[Original press release: 18162.pdf
Judgment: 18136.pdf]
No. 2014/14
31 March 2014
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) The Court finds that Japan’s whaling programme in
the Antarctic (JARPA II) is not in accordance with three provisions of the Schedule to the International Convention for
the Regulation of Whaling
THE HAGUE, 31 March 2014. The International Court of Justice (ICJ), the principal judicial organ of the United Nations,
has today rendered its Judgment in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand
intervening).
In that Judgment, which is final, without appeal and binding on the Parties, the Court,
(1) finds, unanimously, that it has jurisdiction to entertain the Application filed by Australia on 31 May 2010;
(2) finds, by twelve votes to four, that the special permits granted by Japan in connection with JARPA II do not fall
within the provisions of Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling;
(3) finds, by twelve votes to four, that Japan, by granting special permits to kill, take and treat fin, humpback and
Antarctic minke whales in pursuance of JARPA II, has not acted in conformity with its obligations under paragraph 10 (e)
of the Schedule to the International Convention for the Regulation of Whaling;
(4) finds, by twelve votes to four, that Japan has not acted in conformity with its obligations under paragraph 10 (d)
of the Schedule to the International Convention for the Regulation of Whaling in relation to the killing, taking and
treating of fin whales in pursuance of JARPA II;
(5) finds, by twelve votes to four, that Japan has not acted in conformity with its obligations under paragraph 7 (b) of
the Schedule to the International Convention for the Regulation of Whaling in relation to the killing, taking and
treating of fin whales in the “Southern Ocean Sanctuary” in pursuance of JARPA II;
(6) finds, by thirteen votes to three, that Japan has complied with its obligations under paragraph 30 of the Schedule
to the International Convention for the Regulation of Whaling with regard to JARPA II;
(7) decides, by twelve votes to four, that Japan shall revoke any extant authorization, permit or licence granted in
relation to JARPA II, and refrain from granting any further permits in pursuance of that programme.
I. JURISDICTION OF THE COURT
The Court notes that Australia invokes as the basis of the Court’s jurisdiction the declarations made by both Parties
under Article 36, paragraph 2, of the Court’s Statute. Japan contests the jurisdiction of the Court over the dispute
submitted by Australia, arguing that it falls within Australia’s reservation (b) contained in its declaration, which
refers to disputes concerning “the delimitation of maritime zones” or “arising out of, concerning, or relating to the
exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”. The Court
considers that the existence of a dispute concerning maritime delimitation between the Parties to the case is required
for the reservation to be applicable. Since there is no maritime delimitation dispute between the Parties in the
Antarctic Ocean and since the current dispute is only about the compatibility or not of Japan’s whaling activities with
its obligations under the Convention, the Court concludes that Japan’s objection to the Court’s jurisdiction cannot be
upheld.
II. INTERPRETATION OF ARTICLE VIII, PARAGRAPH 1, OF THE INTERNATIONAL CONVENTION FOR THE REGULATION OF WHALING
The interpretation and application of Article VIII of the Convention is central to the current case. In the view of the
Court, while this Article gives discretion to a State party to the Convention to reject the request for a special permit
or to specify the conditions under which a permit will be granted, the question of 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.
The Court then turns to the meaning of the phrase “for purposes of scientific research” in Article VIII of the
Convention. In the view of the Court, the two elements of this phrase are cumulative. As a result, even if a whaling
programme involves scientific research, the killing, taking and treating of whales pursuant to such a programme does not
fall within Article VIII unless these activities are “for purposes of” scientific research. Therefore, the Court does
not consider it necessary to offer a general definition of “scientific research” and focuses its attention on the
meaning of the term “for purposes of”.
In order to ascertain, in particular, whether a programme’s use of lethal methods is “for purposes of” scientific
research, the Court considers whether the elements of such a programme’s design and implementation are reasonable in
relation to its stated research objectives. As shown by the arguments of the Parties, these elements may include:
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 co-ordinates its activities with
related research projects.
III. APPLICATION OF ARTICLE VIII, PARAGRAPH 1, TO JARPA II
The Court finds that JARPA II can broadly be characterized as “scientific research”. It then examines whether its design
and implementation are reasonable in relation to achieving the programme’s stated research objectives.
Examining Japan’s decisions regarding the use of lethal methods, the Court finds no evidence of any studies of the
feasibility or practicability of non-lethal methods, either in setting the JARPA II sample sizes or in later years in
which the programme has maintained the same sample size targets. The Court also finds no evidence that Japan examined
whether it would be feasible to combine a smaller lethal take and an increase in non-lethal sampling as a means to
achieve JARPA II’s research objectives.
Turning to the scale of the use of lethal methods in JARPA II, the Court notes that a comparison between the Research
Plans in JARPA II and JARPA, its predecessor programme, reveals a considerable overlap between the two programmes’
subjects, their objectives, and their methods. For the Court, these resemblances cast doubt on Japan’s argument that the
JARPA II objectives relating to ecosystem monitoring and multi-species competition are distinguishing features of JARPA
II that call for a significant increase in the minke whale sample size and the lethal sampling of two additional
species. The Court also notes that Japan launched JARPA II without waiting for the final review of JARPA by the
Scientific Committee (a body established by the International Whaling Commission created under the Convention), which
analyses the results of research conducted under special permits and reviews and comments on special permits before they
are issued by States parties. The Court considers that weaknesses in Japan’s explanation for the decision to proceed
with the JARPA II sample sizes prior to the final review of JARPA lend support to the view that those sample sizes and
the launch date for JARPA II were not driven by strictly scientific considerations.
After an extensive examination of the determination of species-specific sample sizes, the Court notes that the evidence
relating to JARPA II provides scant analysis and justification for the underlying decisions that generate the overall
sample size, raising further concerns about whether the design of JARPA II is reasonable in relation to achieving its
stated research objectives.
The Court also observes a significant gap between the JARPA II target sample sizes and the actual take. In the view of
the Court, the gap between the target sample sizes for fin and humpback whales in the JARPA II Research Plan and the
actual take of these two species undermines Japan’s argument that the objectives relating to ecosystem research and
multi-species competition justify a larger target sample size for minke whales, as compared to that in JARPA.
The Court notes that there are three additional aspects of JARPA II which cast further doubt on its characterization as
a programme for purposes of scientific research: the open-ended time frame of the programme, its limited scientific
output to date, and the lack of co-operation between JARPA II and other domestic and international research programmes
in the Antarctic Ocean.
Taken as a whole, the Court considers that JARPA II involves activities that can broadly be characterized as scientific
research, 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.
IV. EXAMINATION OF ALLEGED VIOLATIONS OF THE SCHEDULE
The Court turns next to the implications of that conclusion, in light of Australia’s contention that Japan has breached
several provisions of the Schedule. As regards paragraphs 7 (b), 10 (d) and 10 (e) of the Schedule, the Court considers
that, although the wording of these provisions differs, all whaling that falls outside Article VIII, paragraph 1, other
than aboriginal subsistence whaling, is subject to all three provisions. The Court therefore concludes that Japan has
violated: (i) the moratorium on commercial whaling in each of the years during which it has set catch limits above zero
for minke whales, fin whales and humpback whales under JARPA II; (ii) the factory ship moratorium in each of the seasons
during which fin whales were taken, killed and treated under JARPA II; and (iii) the prohibition of commercial whaling
in the Southern Ocean Sanctuary in each of the seasons during which fin whales have been taken under JARPA II.
The Court then turns to Australia’s allegation that Japan violated paragraph 30 of the Schedule, which requires that
Contracting Governments provide the Secretary to the International Whaling Commission with proposed scientific permits
before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them. In this
regard, the Court observes that Japan submitted the JARPA II Research Plan for review by the Scientific Committee in
advance of granting the first permit for the programme and also submitted for review all subsequent permits. The Court
also finds that the JARPA II Research Plan sets forth all the information specified by that provision. For these
reasons, the Court considers that Japan has met the requirements of paragraph 30 as far as JARPA II is concerned.
V. REMEDIES
The Court observes that JARPA II is an ongoing programme. Under these circumstances, measures that go beyond declaratory
relief are warranted. The Court therefore orders that Japan 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. The Court sees no need to order the additional remedy
requested by Australia, which would require Japan to refrain from authorizing or implementing any special permit whaling
which is not for purposes of scientific research within the meaning of Article VIII, since that obligation already
applies to all States parties.
Composition of the Court
The Court was composed as follows: President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham, Keith,
Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari; Judges ad hoc
Charlesworth; Registrar Couvreur.
Judges OWADA and ABRAHAM append dissenting opinions to the Judgment of the Court; Judge KEITH appends a declaration to
the Judgment of the Court; Judge BENNOUNA appends a dissenting opinion to the Judgment of the Court; Judge CANÇADO
TRINDADE appends a separate opinion to the Judgment of the Court; Judge YUSUF appends a dissenting opinion to the
Judgment of the Court; Judges GREENWOOD, XUE, SEBUTINDE and BHANDARI append separate opinions to the Judgment of the
Court; Judge ad hoc CHARLESWORTH appends a separate opinion to the Judgment of the Court.
*
A summary of the Judgment appears in the document “Summary No. 2014/3”. This press release, the summary and the full
text of the Judgment can be found on the Court’s website (www.icj-cij.org), under the heading “Cases”.
Note: The Court’s press releases are prepared by its Registry for information purposes only and do not constitute
official documents.
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