Jurisdiction

Proceedings regarding the “Whaling in the Antarctic” case between Japan and Australia began

when Australia filed the case against Japan in May of 2010. The focal point of the proceedings is

that of Japan’s program entitled Japanese Whale Research Program under Special Permit in the

Antarctic (JARPA II) wherein the said program had targeted Minke whales in the Antarctic Ocean.

More specifically; “Japan’s continued pursuit of a large-scale program of whaling under the

Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic

(‘JARPA II’)”. Due to the 1946 International Convention for the Regulation of Whaling (ICRW),

the case was brought under the International Court of Justice (ICJ) as it warranted the jurisdiction

of the ICJ, despite objections from Japan, which entitles the court’s jurisdiction to be compulsory.

As of November 2012, New Zealand filed a Declaration of Intervention in the Registry of the

Court as a non-party in the judicial proceedings as initiated by Australia. Under Article 36,

Paragraph 2 as stipulated in the Statute of the International Court of Justice; “[t]he state parties to

the present Statute may at any time declare that they recognize as compulsory ipso facto and

without special agreement, in relation to any other state accepting the same obligation, the

jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any

question of international law; (c) the existence of any fact which, if established, would constitute

a breach of an international obligation; (d) the nature or extent of the reparation to be made for the

breach of an international obligation.” Contrary to the defense cited by Japan based on “reservation

of Australia’s declaration” as well as the “basis of reciprocity”. However, this is not subject to the

same terms as followed by the International Court of Justice concerning the matter of jurisdiction;

specifically, the ICJ recognized that both parties, in this case, Japan and Australia, is in cognizance
of the nature of the dispute that may be related to a maritime delimitation but has a different

element that involves the exploitation of whale stocks, particularly the Minke whales in the

Antarctic Ocean. The premise follows, however, the operations of JARPA II have been conducted

in the Australian Antarctic Territory as well as adjacent areas in consideration of Australian

territory. In this case, the claims cited by Australia indicate that there have been an exploitation of

the whales under the guise of scientific research that Japan had used as an argument against the

case of Australia. In terms of jurisdiction, however, due to the fact that the said maritime claims

under the Australian Antarctic Territory were not declared to be claimed by Japan as a part of its

territory, the ICJ determined sufficient cause to investigate the case and deemed it under its

jurisdiction. Pursuant to the Article 63 of the Statute of the International Court of Justice, the role

that New Zealand had presented in this case as an intervener is due to its proximity with the

territory of the parties involved as well as with the Antarctic Ocean. As such, the Article 63 of the

said Statute reads as follows; “Whenever the construction of a convention to which states other

than those concerned in the case are parties is in question, [said states are entitled to] the right to

intervene in the proceedings”. The right of a state to participate as an intervener in a case brought

upon the International Court of Justice has been rarely invoked. In fact, Japan questioned the

involvement of New Zealand as it deemed the said participation to precipitate irregularities

concerning the facts of the case. Similarly, Japan identified Article 31 to have been bypassed by

the role of the New Zealand as the intervener. However, New Zealand did not present new findings

concerning the case but provided another perspective to the issue by incorporating the arguments

presented by Australia in its own presentation. Therefore, the participation of New Zealand as an

intervener is well within its rights as stated in the Statute of the International Court of Justice.
 Written Proceedings

The written memorial of Australia is structure in seven primary sections; namely, (1) introduction

involving the background of the case, the jurisdiction of the ICJ, and the structure of the memorial

in question; (2) the international regulation of whaling, (3) Japan’s “Scientific Whaling” in the

Southern Ocean; (4) Article VIII of the International Convention for the Regulation of Whaling;

(5) the legality of the JARPA II under the the International Convention for the Regulation of

Whaling; (6) the provisions under international law violated by Japan; and, (7) remedies to the

conflict in the perspective of Australia, particularly the declaration of the court and the duty of

cessation of Japan in the Whaling in Antarctica. As both recognized parties to the 1946

International Convention for the Regulation of Whaling, Australia emphasized its cessation on the

commercial whaling operations as of 1978 as well as the continued efforts by Japan to the

exploitation of whale stocks through such Special Permits, in Article VIII of the 1946 Convention.

With the International Whaling Commission (IWC) established in 1982 as the governing body on

the protection and conservation of whale stocks, the Southern Ocean Sanctuary was adopted to the

promotion of the same ideals as the IWC wherein commercial whaling, as purportedly conducted

under JARPA II, is still prohibited. The International Whaling Commission, under the

International Convention for the Regulation of Whaling, has been enacted to establish a

moratorium on the commercial exploitation of whales in the international community, particularly

to the states that are party to the said convention; in this case, in particular, Japan and Australia are

both parties to the aforementioned convention. However, under the JARPA II as authorized by the

government of Japan, the Japanese Institute of Cetacean Research had been allowed to seize 1035

minke whales, 50 fin whales and 50 humpback whales every year for an unspecified duration. The
JARPA of the Japanese government, as opposed to the subsequent JARPA II, had been allowed to

capture 400 minke whales under the same time period before the establishment of the JARPA II.

In this case, Japan cited Article VIII, Paragraph 1, of the International Convention for the

Regulation of Whaling, wherein it is stated that; “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 to number and subject to such other conditions 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.”

As the international authority regarding the said issue, the stipulations cited in the Convention,

particularly the adoption of an international moratorium on commercial whaling, were purportedly

violated by Japan through such Special Permits. With this, Australia questioned the terms defined

in the permit obtained by the Japanese Institute of Cetacean Research from the government of

Japan, particularly in the legality of the Special Permit given to the aforementioned institute. With

this, Australia cited the prevalence of the capture of whales within the Antarctic by Japan which

instigated the question on whether or not an annual seizure of whales was, in fact, utilized for

scientific purposes. With the next section focusing on jurisdiction, as discussed in the former

section of this study guide, the discussion will proceed to the structure of the memorial. Starting

with the developments of the International Convention for the Regulation of Whaling, Australia

outlines the introduced sections of the Convention, such as the whale sanctuaries and the

worldwide moratorium on commercial whaling. Moreover, the different types of whaling were
also presented under commercial whaling, such as aboriginal subsistence whaling and whaling for

purposes of scientific research. The latter was utilized by Japan in order to justify the actions done

by JARPA II under its administration. With this, it is also indicated that, upon the utilization of

Article VIII of the 1946 Convention, Japan is expected to have operated in good faith, in

consideration of the protection and conservation of whale stocks, which negates the frequency of

the capture of whales in the Southern Ocean. In this case, Australia cited the continuous efforts of

Japan, through JARPA and JARPA II, to collect data that was not fulfilled under JARPA. As such,

there are four characteristics of a scientific research mentioned in the memorial

Oral Proceedings

Starting with the oral proceedings in June 2013, Ms. Laurence Boisson de Chazournes appeared

before the International Court of Justice as the Counsel and Advocate to represent Australia in this

case. Starting with the International Convention for the Regulation of Whaling, Chazournes cited

the objective behind the formulation of the said 1946 Convention, summarizing such intent to be

for “the conservation and recovery of whale stocks”. Moreover, Chazournes identified the key

features of the Convention as an instrument of international law. The 1946 Convention, as stated,

to have been established in order to protect whale stocks that were in the alarming state of depletion

as of the creation of the said convention. As such, Charnouzes stated that the arguments of Japan

in the counter-memorial would have “rewrite the history of that Convention” as well as citing the

work of a Professor Patricia Birnie entitled “International Regulation of Whaling: From

Conservation of Whaling to Conservation of Whales and Regulation of Whaling Watching”

wherein the intent under the Convention were not meant to be interpreted literally, as argued by
Japan in the written proceedings. Chazournes cited the origins of negotiations and adoption of the

1946 International Convention for the Regulation of Whaling such as; (1) the international

regulations for the conservation of whaling were “inadequate, limited, and incomplete” as a legal

instrument for the protection of whale stocks, (2) the 1946 Convention establish a system dedicated

to conserve and recover the whale stocks within the international community, (3) the Convention

intended to “break with the logic of the past” with regards to the innovation of legal norms and

practices established before the enactment of the said Convention. With this, the Gabčíkovo-

Nagymaros Project was cited in order to determine the origins of the negotiations involved in the

formulation of the 1946 Convention, wherein environmental protection was the focal point of the

negotiations in question. As such, despite the urgency to address environmental protection,

regulation on whaling had only been established during the time wherein whale stocks have been

in constant depletion. Starting with the 1931 Convention for the Regulation of Whaling, under the

League of Nations, the international community had only been able to address that the

environmental protection takes precedence over the economic advantages presented by

commercial whaling. With the subsequent International Agreement for the Regulation of Whaling

in 1937, the international community, as of 1937, had taken a neutral stance between the

commercial aspect of whaling and the protection of whale stocks; in this 1937 Convention, the

parties to the Convention were allowed to capture whales, under the provision that the survival of

the said species must also be ensured by the party conducting said operations. Moreover, the

ambiguity of the 1937 Convention led to a series of abuses administered by the whaling industry

and, ultimately, resulting into the 1946 International Convention for the Regulation of Whaling.

Furthermore, Charnouzes countered the argument presented by Japan that the objective of the 1946

Convention in itself was fragmented and indicated that objective and purpose remains, as it always
had, in the conservation and recovery of whale stocks, particularly due to the nature of operations

as conducted by the International Whaling Commission under the International Convention for the

Regulation of Whaling. With this, it was also pointed out that the 1946 Convention must be studied

as a collective framework in relation to the proceedings of the case, as opposed to the approach of

Japan in the written proceedings of the case. With this, the conclusion of the 1946 Whaling

Conference in Washington D.C., indicated the innovative process considered in the creation of the

1946 Convention with the established International Whaling Commission. To summarize,

Charnouzes identified that the purpose of the 1946 Convention was to deter unilateral actions that

promote the exploitation of whale stocks conducted by governments, under the guise of scientific

research. Furthermore, Australia differentiates the stipulations under the 1931 and 1937

Conventions with the 1946 Convention through their objectives by stating that sustainable

development of the whaling industry is taken into the context of the degradation of the whaling

industry. With this, actions undertaken by the government of Japan by the issuance of such Special

Permits on Whaling, are considered, in the case presented by Australia, to be more than 20 years

[of] a deep legal slumber. As such, Australia implored Japan to comply with the principles of the

1946 Convention as a state party as well as the fact that Australia considers this to be “a basic rule

of general international treaty law” that should be expected from any member of the international

community.