Though science and law might seem to be two different fields, there is nevertheless interaction between the two. The Whaling Case is an example of such interaction. The judgement rendered on 31 March 2014 by the International Court of Justice (“the court”) on the Whaling in the Antarctic Case (Australia v Japan; New Zealand intervening) raises the issue of scientific or technical matters in the proceedings before the court. In some instances, therefore, judges must analyse scientific evidence to reach a legal decision. This article is an attempt to understand how the court in the Whaling Case dealt with the science at the heart of the case. Specifically, the article tries to understand the method by which the court addressed the question of what “scientific purposes” could mean with regards to Japanese Whale Research Program under Special Permit in the Antarctic (“JARPA”) II. Under JARPA II, Japan’s purported research objective was to gather scientific data using lethal and non-lethal methods to institute a management regime for the sustainable usage of whale resources. In order to do so, the whales were killed using an explosive harpoon and their stomachs were opened and investigated to measure the quantity and the type of marine animals that they had eaten. Subsequently, the whales were sold and eaten.
Whaling “for the purposes of scientific research” is permitted by Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The term “scientific research” has not been defined in the treaty. The main question before the court in the Whaling Case was whether the whaling activities under JARPA II by Japan were for “scientific research” or for other purposes, specifically commercial whaling. Thus, the court called on experts to help it to answer this question.
Relying on the expert opinion, the court did not find it necessary to provide its own definition of “scientific research”. While rejecting the four criteria for adjudging “scientific research” given by the Australian expert, the court also failed to explain “scientific research” and the grounds for its rejection (see para 74 here). The understanding of the term “scientific research” cannot merely depend on a State’s perception. Thus, the court has missed an opportunity to define “science research” and set a precedent for future cases.
As pointed out in the dissenting opinion by Judge Yusuf (see para 29 here), the court lacked a beginning point, i.e., the definition of “scientific research”. Consequently, the court, in its adoption of the two-step process for reviewing JARPA II, reached a contradictory position. The court stated that it would first review if the programme involves scientific research and if the method of scientific research used helped Japan in achieving the objectives of JARPA II. However, this two-step process led the court to a contradictory position – how can activities which the court found to be “scientific research” be carried out under special permits granted “not for purposes of scientific research”? (also see para 227 here).
While the court concluded that Japan’s hunting of whales was not for “scientific purposes”, it was careful not to go into the question of the actual purpose of Japan’s whale killing. It also did not address whether JARPA II was being utilised for commercial whaling in the guise of “scientific research”.
On the one hand, it could be argued that the final decision of the court was correct, even if the court had to use convoluted reasoning in finding that the special permits under JARPA II did not fall within the provisions of the Whaling Convention. The court was nonetheless wrong in one facet of its decision. The court should have closed the possible loophole in the law by defining “scientific research”, thereby curbing future litigation on the matter. The implications of such a legal gap might allow countries like Japan with interest in commercial whaling to use “scientific research” dishonestly to mask their interests.
It is disturbing that intelligent and significant marine animals were killed in such a gruesome manner. The conclusion reached by the court pleases those who favour permitting the whales to live freely in their habitat.