Article by Rachel Matulis
On March 31, 2014, the International Court of Justice declared Japan must stop its whaling program in the Southern Ocean. But in a shock move this week, Japan publicly rejected the court’s decision. Here’s what you need to know:
The International Whaling Commission and ICJ Judgement
The International Whaling Commission (IWC) was established in 1946, when countries including Japan and Australia signed a convention regulating whaling. The commission is made up of 88 member countries and a scientific committee.
When the IWC was first formed its key role was to regulate whaling. However as stocks depleted and it became clear whales were on the brink of extinction, the commission’s focus shifted towards conservation.
In 1982 the IWC created a total ban on whaling with two exceptions: Aboriginal whaling, and whaling for scientific purposes. The ban, or “moratorium” as it is often called, means no countries that have signed the convention can whale for commercial purposes unless they do so under one of the exemptions or lodge a formal objection. Japan claimed scientific exemption under its two whaling programs, JARPA I and JARPA II.
Japan has defended its continued whaling by arguing (amongst other things) that it is conducting research to examine the Antarctic ecosystem and monitor the number of whales. Despite this, Japan has never produced a single research article reporting its results to the international scientific community.
Exercising its right as a member of the convention, Australia took action against Japan in 2014, challenging the legitimacy of its whaling program in the International Court of Justice.
One of the main findings of the dispute was that JARPA II, which occurred in Australia’s Southern Ocean, was not carried out using methods that were reasonable in light of the program’s objectives. For example, Japan’s failure to consider methods that did not include the killing of whales was inconsistent with its obligations as a party to the IWC, and Japan’s own scientific policy. The ICJ therefore ordered Japan to terminate JARPA II.
Unfortunately the judgement was a limited victory, as the order did not prevent Japan from reorganising new programs in the future. Meaning the court ruled that only that particular program, “JARPA II”, was unscientific, and other programs in the future could potentially be considered genuinely scientific for the purposes of the exemption.
Indeed, Japan wasted no time in reformulating a new program called ‘NEWREP-A.’ But the program has floundered before an IWC expert panel. After reviewing Japan’s new program in February, an expert panel concluded it “does not demonstrate the need for lethal sampling” to achieve the program’s objectives. So again, the experts are saying that the research Japan says it wants to undertake can be conducted without killing whales in the process.
The IWC Scientific Committee released a report on NEWREP-A, but with no overall agreement. Some members are for the program, while others are steadfastly against it. The entire IWC will take up discussion of NEWREP-A when it meets in 2016, but this could be too late.
The unexpected development
Last week Japan released a public statement addressed to The Secretary of the United Nations, acknowledging the nation will conform to all ICJ findings, except in relation to “any matter concerning the exploitation of living resources of the sea.” And that includes whaling.
In making this bold statement, Japan has effectively ensured any future legal actions concerning whaling under international law will be futile.
Unfortunately, governments can decide whether to comply with the ruling of an International Court. For example, the United States has expressly rejected ICJ jurisdiction and enforcement of rulings in the past. But there does not appear to be any situation where a country has expressly rejected an ICJ ruling with respect to the Whaling Convention. Rather, countries use the relevant exceptions in the Whaling Convention, or opt out of the application of the 1982 ban.
If Japan can choose to reject the ICJ ruling, what else can be done?
Under Australian domestic law, all cetaceans (dolphins and small whales) are protected in Australian waters. Under the Environment Protection and Biodiversity Conservation Act (EPBC Act) it is an offence to kill, injure or interfere with a cetacean.
Humane Society International (‘HSI’) commenced legal proceedings in 2008 under the EPBC Act against Kyodo Senpaku Kaisha Ltd (Kyodo), the company contracted to conduct whaling in the Australian Whaling Sanctuary, adjacent to the Australian Antarctic Territory. But after intervention by the Commonwealth Attorney General claiming the action would cause a ‘diplomatic incident’, the application was refused.
Fortunately, HSI successfully appealed and in 2008 the Federal Court declared Kyodo in contravention of several provisions in the EPBC Act, and ordered an immediate injunction restraining any further whaling. But the Japanese Government and Kyodo ignored the injunction. HSI did not take action against the Japanese Government in anticipation of the international court action.
However, with Japan’s intended commencement of NEWREP-A in December this year, HSI is now seeking to enforce the 2008 injunction. In September 2015 HSI applied to the Federal Court seeking orders that Kyodo is in contempt of the 2008 injunction by continuing to interfere with and kill whales. The case will be heard next month.
Contravention of the EPBC Act results in severe penalties, which can also be enforced by arrest and seizure of whaling vessels while in Australian waters. However, concern over diplomatic ties with Japan is a barrier to such measures actually being taken by the Australian Government. In addition, sovereignty over Antarctica is a sensitive international topic and only the United Kingdom, France, Norway and New Zealand recognise Australia’s sovereignty over the Australian Antarctic Territory. Whether legal action is the appropriate way to assert jurisdiction over this area is the subject of disagreement.
In a recent statement, Australia’s environment minister, Greg Hunt, said the government met Japanese counterparts to discuss the bypassing of the ICJ judgement. “Japan has previously said it would abide by the ruling,” he told The Guardian. “We are taking legal advice on the implications of Japan’s actions.”
Despite Japan’s desperate measures to evade its international obligations, one thing is certain: it cannot escape mounting legal and public pressure on whaling activities both at home and abroad.