Full Title Name:  Detailed Discussion on Whaling

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Tom Krepitch Place of Publication:  Michigan State University College of Law Publish Year:  2014 Primary Citation:  Animal Legal & Historical Center 1 Country of Origin:  United States
Summary: Much of today's discussions about whaling are centered on Japan's program in the Antarctic. While some organizations like Sea Shepherd have taken a direct action approach to ending Japan's hunt, some organizations and countries have pursued legal approaches to doing so. Both approaches have seen some success, but the future of whaling remains uncertain.

I. Introduction

Nearly four years of proceedings at the International Court of Justice (ICJ) concluded on March 31, 2014, when the Court agreed with Australia that Japan’s whaling program in the Southern Ocean was illegal.[1]  In this momentous international animal law case, Australia alleged that as a signatory to the International Convention for the Regulation of Whaling (ICRW), Japan was obligated to adhere to a moratorium on commercial whaling agreed upon in the 1980s.[2]  According to Australia, Japan’s claims to be killing whales solely for scientific purposes were simply untrue and Japan’s true purpose was commercial.  Japan did not deny that it was killing whales, but claimed that because the ICRW grants each nation state the right to issue licenses for scientific whaling at its sole discretion, Japan’s whaling program was legal.[3]  Thus, the Court had to decide whether Japan’s whaling program fit within the ICRW’s exemption for scientific whaling and was therefore legal, or if it was actually commercial whaling in disguise and therefore illegal.

Judge Peter Tomka’s reading of the decision was watched online by people around the world and word of Australia’s victory spread quickly through social media.  Though only Japan, Norway, and Iceland are major whaling countries today and the number of whales killed every year is only a fraction of the number killed generations ago, global opposition to the practice appears to be stronger than ever.  What explains the changes in public attitude and in the industry itself?  This paper explores the history and progression of the whaling industry and early attempts to thwart it. It then concludes with a detailed discussion of modern attempts to do so, including the legal approach taken by Australia and the direct action approach taken by Sea Shepherd Conservation Society.

II. Background

For hundreds of years, the process of whaling remained quite similar to Herman Melville’s description in Moby Dick.  A crew of men took to sea in small vessels with limited weaponry in search of whales.[4]  If successful, they would bring a whale back to shore, where the animal would be converted into products like oil, margarine, soap and corsets.  The extreme difficulty of the hunt, though, meant that while individual whales were threatened, the whale population as a whole was not.  This changed, however, in the early twentieth century with the development of advanced weaponry and the factory ship, a vessel that allowed for processing of whales at sea and, by extension, for whalers to hunt well beyond national shores.[5]

These advances in technology meant that the ratio of whales killed to voyages taken was no longer maximized at one to one.  For each trip to sea, whalers could kill multiple whales and process them at sea, returning to shore much less frequently.  As time passed, the kill rate increased and ultimately exceeded the natural reproduction rate of whales.  When this happened, whaling nations began to recognize the need to regulate the industry.[6]  According to I. Kirkesby-Garstad, then Norwegian minister of commerce, “The moment we transferred to floating factories, which were independent of countries and executed their business within international waters, a change of . . . conditions occurred.  No single country held the power anymore to regulate this business with regard to the general view one assumed concerning the size of the whale population.  Thus, the view emerged very quickly, that entailed in this new whaling method was the danger of immensely harvesting the whale population.”[7]

In order to prevent what would later be referred to as a “tragedy of the commons,”[8] whaling nations began to recognize that it was in their own best interests to cooperate on the management of global whaling stocks.  This realization led to some of the first international agreements among whaling nations to preserve the population of whales for the benefit of the industry.  One of the most important of these agreements was the ICRW, which was signed by fifteen nations in 1946 in an effort to slow the rate of killing.[9]

As time passed, however, the killing of whales began to draw strong criticism around the world from individuals and organizations that supported animal rights and protection of the environment.[10]  One of the world’s most famous environmental campaigns, Greenpeace’s anti-whaling effort, began in 1975 and introduced millions of people around the world to the mostly unknown whaling industry.[11]  Though the most well-known, Greenpeace is only one of many non-governmental organizations (NGOs) that have focused their attention on Antarctica and worked to convince Australia to take legal action to stop Japan’s Antarctic whaling campaigns.[12] [13]

III. Early Litigation

The first major step in litigation against Japan’s Antarctic whaling activities was taken by Humane Society International (HSI) when it sought declaratory and injunctive relief in the federal court system of Australia to end Japanese whaling in Australia’s Antarctic Territory.[14]  Australia’s pro-conservation ethos is reflected in its national law in general, and in its Whale Protection Act 1980 (WPA) and Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in particular.  The WPA prohibits the killing, capturing, or injuring of whales and other cetaceans in Australian waters[15] and the EPBC Act is described by the Australian government itself as its “central piece of environmental legislation” that “provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places.”[16]  Both acts are intended to apply not only in Australia, but off the coast of the Australian Antarctic Territory (AAT), the portion of Antarctic land claimed by Australia, as well.[17]  One key distinction between much of Australian law and the EPBC Act is that the EPBC Act is meant to apply not only to Australian ships, but to all ships in the area.

Though the Australian government had known of Japanese whaling activities in the AAT for decades, it decided against attempting to enforce the law against the whalers because of perceived practical difficulties in doing so.  HSI, however, chose to use its legal standing in Australian courts to sue the whalers and began a lengthy lawsuit in 2004.  Four years later, the Federal Court of Australia ruled that the Japanese whaling company Kyodo Senpaku Kaisha had, in fact, acted in violation of the EPBC Act.  Though the judgment was served on Kyodo in Japan in 2008, Kyodo ignored the decision and continued to whale in the Antarctic, confident that Australia would not attempt to enforce the ruling, given the questionable jurisdiction issue.

While HSI was working within the Australian court system, the International Fund for Animal Welfare (IFAW) was developing strategies that could be pursued through international courts.  IFAW sponsored four international panels to discuss the development of legal arguments: the Paris Panel of May 2006, the Sydney Panel of December 2006, the London Panel of November 2007, and the Canberra Panel of January 2009.

In Paris, a primary topic of discussion was whether scientific whaling being carried out by certain parties to the ICRW, Japan in particular, was actually consistent with the ICRW. The panel concluded that not only was the whaling inconsistent with the ICRW, serious questions also existed regarding compliance with the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).[18]  The Paris Panel’s report was widely distributed and served as a basis for legal analysis to be performed by future panels.[19]

Composed entirely of Australian international law experts, the Sydney Panel was asked by IFAW to analyze the legality of Japanese whaling in Antarctic waters, as well as the options the Australian government had available to pursue legal action against Japan at an international level.  The Panel developed numerous potential options, including bringing a case against Japan before either the International Tribunal for the Law of the Sea (ITLOS) or the ICJ.

Drawing on the work of the Paris Panel, the international lawyers on the London Panel considered specific questions regarding Japanese whaling programs. The London Panel concluded that whaling in the Southern Ocean would constitute international trade under CITES, which would necessitate a prior grant of permission from the government of Japan. Because Japan was whaling for primarily commercial purposes and because there was sufficient evidence that taking of whales was detrimental to the survival of certain species, Japan was in violation of CITES. These violations could also lead to a demand for dispute resolution at the ICJ.

Finally, the Canberra Panel, a group of Antarctic law and policy experts, convened to consider the options regarding analysis of Japanese whaling under the Antarctic Treaty System (ATS). Building on the work of the previous panels, the Canberra Panel recommended that the provisions of the Madrid Protocol[20] be invoked against Japan because of the environmental impacts of Japanese whaling.[21]

Before the Paris Panel convened, the Australian government was led by the Liberal-National Party of John Howard, while the opposition Labor Party was led by Kevin Rudd.  When Japan announced its new whaling program in 2005, the Howard government announced no changes to its seeming indifference to whaling, but the Rudd opposition stated that it was willing to consider legal action to stop Japanese whaling in the Antarctic.  As each of the four IFAW panels completed their reports, the conclusions were shared with the Rudd opposition, the Australian media, and the Australian public.  Thus, by the time Labor took power at the end of 2007, major steps towards international legal action against Japanese whaling had already been taken.  For political reasons, Labor chose a cautious approach to addressing the whaling controversy, but ultimately filed suit against Japan at the ICJ in 2010.

IV. Whaling in the Antarctic, a Case at the International Court of Justice

A. Australia’s Argument

Australia’s memorial begins with a detailed discussion of the ICRW and its evolution over time.[22]  Whereas the whaling conventions of the 1930s were written with a focus on the profitability and sustainability of the whaling industry itself, Australia argues that the ICRW, which entered into force following World War II, shifted the focus from profitability of the industry to “safeguarding for future generations the great natural resources represented by the whale stocks” themselves.  The primary objective of the ICRW was, therefore, to provide for the proper and effective conservation and development of whale stocks, with the orderly development of the whaling industry being a secondary and contingent consideration.

Though the ICRW’s focus had shifted towards conservation, for the next quarter century the state of whaling could best be described as one of undifferentiated catch limits, in which unsustainable whaling operations continued.  As concerns about sustainability grew, though, delegates from 113 countries agreed at the Stockholm Conference of 1972 that governments should strengthen the International Whaling Commission (IWC)[23] and recommended a ten year moratorium on commercial whaling.[24]  This conference is often referred to as the “first step towards the establishment of international environmental law.”  Though the moratorium was not implemented, the suggestion did lead to a prohibition of commercial whaling in the Indian Ocean Sanctuary in 1979, a moratorium on the killing of sperm whales in 1981, and, ultimately, a moratorium on all commercial whaling in 1982.  It is this moratorium that is at the center of the dispute between Australia and Japan.

Japan originally objected to the full moratorium on commercial whaling, but withdrew its objection after political pressure from the United States.  Had Japan continued with its objection, it would have been allowed to continue commercial whaling.  However, in the face of a loss of at least half of its fishery allocation in American exclusive economic zones, Japan withdrew its objection.  This withdrawal meant that Japan was legally bound to cease whaling for commercial purposes.  According to Australia, although Japan accepted the moratorium on commercial whaling in 1986, it has been determined since that time to continue its whaling activities by one means or another.

In what Australia considers to be anything but a coincidence, Japan began a program of scientific[25] whaling in the Southern Ocean in 1988, the first whaling season after the moratorium came into effect in pelagic (deep sea) areas.[26]  This program, the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA) concluded in 2005, only to be immediately replaced by the much larger JARPA II, which is the subject of Australia’s lawsuit against Japan.  Australia argues that JARPA II was not designed to address important scientific questions using proper scientific methods, but instead was meant to allow Japan to continue commercial whaling under the guise of scientific whaling.  The Japanese incentives for doing so included financial benefits for Japanese government officials in the often murky system of Japanese corporate governance, maintenance of pelagic whaling skills and techniques, and the funding of the industry with sales of whale meat.

The language of the ICRW that lies at the heart of the controversy is Article VIII, Paragraph I:

Notwithstanding anything contained in this Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take, and treat whales for purposes of scientific research subject to such restrictions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.  Each Contracting Government shall report at once to the Commission all such authorizations which it has granted.  Each Contracting Government may at any time revoke any such special permit which it has granted.[27]

The text of the article declares that governments that are part of the ICRW have the ability to issue permits to their citizens for the purpose of killing whales if the intent is to gather scientific data.  Australia’s primary assertion is that Japan’s JARPA II program is labeled a scientific program, but in reality is merely cover for continued commercial whaling activity.[28]  To support this argument, Australia points to quotations from Japanese officials, including the Japanese Minister for Agriculture, Forestry, and Fisheries, Shinjiro Yamamura, who stated in 1984, “As the Minister for Foreign Affairs has said, and as the Director-General of the [Japanese] Fisheries Agency . . . also said, I intend to do my utmost to ensure that Japanese whaling continues in some form of another.”  In that same year, the Director-General himself stated that “[I]n the current environment . . . after the moratorium commences, the path to ensure the continuation of whaling would be, for Southern Ocean whaling, to position it as a research whaling activity which has a scientific nature . . . [and] the continuation of whaling ought to be planned for while we seek the understanding of the relevant countries . . . .”

In 1987, Japan restructured its whaling industry around these ideas.  Kyodo Senpaku Kaisha was established to undertake the whaling and to distribute the resulting meat.  At the same time, the Institute of Cetacean Research was established to develop the research programs to be conducted.  The Institute covers its costs through the commercial sale of whale meat, which Japan claims to be mere byproducts of its research.  Australia, on the other hand, argues that the industry would not be viable and that the two organizations would lose the majority of their funding if sales of whale meat were to cease.

Australia further discredits what it refers to as a scientific whaling business model with two additional arguments.  First, the data collected by JARPA II are neither useful, nor scientific.  Killing whales is not the most effective way of obtaining knowledge that is important for the conservation and management of whales.  Moreover, Japanese officials themselves have stated that the number of whales killed under JARPA programs is more than necessary for the research carried out but, despite that, the number of whales targeted for capture has quintupled since 1987.  In addition, Australia suggests that Japan’s continued whaling is part of Japan’s obscure political system, in which government insiders benefit financially from attractive retirement opportunities.  Based on these and other statements, Australia concludes that Japan’s fundamental purpose is not research at all, but, rather, a continuation of commercial whaling, which is in violation of the moratorium established against such practices.

While Japan depends on the explicit language of Article VIII to justify JARPA II,[29] Australia argues that a proper interpretation of the Article can only be completed using established principles of treaty interpretation.[30]  Specifically, proper attention should be given to Articles 31, 26, and 32 of the Vienna Convention on the Law of Treaties.

Article 31 of the Convention requires that treaties be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.[31]  Article 26, closely related to Article 31, states that every treaty in force is binding upon the parties to it and must be performed by them in good faith.[32]  This is the customary international principle of pacta sunt servanda, the fundamental principle of treaty law.[33]  Finally, Article 32 allows for work prepared in advance of a treaty’s signing to be used in interpretation of the treaty.[34] 

In Australia’s view, the permission given to treaty signatories to issue special permits for whaling for scientific reasons is not self-judging, but must be analyzed according to objective criteria.[35]  Whether a whaling operation is, indeed, conducted for scientific reasons, is not to be determined by the permit-issuing country, but instead, by the Court in accordance with the established principles of treaty interpretation as reflected in Articles 31 and 32 of the Vienna Convention.

In beginning to combine its legal analysis with a scientific one, Australia claims that the general principles of scientific practice demand that in order for a program to be legitimately considered as scientific research, it must possess the following four characteristics:

  1. Defined and achievable objectives that aim to contribute knowledge that is important to the conservation and management of whale stocks.
  2. Appropriate methods that are likely to achieve the stated objectives, including:
    1. Lethal methods only where the objectives of the research cannot be achieved by any other means (for example, by the analysis of existing data and/or the use of non-lethal research techniques);
    2. Setting sample sizes using accepted statistical methodology; and
    3. Linking mathematical and statistical models to data consistently.
    4. Periodic review of research proposals and results and adjustment in response to such review.
    5. Research designed to avoid adverse effects on the stocks being studied.

In this particular case, Australia contends that Article VIII grants to Japan the ability to issue permits for scientific whaling only when Japan acts in good faith and on the basis of objective criteria.  Australia makes five arguments:

  1. Article VIII special permits are to be treated as exceptional.  Any legitimate reliance on Article VIII by Japan must recognize this essential character of Article VIII.
  2. Article VIII is not self-judging.  It is not for Japan to unilaterally determine whether the activity that it authorizes is for purposes of scientific research.  Rather, determination of whether Japan’s special permit whaling is, in fact, for purposes of scientific research is to be determined by reference to objective criteria.
  3. Any special permit whaling conducted by Japan must possess the four essential characteristics of a program for purposes of scientific research.
  4. Any special permit whaling conducted by Japan must be for purposes of scientific research and not for any other purpose.
  5. Japan is obliged to act in good faith in relying on Article VIII.

According to Australia, JARPA II does not fit within the Article VIII exception.  “Not only does JARPA II fail to meet the description of a program ‘for purposes of scientific research,’ but Japan’s real purpose in issuing special permits under JARPA II is manifestly not scientific research.”

During the lifespan of the original JARPA from 1988 to 2005, Japan killed 6,777 minke whales with a stated primary objective of estimating the natural mortality rate of Antarctic minkes.  However, the results of JARPA were so poor that they failed to exclude even a natural mortality rate of zero.  That is, the results included the possibility that minke whales never die.  Other results from the program included dietary and body weight information that was already well-established and uncontroversial and did not require that Japan kill any whales, let alone 6,777.  Following the failure to produce worthwhile information in JARPA, Japan structured JARPA II as an exercise in construction of an ecosystem model that would reflect the competitive interactions between whale species.  This approach has been roundly criticized within the IWC and in its Scientific Committee in particular, as an “oversimplified and distorted approach to ecosystems.”

Australia maintains that Japan has not identified any important gap in knowledge on the conservation and management of whale species that will be addressed by JARPA II and that the objectives of JARPA II are so vague that they “could be used to justify almost any activity that Japan wished to pursue.”  Further, Japan’s use of lethal methods is unnecessary, its research program was not peer reviewed, and its design of JARPA II reflects little or no attention paid to the serious question of potential adverse effects on the targeted whale population. Thus, JARPA II fails to meet the essential characteristics of an appropriate scientific research program and its potential to develop new knowledge about whale conservation is “very low, if indeed it exists at all.”

Having concluded that JARPA II does not fall within the exception to Article VIII because it is not scientific research and it is in reality conducted for commercial whaling purposes, Australia asks the ICJ to declare that:

  1. Japan is in breach of its international obligations in authorizing and implementing so-called research whaling in the Southern Ocean;
  2. Japan’s so-called research whaling program is not a program for purposes of scientific research within the meaning of Article VIII;
  3. Japan shall not authorize or implement any special permit whaling which is not for purposes of scientific research;
  4. Japan shall immediately cease current programs; and
  5. Japan shall revoke any authorizations, permits, or licenses that allow implementation of JARPA II.

B. Japan’s Response to Australia’s Arguments

Japan’s response begins with an objection to the Court’s jurisdiction to even entertain the case.[36]  Therefore, it is only in the alternative that Japan discusses Australia’s arguments on the merits. Japan believes that it has at all times complied with its obligations under the ICRW and continues to do so.  Thus, there is no cause for the Court to issue decisions of any kind against Japan.  However, Japan attempts to show that “JARPA II is a legitimate scientific program, permitted under Article VIII of the ICRW” and its “objectives and methods, together with its valuable scientific outputs designed to contribute to the working of the IWC and its Scientific Committee, are fully consistent with the text as well as the object and purpose of the ICRW.”[37]

Both Japan and Australia have deposited Optional Clause Declarations recognizing the jurisdiction of the Court as compulsory, but both Declarations contain reservations which exclude the Court’s jurisdiction in respect of certain categories of disputes.  Australia’s reservation excludes from the Court’s jurisdiction disputes (1) arising out of any disputed area of or adjacent to any such maritime zone pending its delimitation; (2) concerning any disputed area of or adjacent to any such maritime zone pending its delimitation; and (3) relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.  Thus, in Japan’s view, the ICJ is not the proper forum to resolve this dispute.

Moving beyond the jurisdiction dispute, though, Japan contends that the moratorium was adopted as a means to further improve conservation and management measures, not as a total ban aiming to protect whales per se.  As its name suggests, the moratorium was intended to be a temporary measure to allow the IWC to accumulate the scientific data required for a comprehensive assessment of whale stocks, leading to the revision of the existing management procedure, in order to ensure the sustainable development of the whaling industry.  Contrary to Australia’s claim, no “shift” toward “the preservation of species” occurred at the IWC.

In response to Australia’s allegation that JARPA II is a scientifically irrelevant failure, Japan asserts that no basis for this accusation exists in fact.  From Japan’s point of view, non-lethal methods proposed as replacements for lethal sampling methods simply do not produce sufficiently accurate data or are not practicable.  The results of JARPA research were appreciated in the scientific community because the most important output was not in the form of articles published in academic journals, but instead the series of scientific documents presented to the Scientific Committee.  Japan further asserts that JARPA II is not dictated by economic or commercial purposes, but is truly a scientific research program.

In response to Australia’s argument regarding applicable law, Japan agrees that the only applicable law in this case is Article VIII itself.  The ICJ itself has emphasized that the basic rule of interpretation is that the words of the treaty must be given their natural and ordinary meaning in the context in which they occur.  Thus, because the meaning of Article VIII is clear and unequivocal, there is no reason to go beyond the natural and ordinary meaning of the words in their context when interpreting Article VIII.  Therefore, there is also no reason to invoke the Vienna Convention on the Law of Treaties.  The plain meaning of the words of Article VIII is that Japan has the right to issue permits for scientific whaling as it deems fit.

Therefore, because Japan disagrees with Australia’s argument regarding how Article VIII should be interpreted, Japan requests the Court, should it determine that it has jurisdiction, to reject the claims of Australia.

C. Speculation Before the Ruling

After arguments before the Court were completed, but before the Court issued its ruling, four potential resolutions crystallized.  First, Japan could have won the case and continued with its whaling programs in the Antarctic.  Second, Japan could have lost the case and ceased its whaling program.  Third, Japan could have lost the case and accepted the ruling, but withdrawn altogether from the ICRW and continued whaling, free of any regulation.  Fourth, the ICJ could have ruled in a compromise fashion that would not have completely banned Antarctic whaling, but restricted some of Japan’s actions.  Careful observation suggested that the best solution for all parties would have been for the Court to put an end to Japanese whaling in the Antarctic.

In each of the five whaling seasons between 2007 and 2011, the cost of the Japanese whaling program exceeded the revenue of the byproducts.[38]  Specifically, in 2010-11, the costs of whaling exceeded $50 million, while the revenue was only slightly more than $20 million.  In an attempt to balance these figures, the Japanese government has subsidized the whaling industry, but even with those quasi-revenue increases, the costs still outweigh the revenues.[39]

Supporters of the Japanese whaling industry argue that consumption of whale meat is traditional, but data suggest otherwise.  While consumption of whale meat did surge immediately following World War II when the American occupying forces encouraged development of Japanese whaling,[40] the devastation wrought by the war meant that there were few other options for the Japanese population.[41]  Since that time, consumption of whale meat has declined to a minuscule level, while consumption of other animal products such as chicken and pork has grown considerably.  Further evidence of minimal demand for whale meat is the fact that the amount of whale meat inventory has been steadily increasing over the past 15 years and more than 88% of the Japanese public had not purchased whale meat in the last 12 months, according to a survey completed in 2012.  Similar polls indicate that more than 85% of Japanese citizens either oppose or tend to oppose using public money to fund whaling and the construction of new factory ships.

Thus, if Japan were to have lost the case at the ICJ, it would have had the opportunity to use the ruling as a legitimate reason to finally end whaling, thereby saving the country significant money and earning it international goodwill.

D. The ICJ’s Opinion

The essential issue in this case is how Article VIII of the ICRW should be interpreted.  Japan argues that the language of the Article is clear and that it gives Japan the right to issue special permits for scientific whaling, not subject to review by any other country or organization.  Australia argues, in contrast, that Article VIII should be interpreted through the lens of traditional principles of treaty interpretation, including Articles of the Vienna Convention on the Law of Treaties.  From that point of view, the intent of the signatory parties to the convention should be considered and, in this case, the parties never intended for the scientific whaling permit exception to be abused in such a way as to allow commercial whaling to be continued under the guise of scientific whaling.  The dispute between Japan and Australia essentially comes down to a debate between the letter of the law and the spirit of the law.

At the beginning of its ruling, the Court declines to uphold Japan’s jurisdictional objection, then provides background information on the ICRW and the arguments of the parties to the case[42] before beginning its interpretation of Article VIII.  According to the Court, Article VIII is an integral part of the ICRW and therefore must be interpreted in light of the object and purpose of the Convention.  Though Article VIII does give discretion to State parties regarding the issuance of permits, “whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that State’s perception.”

Before addressing the specifics of the case, the Court establishes the appropriate standard of review.  Australia’s argument is that the Court’s power of review should not be limited to scrutiny for good faith with a presumption in favor of the authorizing state because that would make the international management system irrelevant.  Australia instead urges the Court to analyze objective elements in evaluating whether permits were granted for purposes of scientific research.  Japan’s position was “refined” over the course of the proceedings, but Japan ultimately agreed with Australia and the intervening state New Zealand that the test should be one of objective reasonableness.

The Court declares that its standard of review has two prongs: 1) Whether the program under which the whaling takes place involves scientific research; and 2) Whether the killing of whales is “for purposes of” scientific research.  The Court’s language regarding the second prong contains its first mention of the importance of reasonableness by stating that the Court will examine “whether, in the use of lethal methods, the programme’s design and implementation are reasonable in relation to achieving its stated objectives.”  The Court will look to the authorizing State to explain the objective basis for its actions.

Because “scientific research” is not defined in the ICRW, the Court must discuss its meaning.  According to Australia, scientific research in this case has four essential elements: 1) Defined and achievable objectives that aim to contribute to knowledge important to the conservation and management of whale stocks; 2) Appropriate methods; 3) Peer review; and 4) Avoidance of adverse effects on whale stocks.

The Court notes that the experts called by both sides agree that the first criterion is standard and that scientific research should proceed on the basis of particular questions.  The second element is more controversial, however.

According to Australia, IWC resolutions should inform the Court’s interpretation of Article VIII because they comprise “subsequent agreement between the parties regarding the interpretation of the treaty” and “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation,” within the meaning of Article 31 of the Vienna Convention, was more controversial.  Australia further argues that special permits authorizing lethal methods can only be issued when non-lethal methods are not available.  Japan notes that Article VIII authorizes the granting of permits for the killing of whales and thereby expressly contemplates lethal methods.  In the Court’s view, lethal methods can have a place and Australia (as well as New Zealand) overstate the legal significance of the aforementioned resolutions because many were not unanimously adopted and many were not adopted with Japan’s concurrence.  The Court, however, declares that the parties have a duty to cooperate with the IWC and the Scientific Committee and therefore should give proper consideration to recommendations calling for an assessment of the feasibility of non-lethal methods.

Regarding the third criterion, the Court recognizes that peer review is a common practice, but does not believe a program can be said to involve scientific research only if the results become part of a peer review program.  Finally, it is uncontroversial that there be no adverse impact on whale stocks.

After this discussion, the Court declares that activities do not need to satisfy the four criteria proposed by Australia in order to constitute scientific research.  The Court also declines to devise its own set of criteria or to offer its own definition of scientific research.

Having described its approach to analyzing the issue, the Court begins to apply the process to the facts of the case.  After a detailed discussion of JARPA II, the Court declares that JARPA II involves four research objectives and a set of activities that involve systematic collection and analysis of data by scientists.  Thus, the Court is able to fairly easily conclude that JARPA II activities involving lethal sampling of whales can be broadly characterized as scientific research. The focus of the Court, then, must be on the question of whether the killing of whales under JARPA II is for purposes of scientific research.

The Court returns again to the notion of reasonableness as it begins its discussion of the phrase “for purposes of” in Article VIII.  To determine whether the use of lethal methods is for purposes of scientific research, the Court “will consider whether the elements of a programme’s design and implementation are reasonable in relation to its stated scientific objectives.”  These elements can include decisions regarding the use of lethal methods, the scale of lethal sampling, sample size selection methodology, and comparisons of target sample sizes with actual takes.

Japan defends its use of lethal methods as necessary because the first two objectives of JARPA II require data that can only be obtained from analyses of internal organs and stomach contents.  Australia contends that lethal methods should only be used when no other means are available and that here Japan merely asserts that they are necessary without making any demonstration that they truly are.  On this topic, the Court declares that lethal methods are not per se unreasonable, but a closer look is required.

The use of lethal methods, even when non-lethal alternatives are available, does not mean that a special permit falls outside of Article VIII.  The Court, however, notes three reasons why JARPA II should have included analysis of the feasibility of non-lethal methods.  First, IWC guidelines and resolutions demand that this be done.  Second, Japan itself states that it does not use lethal methods more than it deems necessary, which implies that Japan should complete a proper analysis of the necessity of lethal methods.  Third, significant advances in research science over the past two decades have been shown to be potentially directly applicable to JARPA II and should have been considered in JARPA II’s design.  In response to a question from a Member of the Court in oral proceedings, Japan was unable to produce any evidence to show that the program’s design included legitimate analysis of non-lethal alternatives.  Thus, the Court takes a negative view of Japan’s attempt to explore non-lethal alternatives or, more accurately, a lack thereof.

Though the first JARPA program is not under review, the Court provides some of its details for the purpose of comparison with JARPA II.  In the Court’s view, the two programs are broadly similar, which brings into doubt Japan’s claim that a significant increase in the minke whale sample size was necessary.  Further, the fact that JARPA II was commenced before the data collected from JARPA were analyzed suggests that there was no scientific reason to drastically increase sample sizes.  These facts provide support for the view that JARPA II’s sample sizes were not determined by purely scientific considerations.

Australia asserts that Japan does not have a coherent scientific rationale for the sample sizes it chose because Japan wanted to kill 850 minke whales for reasons other than scientific research and effectively manipulated the mathematics to reach that target.  Here, the Court returns to its focus on reasonableness by developing a plan to determine whether sample sizes are reasonable in relation to achieving JARPA II’s objectives.  JARPA II set a sample size of 50 fin whales and 50 humpback whales and a 12 year research plan for each species.  In contrast, JARPA II set a sample size of 850 minke whales and a six year research plan for that species.  Because Japan emphasizes an ecosystem approach to its research in JARPA II, as well as multi-species competition, the Court questions how JARPA II’s planned six year research phase can be justified when the research period for two of three species is 12 years.  Additionally, because the research plan calls for the taking of at least 131 whales of species annually, the sample sizes of 50 fin and humpback whales are not logical.

Regarding minke whales, the Court finds that the JARPA II program lacks transparency in its reasons for selecting particular sample sizes for individual research items.  No evidence exists that the sample size for minke whales is reasonable.  The Court questions why the research period for minke whales is half that of fin and humpback whales, particularly because the shorter time frame necessarily yields a higher sample size.  However, the Court declares that there is no basis to conclude that the six year period is not reasonable, but it does find it problematic that the research plan does not explain why that time frame was chosen and that Japan did not provide consistent explanations during the case.  The Court finds that lack of transparency and evidence lend support to Australia’s contention that a “predetermined overall sample size has dictated the choice of the research period and the rate of change to be detected, rather than the other way around.”

When presenting its case, Japan attempted to distinguish commercial whaling from scientific whaling by noting that only high-value species are taken in commercial whaling, whereas whales of any value are taken in scientific whaling.  As noted, JARPA II is focused almost exclusively on taking minke whales.  The Court takes special notice of a 2012 statement by the Director-General of Japan’s Fisheries Agency that minke whale meat is “prized because it is said to have a very good flavour and aroma when eaten as sashimi and the like.”  When speaking of JARPA II, he stated that “the scientific whaling program in the Southern Ocean was necessary to achieve a stable supply of minke whale meat.”  These facts and statements tend to support Australia’s contention regarding Japanese intent in the Antarctic.

The evidence relating to sample sizes “provides scant analysis and justification for the underlying decisions that generate the overall sample size.”  In the Court’s opinion, “this raises further concerns about whether the design of JARPA II is reasonable.”  These particular concerns must then be considered in light of the program’s implementation.

Evidence reveals that there is a significant gap between target sample sizes and actual numbers of whales taken under JARPA II.  Japan blames a fire on board a ship in the 2006-07 season and sabotage activities by non-governmental organizations for the difference, while Australia claims that the difference is due to a decline in the commercial market for whale meat.  The Court states that there is likely no singular reason for the decline and moves on to observe that despite years of significant variances, Japan has made no changes to JARPA II objectives and target sample sizes.  Japan claims that JARPA II can achieve useful results either with a longer time frame or a lower level of accuracy.  To the Court, this raises more doubt that the target sample size for minke whales is reasonable and supports Australia’s contention that the target size was set for non-scientific reasons.  These factors suggest to the Court that the target sample sizes are larger than reasonable in relation to achieving JARPA II’s stated objectives.

Based on this analysis, the Court determines that lethal sampling per se is not unreasonable, but when compared with the original JARPA program, the scale of lethal sampling in JARPA II is far more extensive.  The Court’s view is that the target sample sizes of JARPA II are not reasonable in relation to achieving the program’s activities.  Four reasons are provided.  First, JARPA and JARPA II are very similar programs, but no evidence exists to show that the differences that do exist between the two justify a large increase in the scale of sampling.  Second, the sample sizes for fin and humpback whales are too small to gather the information that Japan claims to be seeking.  Third, Japan’s process of determining the sample sizes for JARPA II is not transparent and does not provide any explanation of how the 850 minke whale sample size was determined.  Fourth, evidence exists to suggest that the program could have been adjusted to a program with much smaller sample sizes and that Japan paid little attention to the possibility of non-lethal research methods.

These design problems must also be considered in light of JARPA II’s implementation.  For all three species of whales, the actual take numbers are significantly lower than the sample size numbers.  Despite these differences, Japan has maintained its reliance on the JARPA II research objectives and has not revised its objectives or methods.  Further, Japan has not explained how the research objectives can remain viable given varying time frames for research periods for different species and the decisions to take very few fin whales and zero humpback whales.

Thus, taken as a whole, the Court holds that JARPA II does involve activities that can be considered to be scientific research, but the evidence does not establish that JARPA II’s design and implementation are reasonable in relation to achieving its stated objectives.  “The Court concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not ‘for purposes of scientific research’ pursuant to Article VIII, paragraph 1, of the Convention.”

Because JARPA II is an ongoing program, the Court declares that measures beyond declaratory relief are warranted.  Japan must revoke any extant authorization, permit or license to kill, take or treat whales in relation to JARPA II, and refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that program.

V. The Institute of Cetacean Research v. Sea Shepherd Conservation Society

When the ICJ discussed the impact of sabotage activities on Japan’s ability to kill whales as part of its JARPA II program, the Court was referring to activities undertaken by the Sea Shepherd Conservation Society, an international non-profit organization with a mission to “end the destruction of habitat and slaughter of wildlife in the world's oceans in order to conserve and protect ecosystems and species.”[43]  Sea Shepherd declares that it “uses innovative direct-action tactics to investigate, document, and take action when necessary to expose and confront illegal activities on the high seas.”

In December 2011, the Institute of Cetacean Research, a Japanese whaling group, sued Sea Shepherd in an American court, claiming that these direct-action tactics are violent and dangerous.[44]  According to the Institute, Sea Shepherd has rammed Japanese vessels in the Southern Ocean, launched butyric acid-filled bottles and smoke bombs on to Japanese ships, deployed fouling ropes in the water in attempts to stop forward momentum of Japanese ships, and navigated its own vessels in such a way as to endanger Japanese ships.  The plaintiffs sought an injunction preventing Sea Shepherd from performing any of these actions in the future while also raising the issues of piracy and terrorism.

In March 2012, the United States District Court for the Western District of Washington at Seattle addressed the Institute’s complaint.[45]  Issuance of a preliminary injunction is appropriate when a party can establish 1) A likelihood of success on the merits; 2) The party is likely to suffer irreparable harm in the absence of preliminary relief; 3) The balance of hardships tips in its favor; and 4) The public interest favors an injunction.  After a detailed analysis, the Court concludes that the Institute was likely to succeed only on its claim that Sea Shepherd violated the International Regulations for Preventing Collisions at Sea when it piloted its vessels close to Japanese vessels.  The Court also concludes that irreparable harm is not likely, that the balance of hardships favors the whalers, and that the public interest weighs against issuing an injunction.  For these reasons, the Court denies the Institute’s motion for a preliminary injunction, and though it holds that Sea Shepherd’s acts do not constitute piracy, it cautions that it does not approve of Sea Shepherd’s methods or mission.

On appeal later that year, however, the Ninth Circuit issued an injunction to prevent Sea Shepherd from attacking any of the Institute’s vessels and to prevent Sea Shepherd from coming within 500 yards of any Institute vessel operating in the open sea.[46]

In February 2013, the United States Court of Appeals for the Ninth Circuit issued its review of the district court’s decision.[47]  The Ninth Circuit reviews the district court’s dismissal of Cetacean’s piracy claims de novo.  The Court relies on the United Nations Convention on the Law of the Sea (UNCLOS) definition of piracy: “illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship . . . and directed . . . on the high seas, against another ship . . . or against persons or property on board such ship,” and declares that the district court’s analysis was incorrect due to erroneous interpretations of “private ends” and “violence.”

Chief Judge Kozinski states that the district court construed “private ends” to be limited only to those pursued for financial enrichment, but the correct interpretation of the phrase should be its ordinary meaning.  Here, “private” is typically defined as “belonging to, or concerning, an individual person, company, or interest” with no particular reference to financial aspects.  “Private ends,” therefore, include those pursued on personal, moral, or philosophical grounds and the fact that Sea Shepherd believes to be serving the public good does not make their ends public.

Chief Judge Kozinski again refers to UNCLOS when he states that the convention prohibits “violence . . . against another ship” and “violence . . . against persons or property.”  Whereas the district court held that Sea Shepherd’s actions were not violent because the conduct targeted only equipment and not people, the Ninth Circuit held that acts targeting equipment can be violent.  Further, even if this was not the case, because Sea Shepherd projectiles endangered the crew and damage to ships created potential for sinking or stranding in dangerous waters, Sea Shepherd’s actions should be considered violent.

Thus, the district court’s dismissal of the Institute’s piracy claims was in error.

Regarding the preliminary injunction, the Ninth Circuit reviews the same four characteristics as the district court and reviews the district court’s denial of a preliminary injunction for abuse of discretion.

The Institute’s complaint is based on three international agreements: the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), UNCLOS, and the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS).

The SUA Convention prohibits acts that either endanger, or attempt to endanger, safe navigation of a ship.  In the Court’s view, the Institute presented uncontradicted evidence that Sea Shepherd’s tactics could seriously impair its ability to navigate, but the district court concluded that, since Sea Shepherd has not disabled any of the Institute’s ships, it is unlikely to do so in the future.  This was clear error because the language of the Convention also prohibits endangering safe navigation.  Because the district court’s conclusion was based on an implausible determination of the facts and an erroneous application of law, it was an abuse of discretion.

Regarding UNCLOS, because the district court erred in its assessment of the Institute’s UNCLOS piracy claims, it abused its discretion in assessing the likelihood of success on these claims.

The Ninth Circuit finds that the district court’s determination that COLREGS was likely violated is adequately supported by the record.  Sea Shepherd deliberately navigates its ships dangerously close to the Japanese vessels, which violates COLREGS requirement that ships navigate so as to avoid collision.

As for the likelihood of irreparable harm, the district court held that injury was possible, but not likely.  The Ninth Circuit disagrees with this conclusion and notes that it was reached even though the lower court found that Sea Shepherd projectiles were obvious hazards and that Sea Shepherd navigates its ships in “such a way that a collision is highly likely.”  The Ninth Circuit also refers, for a second time in its opinion, to the fact that Sea Shepherd adorns the hulls of its ships with names and national flags of whaling vessels it claims to have rammed and sunk.  Because the Ninth Circuit finds that Sea Shepherd’s tactics could immobilize Japanese ships in treacherous waters and that repetition of dangerous acts, if committed often enough will inevitably lead to harm, it concludes that irreparable harm is likely.

The Ninth Circuit agrees with the district court’s finding that the balance of equities favors the Institute.

According to Chief Judge Kozinski, the primary public interests at issue are the health of the marine ecosystem and the safety of international waterways.  American laws defining the public interest in regards to whaling are the Whaling Convention Act and the Marine Mammal Protection Act, both of which permit whaling pursuant to scientific permits issued under the Whaling Convention.  Because the Institute’s whaling activities are covered by a permit, they are consistent with congressional policy as to the marine ecosystem.  American laws also reflect a strong public interest in safe navigation on the high seas.  Because Sea Shepherd’s actions violate UNCLOS, the SUA Convention and COLREGS, as noted earlier in the decision, they are in conflict with American public interest.

To conclude its analysis, the Ninth Circuit orders that the district court’s denial of a preliminary injunction and dismissal of the piracy claims be reversed.  The preliminary injunction issued by the Ninth Circuit in December 2012 will remain in effect until further order of the Court.

In further action at the district court, in July 2014, Sea Shepherd moved to dismiss the Institute’s case based on the ruling of the ICJ four months earlier.[48]  According to Sea Shepherd, the ruling at the ICJ made the Institute’s claims moot because the Institute will not engage in the activity for which it seeks protection during the 2014-15 season.  However, this argument ignores the fact that the Institute has already announced that it intends to resume whaling in the 2015-16 season.  Thus, the issue is not moot and the motion to dismiss is denied.

VI. The Future of Whaling

Even after the resolution of these major court cases, the global whaling situation is as unsettled as ever.  As noted, though the ICJ brought an end to JARPA II, Japan has announced that it intends to design a new program and begin lethal whaling in the Antarctic again in the 2015-16 season.  Meanwhile, Sea Shepherd deals with legal issues in the United States, but has effectively transferred operational control from the United States to Australia, theoretically allowing it to continue in its role as opposition to Japan and its Institute of Cetacean Research, while also pursuing action against the world’s other whaling nations Norway and Iceland.[49] 

[2] See generally Memorial of Australia, Whaling in the Antarctic (Austl. v. Japan), 2010 I.C.J. Pleadings (May 9, 2011), available at  http://www.icj-cij.org/docket/files/148/17382.pdf (note: 89.9 MB).

[3] See generally Counter-Memorial of Japan, Whaling in the Antarctic (Austl. v. Japan), 2010 I.C.J. Pleadings (Mar. 9, 2012), available at http://www.icj-cij.org/docket/files/148/17384.pdf (note 279.9 MB).

[5] Kurkpatrick Dorsey, Whales & Nations: Environmental Diplomacy on the High Seas 28 (2013).

[6] Memorial of Australia, supra note 2, at 11.

[7] Dorsey, supra note 7, at 28.

[8] In 1968, Garrett Hardin coined the phrase “tragedy of the commons” to refer to a situation in which a resource is held jointly, such that it is in an individual’s interest to deplete the resource because of the threat of other individuals doing the same.  In such a situation, people will undermine their collective long term interests by focusing on short term self interests and overexploiting a resource instead of protecting it.  Before long, the resource will be eliminated entirely.  See The Economist, Governing the Oceans: The Tragedy of the High Seas, February 22, 2014, at http://www.economist.com/node/21596942/print.

[9] Hope M. Babcock, Why Changing Norms is a More Just Solution to the Failed International Regulatory Regime to Protect Whales than a Trading Program in Whale Shares, 32 Stan. Envtl. L.J. 3, 13 (2013).

[12] Donald R. Rothwell, The Antarctic Whaling Case: Litigation in the International Court and the Role Played by NGOs, 3:2 The Polar J. 399, 399 (2013).

[13] The efforts of NGOs to convince Australia to bring a case were critical because only states can bring cases to the ICJ.  Thus, even if NGOs had the resources to prepare a lawsuit, they would not have been able to bring the suit on their own. 

[14] Rothwell, supra note 14, at 404.

[15] Whale Protection Act 1980 (Austl.).

[16] Australian Government Department of the Environment, http://www.environment.gov.au/topics/about-us/legislation/environment-protection-and-biodiversity-conservation-act-1999 (last visited Jul. 16, 2014).

[17] Rothwell, supra note 14, at 403.

[18] International Fund for Animal Welfare, Report on the International Panel of Independent Legal Experts On: Special Permit (“Scientific”) Whaling Under International Law, May 12, 2006, at 5.

[19] Rothwell, supra note 14, at 406.

[20] The Madrid Protocol was adopted in 1991 in order to gather all of the provisions relating to the protection of the Antarctic environment into one document.  See http://www.antarctica.gov.au/law-and-treaty/the-madrid-protocol.

[21] Rothwell, supra note 14, at 408.

[22] Memorial of Australia, supra note 2, at 1.

[23] Babcock, supra note 6, at 13.  (The ICRW was signed in 1946 to prevent the depletion of whale stocks.  The IWC was established the following year to assist whaling nations in maintaining whale markets.)

[24] Memorial of Australia, supra note 2, at 26.

[25] Throughout its memorial, Australia refers to Japan’s whaling program as “so-called scientific whaling,” employing either the “so-called” descriptor, sarcasm quotes surrounding “scientific,” or both.  These distinctions are omitted from most of this article.

[26] Memorial of Australia, supra note 2, at 2.

[28] Memorial of Australia, supra note 2, at 65.

[29] See infra.

[30] Memorial of Australia, supra note 2, at 140.

[31] Vienna Convention on the Law of Treaties, art. 31.

[32] Vienna Convention on the Law of Treaties, art. 26.

[33] Malcolm N. Shaw, International Law 903 (6th ed. 2008).

[34] Vienna Convention on the Law of Treaties, art. 32.

[35] Memorial of Australia, supra note 2, at 141.

[36] Counter-Memorial of Japan, Whaling in the Antarctic (Austl. v. Japan), 2010 I.C.J. Pleadings 8 (Mar. 9, 2012), available at http://www.icj-cij.org/docket/files/148/17384.pdf (note 279.9 MB).

[37] In Japan’s memorial, whaling conducted under an authorization given in accordance with Article VIII of the ICRW is referred to as special permit whaling, not scientific whaling, research whaling, or any other commonly used term.

[38] International Fund for Animal Welfare, The Economics of Japanese Whaling 5 (2012).

[39] Id. (These subsidies include a highly controversial Japanese government diversion of money from the 2011 tsunami relief fund to the whaling industry.)

[40] Dorsey, supra note 7, at 129.

[41] International Fund for Animal Welfare, The Economics of Japanese Whaling 5 (2012).

[42] Whaling in the Antarctic (Austl. v. Japan), 2014 I.C.J. 22 (Mar. 31) (Judgment).

[43] Sea Shepherd Conservation Society, http://www.seashepherd.org/who-we-are/ (last visited Aug. 30, 2014).

[44] Complaint (Action for Preliminary and Permanent Injunctive Relief and Declaratory Relief) at 1, Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 860 F.Supp.2d 1216 (W.D. Wash. 2012).

[49] International Fund for Animal Welfare, http://www.ifaw.org/united-states/our-work/whales/which-countries-are-still-whaling (last visited Aug. 30, 2014).

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