The Ambiguity Of “Scientific Purposes” In The Whaling In The Antarctic Case

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.

Whaling at the ICJ – Oral Proceedings in Australia v Japan

Common Minke Whale Photo By Simon Pierre Barrette Creative Commons ShareAlike License
What had seemed a quixotic effort to stop Japan’s Southern whaling program using international law is looking like a more even fight. In the oral proceedings underway for Australia’s challenge to Japan’s whaling program (JARPA II) at the International Court of Justice, Japan argues that—in a world of more than 7 billion people—cultural differences must be respected and the International Convention on the Regulation of Whaling (ICRW) must be applied with a “margin of appreciation” for Japan’s interpretation of the treaty. (Australia notes that the concept of a margin of appreciation developed in the European Union Courts to allow states to fine-tune EU law according to national culture and social policy, and is not a rule of international law.)

According to Japan, it hunts whales to collect scientific information as permitted by an exception to the global moratorium on “harvesting” whales under the ICRW. Australia argues that JARPA II has no scientific basis or merit, and that Japan conducts it in the manner of a commercial venture, not scientific research; it quotes a statement made in the Japanese Diet vowing to use the scientific exception to continue whaling.

New Zealand, intervening as a party to the ICRW, stresses that the treaty was intended “to replace unilateral whaling with a system of collective regulation,” whether a state’s interest is in using whales or protecting them for their own sake. Japan’s actions, Australia argues, have in effect reduced its treaty obligations to facultative ones and so dissolved the treaty rights of all other treaty members.
Australia has decided not to make claims based on two other conventions, CITES and the Convention on Biodiversity mentioned in its application (for discussion of these, see Don Anton’s ASIL Insight).

The most interesting arguments have discussed the nature of scientific research and its relation to law. Japan argues that “the case concerns the legality of Japan’s activities under international law and not ethical values or the evaluation of good or bad science” and that the ICJ has no role in evaluating JARPA II. It has submitted very little by way of scientific evidence to support the validity or productivity of the whaling program.

In contrast, Australia and New Zealand emphasize that the questions before the Court are straightforward and offer the Court a number of criteria to assess whether JARPA II is scientific research. These include the lack of peer review of JARPA II, the arbitrary determination of sample sizes (i.e., the number of whales to be killed each year), and the insistence on lethal methods. The presentation and cross-examination of experts is a highlight of the video; a great change from the criticized approach to experts in the Pulp Mills case. The judges’ numerous questions indicate that they are interested in the scientific arguments, and not deferential to Japan’s claim of right to determine unilaterally whether JARPA II is, in fact, research.

Although killing whales—particularly endangered species such as humpback and fin whales, both of which are included in Japan’s whaling program—is an issue of grave concern to many states and nongovernmental organizations, only New Zealand has intervened and the ICJ has not invited amicus briefs or expert opinion from non-parties.

The jurisdictional issue has received scant attention. It is possible that the Court may, in the end, accept Japan’s argument that it does not have jurisdiction. While that may change the dynamic of the conflict over whaling, there are still many political avenues where it will continue to play out. Although anti-whaling activists have thwarted the whalers in recent years—acknowledged in the Japanese oral argument—Japan’s Institute of Cetacean Research has retaliated with a lawsuit in U.S. court and won a favorable decision in the 9th Circuit.

A decision is expected from the ICJ by the end of the year around the time the next whaling season will begin. The oral proceedings will continue with Japan’s second round of oral argument on 15 July: live and archived webcasts and transcripts are available. It provides an exceptional opportunity to watch many of the great international litigators, including Laurence Boisson de Chazournes, at work.