9 ICJ whale ruling questions answered: Will Japan abide by the judgment?

It’s been over a fortnight now since the International Court of Justice’s historic decision struck down Japan’s so-called “scientific” whaling programme in the Antarctic, achieving in a stroke what years of diplomacy and activist intervention had not been able to do.

There has been various commentary and speculation about the judgment and what it may mean for Japan and others. Many of you have also asked us similar questions. Below, IFAW Australia’s Marine Campaigns Manager, Matt Collis, answers those questions.

What exactly did the Court tell Japan to do?

The Court ordered that Japan must revoke all of its existing permits to kill whales under its JARPAII scientific whaling programme and refrain from issuing any further permits.

Will Japan abide by the judgment?

Japan stated clearly both before the Court hearings and immediately after the verdict was announced that it will abide by the decision. Since the verdict, Japan has confirmed it will not be sending its whaling fleet to the Antarctic at the end of 2014. This will be the first time in over a century without whaling in the Antarctic and the Southern Ocean Whale Sanctuary will finally be a place of real peace for whales.

Is this a permanent end to whaling in the Southern Ocean? Given the whaling convention still allows for “scientific” whaling, could Japan try to put together another programme?

It’s too early to tell for sure. The judgment applies specifically to Japan’s current whaling programme in the Southern Ocean, JARPAII. The Court’s decision recognises that the whaling convention allows for “scientific” whaling, so in theory, Japan or any other nation, could still put forward another “scientific” whaling programme. There are vested interests in Japan pushing to design another whaling programme in the Southern Ocean in the future. The Institute for Cetacean Research, the body that carries out Japanese whaling, has already signalled it intends to put forward a proposal for a revised whaling programme.

However, in practice, the Court made it clear that it expects Japan to consider the reasoning behind its judgment before issuing any further permits. The judgment places some significant parameters around scientific whaling. These place difficult constraints on any future whaling programme for Japan (or any other nation for that matter) in the Southern Ocean and elsewhere, and may mean it is simply not economically feasible to travel to the Southern Ocean for a “research” whaling programme that would be so limited.

What was IFAW’s role in the Court case?

IFAW has long championed that whales have their day in Court and we were delighted that justice was served. Back in 2005, IFAW began investigating whether international legal action was possible. We commissioned a series of panels of experts in international law, which looked at the issue in detail and consistently found Japanese whaling unlawful. Following these findings IFAW lobbied strongly for Australia to take on a case against Japan. Australia launched the case in 2010. You can read about IFAW’s efforts here.

Will Japan decide to quit the International Whaling Commission (IWC), and therefore its obligations under the whaling convention?

Japan stated clearly after the judgment that it would remain in the IWC, as it sees the IWC as the correct place to continue discussions about the regulation of whaling. This is why it is important for all countries concerned with whale conservation to remain a part of the IWC and ensure that much needed conservation measures like the global moratorium on commercial whaling and the Southern Ocean Whale Sanctuary are upheld.

What does the judgment mean for Japan’s whaling in the North Pacific? Given the ruling only relates to the Southern Ocean, will Japan simply continue or intensify its harpooning elsewhere?

The case before the Court related specifically to Japan’s Southern Ocean whaling programme, so the Court’s orders to cease apply specifically to that.

However, the Court’s decision has important implications for any so-called “scientific” whaling, including Japan’s whaling programme in the North Pacific, known as JARPN. Specifically, the Court outlined a number of factors for scientific whaling to be considered a ‘reasonable’ way to carry out scientific research. These tests can equally be applied to Japan’s whaling in the North Pacific, and for many of the same reasons as Japan’s whaling in the Southern Ocean, it is likely this programme would be found wanting if challenged in the Court.

The Court made it clear that it expects Japan to take account of its reasoning and conclusions in the granting of any future permits under Article VIII of the whaling convention, which relates to “scientific” whaling. This should include permits granted for whaling in the North Pacific. If Japan does not adapt or end its North Pacific whaling, or increases the amount of whales killed to compensate for the loss of Southern Ocean whales, this will enhance the likelihood of its North Pacific whaling also being challenged successfully under international law.

What does the judgment mean for whaling by Norway and Iceland?

Norway and Iceland currently undertake overt commercial whaling, not so-called “scientific” whaling (although Iceland has done so in the recent past). Norway carries out its whaling under objection to the global ban on whaling, which it lodged at the time the IWC introduced the moratorium. Iceland withdrew from the IWC after the moratorium but later re-joined and at that time asserted a ‘reservation’ to the moratorium. (This was highly controversial and it is still disputed by many nations whether this is allowed.) Therefore, the Court’s decision has no direct implications for Norway or Iceland’s whaling. However, it has strong indirect implications as a further indicator of the global tide against whaling in the 21st Century, and will add pressure to both nations to reassess their whaling programmes, particularly in light of the lack of demand for whale products in Iceland, Norway and globally.

What about Japan’s controversial whale and dolphin drive hunts and other types of whaling by other countries?

The Court’s orders only apply to Japan’s whaling in the Southern Ocean. Japan’s whale and dolphin drive hunts take place in Japanese waters, unlike North Pacific and Southern Ocean whaling which take place in international waters, meaning it is unlikely these drive hunts can be challenged in the same way. Japan also refuses to recognise the IWC’s authority on anything other than large whales, adding further complexity to this issue.

The whaling convention also allows for what is known as aboriginal subsistence whaling, which is conducted by indigenous communities in Greenland, the USA, Russia and St Vincent and the Grenadines. Where national governments provide the IWC with evidence of the cultural and subsistence needs of their people, the IWC considers this aboriginal subsistence whaling, which is not subject to the moratorium (nor was this type of whaling considered in any way in the Court’s judgment).

What about Australia’s own record on issues like shark culling or live animal exports?

While we celebrate this victory, we must also be aware that there are a great many issues facing other ocean dwellers and terrestrial animals all over the world that need attention, not least in some of those countries like Australia who have been most vocal in the fight against commercial whaling. However, the fact that these issues exist should not mean we shirk from taking steps to address a cruel and unnecessary practice like commercial whaling. It’s just all the more incentive to get our own house in order on other issues.

The ICJ verdict is a momentous occasion in the fight to end commercial whaling. But it is also clear that this is but one step along the long and winding road to a better world for whales and the many threats they face today. Ultimately, the decision to end whaling for good will be taken in Japan, Iceland and Norway for reasons that make sense to decision-makers in those countries. IFAW will continue to advocate for whale protection on the international stage and work within whaling nations to change opinions. And we’ll need your help all the way. But for now, let’s savour a great moment in our journey.

--MC

To see all the relevant news on this historic decision, read our news roundup.

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Dr. Maria (Masha) N. Vorontsova, Regional Director, Russia & CIS
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Dr. Ralf (Perry) Sonntag, Country Director, Germany
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Isabel McCrea, Regional Director, Oceania
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IFAW Japan Representative
IFAW Japan Representative
Patrick Ramage, Program Director, Whales
Program Director, Whales