2 Japan and the Law of the Sea: Key Historical …
33
[…] to offer a general definition of ‘scientific research,’”
52 and thus the definition
of the term was assumed not to be at issue. On the other hand, the second element
(namely, ‘for purposes of’) was held to denote specific study criteria, on which the
Court conducted an in-depth discussion.
The ICJ thus held that, “the expanded use of lethal methods in JARPA II […] is
difficult to reconcile with Japan’s obligation to give due regard to IWC resolutions
and Guidelines […].”
53 As its conclusion, the Court held that, “JARPA II involves
activities that can broadly be characterized as scientific research (see paragraph 127
above), but […] the evidence does not establish that the programme’s design and
implementation are reasonable in relation to achieving its stated objectives. The
Court concludes that the special permits granted by Japan for the killing, taking and
treating of whales in connection with JARPA II are not ‘for purposes of scientific
research’ pursuant to Article VIII, paragraph 1, of the Convention,”
54 and are thus
in violation of Article VIII, paragraph 1.
In view of the above two-element argument, the ICJ examined the two respective
elements of JARPA II, its design and its implementation. In the words of Judge
Owada, the Court “provides no explanation as to why it is legitimate or appropriate
for the Court to expand the scope of the review by engaging in the examination of
these substantive aspects of the JARPA II programme.”
55
The Court held this standard of review to be objective, but as Judge Abraham
pointed out, the term ‘for purposes of’ expressed the intention or the objective of
the study design, and so could not be anything but subjective. Assuming that the
standard of objectivity related only to the term ‘scientific research,’ and that ‘for
purposes of’ were subjective, at the stage where the term ‘for purposes of’ was
taken into account, the Court ought to have respected the intentions of the Japanese
Government as such.
56 This argument certainly appears to have located the central
problem. In any case, it is clear that this extremely artificial dichotomy played a
decisive role in the eventual judgment. However, in terms of whether the special
permits that a country grants reasonably satisfy the conditions of Article VIII of
ICRW, the standard of review should have taken the term ‘for purposes of scientific
research’ as a unified phrase. The ICJ did not give a clear explanation as to why such
a separation was possible or necessary for interpreting this term.
Certainly, the so-called ‘cumulative,’ two-element argument accepted by the ICJ
was extremely artificial. However, by separating ‘scientific research’ from the rest
of the words in the phrase ‘for purposes of scientific research,’ it can be argued that,
for the first time, the Court was able to direct the prohibition of JARPA II, which
had established large-scale capture via lethal means, without denying the right to
52 Judgment, p. 258, paragraph 86.
53 Ibid, p. 271, paragraph 144.
54 Ibid, p. 293, paragraph 227.
55 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting
Opinion of Judge Owada, pp. 313–314, paragraph 32.
56 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting
Opinion of Judge Abraham, p. 329, paragraph 32.
33
[…] to offer a general definition of ‘scientific research,’”
52 and thus the definition
of the term was assumed not to be at issue. On the other hand, the second element
(namely, ‘for purposes of’) was held to denote specific study criteria, on which the
Court conducted an in-depth discussion.
The ICJ thus held that, “the expanded use of lethal methods in JARPA II […] is
difficult to reconcile with Japan’s obligation to give due regard to IWC resolutions
and Guidelines […].”
53 As its conclusion, the Court held that, “JARPA II involves
activities that can broadly be characterized as scientific research (see paragraph 127
above), but […] the evidence does not establish that the programme’s design and
implementation are reasonable in relation to achieving its stated objectives. The
Court concludes that the special permits granted by Japan for the killing, taking and
treating of whales in connection with JARPA II are not ‘for purposes of scientific
research’ pursuant to Article VIII, paragraph 1, of the Convention,”
54 and are thus
in violation of Article VIII, paragraph 1.
In view of the above two-element argument, the ICJ examined the two respective
elements of JARPA II, its design and its implementation. In the words of Judge
Owada, the Court “provides no explanation as to why it is legitimate or appropriate
for the Court to expand the scope of the review by engaging in the examination of
these substantive aspects of the JARPA II programme.”
55
The Court held this standard of review to be objective, but as Judge Abraham
pointed out, the term ‘for purposes of’ expressed the intention or the objective of
the study design, and so could not be anything but subjective. Assuming that the
standard of objectivity related only to the term ‘scientific research,’ and that ‘for
purposes of’ were subjective, at the stage where the term ‘for purposes of’ was
taken into account, the Court ought to have respected the intentions of the Japanese
Government as such.
56 This argument certainly appears to have located the central
problem. In any case, it is clear that this extremely artificial dichotomy played a
decisive role in the eventual judgment. However, in terms of whether the special
permits that a country grants reasonably satisfy the conditions of Article VIII of
ICRW, the standard of review should have taken the term ‘for purposes of scientific
research’ as a unified phrase. The ICJ did not give a clear explanation as to why such
a separation was possible or necessary for interpreting this term.
Certainly, the so-called ‘cumulative,’ two-element argument accepted by the ICJ
was extremely artificial. However, by separating ‘scientific research’ from the rest
of the words in the phrase ‘for purposes of scientific research,’ it can be argued that,
for the first time, the Court was able to direct the prohibition of JARPA II, which
had established large-scale capture via lethal means, without denying the right to
52 Judgment, p. 258, paragraph 86.
53 Ibid, p. 271, paragraph 144.
54 Ibid, p. 293, paragraph 227.
55 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting
Opinion of Judge Owada, pp. 313–314, paragraph 32.
56 Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting
Opinion of Judge Abraham, p. 329, paragraph 32.