Japan could resume whaling – this time with The Hague’s blessing

Japan’s whaling program was defeated in The Hague, but that might not stop more whales being taken in the future. EPA/Tim Watters/Sea Shepherd Australia/AAP

Japan is reportedly set to release plans to resume killing whales in the Southern Ocean in the 2015-16 season.

It seems like a defiant move, coming just six months after the International Court of Justice (ICJ) ruled that Japan’s scientific whaling program violated the 1946 International Convention for the Regulation of Whaling – a decision hailed as a resounding victory for the Australian-led legal challenge to the program.

But the judgment, emphatic though it was, does not completely close the loophole in the convention that allows whaling for scientific purposes. If Japan can come up with a proposal that satisfies the conditions laid down by the court, there may be no barrier to it beginning whaling again.

Why did Japan lose the court case?

In a decisive judgment that surprised many observers, the ICJ found that Japan’s Southern Ocean scientific whaling program (known as JARPA II) did not meet the whaling convention’s requirements. The court found (by 12 votes to 4) that Japan’s activities were not covered by Article VIII of the convention, which allows whaling for scientific purposes. It therefore found Japan to be in breach of bans on commercial whaling and the use of factory ships.

The court did not say that scientific whaling in general is unlawful, stressing that scientific programs can be pursued for reasons besides conservation or sustainable exploitation of whale stocks. The court was at pains to stay away from contested areas of whale conservation politics, observing that its role was not to deal with these issues but instead was only to examine whether Japan’s scientific whaling program met the requirements of Article VIII.

The court separated Article VIII into two parts, focusing first on whether Japan’s whaling program was scientific, and then on whether it was conducted primarily for scientific purposes. It was only on the latter count that Japan was found wanting.

The court did not venture a view as to what science is (despite some fascinating debate in the courtroom on this point between Australia and Japan). After reviewing Japan’s stated scientific objectives for its Antarctic whale hunt, the court said that “the JARPA II activities involving the lethal sampling of whales can broadly be characterized as ‘scientific research’”.

When I was live-calling the judgment on ABC News 24, my initial reaction was that this meant that Australia had lost its case. However, as the judgment continued, it soon transpired that the court was not convinced that Japan was matching its apparently lofty scientific goals with a method that was actually fit for purpose.

The court was not convinced that Japan had given full and reasonable explanations for its planned sample sizes (850 minke whales, 50 fin whales, and 50 humpback whales) and the enormous variation in the actual numbers of whales taken each season. The evidence suggested that the sample sizes were quite arbitrary, and not really directed at achieving Japan’s scientific objectives, which were to:

  • monitor the Antarctic ecosystem
  • model competition among whale species and future management objectives
  • work out temporal and spatial changes in whale population structure
  • improve management of minke whale stocks.

The take of a reduced number of minke and fin whales, and no humpback whales at all, was found to be a function of political and logistical considerations, rather than scientific ones. In sum, the court found that there was no reasonable relationship between Japan’s planned scientific program and the way it did the whaling.

What will Japan do now?

After unsuccessfully challenging the court’s jurisdiction, Japan indicated that it would abide by the ruling. This might be because the Japanese government believes it can continue whaling in one form or another while still complying with the conditions set by the court.

Japan is now reportedly preparing to submit fresh plans to the IWC’s general meeting in Slovenia this month, and to the commission’s scientific committee in November. The Whaling Convention allows parties to draw up scientific whaling plans unilaterally, so there is nothing in international law stopping Japan going ahead without the IWC’s blessing.

However, it is clear from the court’s judgment that a major reason for Japan’s loss is that it failed over many years to engage constructively with the IWC and to explain the reasoning behind its whaling program.

The issue also hinges on whether Japan can conceive of a new Antarctic whaling program that matches the criteria set by the court. The court did not set specific limits on the number or species of whale that Japan could legitimately target, simply ruling that the sample sizes needed to be “reasonable”.

Japan might therefore decide to take a two-pronged approach for its new program: first, it could set less ambitious scientific objectives; and second, it could seek to take fewer whales. The dilemma is that a very small sample may not be scientifically valid, yet a very large one could set off yet another round of international recrimination. Moreover, a very small take of whales would be harder to justify economically, given the enormous cost of the program.

Will Australia oppose it again?

When he was opposition leader, Tony Abbott said that a Coalition government would not take Japan to the ICJ to challenge its scientific whaling hunt. However, he did not oppose the Rudd government’s decision to begin the proceedings.

When the ruling was handed down, Mr Abbott, who had become prime minister in the meantime, chose not to capitalise on the judgment by pressing Japan to phase out lethal whaling altogether. This amounted to a green light for Japan to revamp its plans.

Yet the Abbott government, like its predecessor, is right to resist calls to enforce Australian laws against whaling in Antarctica, given Antarctica’s special status.

There is sure to be continued wrangling within the IWC on any new Antarctic whaling plans by Japan. If Japan does go ahead with a new hunt that is at odds with the ICJ’s ruling, the pressure will be back on the Abbott government to come up with an effective response. All options will need to be kept on the table, including a possible reactivation of the case in the ICJ.

Japan may yet devise a plan that abides by the court’s ruling. Yet even it if doesn’t, given Mr Abbott’s reluctance to press home Australia’s advantage back in March, it seems unlikely the issue will go all the way to The Hague again.