Forum: Issue:

International Court of Justice (ICJ) Whaling in the Antarctic (Australia vs. Japan)

Student Officer: Divya Jethwani Position: President

Introduction
Whaling as a means of industrial fishing and occupation has een used for several years and centuries. !owever" due to the sudden nearing e#tinction and endangerment of several species" components of the international community have $oined hands to revo%e any whaling activities in order to preserve and prevent the e#tinction of the wondrous whales. &reaties and conventions li%e the International Convention for the 'egulation of Whaling (IC'W)" have een put into place y the International Whaling Commission (ICW) which was signed and ratified y various mem er nations in the ()" creates a asis for regulation and vigilance on the whaling activities in high seas and various waters. &his helps to control and monitor private and commercial whaling activities" which now due to the recent developments in conservation measures are considered a ta oo. &he creation of whaling sanctuaries" namely the *outhern +cean Whale *anctuary regulate the type of whaling (commercial" private or scientific) that can e conducted y countries and the limited amount of catches that must e o served" helping to define grounds to secure the e#istence of endangered whales. (ntil ,-./" efore the uproar of sentiment towards anti0whaling" the whaling industry was considered to e a significant part of the governments and economy of several nations worldwide. After the reali1ation of the species of whales nearing endangerment" several nations decide to urge for restrictions on this occupation. 2ventually" a moratorium was placed" implementing a 1ero catch limit for any commercial or private purpose" however allowed whaling for scientific purposes to occur. &his moratorium was contested y nations such as Japan" 'ussia" )orway and Peru as it affected their whaling activities and did not initially provide information a out whaling for scientific purposes. Japan and Peru withdrew their opposition later. &oday" a moratorium only affects commercial whaling and whaling used for scientific research is still permitted.

A recent development etween countries Australia and Japan has called for the filing of proceedings y Australia against Japan" due to it3s elieve of the violation of the laws of the moratorium y Japan.

Key Terms
Commercial Whaling 0 A form of whaling that occurs as a means of profit for a country3s government. &his involves %illing" ta%ing and selling whale meat or whale oil for profita le means. A moratorium was placed on commercial whaling y several treaties and conventions. JARPA I JARPA II 0 Japanese Whale 'esearch Program under *pecial Permit in the Antarctic. JA'PA I (,-44 0 5//6)" JA'PA II (5//6 0 present) JARP! I JARP! II 0 Japanese Whaling 'esearch Programs conducted in the )orth Pacific waters. JA'P) I (,--7 0 ,---)" JA'P) II (5/// 0 present) "oratorium 0 A delay or suspension of an activity or a law Scientific Whaling 0 Is a form of whaling that is accepted y the whaling commissions and treaties placed in order to regulate and prevent commercial whaling. &his re8uires the usage of whales to o tain scientific data to predict geographical trends and patterns and understand whale ehavior.

"a#or Parties In$ol$ed

The Australian Claim Australia has een a %ey figure in the application of this case against the Japanese 9overnment. &heir prime o $ection is that Japan claims to use scientific whaling in order to cover up for their commercial whaling in JA'PA II" which has een running since 5//.. *everal organi1ations such as 9reenPeace and World Wildlife :und are also in accord with Australia3s approach. After the conduction of feasi ility studies" the pro$ected num ers for JA'PA II3s catches was limited to a ma#imum of 46/ min%e whales (with a ,/; leverage < or 0) and ,/ fin whales were re8uired for the study. !owever" after the conduction of the program in the first year" the pro$ected num ers were deemed too little and Japan re8uested for the ma#imum catch to e raised to 46/ min%e whales (with a ,/; leverage < or 0)" 6/ fin whales and an addition of 6/ hump ac% whales to the 8uota. After eing re8uested to suspend the catch of hump ac% whales y the (nited *tates"

JA'PA II terminated the ta%e of hump ac% whales and has a ided y the o ligation to date. )onetheless" due to its lethal approach in the %illing of marine animals that are almost nearing e#tinction" Australia and several countries oppose the conduction of JA'PA II as a means of scientific research. Due to its geographical location near the Antarctic 22=" Australia has een a %ey figure in this case and consistently voiced opinions and o $ections to Japanese whaling programs" urging for a cease on all lethal research in the Antarctic" however have gone unheard until proceedings were instituted in the International Court of Justice. Australia%s Prayer for Relief Australia appeals to the court to find and sentence Japan for a reach of o ligations to previous treaties through the implementation of >scientific3 research program JA'PA II. Australia further re8uests for the termination of JA'PA II" also annulling ac8uired permits that allow lethal commercial whaling activities in the name of >scientific research.3 Australia further has re8uested Japan to provide assurance of this termination" stating that it will immediately discontinue all activities and will not indulge in further action for the program JA'PA II and will not pursue similar programs or activities in the coming future. The Ja&anese Claim

Japan continues to argue that the scientific purpose of whaling is re8uired in order to continue studies on se# and ages of whale populations" as well as to understand their distri ution according to geographical patterns. Japan defends JA'PA II and claims that it is permitted under the International Whaling for the 'egulation of Whaling (IC'W) as it has een accepted and certified for a scientific purpose. &he Australian attac% on Japan selling whale meat has een re utted y elucidation of the IWC regulation" that re8uires any whale meat o tained through scientific purposes to not go to waste. !ence" in order to avoid any wastage of the o tained meat" Japan has put these meats up for sale on their supermar%et shelves. :urthermore" Japan continues to defend itself in response to any o $ection raised against the JA'PA program and reinstates that it has not reached any o ligations produced y the IC'W due to its scientific nature and contends that JA'PA II continues as research is vital for the preservation and understanding of whale populations.

Ja&an%s Prayer for Relief Japan appeals to the court that JA'PA II continue as earlier" as it falls under the pursuit of scientific whaling and there is no wrongdoing which has occurred on Japan3s part due to this. Japan continues to reiterate the importance of lethal measures in scientific whaling methods in order to allow for research to occur.

Timeline of '$ents
5, Decem er 5//. 0 Australia along with 5- other nations issues an ?Aide "emoire( to Japan" e#pressing and stating their concerns and ?strong o $ection to the resumption of the second Japanese Whale 'esearch Program under *pecial Permit in the Antarctic (JA'PA II)@ along with other concerns in regard to the ?future recovery and long term via ility of these species@ eing o tained y JA'PA II. &he concerned states showed regret that JA'PA II has egun to undermine the a ility of survival for several whale species. Japan recogni1ed and responded to this ?Aide "emoire)( however did not show any interest towards cease the operations of JA'PA II A, Bay 5/,/ 0 Australia issues an application to institute proceedings against the 9overnment of Japan with concern a out their large0scale program of whaling under special permits in its second phase %nown as JA'PA II. Australia assumes a reach of o ligations y Japan under several treaties and conventions created to ensure preservation and conservation of marine animals and the environment. A reach assumed y Japan specifically of the International Convention for the 'egulation of Whaling (IC'W) - Bay 5/,, 0 Australia su mits Colume , of their memorial citing various details and facts a out the reach of o ligation under the IC'W assumed y Japan. &his ranges from the adoption of the convention y oth parties to the o $ect and purpose of its implementation. &he memorial furthermore discusses the development of a commercial whaling moratorium and the refusal of Japan to follow and respect this moratorium. In addition to the a ove" the memorial cites facts and provides insight into the apparent ?scientific@ whaling conducted y Japan as a replacement of ?commercial@ whaling. Dastly" the memorial provides remedies and solution to the reach of the IC'W and the e#pected outcome of this case y the International Court of Justice. - Barch 5/,5 0 Japan su mits a Colume , of a counter0memorial citing counterclaims in support and favor of their stance. Japan discusses the need to continue the operations of JA'PA II in order

to determine and understand whale species and appeals to continue whaling under ?scientific purposes@ 7 April 5/,A 0 )ew =ealand su mits a written intervention on the case in order to present the views of their government as a third party and a signatory to the IC'W. )ew =ealand also related to the IC'W and Article CIII and its implementation in their written proceedings and instates the importance of signatory states to a ide y its regulations in order to achieve their goal of conserving and protect marine wildlife.

*uestions to Consider
I. !ow will the presented laws and treaties validate either parties claimsE program for scientific research in the *outhern +ceanE What evidence is there to prove the occurrenceE III. !as Australia een a iding to their o ligatory guidelines in relation to the International Convention for the 'egulation of WhalingE (IC'W) IC. What is the true purpose of JA'PA II" despite what Japanese officials say" what does the evidence support 0 commercial or scientific whalingE C. If so" is Japan a le to prove JA'PA II as act of whaling due to a scientific purposeE CI. Does provided evidence set asis for Japan to terminate JA'PA II instantlyE

II. Are international o ligations truly reached y Japan through their conduction of the whaling

Related +ocuments
The ,nited !ations Con$ention on the -a. of the Sea /,!C-OS0) Article 112) 113) 114 Article ,,. 0 5+uty of States to ado&t .ith res&ect to their nationals measures for the conser$ation of the li$ing resources of the high seas( All *tates have the duty to ta%e" or to cooperate with other *tates in ta%ing" such measures for their respective nationals as may e necessary for the conservation of the living resources of the high seas. Article ,,4 0 5Coo&eration of States in the conser$ation and management of li$ing resources( *tates shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. *tates whose nationals e#ploit identical living resources" or different living resources in the same area" shall enter into negotiations with a view to ta%ing the

measures necessary for the conservation of the living resources concerned. &hey shall" as appropriate" cooperate to esta lish su regional or regional fisheries organi1ations to this end. Article ,,- 0 5Conser$ation of the li$ing resources of the high seas( ,. In determining the allowa le catch and esta lishing other conservation measures for the living resources in the high seas" *tates shallF (a) ta%e measures which are designed" on the est scientific evidence availa le to the *tates concerned" to maintain or restore populations of harvested species at levels which can produce the ma#imum sustaina le yield" as 8ualified y relevant environmental and economic factors" including the special re8uirements of developing *tates" and ta%ing into account fishing patterns" the interdependence of stoc%s and any generally recommended international minimum standards" whether su regional" regional or glo alG ( ) ta%e into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species a ove levels at which their reproduction may ecome seriously threatened. 5. Availa le scientific information" catch and fishing effort statistics" and other data relevant to the conservation of fish stoc%s shall e contri uted and e#changed on a regular asis through competent international organi1ations" whether su regional" regional or glo al" where appropriate and with participation y all *tates concerned. A. *tates concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any *tate. &he a ove articles" all a part of *ection 5 (Conservation and Banagement of the living resources of the high seas) of the convention3s Part CII (!igh *eas) are associated to *ection 5" Part HI of the convention which is responsi le for the protection of the marine environment of seas and the inspection of marine scientific research. *ignatories who violate the convention and their o ligation to conserve and protect the marine life of high seas are su $ect to legal corollaries. If any laws or scientific research programs disregard the convention" the regarding parties should also e#perience ramifications. Japan and Australia have oth ratified the ()CD+*.

Japan (5/ June ,--I) Australia (6th +cto er ,--7)

International Con$ention for the Regulation of Whaling /ICRW0 Article CIII 0 ,. )otwithstanding anything contained in this Convention any Contracting 9overnment may grant to any of its nationals a special permit authori1ing that national to %ill" ta%e and treat whales for purposes of scientific research su $ect to such restrictions as to num er and su $ect to such other conditions as the Contracting 9overnment thin%s fit" and the %illing" ta%ing" and treating of whales in accordance with the provisions of this Article shall e e#empt from the operation of this Convention. 2ach Contracting 9overnment shall report at once to the Commission all such authori1ations which it has granted. 2ach Contracting 9overnment may at any time revo%e any such special permit which it has granted. 5. Any whales ta%en under these special permits shall so far as practica le e processed and the proceeds shall e dealt with in accordance with directions issued y the 9overnment y which the permit was granted. A. 2ach Contracting 9overnment shall transmit to such ody as may e designated y the Commission" in so far as practica le" and at intervals of not more than one year" scientific information availa le to that 9overnment with respect to whales and whaling" including the results of research conducted pursuant to paragraph , of this Article and to Article IC. 7. 'ecogni1ing that continuous collection and analysis of iological data in connection with the operations of factory ships and land stations are indispensa le to sound and constructive management of the whale fisheries" the Contracting 9overnments will ta%e all practica le measures to o tain such data.

6i7liogra&hy 18
JAustralia to Bount Degal Kid against Japan Whaling.J KKC )ews. KKC" 57 July 5/,A. We . LhttpFMMwww. c.co.u%MnewsM,/,.-AI/N.

98

Anton" Donald O. JDispute Concerning Japan3s JA'PA II Program of ?*cientific Whaling@ (Australia v. Japan).J A*ID Insights ,7.5/ (n.d.)F n. pag. &he American *ociety of International Daw. &he American *ociety of International Daw" 4 July 5/,A. We . LhttpFMMwww.asil.orgMinsights,//./4.cfmN.

3. JJapan0Australia 'elations.J B+:AF. ).p." n.d. We . /, Aug. 5/,A.

LhttpFMMwww.mofa.go.$pMregionMasia0paciMaustraliaMinde#.htmlN.

4. Dund" 9raham. JAsian Correspondent Asia )ews.J Japan vs. AustraliaF Whaling 'ow.
Asian Correspondant" ,I July 5/,A. We . A/ July 5/,A. LhttpFMMasiancorrespondent.comM,,/.57M$apan0vs0australia0whaling0rowMN.

:8

'eport of the Intersoessional Wor%shop to 'eview Data and 'esults from *pecial Permit 'esearch 'esearch on Bin%e Whales in the Antarctic" &o%yo" 704 Decem er 5//I. International Whaling Commission. Cam ridge" (nited Oingdom. 5//I. LhttpFMMwww.icrwhale.orgMpdfM*C6-'ep,.pdfN

I. 'othwell" Donald '. JAustralia v. JapanF JA'PA II Whaling Case efore the International Court of Justice.J &he !ague Justice Portal. !ague Academic Coalition" 5/,/. We . LAustralia v. JapanF JA'PA II Whaling Case efore the International Court of JusticeN. .. Whaling in the Antarctic. International Court of Justice. ).d. International Court of Justice. International Court of Justice" 5, July 5/,A. We . LhttpFMMwww.ic$0 ci$.orgMdoc%etMfilesM,74M,6-6,.pdfN
4. ?Whaling in the Antarctic (Australia v. Japan)F Closure of written proceedings. @ &he

International Court of Justice. ,4 July 5/,A. LhttpFMMwww.ic$0 ci$.orgMdoc%etMfilesM,74M,./57.pdfN

A&&endices
I. (nited )ation Convention on the Daw of the *ea 0 (()CD+*) httpFMMwww.un.orgMdeptsMlosMconventionPagreementsMte#tsMunclosM()CD+*0&+C.htm Articles ,,." ,,4" ,--. Parties are welcome to use additional Articles in this convention that are relative or convenient to their stance. II. World Wildlife :und Press 'elease 0 httpFMMworldwildlife.orgMpress0releasesMwwf0statement0on0 ic$0whaling0case0australian0government0vs0government0of0$apan