The Whaling in the Antarctic (Australia v. Japan) Decision: Giving Up the Spear or Refining the Scientific Design?
Ocean Development and International Law, Forthcoming
27 Pages Posted: 13 Dec 2014
Date Written: July 11, 2014
Abstract
The case on Whaling in the Antarctic (Australia v. Japan) decided by the International Court of Justice is a landmark that introduces new parameters for measuring the “reasonableness” scientific research by permit under the International Convention on Whaling. However, aspects of these parameters and how they may be applied in future cases remain uncertain. Because the Court’s interpretation of the language “for purposes of scientific research” avoids defining scientific research, the Court’s decision provides only a limited degree of clarification for States that intend to operate scientific whaling programs under Article VIII of the Convention. While it is clear after the ICJ’s decision that States will be given deference to design their programs “for purposes of scientific research,” the Court expects States issuing Annex VIII permits to proactively justify that both the design and implementation of a given lethal “scientific research” plan is reasonable. What this means in practice is that States that intend to issue Annex VIII permits must ensure that in creating and implementing their programs that the ends can be justified by the means. For States such as Australia and New Zealand who seem to be generally opposed to all whaling, the ICJ’s application of its “reasonableness” test in this case will not be sufficient to prevent “scientific whaling” as a prelude to rejuvenating a commercial whaling industry. The essay concludes with a suggestion that States who no longer support the dual object and purpose of the Convention may want to consider negotiating a new international instrument that would be more protective of whales and their habitat.
Keywords: International Court of Justice, International Convention on Whaling, Article VIII, scientific whaling, reasonableness, deference
JEL Classification: K33, K32, K41, K42
Suggested Citation: Suggested Citation