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International Whaling Commission
Introduction
Just recently on May 31st 2010, Australia opened a court case against Japan in the International Court of Justice (ICJ) with regards to a dispute relating to Japan’s JARPA II program on ‘Scientific Whaling’. The case was dubbed the ‘JARPA II Case’ and was primarily based on a dispute between Australia and Japan over interpretation of the 1946 International Convention of Whaling (ICRW). JARPA refers to Japan’s Research Program under Special Permit in the Antarctic to carry out research in the marines. The first was introduced in 1987 in the Southern Ocean Whaling Season of 1987-1988. JARPA II was to commence some 18years later from and it started in 2005. During that period of 1987 through 2005, Japan had apparently ignored the Moratorium sanctioned by IWC against Whaling and it is consequently some six thousand eight hundred minke whales were taken under JARPA. That led to a longtime dispute between whaling states and anti-whaling states over limited whaling v no whaling at all. Among the cases is the one between Australia and Japan of 2010. This article will look into the case between Japan and Australia in a bid to answering the following questions; one, how is the International Whaling Commission policy determined and influenced, secondly, what is the role of scientific advice in policy making, thirdly, what are the arguments for both Japan and Australia in the International Court of Justice case. Finally it will discuss the likely decision of the International Court of Justice.
The International Convention for the Regulation of Whaling (ICRW)
The ICRW is concerned with regulating the amount of whaling in the

Australia maintains that Japan has violated two obligations contained in the Schedule to the ICRW, neither of which can be excused by reliance on scientific research whaling provided for in Article VIII of the Convention. First, it asserts that Japan is in violation of the moratorium established by paragraph 10(e) of the Schedule in that it has failed to “observe in good faith the zero catch limits in relation to the killing of whales for commercial purposes.”[22] Second, it claims that Japan has breached the prohibitions established in the Southern Ocean Whale Sanctuary under paragraph 7(b) of the Schedule by “undertaking commercial whaling of humpback and fin whales in the Southern Ocean.” Peter (2003) No mention is made of minke whales because of the Japanese objection to their inclusion in the Sanctuary. More interestingly, Australia concedes that “the JARPA II program has not yet killed any humpback whales;”[24] but humpbacks are presumably included in the allegations either because Australia can prove permits have illegally issued already[25] or because humpbacks remain part of JARPA II, and Australia is seeking an order from the ICJ that Japan cease implementation of the entire program.[26]
As Article VIII of the ICRW allows parties to carry out scientific research whaling notwithstanding any other provision of the treaty, Australia further claims that Japan’s breaches “cannot be justified under Article VIII” for three reasons: “the scale of the JARPA II program;” “the lack of any demonstrated relevance for the conservation and management of whale stocks;” and “the risks presented to targeted species and stocks.”[27] Australia’s allegations lack precise reasons why and on what basis these matters disqualify JARPA II from either being considered special permit scientific research whaling or beyond what Article VIII allows. In essence, however, it appears Australia is arguing that Japan has abused its rights under Article VIII of the Convention. Publicists have opined that such an action may lie in these general circumstances to protect whales[28] and specifically against Japan for Southern Ocean whaling.[29] Even so, success on a claim based on abuse of rights under Article VIII is heavily dependent on the facts and is by no means certain.
Certain influential jurists question the independent existence and utility of the doctrine of abuse of rights.[30] Perhaps more importantly, the text of Article VIII authorizes a state to issue special permits subject to such restrictions and conditions it “thinks fit.” Such a criterion seems to admit of very little, if any, limitation and may make it difficult to argue an abuse has occurred. Of course, things are more nuanced than this. In terms of preparatory work of the treaty that might bear on interpretation, Article VIII can be traced to a draft by Norwegian diplomat Birger Bergersen, who believed that “‘the number of whales a country could take for science was less than 10; he didn't intend for hundreds [let alone thousands] to be killed for this purpose.’”[31] Moreover, Japan is bound by the obligation of “good faith,” and as more facts come to light and the case unfolds, it may be that this obligation has not been met by Japan in implementing JARPA II. It is here that whatever proof Australia has that JARPA II lacks any demonstrated relevance for the conservation and management of whale stocks will be especially important. Notwithstanding these problems, looking more closely at Australia’s ICRW claims, it appears that the argument will proceed along two lines.
First, it seems that Australia is asserting that whaling carried out under JARPA II is not really for a “scientific purpose,” but is instead “commercial whaling” prohibited by the Schedule paragraph 10(e) moratorium. Australia will likely point to the ever increasing number of whales taken, the increasing range of target species, the increasing supply of whale meat to commercial markets in Japan, and the economic benefits of employment and capital return in the Japanese whaling sector, as indicators of commercial rather than scientific purpose. This argument may depend on whether the characterization of JARPA II as commercial or scientific is a matter of “objective fact” to be determined by these sorts of criteria or whether it is a matter for Japan to decide. It will also depend on the evidence adduced by Japan that might establish that JARPA II is, in fact, a bona fide scientific program.
Second, it appears Australia will claim that JARPA II is beyond what is permitted by Article VIII. Again, Australia will likely point to a variety of factors including most prominently the size of the annual takes and the availability of non-lethal alternatives to accomplish the same research. It may argue that the increasing number of whales taken (1001 whales in the 2008-09 season according to the latest data) are far beyond the requirements of science and belie Japan’s “scientific research” claim. In addition, the viability of non-lethal means of research, it may be argued, shows that Japan’s insistence on the right of lethal research is a pretext for obtaining whale meat that can be processed and sold under Article VIII(2). If proved, this would tend to evince a lack of good faith on the part of Japan. Furthermore, if in fact the status of whale stocks covered by JARPA II is uncertain, the precautionary principle will have a bearing and Australia may claim that the scale of JARPA II is contrary to scientific research under the ICRW that respects the precautionary principle under international law.
Assuming Australia prevails on these ICRW claims, it does not mean whaling will be brought to an end in the Southern Ocean. Scientific research whaling is explicitly permitted by Article VIII. If Japan were found to have abused its rights under Article VIII, it would still be open to Japan to bring its whaling within whatever parameters the Court might establish as consistent with the right.

Bibliography:
Donald, KA, 2009, Antarctic Whaling: Australia’s Attempt to Protect Whales in the Southern Ocean, 36 B.C. ENVTL. AFF. L. REV. 319, 322-339

Michael Byers, Abuse of Rights: An Old Principle, A New Age, 47 MCGILL L. J. 389, 427-429.

Peter H. Sand, Japan’s “Research Whaling” in the Antarctic Southern Ocean and the North Pacific Ocean in the Face of the Endangered Species Convention (CITES), 17 REV. EUR. COMM. & INT’L ENVTL. L. 56, 63 n.66 & accompanying text (2008).