Judgment Day for Scientific Whaling

Guest blog by Mike Donoghue, former advisor to the New Zealand government. 

Much is at stake in the International Court of Justice case between Australia and Japan on Japan’s ‘research whaling’ programme in the Antarctic – JARPA II – which for the past 25 years has been the only remaining large-scale whaling operation in the Southern Hemisphere.  Critics of the programme charge that JARPA is just a sham and that the so-called research has provided little, if any, useful scientific findings. Japan and other supporters of whaling assert that the International Whaling Commission greatly appreciates the data collected; and in any event, it is not Australia’s sole privilege to argue what does and does not constitute scientific research.

Both countries have agreed to abide by the decision of the ICJ.  A clear win for Australia will spell the end of all whaling in the Southern Ocean; whereas a win for Japan will open up the prospect of ‘research whaling’ in all the world’s oceans, and bring them significantly closer to their goal of resuming commercial whaling, which has been banned by the IWC since 1986.

With so much hanging on the outcome of the case, when proceedings opened on 26 June, I was initially reluctant to tune in to the broadcasts on the UN website. But once I did, I was hooked.  This is high quality legal drama, with bravura performances from both sides.

Those of us who for many years had to endure endless hours of debate at the International Whaling Commission and its Scientific Committee may, like me, find some deep satisfaction in seeing Australia doggedly dissecting Japan’s purported scientific rationale for JARPA 2. Their case has been unexpectedly abetted by Japan’s sole scientific witness, a prominent Norwegian biologist who admitted that he had no idea how Japanese scientists had calculated the catch limits – sorry, I mean sample sizes – for JARPA 2; neither did he agree with the inclusion of fin or humpback whales in the programme.  In the absence of any other scientific evidence on Japan’s side, this constituted a spectacular own goal.

Instead of debating the science, Japan is relying heavily on legal argument, and has assembled a formidable team of Law Professors, from a variety of prestigious academic institutions.  Having endured so much of JARPA 2 at close quarters, I can’t say that I find their arguments persuasive, but it cannot be denied that they present with great skill. Nevertheless, Japan is clearly exposed on the quality (or lack of it) of their scientific research – the key question before the Court is:

• How well-planned, relevant and well-executed does scientific research have to be to meet the requirements of Article VIII of the International Convention for the Regulation of Whaling? 

At first glance, Article VIII seems to place no restrictions on the quality of the scientific research undertaken, nor on the number of whales to be sacrificed on the altar of science.

New Zealand, which is intervening in the case, (only the third time in the history of the ICJ that a third country has been granted leave to intervene) has argued however, that when the IWC was established, the signatories adopted collective responsibility for the conservation and management of whales – its guiding document is, after all, the International Convention for the REGULATION (not the Promotion) of Whaling.  They argued that Article VIII does not exist as an untrammelled right but is constrained, both by the other requirements of the Convention, and also by the requirement to take account of the rights of other signatories under the Convention.

Australia has pressed home its advantage on the scientific argument, calling two expert witnesses with impeccable scientific credentials and mounting a rigorous critique of JARPA II, going back many years to recall many of the critical comments made by the IWC’s Scientific Committee and the Commission itself. Having been outflanked on the science, Japan has relied heavily on the text of the Convention and in particular Article VIII.  They allege that by bringing this case, Australia is questioning Japan’s sincerity and integrity.

Eloquent advocates are laying out their cases on both sides, and the outcome is far from certain.  Whatever the decision of the Court, it’s been therapeutic for me to have Japan’s research whaling in Antarctica exposed by a committed and skilled team to a bench of 16 of the world’s most eminent Judges.

It will be some months before the Court releases its decision. Truth will out – but whose truth will it be?