to objective criteria.

Although it imposed a brief hiatus on Japan’s whaling activities, the ICJ decision does not resolve the fundamental cultural conflict between those nations that believe whales should not be hunted and those that are willing to restrict hunting as part of a wildlife management programme. It focuses on interpretation of Article VIII ICRW. The ICJ affirmed that the objectives and structure of the ICRW are oriented towards 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 may be killed.

The Court examined only the ICRW, which provided a sufficient answer to the question posed by this dispute. As such, the judgment does not develop principles of customary international law or international environmental law.Footnote 77 The questions of how CITES, the CBD, customary international law or evolving environmental norms would or should apply were left for another day.

Footnotes

I thank Timo Koivurova, Anastasia Telesetsky, and three anonymous reviewers for their thoughtful comments and suggestions; any errors are my own. This commentary is based on an article previously published in 18(9) ASIL Insights (Apr. 2014).

References

1 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, 31 Mar. 2014, available at: http://www.icj-cij.org/docket/files/148/18136.pdf (Judgment).

2 Washington, DC (US), 2 Dec. 1946, in force 10 Nov. 1948, available at: https://iwc.int/convention.

3 These requirements are found in para. 30 of the ICRW Schedule, Panama City (Panama), 2 Jul. 2012, in force 4 Feb. 2013, available at: http://iwc.int/private/downloads/1lv6fvjz06f48wc44w4s4w8gs/Schedule-February-2013.pdf. See also Judgment, para. 242. Judge Sebutinde voted against this because in her view Japan had breached its ‘substantive duty of meaningful co-operation with the IWC and its subordinate organs such as the Scientific Committee’: Judgment, Separate Opinion of Judge Sebutinde, para. 15, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. Judge Bandhari dissented from this part of the judgment, viewing Japan’s formal compliance with para. 30 by submitting its permits to the IWC as falling short of substantive compliance, which would have entailed ‘an on-going dialogue with the Scientific Committee’: Judgment, Separate Opinion of Judge Bhandari, paras 18–9, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. Judge Bhandari would also have preferred the Court to make a finding that JARPA II is a commercial whaling programme: Judgment, Separate Opinion of Judge Bhandari, ibid., paras 21–36. Judge Charlesworth also dissented, seeing Japan as having breached para. 30 by failing to satisfy the duty of cooperation, which she viewed as central to the structure of the ICRW: Judgment, Separate Opinion of Judge Charlesworth, paras 11–7, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

4 Judgment, para. 227.

5 Ibid., para. 246.

6 See Mare, W. de la, Gales, N. & Mangel, M., ‘Applying Scientific Principles in International Law on Whaling’ (2014) 345(6201) Science, pp. 1125–1126CrossRefGoogle ScholarPubMed. Note that Gales and Mangel acted as scientific expert witnesses for Australia in this case.

7 On 6 Feb. 2013, the ICJ confirmed New Zealand’s right to intervene based on its status as a party to the ICRW. Japan did not object to New Zealand’s intervention, but it did raise a number of concerns that it urged the ICJ to consider in that Australia was obtaining a form of double representation (i) through New Zealand’s identical interest in the dispute, and (ii) by having a judge of New Zealand nationality on the ICJ as well as a judge appointed ad hoc by Australia. For Australia, New Zealand’s intervention was admissible. The IWC was informed of Australia’s application by the ICJ and replied that it would not submit observations, which would have been allowed under Art. 69(3) of the ICJ Rules of Court.

8 ICRW Schedule, n. 3 above.

9 Art. V(3) ICRW, in which a party may object within 90 days after a Schedule amendment is voted upon, which will delay the coming into effect of the amendment for a further 90 days; further objections may be made during this period, which can be further extended to 30 days after the last received objection; the amendment is then ineffective for any objector until the objection is withdrawn.

10 Japan explained that ‘[t]he proceeds obtained through the sales of by-products are allocated to the expenditure associated with conducting special permit whaling: the sales do not seek commercial gain’: Counter-Memorial of the Government of Japan, Whaling in the Antarctic (Australia v. Japan), 9 Mar, 2012, para. 37.

11 Chair’s Report of the 65th Meeting, 31 Oct. 2014, para. 27 (Chair’s Report).

12 A South Atlantic Whale Sanctuary is under discussion, with a Scientific Committee report due in 2016: ibid., at para. 28. This new sanctuary proposal is opposed by a number of countries, including Japan: ibid., at paras 81–2.

13 ICRW Schedule, n. 3 above, notes to paras 6 and 7(b). A brief history of Japan’s objections is provided in the Judgment, para. 100. Japan’s legal argument in this case is, however, that ‘this dispute is not about the legality of JARPA II under any rules of international law other than Article VIII of the ICRW’: Counter-Memorial of Japan, n. 10 above, para. 9.

14 JARPN II (Second Phase of the Japanese Whale Research Program under Special Permit in the Western North Pacific) also uses lethal take, which in 2012 included 74 common minke, 100 sei, 34 Bryde’s and three sperm whales: International Whaling Commission (IWC), ‘Report of the Scientific Committee’, SC/65a, 2013, at p. 79, available at: http://tinyurl.com/IWCReport.

15 Judgment, para. 202.

16 UN, San Francisco, CA (US), 26 June 1945, in force 24 Oct. 1945, available at: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.

17 Judgment, paras 32–3.

18 Ibid., paras 34–5.

19 Ibid., paras 36–41.

20 Application, para. 36.

21 Ibid., para. 38. CITES, Washington, DC (US), 3 Mar. 1973, in force 1 July 1975, available at: http//:www.cites.org; CBD, Rio de Janeiro (Brazil), 5 June 1992, in force 29 Dec. 1993, available at: http://www.cbd.int/convention/text. Sand, P.H., ‘Japan’s “Research Whaling” in the Antarctic Southern Ocean and the North Pacific Ocean in the Face of the Endangered Species Convention’ (2008) 17 Review of European Community and International Environmental Law, pp. 56–71CrossRefGoogle Scholar.

22 Judgment, para. 131.

23 Ibid., para. 52.

24 Declaration of Intervention pursuant to Article 63 of the Statute by the Government of New Zealand, Whaling in the Antarctic (Australia v. Japan), 20 Nov. 2012, para. 16.

25 Judge Xue’s Separate Opinion offers an alternative analysis that gives greater weight to the discretion afforded states by Art. VIII, limited by the regulatory regime of the Convention and a duty of good faith. In her view, JARPA II is a programme for scientific research; Japan is in breach of its obligation because the scale of permits it granted under JARPA II may have an adverse impact on the moratorium on commercial whaling: see Judgment, Separate Opinion of Judge Xue, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

26 Judgment, para. 61.

27 Ibid., para. 67.

28 Ibid., paras 89–97. Judge Yusuf differed from this approach; in his view, it was ‘paradoxical that a programme that is broadly characterized as scientific research is considered by the majority not to be “for purposes of scientific research”, particularly without its qualification as commercial whaling under Article VIII, paragraph 4, of the ICRW and without a definition of the words “scientific research”’: Judgment, Dissenting Opinion of Judge Yusuf, para. 5, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

29 Judgment, para. 67. Judge Owada objected to the entire investigation, writing ‘it would be impossible for the Court to establish that certain activities are objectively reasonable or not, from a scientific point of view, without getting into a techno-scientific examination and assessment of the design and implementation of JARPA/JARPA II, a task which this Court could not and should not attempt to do’: Judgment, Dissenting Opinion of Judge Owada, para. 25, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. In his view, the role of the Court is ‘to assess whether this determination of the Contracting Government in question is objectively reasonable, in the sense that the programme of research is based upon a coherent reasoning and supported by respectable opinions within the scientific community of specialists on whales, even if the programme of research may not necessarily command the support of a majority view within the scientific community involved’: ibid., para. 42.

30 Judgment, para. 67.

31 Ibid., para. 89.

32 Ibid., paras 73–86.

33 Ibid., para. 74. A related question is the admissibility of scientific evidence proffered by a party – that is, does it pass a threshold test of reliability so that it may be considered as part of the case? Caroline Foster contrasts international adjudication where ‘free admissibility of evidence is the guiding principle’ and the approach used in domestic courts of the US that, based on the influential writings of Karl Popper and Carl Hempel, assesses the admissibility of scientific evidence according to whether it is ‘derived by scientific method, and indicators of its validity include its testability or falsifiability, subjection to peer review, publication, the error rate in the techniques used, as well as the broader acceptance of the opinion in the scientific community’: Foster, C.E., Science and the Precautionary Principle in International Courts and Tribunals (Cambridge University Press, 2011), at pp. 12–14CrossRefGoogle Scholar.

34 Judgment, para. 75.

35 Ibid., para. 127.

36 Judge Charlesworth explained that in her view the ICJ should have interpreted this issue according to the precautionary approach, endorsed by both parties, to find that non-lethal methods of research should be used whenever possible: Judgment, Separate Opinion of Judge Charlesworth, n. 3 above, paras 6–10.

37 Judgment, para. 137 (summary), and paras 138–44 (discussing Japan’s failure to provide evidence that its scientists had analyzed the use of lethal versus non-lethal methods or size of lethal take and Japan’s use of cost as a factor).

38 Ibid., paras 177–8, 194, 196.

39 Ibid., para. 179.

40 Ibid., paras 180–1.

41 Ibid., paras 188–9, 193.

42 Ibid., paras 209–12.

43 Ibid., para. 94.

44 Ibid., para. 134.

45 Ibid., paras 223–7. Judge Abraham dissented chiefly on the basis that Australia bore a heavy burden of proof for its claim that Japan had acted in bad faith, and had failed to carry its burden: ibid., Dissenting Opinion of Judge Abraham, paras 28 and 23, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. While he agreed with several conclusions of the majority – stating, inter alia, that whether Art. VIII permits are ‘for the purposes of science’ is subject to the judgment of the bodies created by the ICRW and competent judicial bodies – Judge Abraham viewed the majority as too exigent in its demands for evidence from Japan. See also ibid., Dissenting Opinion of Judge Bennouna, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4. Judge Keith, in contrast, said: ‘Nor is it for the Court to decide on the scientific merit of the programme’s objectives nor whether its design and implementation are the best possible means of achieving those objectives. But it does have the role of assessing, in the light of the features of the power mentioned in the previous paragraph, the evidence to see whether it demonstrates coherent scientific reasoning supporting central features of the programme’: ibid., Declaration of Judge Keith, para. 8, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

46 Judgment, paras 231–3.

47 Ibid., para. 245.

48 Ibid., para. 246.

49 Australia and New Zealand v. Japan (Jurisdiction and Admissibility), Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea, Award of 4 Aug. 2000, available at: http://www.worldbank.org/ icsid/bluefintuna/award080400.pdf.

50 Counter-Memorial of Japan, n. 10 above, para. 9.16 (citing Peel, J., Science and Risk Regulation in International Law (Cambridge University Press, 2010), at pp. 347–357CrossRefGoogle Scholar; Button, C., The Power to Protect: Trade, Health and Uncertainty in the WTO (Hart, 2004), at. pp. 163–191Google Scholar, 227–35; Foster, n. 33 above, at pp. 14–7).

51 Oral Proceedings, CR 2013/17, 8 July 2013, para. 33.

52 Australia referred to a slightly different formulation of the concept of judicial deference, citing Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 6 Nov. 2003, ICJ Reports (2003), at p. 196 (‘the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any measure of discretion’).

53 E.g., Kratochvíl, J., ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29(3) Netherlands Quarterly of Human Rights, pp. 324–357CrossRefGoogle Scholar.

54 Foster, n. 33 above, at p. 16. Foster discusses the consideration of deference to national decision making by the World Trade Organization (WTO) Appellate Body and in the Southern Bluefin Tuna arbitration in which Japan argued that deference should be shown to its decisions regarding its ‘experimental’ tuna fishing: ibid., at pp. 14–7. Yuval Shany argues that the ‘margin of appreciation’ doctrine has a role in fact-intensive cases, but says ‘I believe it would be deplorable if application of the margin of appreciation doctrine were to result in a significant dilution of the degree of objective legal certainty which appertains to important international law norms – for instance … whether the release of “greenhouse” gases violates environmental law. Perpetuating normative ambiguity in these and other areas of the law might encourage states to evade inconvenient legal obligations and render such obligations meaningless’: Shany, Y., ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2006) 16(5) European Journal of International Law, pp. 907–940Google Scholar, at 913.

55 Judgment, para. 61.

56 See Payne, C.R., ‘Pulp Mills on the River Uruguay (Argentina v. Uruguay)’ (2011) 105 American Journal of International Law, pp. 94–100Google Scholar.

57 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 Apr. 2010, ICJ Reports (2010) (Pulp Mills), at para. 167, available at: http://www.icj-cij.org/docket/files/135/15877.pdf.

58 Ibid., Joint Dissenting Opinion of Judges Al-Khasawneh and Simma; Declaration of Judge Yusuf, available at: http://www.icj-cij.org/docket/index.php?&case=135&code=au&p3=4.

59 Judgment, paras 14–17, 20–1.

60 Statute of the International Court of Justice, n. 16 above.

61 This former practice is discussed in Pulp Mills, n. 57 above, para. 14.

62 Chair’s Report, n. 11 above, paras 240, 243, 244–8.

63 Ibid., para. 243.

64 Ibid., para. 262.

65 Ibid., paras 299, 395.

66 Ibid., paras 252, 257, 267; Government of Japan, Minister for Agriculture, Forestry and Fisheries, ‘Policy towards the Future Whale Research Programs’, 18 Apr. 2014, available at: http://www.jfa.maff.go.jp/e/pdf/danwa.pdf.

67 Ibid., at p. 2.

68 Correspondence from J. Morishita, IWC Commissioner for Japan, to S. Brockington, Executive Secretary, IWC: ‘Letter to Dr Simon Brockington from Joji Morishita’; 19 Nov. 2014, available at: http://iwc.int/private/downloads/eweo3qmbr4ocosc48sscsg0kc/Letter%20to%20IWC%20from%20Mr.%20Morishita.pdf; Government of Japan, Proposed Research Plan for New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A).

69 A ‘discourse shift that involved a reconceptualization of whales as beautiful sentient creatures with intrinsic value’ in contrast to ‘an older industrialist treatment of whales as a source of useful products for human consumption’ is an equally important element underlying the dispute, but it was not an element of the legal arguments: see Dryzek, J.S., ‘Paradigms and Discourses’, in D. Bodansky, J. Brunnée & E. Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2007), pp. 45–62Google Scholar, at 61.

70 J. Brunnée, ‘Common Areas, Common Heritage, and Common Concern’, in Bodansky, Brunnée & Hey, ibid., pp. 550–73, at 557.

71 Art. 136, UN Convention on the Law of the Sea (UNCLOS), Montego Bay (Jamaica), 10 Dec. 1982, in force 16 Nov. 1994, available at: http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf; Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 1 Feb. 2011, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf.

72 Judgment, Separate Opinion of Judge Cançado Trindade, para. 71, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&case=148&code=aj&p3=4.

73 Judgment, Separate Opinion of Judge Sebutinde, n. 3 above, para. 3.

74 Chair’s Report, n. 11 above, at para. 47. Greenland is allowed to hunt whales under the aboriginal subsistence whaling exception and its most recent request is for 164 minke whales, 2 bowhead whales, 19 fin whales and 10 humpback whales off West Greenland, and 12 minke whales off East Greenland: ibid., at para. 49. Argentina criticized Greenland’s aboriginal whaling programme as having a strong commercial component: ibid., at paras 57, 66.

75 Judgment, para. 57.

76 Ibid., para. 26. Judge Cançado Trindade, in his Separate Opinion to the Order allowing New Zealand’s intervention, observed that New Zealand’s intervention was appropriate to the ICRW’s embodiment of a collective interest and that the Court should allow intervention particularly in the case of a ‘multilateral treaty like the ICRW, aiming above all at the conservation of all whales species, to the benefit of future generations in all nations’: Judgment, Separate Opinion of Judge Cançado Trindade, n. 72 above, para. 61.

77 Indeed, Judge Cançado Trindade noted that ‘the Court does not dwell upon the precautionary principle or approach in the present Judgment’, but that the parties and the intervenor did address the precautionary principle and approach: Judgment, Separate Opinion of Judge Cançado Trindade, ibid., para. 60. Judge Charlesworth discussed the relevance of the precautionary approach to the conditions in which lethal take might be used for research: Judgment, Separate Opinion of Judge Charlesworth, n. 3 above, paras 6–10.