by William Fotherby
Will is a graduate of the University of Auckland and a solicitor at Bell Gully. In 2008, he was one of the editors-in-chief of the Auckland University Law Review.
Australia has taken its campaign to end Japanese whaling to the International Court of Justice (ICJ). The Australian statement of claim, dated 31 May 2010, alleges that Japan is in breach of its obligations under the International Convention for the Regulation of Whaling (ICRW). It seeks an order revoking any permits by which Japan has conducted scientific whaling in the Antarctic and assurances from Japan that it will not conduct similar activities in the future. New Zealand, among other countries, has indicated that it will look seriously at joining this court action. This, after attempts to reach a political solution at the IWC’s annual meeting, in Agadir, Morocco, failed.
The International Whaling Commission (IWC) has banned commercial whaling since the season of 1985/1986. However, the ICRW allows Contracting Governments to grant its nationals a special permit authorizing them to take whales for the purpose of ‘scientific research’. It is under this article that several states—including Japan, Iceland, and Norway—have been able to pursue whaling campaigns despite this global ban. The fact international attention focuses more often on the former is a result of the significant increase in the number of whales hunted under Japanese-issued special permits. The year 2005 saw the announcement of the ‘Japanese Whale Research Programme under Special Permit in the Antarctic’, known as ‘JARPA II’. Under the JARPA II research programme, the number of whales to be taken each year approaches that taken by Japan commercially before the 1982 ban. This programme is conducted within the waters of the IWC-designated Southern Ocean whale sanctuary. This is what the Australian claim explicitly seeks to halt.
It is not clear whether Contracting Governments have an unfettered discretion to issue permits for scientific research. The ICRW grants this power in broad terms, but there are some procedural requirements governing the issue of these permits, which may suggest the power is limited. For example, a Contracting Government must provide the IWC with proposed permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment upon them.
The Australian claim takes the latter position. It alleges that the scale of the JARPA II programme, the lack of any demonstrated relevance for the conservation and management of whale stocks, and the risks presented to the species targeted, mean the programme cannot be justified under the ICRW. It further alleges that Japan is in breach of its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora or ‘CITES’.
While this is Australia’s first international claim against Japanese whaling, the issue, under domestic law, has already been litigated in Australia’s federal courts. Court action brought by the Humane Society International against the Japanese whaling company Kyodo Senpaku Kaisha, under the Environment Protection and Biodiversity Conservation Act 1999 (Aus), culminated in a declaration in 2008 that the company cease its whaling activities within the waters of Australia’s Antarctic Territory. The Australian government, however, has done little to ensure that Kyodo observes this court order.
Time limits for filing the initial written proceedings are expected to be set down soon. Further, should Japan elect to continue with its JARPA II programme in the coming season, Australia may seek provisional measures – the international law equivalent of an interim injunction.
See also Australian professor and leading authority Donald Rothwell’s analysis.
Australia’s statement of claim is available online.