THE issue of whaling has been the subject of considerable controversy in recent years, as the international community remains divided as to how the world's marine resources should be managed: some states prioritise conservation, while others favour sustainable exploitation. Against this background, Australia initiated proceedings against Japan before the International Court of Justice (ICJ) in May 2010, claiming that Japan's continuing whaling activities, carried out under the guise of scientific research, were in breach of its various obligations under the International Convention for the Regulation of Whaling (ICRW). New Zealand later intervened in the proceedings, exercising its right under Article 63 of the ICJ Statute, and oral pleadings involving the three states were held in June and July 2013. On 31 March 2014, the ICJ delivered its judgment in Whaling in the Antarctic (Australia v Japan, New Zealand Intervening), finding that Japan had violated three provisions of the ICRW – the moratorium on commercial whaling, the ban on factory ships, and the prohibition on whaling in the Southern Ocean Sanctuary – by authorising the killing of certain whale species as part of its JARPA II research programme. The decision has largely been welcomed, especially by environmental activists, for offering a measure of protection to endangered marine life, but the judgment carries broader significance for its treatment of a number of points of international law, including the standard of review exercised by international courts, the role of scientific reasoning in international dispute settlement, and the interpretation of treaties.

The central issue in this dispute concerned the interpretation of Article VIII of the ICRW, which allows states parties to grant a special permit authorising any of their nationals “to kill, take and treat whales for purposes of scientific research”, subject to any restrictions that the authorising state might choose to impose. Since whaling carried out under such a special permit “shall be exempt from the operation of the Convention”, the Court's primary task was to determine whether or not Japan's grant of a special permit to the JARPA II programme fell within the permissible scope of the Article VIII exemption.

From the outset Japan argued that the ICJ had no legal basis to review its decision to issue a special permit, since it was entitled to a very wide degree of discretion (a “margin of appreciation”) when exercising the right – conferred exclusively upon states parties to the ICRW under Article VIII – to authorise scientific whaling. Opposing this argument, Australia and New Zealand maintained that the Court was competent to review JARPA II's special permit in order to determine whether it conformed with the objective requirements specified in Article VIII, namely that the JARPA II programme was “for purposes of scientific research”. The Court decided that Japan's action was indeed reviewable: while Article VIII gives states the discretion to grant special permits for scientific whaling and to attach conditions to those permits, the essential question “whether the killing, taking and treating of whales … is for purposes of scientific research cannot depend simply on that State's perception” (at para. [61]).

Having determined that Japan's grant of a special permit was subject to review, the Court next clarified the appropriate standard to apply when undertaking this review. While some of the dissenting judges (Owada and Abraham) considered that the ICJ should only review whether Japan acted in good faith when exercising its treaty rights, the Court declared that a higher standard of review was appropriate: specifically, whether Japan's decision to authorise the JARPA II programme was objectively reasonable. As the Court explained, this objective review involved two tasks: first, assessing whether the objectives pursued by JARPA II could properly be characterised as scientific research, and second, examining “whether, in the use of lethal methods, the programme's design and implementation are reasonable in relation to achieving its stated objectives” (at para. [67]).

The first task, which required the Court to interpret the undefined term “scientific research” in Article VIII, raised an interesting issue concerning the weight to be attached to resolutions and guidelines issued by the Convention's supervisory body, the International Whaling Commission (IWC). Australia contended (and New Zealand similarly argued) that the Court should adopt a restrictive interpretation of Article VIII, one which minimises the conditions in which a state may authorise the use of lethal methods, in order to reflect substantive developments in the Convention's system of collective regulation – such as the introduction of the commercial whaling moratorium – as well as apparent changes in the treaty parties' views concerning the killing of whales generally. In support of this argument, Australia pointed to a number of resolutions and guidelines adopted by the IWC in recent decades recommending that states only authorise lethal methods in exceptional circumstances where non-lethal alternatives are not feasible. Australia asserted that these resolutions must inform the Court's interpretation of Article VIII since they constitute both “subsequent agreements” and “subsequent practice” between the parties to the Convention concerning its interpretation, within the meaning of those two concepts in Article 31 of the Vienna Convention on the Law of Treaties.

The Court rejected these assertions, and declined to use the resolutions as interpretive aids. The resolutions did not qualify as agreements between the parties because they had not been adopted with the support of all of the treaty parties, nor did they establish any binding obligations, since they were merely recommendatory in character (at para. [83]). In this light, the Court's description of the ICRW as “an evolving instrument” (at para. [45]) refers only to the fact that the Convention establishes a specific procedural framework for its amendment, and carries no connotation that the treaty is dynamic in any broader sense. Judges Yusuf, Cançado Trindade and Charlesworth disagreed with the Court on this point, as each considered, for slightly different reasons, that the Convention should be interpreted in light of various recent developments, including the IWC resolutions in favour of conservation, the emergence of the precautionary principle in international environmental law, and the shift in international attitudes and societal values concerning whaling generally. Ultimately, the ICJ found that the JARPA II programme could “broadly be characterised as ‘scientific research’” because its objectives fell within the research categories endorsed by the IWC Scientific Committee (at para. [127]), though it declined to offer any general definition of “scientific research” (at para. [86]).

Turning to the second task, the ICJ scrutinised various elements of JARPA II's design and implementation to determine whether lethal techniques were reasonable means to achieve the programme's stated objectives. Based on its examination of sometimes complex technical data, the Court identified a number of problems with the way in which JARPA II's lethal sampling had been conceived and carried out. Japan produced no evidence that it had studied the feasibility of non-lethal alternatives, nor had it shown that the programme's scale was reasonable. Some of the chosen sample sizes were, in the absence of specific justification, larger than was reasonable, while others were too small to produce statistically useful information about JARPA II's objectives. Furthermore, the significant shortfall between the number of whales actually killed and the targeted sample size suggested that the lethal methods might not have been used for scientific reasons, but rather to satisfy political considerations or funding concerns. Finally, the Court doubted the reasonableness of JARPA II's lethal sampling on account of the programme's open-ended time-frame, its limited scientific output, and its failure to cooperate with other scientific research institutions.

Taking these elements together, the Court concluded that it was not reasonable for JARPA II to use lethal methods in order to achieve its stated research objectives. Therefore, the special permit granted by Japan did not fall within the permissible scope of Article VIII, and as a result Japan was in breach of three provisions of the ICRW: the moratorium on commercial whaling, the ban on factory ships, and the prohibition on whaling in the Southern Ocean Sanctuary. The ICJ ordered Japan to revoke JARPA II's existing permit, and to refrain from granting any further authorisations to that programme. At the same time, the Court found that Japan had satisfied the procedural requirement to furnish the IWC's Scientific Committee with information concerning requests to carry out scientific whaling.

The ICJ appears to have struck a sensible balance in its supervision of the ICRW in the Whaling in the Antarctic case. On one hand, the Court respects the discretion afforded to states under the ICRW, as it recognises that the treaty parties have a very wide margin of appreciation in respect of certain activities, such as selecting scientific priorities and choosing research techniques. On the other hand, the Court ensures that the objective limits to states' discretionary entitlements are upheld, as it insists upon a relatively robust form of judicial review based on objective standards of reasonableness in order to prevent states from exercising their discretion improperly or excessively. And while it accepts that states have the right to authorise the killing of whales for scientific purposes, the Court also confirms (at para. [83]) that states “have a duty to co-operate with the IWC and the Scientific Committee” and so should take their various recommendations into account when exercising their treaty rights.

The case also marks a welcome step in the ICJ's handling of scientific and technical elements of international disputes. The Court appeared more willing than it has in previous cases (such as Pulp Mills on the River Uruguay (Argentina v Uruguay) (2010) ICJ Reports 14 and Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (1997) ICJ Reports 7) to examine closely the scientific evidence and technical materials presented by the parties, and it demonstrated greater proficiency when doing so. It administered an efficient process for the production of scientific expert evidence, and was unusually vigorous in its questioning of the scientific experts called by the parties during the oral pleadings.

But while the ICJ showed greater proficiency with scientific evidence, it took great care to confine itself to the legal task it was asked to discharge – namely the interpretation of the Convention – while avoiding the scientific controversies underlying the dispute. At numerous points in the judgment, the Court refrained from venturing opinion on scientific disagreements which it was neither required nor competent to address, as it noted (at para. [69]) that it was “not called upon to resolve matters of scientific or whaling policy”, nor was it prepared “to pass judgment on the scientific merit of the JARPA II objectives” (at para. [88]). While the Court's commitment to separating the respective tasks of both scientists and lawyers seems sound, it might prove difficult to sustain such an approach in the future. It is becoming increasingly common for technical standards to be incorporated within the normative frameworks established by international instruments, especially in areas like environmental law and trade law, while states show a growing readiness to employ scientific assertions and evidence to advance their position in all manner of cases. For the time being, the ICJ can be expected to tread carefully but with growing confidence when called upon to resolve disputes involving disagreement on scientific matters.