How the Courts stopped Japan’s “scientific whaling"

By EDO NSW Solicitor Sarah Roebuck

1 April 2014

On 31 March 2014 the United Nation’s International Court of Justice (ICJ) delivered its long awaited and historic judgment in the case of Whaling in the Antarctic (Australia v Japan). Australia successfully sought a ruling that Japan’s scientific whaling program was not a lawful exception to the international moratorium on commercial whaling.

 A humpback whale. Photo by NOAA via Wikimedia Commons

The decision brings a halt to the so called “scientific whaling program” carried out by Japan in the Southern Ocean, which has seen over 10,000 whales slaughtered since the international moratorium on commercial whaling came into effect in 1986. 

The ICJ ruling in favour of Australia is also a victory for EDO NSW client, the Australian office of the Humane Society International Inc. (HSI), who first began campaigning for the Australian Government to commence international legal proceedings 10 years ago.

In 2008 HSI, represented by EDO NSW, obtained an injunction against the Japanese company carrying out whaling in Australia’s Antarctic waters. This Federal Court decision put pressure on the Australian government to pursue international legal action.  

The Whaling Convention

In 1986 the International Whaling Commission (IWC) set the worldwide catch limit for commercial whaling at zero. However, the IWC grants two important exceptions: scientific whaling and aboriginal whaling. Any government which is a party to the International Convention for the Regulation of Whaling can grant special permits to kill, take and treat whales for the purposes of scientific research. From 1986 the Japanese Government issued permits under the scientific exception as part of the Japanese Whaling Research Program. The program originally focused on minke whales and was later expanded to include fin and humpback whales. Japan has been the only country to engage in whaling by exploiting the scientific exemption.

Campaign to halt the whaling

The Australian Government persistently raised its objections to Japan’s “scientific” whaling program within the IWC, in bilateral discussions with Japan, and through the public statements of Government Ministers.

Within the IWC, the Japanese whaling program met with strong protest, with the IWC adopting resolutions in 2005 and 2007 requesting Japan to use non-lethal research means or suspend the lethal aspects of the program.

HSI, along with many other NGOs, including Sea Shepherd Australia and Greenpeace have also campaigned for an end to Japanese whaling.

A minke whale and her calf being hauled aboard a Japanese whaling ship, the Nisshin Maru. Photo taken by Australian customs agents in 2008 via Wikimedia customs

The 2008 injunction against whaling in the Australian Whale Sanctuary

In 2004, after years of campaigning the Australian Government to take legal action to protect whales in the Australian Whale Sanctuary off Antarctica, HSI took matters in its own hands and commenced Australian Federal Court proceedings against the Japanese company which had been granted permits to kill whales under Japan’s scientific program. HSI was represented by EDO NSW and barristers Stephen Gageler SC and Dr. Chris McGrath.

HSI alleged that the company Kyodo Senpaku Kaisha Ltd (Kyodo) was breaching Australian environmental law by killing whales in the Australian Whale Sanctuary.

In 2008, after a complex four year legal battle, the Federal Court ruled in favour of HSI and granted an injunction restraining Japan from killing whales in the Australian Whale Sanctuary. This was a landmark decision and one which was relentlessly pursued by HSI as they sought to persuade the Australian Government to enforce the injunction on Kyodo and prevent Japanese whaling ships from entering Australia’s Whale Sanctuary off Antarctica. However, since the 2008 injunction, Japan has continued to hunt whales in the name of scientific research in both the Australian Whale Sanctuary and the Southern Ocean.

The ICJ case

On 31 May 2010 the Rudd Government instituted proceedings against Japan in the ICJ.

The ICJ's 16-judge panel ruled, on 31 March 2014, 12 votes to four in favour of Australia's argument that Japan's whaling program was not in fact designed and carried out for scientific purposes. The court ruled that Japan must revoke current whaling permits and refrain from issuing any more. The ICJ’s ruling is final and there is no avenue of appeal.

The ICJ’s ruling brings to an end the final phase of a lengthy, contested battle played out in Courts both on a domestic and international scale. Whilst Japan has indicated that it will abide by the ruling of the ICJ, it remains to be seen as to whether Japan will withdraw from the IWC altogether or the 1986 moratorium, in order to continue whaling. HSI’s Alexia Wellbelove had this to say on the verdict:

We sincerely hope that this verdict will lead to a renewed focus by all nations on whale conservation, not killing. We hope that Japan will use the court’s judgment as a basis to refocus and concentrate on non-lethal research techniques, joining many other nations including Australia who are actively working together for the conservation of the world’s whales.”

For more information see EDO NSW summary of the court case: http://www.edonsw.org.au/humane_society_international_inc_v_kyodo_senpaku_kaisha_ltd