Environmental Law

Whaling in the Antarctic

(Australia v. Japan: New Zealand intervening)

Anirban Panja 21IP63003 Sadaf Rahman 21IP63012

Dhaneesha P B 21IP63006 Vishnuvardhan M 21IP63020
Ruchika Loitam 21IP63011 Bhuvan Ningania 21IP63040
A Japanese Factory Ship
Introduction and background history

Whaling is the practice of hunting or killing whales for commercial products like meat and oil.

History:
Whaling has been carried out by various groups of people around the world for thousands of years.
Archaeological evidence suggests that primitive whaling, was practiced around 3000 BC.

By the time Antarctic whaling started, it had reached the industrial stage with explosive harpoons and
small, fast catcher boats. Whales were hunt indiscriminately without any regard for any kind of long-term
sustainability.
In 1925, the first "factory ships" were built so that whaling could take place entirely at sea. As the 20th
century progressed, so factory ships were used to process whales at sea caught by dedicated catcher
boats on a much larger scale. The meat could be frozen at sea or sometimes processed for use as pet or
other animal food or even as fertilizer.

It has been an important source of fuel and food, especially for coastal peoples and communities.
However, an over-reliance on whales, combined with technological advances in hunting weaponry, has
brought whale population sizes down to historic lows.
Commercial value

The chief whale products that were used were whale oil derived from the melted down blubber (a thick
layer of fat beneath the skin that helps to insulate the whale from the icy seas) and "whale bone" not bone
at all but made from keratin, the same protein that makes skin, nails, hair, hoofs and claws. Baleen comes
from the large plates that many whales use to filter small food organisms from the sea.

1. Whale oil: Oil for lighting, lubrication, used in the manufacture of soaps, varnish, cosmetics, paint,
glaze, smokeless and odourless candles etc.

2. Whale bone, baleen: Baleen was used in a variety of nineteenth-century products such as buggy whips,
carriage springs, corset stays, fishing rods, hoops for women's skirts, umbrella ribs and many other
applications where nowadays plastic or springy steel would be used.

3. Ambergris: Ambergris is a dark, waxy substance produced in the digestive tract of sperm whales.
Ambergris has been used in cosmetics, medicines and wine. In recent times it was used to enhance and
lengthen the life of expensive perfumes.

4. Meat: Whale meat has been historically consumed by several communities such as the Inuits and others
in the North Atlantic and North Pacific.
Japan

Japanese whaling, in terms of active hunting of whales, is estimated by the Japan Whaling Association to
have begun around the 12th century. However, Japanese whaling on an industrial scale began around the
1890s when Japan started to participate in the modern whaling industry. Modern Japanese whaling
activities have extended far outside Japanese territorial waters, including whale sanctuaries protected by
other countries.
During the 20th century, Japan was heavily involved in commercial whaling. This continued until the
International Whaling Commission (IWC) moratorium on commercial whaling went into effect in 1986.
Japan continued to hunt whales using the scientific research provision in the agreement.
Japan is not the only nation that has hunted whales. However, it is the only nation that has done so outside
of its own domestic waters, doing so in Antarctica which many have campaigned as a conservation area.
Australia

Whaling in Australian waters began in 1791. The two main species hunted by such vessels in the early
years were black and sperm whales. Later, humpback, bowhead and other whale species would also be
hunted.
Whaling went on to be a major maritime industry in Australia providing work for hundreds of ships and
thousands of civilians and contributing export products worth £4.2 million by 1850.
A government inquiry into the industry in 1978 resulted in a ban on whaling in Australia and a commitment
to whale protection. Whale watching is now a significant tourist industry in the country.
Australia’s long-term policy objectives are to maintain the global moratorium on commercial whaling,
permanently end all forms of commercial whaling (including so-called ‘scientific’ whaling), and reform the
International Whaling Commission into a modern conservation organisation.
Southern Ocean Sanctuary

The Southern Ocean Whale Sanctuary is an area of 50 million square kilometers surrounding the continent
of Antarctica where the International Whaling Commission (IWC) has banned all types of commercial
whaling. To date, the IWC has designated two such sanctuaries, the other being the Indian Ocean Whale
Sanctuary.

Antarctica is one of the world’s last great wildernesses with abundant marine wildlife in the area.
Antarctic krill is the keystone species of the ecosystem of the Southern Ocean, and it is krill that attracts
most whales to the region.

Most whales of the Southern Ocean migrate to warmer waters for the Antarctic winter to give birth. They
return south in the Austral spring, to rich feeding grounds, and remain in the safe haven that is the
Southern Ocean Whale Sanctuary throughout the summer.

Despite a ban on all whaling in the Southern Ocean Whale Sanctuary, Japan’s Whale Research Program
continued to hunt minke whales in the Sanctuary until 2019. In 2019, Japan pulled out of the ICRW and
stopped this scientific whaling in Antarctic waters and recommenced commercial whaling in their own
territorial waters. The flesh from these "scientifically gathered" whales being sold to fund marine
research programmes.
International Whaling commission (IWC)

In an environment of international cooperation immediately following World War II, several countries
created the IWC in 1946, an international organisation intended to prevent the overhunting of whales.

In 1982, the member countries of the IWC, which included Japan at the time, decided in favour of a
commercial whaling moratorium, a policy that began in 1985 and is still in effect today. This policy did not
preclude all whaling by member countries.

Despite these IWC measures to end whaling, Japan has never fully adopted the anti-whaling norm. Even
though Japan accepted the 1982 moratorium in exchange for the quid pro quo fishing arrangement with the
United States, Tokyo decided to begin a scientific whaling program by invoking the scientific research
provision in Article 8 of the ICRW. However, in the case of Japan, whale meat from such “scientific”
expeditions has been sold commercially, a controversial practice
International Convention for the Regulation of Whaling (ICRW)

ARTICLE VIII

I. 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.

II. 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.

III. 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.

IV. 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.
JARPA - II

Japan's research program in the Antarctic (JARPA) began in 1987 in response to claims of uncertain
scientific information on whale stocks and was conducted for 18 years. As a result of Japan's research
program, it claims that “we now know more about the status of whale stocks and whale biology than at
any time in history”. Based on the results of JARPA, in 2005 Japan began a new and expanded program
called JARPA II.

JARPA II was proposed as a comprehensive long-term research program where an interim detailed
review was to be conducted following completion of the first 6 years of research. JARPA II research was
to focus on Antarctic minke whale and the larger species humpback and fin whales.

JARPA II included non-lethal sighting surveys to find out abundance estimates of whale stocks. However,
data for the estimation of age at sexual maturity and pregnancy rate, the measuring of blubber thickness,
and weight and prey species of stomach content are, it argued, not possible without killing the whales.
Thus, like the previous program, JARPA II combined both lethal and non-lethal methods according to
research purposes.
International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, established in
1945. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by
States and to give advisory opinions on legal questions referred to it by authorized United Nations organs
and specialized agencies.

As a basis for the jurisdiction of the Court, Australia invoked the provisions of Article 36, paragraph 2, of
the Court’s Statute, referring to the declarations recognizing the Court’s jurisdiction as compulsory made
by Australia and Japan on 22 March 2002 and 9 July 2007, respectively. While New Zealand’s intervention
was filed under the Article 63, paragraph 2, of the Statute of ICJ.
Legal Timeline

On 31 May 2010, Australia instituted proceedings against Japan in respect of “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’).

On 20 November 2012, New Zealand filed in the Registry a declaration of intervention in the case since it
contended that, as a party to the ICRW, it had a direct interest in the construction that might be placed
upon the Convention by the Court in its decision in the proceedings.

On 13 February 2013, having noted that New Zealand met the requirements set out in the Statute and the
Rules of Court, the Court found that the declaration of intervention was admissible. Public hearings were
held from 26 June to 16 July 2013, during which oral arguments were presented by Australia and Japan.

Finally, on 31 March 2014, the Court rendered its judgement first finding that it had jurisdiction to entertain
the case and then turning to the question of the interpretation and application of Article VIII of the 1946
Convention.
Arguments: Australia

1) JARPA II IS NOT SCIENTIFIC RESEARCH

• Japan does not use methods that are likely to achieve the stated objectives of JARPA II.

• The proposed models in JARPA II are not linked to the data collected.

• Japan uses lethal methods where non-lethal methods are available.

• JARPA II has far-reaching, unrealistic and poorly conceived objectives for which there is no
demonstrated need.

• JARPA II uses inappropriate methods, essentially limited to collecting data through whaling, despite the
fact that this is both unnecessary and unlikely to achieve JARPA II’s stated objectives. Moreover,
Japan’s sample size in JARPA II has no demonstrated scientific basis and it is set without time limits.

• JARPA II was not properly peer reviewed at the outset and neither does Japan respond to peer reviews.

• The design of JARPA II reflects little or no attention to the serious question of potential adverse effects
on the targeted whale stocks.
Arguments: Australia

2) JARPA II IS UNDERTAKEN FOR PURPOSES OTHER THAN SCIENTIFIC RESEARCH

JARPA II does not fall within the exception in Article VIII of the ICRW, as it is not scientific research. The
reason Japan persists with JARPA II is that its actual purpose is to continue whaling. Such conduct is not
justified by reference to Article VIII. In particular, in conducting JARPA II:

• Japan purports to rely on Article VIII to support large-scale whaling on a regular basis, which is
fundamentally inconsistent with Article VIII’s character as a strictly limited exception.

• Japan objectively fails to meet the requirements of Article VIII, and the legality of its program cannot be
saved by the legal fiction Japan has created through the issue of special permits;

• By issuing special permits for a program that is intended to subvert the moratorium on commercial
whaling, and by ignoring relevant IWC Guidelines as well as the significant concerns expressed by the
IWC in relation to JARPA II, Japan is not acting in good faith.

This conclusion is more than sufficient to disqualify Article VIII of the ICRW from providing a justification or
excuse for Japan’s conduct in pursuing its “scientific” whaling program over 24 years despite no or
negligible scientific results.
Arguments: Australia

3) BREACH OF THE COMMERCIAL WHALING MORATORIUM

Paragraph 10(e) of the Commercial Whaling Moratorium, adopted in 1982, imposes a moratorium on
commercial whaling: Notwithstanding the other provisions of paragraph 10, catch limits for the killing for
commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and
thereafter shall be zero. Although Japan initially objected to this moratorium, it subsequently withdrew its
objection with the result that the commercial whaling moratorium took effect for Japan from 1 May 1987.

Under JARPA II Japan killed a reported total of 3,264 minke whales and 19 fin whales in the six whaling
seasons from 2005/06 to 2010/11. The commercial nature of JARPA II is revealed by its involvement in and
direction towards production, sale and distribution of whale meat.

The number of whales targeted each year by Japan rose progressively throughout the 18-year duration of
JARPA, from 300 to a maximum of 440 minke whales. Under JARPA II this was increased considerably to
a maximum of 935 minke whales, 50 fin whales and 50 humpback whales. These levels of take under both
JARPA and JARPA II can only be consistent with commercial scale whaling.

Japan has provided no cogent scientific rationale for the scale of its takes under either JARPA or JARPA
II.
Arguments: Australia

4) BREACH OF THE SOUTHERN OCEAN SANCTUARY

In 1994, the Commission adopted paragraph 7(b) of the Schedule (ICRW), establishing the Southern Ocean
Sanctuary. Paragraph 7(b) provides in relevant part:

In accordance with Article V(1)(c) of the Convention, commercial whaling, whether by pelagic operations or
from land stations, is prohibited in a region designated as the Southern Ocean Sanctuary. This Sanctuary
comprises the waters of the Southern Hemisphere southwards of the following line: starting from 40
degrees S, 50 degrees W; thence due east to 20 degrees E; thence due south to 55 degrees S; thence due
east to 130 degrees E; thence due north to 40 degrees S; thence due east to 130 degrees W; thence due
south to 60 degrees S; thence due east to 50 degrees W; thence due north to the point of beginning. This
prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this
Sanctuary, as may from time to time be determined by the Commission.

The Southern Ocean Whale Sanctuary is an area of 50 million square kilometers surrounding the continent
of Antarctica
Arguments: Australia

JARPA Area of
Operation

Southern Ocean
Sanctuary

Figure I demonstrates the areas in which Japan has conducted its whaling under JARPA II (as under
JARPA), as well as the outline of the Southern Ocean Sanctuary; the figure shows that JARPA II has been
conducted entirely within the Southern Ocean Sanctuary. As Japan’s hunting of fin whales under the
program is conducted entirely within the Southern Ocean Sanctuary, it is contrary to paragraph 7(b) of the
Schedule to the ICRW.
Arguments: Australia

5)BREACH OF THE FACTORY SHIP MORATORIUM

Through the use of its factory ship and whale catchers for the taking, killing and treating of fin whales in
the 2005/06, 2006/07, 2008/09, 2009/10, and 2010/11 whaling seasons, Japan has repeatedly breached the
factory ship moratorium in paragraph 10(d) of the Schedule. Any take by Japan of humpback whales as
planned under JARPA II would likewise contravene Japan’s obligations under paragraph 10(d) of the
Schedule

FINAL CONCLUSION

• Japan’s whaling under JARPA II is commercial whaling within the meaning of the ICRW.

• This whaling is contrary to the commercial whaling moratorium in paragraph 10(e) of the Schedule and,
in respect of the take of fin whales, is also contrary to the factory ship moratorium under paragraph
10(d) and constitutes a breach of the Southern Ocean Sanctuary under paragraph 7(b).
Intervention: New Zealand

On 20 November 2012, New Zealand filed in the Registry a declaration of intervention in the case. Relying
on Article 63, paragraph 2, of the Statute, it contended that, as a party to the ICRW, it had a direct interest
in the construction that might be placed upon the Convention by the Court in its decision in the
proceedings. In an Order of 13 February 2013, having noted that New Zealand met the requirements set out
in the Statute and the Rules of Court, the Court found that the declaration of intervention was admissible.

Highlighted the importance of Article VIII and its importance to the ICRW
A minke whale caught in the sea off Kushiro, Hokkaido, under Japan's research whaling programme.
Arguments: Japan

1. Lack of jurisdiction of ICJ

Japan contested the jurisdiction of the Court on the ground of the reservation (b) of Australia’s
declaration, which Japan invoked on the basis of reciprocity. This reservation excludes the jurisdiction of
the court in “any dispute concerning or relating to the delimitation of maritime zones, including the
territorial sea, the exclusive economic zone and the continental shelf, 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.”

JAPRA II took place in the maritime zone claimed by Australia as relating to the asserted Australian
Antarctic Territory or in adjacent area, and taking of whales, could be viewed as exploitation of a maritime
area, even if it is for scientific research. But Japan asserted that Australia does not have sovereign rights
over the area mentioned in the Australian Antarctic Territory.

Japan’s questioning those maritime entitlements did not render these maritime areas under the dispute as
between parties. The reservation was not applicable, since the parties had no overlapping claims to
maritime area. Furthermore, the nature and extent of the concerned maritime zones were considered to
be irrelevant to the dispute, which was about whether Japan had breached its obligation under the ICRW.
Therefore, it was held that the Court had jurisdiction over the matter.
Arguments: Japan

2. New Zealand’s application to intervene had lapsed

On 20 November 2012, New Zealand filed in the Registry a declaration of intervention in the case. In an
Order of 13 February 2013, having noted that there was a time lapse with Japan tried to use it as dismissal.

3. JARPA-II was not within the territory of the southern ocean sanctuary.

The Southern Ocean Sanctuary was established in 1994 in the Antarctic Ocean as a management measure
for commercial whaling (Paragraph 1, Article V of the Convention). Research whaling, on the other hand, is
stipulated as a right of contracting governments (Paragraph 1, Article VIII), and measures for commercial
whaling do not apply to the take of whales for scientific purposes. Paragraph 1, Article VIII clearly states
“Notwithstanding anything contained in this Convention...” and research whaling is exempt from Paragraph
1, Article V.

The IWC Scientific Committee has not recommended any necessity for the Southern Ocean Sanctuary and
there are no scientific grounds for its establishment. The Convention clearly stipulates that whale
management measures must be based on scientific findings, which in fact makes the Sanctuary against
the law.
Arguments: Japan

4. Reaffirmation that JARPA-II is in fact a scientific programme that is exempt from Article VIII of the ICRW

Japan does not claim any right to commercial whale trading and would not qualify for an exemption as
Norway does. Japan’s argument was that the whaling conducted by Japan was within the prescribed limits
of ICRW. It said that the Court should look at “the applicable law” and argued that its purpose was
“conservation and management of whale stocks” and the “optimum utilisation of the whale resources”.
Japan said that sustainable whaling was one of the objectives of ICRW. It further said, “But Australia does
not accept sustainable commercial whaling”. Australia and New Zealand argued that the special permit
granted by Japan was not in accordance with the objectives of ICRW. To this Japan said that it was “an
exemption from the Convention, an exemption that permits whaling for the purposes of scientific
research”. Japan argued that it was up to each country to decide what was included in scientific research.

There are two types of survey methods: research that is impossible without killing whales (lethal
methods) and the kind that can be done without killing any (non-lethal methods). For instance, non-lethal
sighting surveys using the line transect method are carried out to find out abundance estimates of whale
stocks. However, data for the estimation of age at sexual maturity and pregnancy rate, the measuring of
blubber thickness, and weight and prey species of stomach content are not possible without killing the
whales. As with the previous program, JARPA II combines both lethal and non-lethal methods according
to research purposes.
Arguments: Japan

4. Reaffirmation that JARPA-II is in fact a scientific programme that is exempt from Article VIII of the ICRW

On Australia’s arguments about science, Japan said “Australia’s best case is that there is some scientific
disagreement” on aspects of Special Permit whaling. ‘But the question before the court is not whether
Japan could improve its scientific research. It is whether it has no scientific merit at all; or whether it is
commercial whaling in disguise”. Emeritus Professor Lowe, an expert on international law from Oxford
University, argued for Japan that there is no standard definition on scientific research. While Australia and
New Zealand contended that Japan’s program was not a part of scientific research, Japan said that it is
“an absurd exaggeration to say that it is not scientific research at all

Results of JARPA are presented every year at the IWC Scientific Committee (IWC/SC) as well as other
scientific meetings. In 1997, the IWC/SC held an intersessional review meeting to consider the results of
the research program. The accumulated data were reviewed in detail. In 2005, the final research cruise
year for JARPA, the Japanese government hosted a similar review meeting. Japan's research program
was highly evaluated at both review meetings.
Judgement: Findings

1. ICJ does have jurisdiction

In its Judgment rendered on 31 March 2014, the Court found that it had jurisdiction to entertain the case,
rejecting Japan’s argument that the dispute fell within the scope of a reservation contained in Australia’s
declaration recognizing the Court’s jurisdiction as compulsory.

2. New Zealand intervention was not lapsed

Relying on Article 63, paragraph 2, of the Statute, ICJ found that, New Zealand met the requirements set
out in the Statute and the rules, the Court found that the declaration of intervention was admissible.

3. JARPA-II’s design and implementation was not reasonable in relation to the program’s stated special
permitting objectives

1. Too little scientific data in comparison to the time spent on research:

The Court noted that the Research Plan uses a six-year period to obtain statistically useful
information for minke whales and a 12-year Period for the other two species, and that it can be
expected that the main Scientific output of JARPA II would follow these periods. It nevertheless
Observes that the first research phase of JARPA II (2005-2006 to 2010-2011) has already been
completed , but Japan points to only two peer-reviewed papers that have resulted From JARPA II to
date. These papers do not relate to the JARPA II Objectives and rely on data collected from
respectively seven and two Minke whales caught during the JARPA II feasibility study.
Judgement: Findings

2. Isolated the findings from other countries and scientific organizations:

The Court notes that the evidence invoked by Japan to demonstrate co-operation with Japanese research
institutions relates to JARPA, Not JARPA II

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. Therfore,
JARPA-II is in direct violation of ICRW with respect to the killing, taking and treating of whales in the
southern ocean sanctuary - JARPA-II was within the protected areas of the sanctuary.
Judgement: Orders

1. ICJ instructed the revocation of permits, licences and authorizations in relation to JARPA-II and
barred the future issuing of licences

Since JARPA II was an ongoing programme, it ordered Japan to revoke any extant authorization,
permit or licence to kill, or take or treat whales in relation to it, and to refrain from granting any
further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme

2. Cannot define the term “Scientific Research”; Cannot decide or settle the international position on
whaling or whales.

Final Verdict:

The International Court of Justice (ICJ) panel voted 12 votes to four in favour of Australia's argument that
Japan's JARPA II research whaling program was illegal, as it failed to constitute scientific research.
Dissent

Judge Yusuf

The law applicable to the dispute between the Parties was set aside by the Court in favour of an obscure
and debatable standard which cannot be found anywhere in the Convention, and which is based on the
“reasonableness” of the design and implementation of JARPA II in relation to the stated objectives of the
programme”.

The task of reviewing the design and implementation of a scientific research programme is more properly
the task of the Scientific Committee of the IWC, not of the Court.

The evidence before the Court does not support the conclusion that the special permits for JARPA II have
been issued by Japan for a purpose other than scientific research. Nor does such evidence establish that
the special permits for JARPA II do not comply with the requirements and conditions laid down in the
Convention.

The Scientific Committee of the IWC in its Report of 2012 specifically recommended the use of data arising
from both JARPA and JARPA II for catch-at-age based analysis for the minke whale dynamics model

Absence of clear evidence that JARPA II is commercial whaling in disguise.

Dissent

Judge Bennouna

JARPA II could not be described as a commercial whaling programme, since it is not conducted with a
view to profit.

Judge Abraham

There was no manifest mismatch between JARPA II’s stated aims and the means used to achieve them,
and that the sample sizes had not been set at a manifestly excessive level. JARPA II does have the
character of a programme conducted for purposes of scientific research.

Judge Hisashi Owada (Japanese Judge)

The object and purpose of the Convention is to pursue the goal of achieving the twin purposes of the
sustainability of the maximum sustainable yield of the stocks in question and the viability of the whaling
industry. Nowhere in the Convention is to be found the idea of a total permanent ban on the catch of
whales.

Restriction but not prohibition.

Separate Opinion of Judge Dalveer Bhandari

• Rejects the Court’s conclusion that the Government of Japan has complied with paragraph 30.

While Japan has demonstrated formal compliance with the dictates of paragraph 30, its actions have not
demonstrated substantive compliance with the broad and purposive scope of the duty to co-operate.

• In addition to finding that JARPA II is not a programme for purposes of scientific research under Article
VIII, paragraph 1, of the Convention, the Court ought to have made a further pronouncement that JARPA
II is indeed a commercial whaling programme.

JARPA II’s indefinite duration, and certain unmistakably commercial qualities of the programme.
Aftermath and Opinion on the Case

• Western Hegemony

• Cultural Interest of Japan

• Real Change must be long-term - Transition has to be slow, organic and sustainable.
Aftermath and Opinion on the Case