A Precautionary Approach to the Whaling Convention: Will the International Court of Justice Challenge the Legality of ‘Scientific’ Whaling?

Abstract

On 31 May 2010, the Government of Australia instituted proceedings before the International Court of Justice (ICJ) against the Government of Japan alleging that Japan’s continued large scale whaling programme is in breach of international obligations.

Australia claimed that, in particular, «scientific» whaling under the «Second Phase of the Japanese Whale Research Programme under Special Permit in the Antarctic» (JARPA II) has breached and is continuing to breach obligations assumed y Japan under the International Convention for the Regulation of Whaling (ICRW).

The international community is divided into those nations who apply a strong protectionist approach to cetaceans and those few who still take utilitarian advantage of them as a renewable natural resource. Much of the fierce political and economic debate is due to a mélange of objectives provided for by the ICRW. While any decision in this case still lies in the far future,2 this article argues that as long as the main interpretative approach to the ICRW’s overall objectives remains unchanged, loopholes like scientific whaling will continue to exist. In recognition of the tremendous risks posed to cetaceans by environmental change, this article promotes a precautionary approach to the interpretation of the ICRW’s objectives and provisions.

After decades of debates over commercial and scientific whaling in the International Whaling Commissions (IWC) – the intergovernmental body responsible for the conservation of whales and the management of whaling – international adjudication by the ICJ appears to be the only avenue available for applying a truly precautionary approach to the ICRW and for ensuring a lasting protection of the whale species.

Keywords: International Convention for the Regulation of Whaling, treaty interpretation, VCLT, ICJ

JEL Classification: K32, K33