2 Japan and the Law of the Sea: Key Historical …
31
of its plans.”
39 Since China is engaging not in exploration but in exploitation, its
activities are clearly in violation of Article 83 (3) of UNCLOS.
2.5 The Whaling Issue
2.5.1 Whaling in the Antarctic Case
On 31 May 2010, Australia filed suit with the ICJ, alleging that the whaling operations conducted by Japan in the Southern Ocean were not for research purposes
and that they actually amounted to commercial whaling, which was in violation of
Japan’s obligations under the International Convention for the Regulation of Whaling
(ICRW), and, more specifically, in relation to its membership to the International
Whaling Commission (IWC) and its Moratorium on commercial whaling.
40 Australia
considered its own and Japan’s declarations of acceptance of the ICJ’s compulsory
jurisdiction based on Article 36, paragraph 2 of the Statute of the ICJ as the basis
of the Court’s jurisdiction.
41 In the case of a unilateral application, the respondent
would typically raise preliminary objections, which would contest the ICJ’s jurisdiction as well as the case’s admissibility, in order to prevent a trial from being
conducted on the merits of the dispute between the parties. However, Japan did not
raise preliminary objections; rather, it resorted to litigation tactics by contesting the
jurisdiction jointly with the merits. On the other hand, Australia did not seek provisional measures to suspend the contested operations. From this course of action, it
seems that both Australia and Japan preferred an early decision on the merits so as
not to harm the generally friendly relations between the two.
Save for Australia’s claim that Japan had not acted in accordance with its obligations under Schedule (30) (main sentence 6) of the ICRW (NB., an integral part of
the ICRW), the ICJ upheld all of Australia’s claims, finding that: the special permits
granted by Japan in connection with the Secord Phase of Japan’s Whale Research
Programme under Special Permit in the Antarctic (JARPA II) do not fall within the
provisions of Article VIII(1) of ICRW (main sentence 2); the special permits are in
violation of Schedule (10)(e) (main sentence 3); catching fin whales is in violation
of Schedule (10)(d) (main sentence 4) and (7)(b) (main sentence 5); and that Japan
must revoke any extant authorisation, permit or licence that was granted in relation
to JARPA II, and refrain from granting any further permits in pursuance of JAPRA
II (main sentence 7).
42
39 In the Matter of an Arbitration Between: Guyana and Suriname, Award of the Arbitral Tribunal,
17 September 2007, p.136, paragraph 477.
40 Application Instituting Proceedings Submitted by the Government of Australia, May 31, 2010,
paragraph 2.
41 Ibid., paragraph 4.
42 Every main sentence of the Judgement was decided by a majority of 12 to 4, except for the main
sentence 3. Those in favour were President Tomka, Vice-President Sepulvar-Amor, Judges Keith,
31
of its plans.”
39 Since China is engaging not in exploration but in exploitation, its
activities are clearly in violation of Article 83 (3) of UNCLOS.
2.5 The Whaling Issue
2.5.1 Whaling in the Antarctic Case
On 31 May 2010, Australia filed suit with the ICJ, alleging that the whaling operations conducted by Japan in the Southern Ocean were not for research purposes
and that they actually amounted to commercial whaling, which was in violation of
Japan’s obligations under the International Convention for the Regulation of Whaling
(ICRW), and, more specifically, in relation to its membership to the International
Whaling Commission (IWC) and its Moratorium on commercial whaling.
40 Australia
considered its own and Japan’s declarations of acceptance of the ICJ’s compulsory
jurisdiction based on Article 36, paragraph 2 of the Statute of the ICJ as the basis
of the Court’s jurisdiction.
41 In the case of a unilateral application, the respondent
would typically raise preliminary objections, which would contest the ICJ’s jurisdiction as well as the case’s admissibility, in order to prevent a trial from being
conducted on the merits of the dispute between the parties. However, Japan did not
raise preliminary objections; rather, it resorted to litigation tactics by contesting the
jurisdiction jointly with the merits. On the other hand, Australia did not seek provisional measures to suspend the contested operations. From this course of action, it
seems that both Australia and Japan preferred an early decision on the merits so as
not to harm the generally friendly relations between the two.
Save for Australia’s claim that Japan had not acted in accordance with its obligations under Schedule (30) (main sentence 6) of the ICRW (NB., an integral part of
the ICRW), the ICJ upheld all of Australia’s claims, finding that: the special permits
granted by Japan in connection with the Secord Phase of Japan’s Whale Research
Programme under Special Permit in the Antarctic (JARPA II) do not fall within the
provisions of Article VIII(1) of ICRW (main sentence 2); the special permits are in
violation of Schedule (10)(e) (main sentence 3); catching fin whales is in violation
of Schedule (10)(d) (main sentence 4) and (7)(b) (main sentence 5); and that Japan
must revoke any extant authorisation, permit or licence that was granted in relation
to JARPA II, and refrain from granting any further permits in pursuance of JAPRA
II (main sentence 7).
42
39 In the Matter of an Arbitration Between: Guyana and Suriname, Award of the Arbitral Tribunal,
17 September 2007, p.136, paragraph 477.
40 Application Instituting Proceedings Submitted by the Government of Australia, May 31, 2010,
paragraph 2.
41 Ibid., paragraph 4.
42 Every main sentence of the Judgement was decided by a majority of 12 to 4, except for the main
sentence 3. Those in favour were President Tomka, Vice-President Sepulvar-Amor, Judges Keith,