From the Environmental Law Professors Listserv: Todays ruling on Japans Whaling Nearly four years after the initial filings, the International Court of Justice just came down with a decision on Japan’s whaling program in Antarctica (JARPA II). As many of you know, Japan has been making use of the scientific permit exception to continue whaling since the moratorium launched in the 1980s. I have pasted below the relevant excerpts from the opinion. The bottom line is that 12 of the 16 justices were not persuaded that Japan’s whaling has been reasonably related to its scientific research objectives. The decision represents a huge victory for anti-whaling advocates and countries. It leaves open the question, though, of whether Japan will continue with smaller but better-justified whaling programs as well as uncertain political implications for countries such as Norway and Iceland that entered reservations to the moratorium. Regards, -js Whaling in the Antarctic (Australia v, Japan: New Zealand Intervening) International Court of Justice, March 31, 2014 127. …Based on the information before it, the Court thus finds that the JARPA II activities involving the lethal sampling of whales can broadly be characterized as “scientific research”. There is no need therefore, in the context of this case, to examine generally the concept of “scientific research”. Accordingly, the Court’s examination of the evidence with respect to JARPA II will focus on whether the killing, taking and treating of whales in pursuance of JARPA II is for purposes of scientific research and thus may be authorized by special permits granted under Article VIII, paragraph 1, of the Convention. To this end and in light of the applicable standard of review, the Court will examine whether the design and implementation of JARPA II are reasonable in relation to achieving the programme’s stated research objectives. * * * 141. [T]here is no evidence of studies of the feasibility or practicability of non-lethal methods, either in setting the JARPA II sample sizes or in later years in which the programme has maintained the same sample size targets. There is no evidence that Japan has examined whether it would be feasible to combine a smaller lethal take (in particular, of minke whales) and an increase in non-lethal sampling as a means to achieve JARPA II’s research objectives. The absence of any evidence pointing to consideration of the feasibility of non-lethal methods was not explained. * * * 156. These weaknesses in Japan’s explanation for the decision to proceed with the JARPA II sample sizes [i.e., the number of whales hunted every year] prior to the final review of JARPA lend support to the view that those sample sizes and the launch date for JARPA II were not driven by strictly scientific considerations. These weaknesses also give weight to the contrary theory advanced by Australia that Japan’s priority was to maintain whaling operations without any pause, just as it had done previously by commencing JARPA in the first year after the commercial whaling moratorium had come into effect for it. * * * 172. In considering these contentions by the Parties, the Court reiterates that it does not seek here to pass judgment on the scientific merit of the JARPA II objectives and that the activities of JARPA II can broadly be characterized as “scientific research”. With regard to the setting of sample sizes, the Court is also not in a position to conclude whether a particular value for a given variable (e.g., the research period or rate of change to detect) has scientific advantages over another. Rather, the Court seeks here only to evaluate whether the evidence supports a conclusion that the sample sizes are reasonable in relation to achieving JARPA II’s stated objectives. * * * 198. Taken together, the evidence relating to the minke whale sample size, like the evidence for the fin and humpback whale sample sizes, provides scant analysis and justification for the underlying decisions that generate the overall sample size. For the Court, this raises further concerns about whether the design of JARPA II is reasonable in relation to achieving its stated objectives. * * * 219. The Court notes that the Research Plan uses a six-year period to obtain statistically useful information for minke whales and a 12-year period for the other two species, and that it can be expected that the main scientific output of JARPA II would follow these periods. It nevertheless observes that the first research phase of JARPA II (2005-2006 to 2010-2011) has already been completed, but that Japan points to only two peer-reviewed papers that have resulted from JARPA II to date. These papers do not relate to the JARPA II objectives and rely on data collected from respectively seven and two minke whales caught during the JARPA II feasibility study… In light of the fact that JARPA II has been going on since 2005 and has involved the killing of about 3,600 minke whales, the scientific output to date appears limited. * * * 224. The Court finds that the use of lethal sampling per se is not unreasonable in relation to the research objectives of JARPA II. However, as compared to JARPA, the scale of lethal sampling in JARPA II is far more extensive with regard to Antarctic minke whales, and the programme includes the lethal sampling of two additional whale species. Japan states that this expansion is required by the new research objectives of JARPA II, in particular, the objectives relating to ecosystem research and the construction of a model of multi-species competition. In the view of the Court, however, the target sample sizes in JARPA II are not reasonable in relation to achieving the programme’s objectives. 225. First, the broad objectives of JARPA and JARPA II overlap considerably. To the extent that the objectives are different, the evidence does not reveal how those differences lead to the considerable increase in the scale of lethal sampling in the JARPA II Research Plan. Secondly, the sample sizes for fin and humpback whales are too small to provide the information that is necessary to pursue the JARPA II research objectives based on Japan’s own calculations, and the programme’s design appears to prevent random sampling of fin whales. Thirdly, the process used to determine the sample size for minke whales lacks transparency, as the experts called by each of the Parties agreed. In particular, the Court notes the absence of complete explanations in the JARPA II Research Plan for the underlying decisions that led to setting the sample size at 850 minke whales (plus or minus 10 per cent) each year. Fourthly, some evidence suggests that the programme could have been adjusted to achieve a far smaller sample size, and Japan does not explain why this was not done. The evidence before the Court further suggests that little attention was given to the possibility of using non-lethal research methods more extensively to achieve the JARPA II objectives and that funding considerations, rather than strictly scientific criteria, played a role in the programme’s design. 226. These problems with the design of JARPA II must also be considered in light of its implementation. First, no humpback whales have been taken, and Japan cites non-scientific reasons for this. Secondly, the take of fin whales is only a small fraction of the number that the JARPA II Research Plan prescribes. Thirdly, the actual take of minke whales has also been far lower than the annual target sample size in all but one season. Despite these gaps between the Research Plan and the programme’s implementation, Japan has maintained its reliance on the JARPA II research objectives — most notably, ecosystem research and the goal of constructing a model of multi-species competition — to justify both the use and extent of lethal sampling prescribed by the JARPA II Research Plan for all three species. Neither JARPA II’s objectives nor its methods have been revised or adapted to take account of the actual number of whales taken. Nor has Japan explained how those research objectives remain viable given the decision to use six-year and 12-year research periods for different species, coupled with the apparent decision to abandon the lethal sampling of humpback whales entirely and to take very few fin whales. Other aspects of JARPA II also cast doubt on its characterization as a programme for purposes of scientific research, such as its open-ended time frame, its limited scientific output to date, and the absence of significant co-operation between JARPA II and other related research projects. 227. Taken as a whole, the Court considers that JARPA II involves activities that can broadly be characterized as scientific research (see paragraph 127 above), but that the evidence does not establish that the programme’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. * * * 244. In addition to asking the Court to find that the killing, taking and treating of whales under special permits granted for JARPA II is not for purposes of scientific research within the meaning of Article VIII and that Japan thus has violated three paragraphs of the Schedule, Australia asks the Court to adjudge and declare that Japan shall: “(a) refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII; (b) cease with immediate effect the implementation of JARPA II; and (c) revoke any authorization, permit or licence that allows the implementation of JARPA II.” 245. The Court observes that JARPA II is an ongoing programme. Under these circumstances, measures that go beyond declaratory relief are warranted. The Court therefore will order that Japan shall revoke any extant authorization, permit or licence 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 programme. 246. The Court sees no need to order the additional remedy requested by Australia, which would require Japan to refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII. That obligation already applies to all States parties. It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII, paragraph 1, of the Convention. [The Court found violations of Article VIII, paragraph 1 of the ICRW and paragraphs 7(b), 10(d) and 10(e) as well as paragraph 30 of the Schedule to the International Convention for the Regulation of Whaling in relation to the killing, taking and treating of fin whales in pursuance of JARPA II] _____ In response to the opinion, a spokesman from the Japan Japanese Foreign Affairs Ministry stated that, “as a state that respects the rule of law ... and as a responsible member of the global community, Japan will abide by the ruling of the court.”
Posted on: Mon, 31 Mar 2014 17:04:56 +0000
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