Australia’s case against Japan’s ‘scientific’ whaling program is being heard at the International Court of Justice. The hearing will end on 16 July and a ruling should be handed down by the end of this year. This could bring Japan’s annual slaughter of 935 minke and 50 fin whales to a permanent end.

In 1999 the Howard government enacted the Environment Protection and Biodiversity Conservation Act (EPBC Act) which declared an ‘Australian Whale Sanctuary’ prohibiting all whaling within Australia’s offshore waters including waters in the Southern Ocean offshore the Australian Antarctic Territory (AAT). Japan, which had been regularly conducting its so-called ‘scientific whaling’ operations in the Southern Ocean offshore the AAT since the late 1980s, ignored the new law and continued whaling.

In 2010 the Rudd government took the decision to challenge the legality of Japanese whaling in the International Court of Justice. Australia’s legal case revolves around the provisions of the International Convention for the Regulation of Whaling, particularly Article VIII which excepts scientific whaling from the 1986 moratorium.

The biggest legal dispute is over the interpretation of Article VIII. Australia asserts that the purpose of the Convention is the conservation of whales. Therefore, Article VIII only applies to scientific whaling carried out in the interests of whale conservation. Japan asserts that conservation is simply the means to preserve future use:  the purpose of the convention is the management of stocks for commercial exploitation. Therefore, Article VIII authorises scientific whaling if it contributes to the better management of the whales as a resource.

Australia alleges that Japan’s ‘scientific’ whaling program is nothing of the sort: it is the continuation of commercial whaling by other means. Significantly, Australia has argued that the program fails to meet the standards for scientific whaling set by the convention. They allege that Japan has not designed a whaling program that contains the characteristics which make the program scientific. Rather, Australia says Japan has chosen to kill whales without taking the necessary steps to define a scientific objective and then identifying the most appropriate method to achieve that goal. In sum, Australia argued that the permanent harvesting of whales has always been Japan’s primary objective, for which the ‘scientific’ objectives are merely a pretext.

Consequently, Japan is accused of acting in bad faith by baselessly claiming scientific status under Article VIII of the Whaling Convention for its whaling operations. Furthermore, Australia is arguing Japan has breached international law in three ways: it has breached the commercial whaling moratorium, the Southern Ocean Whale Sanctuary and the factory ship moratorium. On these bases, Australia is seeking a declaration that Japan has breached its obligations under international law and treaty and an injunction against further whaling.

Japan rejects these allegations. It claims that it acted in good faith and in accordance with the provisions of Article VIII.  Japan claims that its program is open ended because of the lack of knowledge about the whale populations of the Southern Ocean: it is conducting a broad program to accumulate data about a poorly understood ecosystem. It also stated that it has adopted a precautionary approach and its research contributes to the management of whales. Japan claims it has complied with all its obligations under the Convention and its research program makes an essential contribution to the scientific understanding of whales.

At stake in this case is the future of the Southern Ocean Whale Sanctuary and the Moratorium on whaling. Japan’s stated intention is the eventual return of commercial whaling. Its scientific program is dedicated to creating the appearance that commercial whaling could be sustainably managed. A victory in this case would strengthen pro-whaling forces in International Whaling Commission.

Thanks to volunteer Michael Robson, who drafted this blog.