the outset, was in a difficult position. After all, it would have to consider whether the
Australian Antarctic Territory and associated EEZ would be an admissible legal
basis even though many governments do not recognise Australian sovereignty. In
order to avert any potential future dispute over this issue, the court decided not to
deal with issues related to maritime delimitation—and thus not to accept Japan’s
argument to dismiss the proceedings due to the uncertain legal situation regarding
sovereignty in Antarctica—but instead to focus on the larger picture of Japanese
Antarctic whaling: namely, whether it is indeed in contravention of the moratorium
and thus whether it is “for the purposes of scientific research”, as the ICRW states.
This would furthermore constitute a breach of the ban on whaling in the Southern
Ocean Whale Sanctuary.
The court faced a dilemma, however: while its judges are experts in the field of
legal sciences, they are not whale scientists and still had to determine whether
Japan’s scientific whaling programme corresponded to legitimate scientific
standards or not. Or to put into simpler words: was Japanese Antarctic whaling
‘science’ or not? In order to circumvent this question, the court applied extremely
complex and technical reasoning and focused on the question of whether whaling
operations were ‘for the purposes of’ science and thus not on science itself. Thus, the
court examined whether the lethal taking of whales in the Antarctic is appropriate for
reaching the stated research objectives of JARPA-II. Fitzmaurice and Tamada have
conducted a detailed analysis of the case, touching upon the multidimensional
aspects of the reasoning of the different parties and the court.
14 Without needing
to delve into the complexities of the case, in its judgement of 31 March 2014, the
court found that Japan’s whaling programme was not primarily conducted ‘for the
purposes of’ scientific research and thus constituted a violation of the moratorium
and of the ban on whaling in the SOWS. Japan was therefore ordered to revoke the
special permits and to halt whaling in the Antarctic. While seemingly a victory for
Australia and other anti-whaling states, the court did not order Japan to halt whaling
in the Antarctic entirely. After all, the programme in question was merely JARPA-II,
consequently enabling Japan to continue whaling with a different research
programme and associated research objectives.
Upon issuing of the judgement, Japan immediately revoked its special permits
and thus stopped JARPA-II. Yet, it also immediately started working on a new
research programme, NEWREP-A. The programme saw the taking of 333 Antarctic
minke whales annually for a period of 12 years for scientific purposes. Despite the
proposal having been presented to the IWC’s Scientific Committee, the Commission
could not agree on whether or not it could endorse the programme. Disagreement
existed over the necessity to take such a large number of whales for the objectives
outlined in the programme. The Scientific Committee set out to review the
programme at the request of the Commission, in order to determine whether the
lethal takes were justifiable, but Japan did not wait and issued the permits before the
14 Fitzmaurice and Tamada (2014).
5.3 The International Whaling Commission, Whaling and Whales
103
Australian Antarctic Territory and associated EEZ would be an admissible legal
basis even though many governments do not recognise Australian sovereignty. In
order to avert any potential future dispute over this issue, the court decided not to
deal with issues related to maritime delimitation—and thus not to accept Japan’s
argument to dismiss the proceedings due to the uncertain legal situation regarding
sovereignty in Antarctica—but instead to focus on the larger picture of Japanese
Antarctic whaling: namely, whether it is indeed in contravention of the moratorium
and thus whether it is “for the purposes of scientific research”, as the ICRW states.
This would furthermore constitute a breach of the ban on whaling in the Southern
Ocean Whale Sanctuary.
The court faced a dilemma, however: while its judges are experts in the field of
legal sciences, they are not whale scientists and still had to determine whether
Japan’s scientific whaling programme corresponded to legitimate scientific
standards or not. Or to put into simpler words: was Japanese Antarctic whaling
‘science’ or not? In order to circumvent this question, the court applied extremely
complex and technical reasoning and focused on the question of whether whaling
operations were ‘for the purposes of’ science and thus not on science itself. Thus, the
court examined whether the lethal taking of whales in the Antarctic is appropriate for
reaching the stated research objectives of JARPA-II. Fitzmaurice and Tamada have
conducted a detailed analysis of the case, touching upon the multidimensional
aspects of the reasoning of the different parties and the court.
14 Without needing
to delve into the complexities of the case, in its judgement of 31 March 2014, the
court found that Japan’s whaling programme was not primarily conducted ‘for the
purposes of’ scientific research and thus constituted a violation of the moratorium
and of the ban on whaling in the SOWS. Japan was therefore ordered to revoke the
special permits and to halt whaling in the Antarctic. While seemingly a victory for
Australia and other anti-whaling states, the court did not order Japan to halt whaling
in the Antarctic entirely. After all, the programme in question was merely JARPA-II,
consequently enabling Japan to continue whaling with a different research
programme and associated research objectives.
Upon issuing of the judgement, Japan immediately revoked its special permits
and thus stopped JARPA-II. Yet, it also immediately started working on a new
research programme, NEWREP-A. The programme saw the taking of 333 Antarctic
minke whales annually for a period of 12 years for scientific purposes. Despite the
proposal having been presented to the IWC’s Scientific Committee, the Commission
could not agree on whether or not it could endorse the programme. Disagreement
existed over the necessity to take such a large number of whales for the objectives
outlined in the programme. The Scientific Committee set out to review the
programme at the request of the Commission, in order to determine whether the
lethal takes were justifiable, but Japan did not wait and issued the permits before the
14 Fitzmaurice and Tamada (2014).
5.3 The International Whaling Commission, Whaling and Whales
103