A bird’s eye view of Australia’s elegant ICJ argument against Japanese scientific whaling

Watch part one of the ICJ proceeding above. Part two can be found here.

Once the 16 judges and the president of the International Court of Justice file in, we are all invited to sit down.

From the balcony at the back, we, together with three other organisations (one of whom represents the International Whaling Commission (IWC) itself), get a bird’s eye view of the proceedings.

It is an incredible privilege to be witnessing the case first hand.

Australia wastes no time in getting started.

At first sight, it is a daunting job, to explain from scratch the whaling issue, how the IWC works, the key IWC decisions, such as the moratorium, the Southern Ocean Whale Sanctuary, the various kinds of whales, the exploitation that they have suffered and how they are studied.

And that is just part of what needed to be covered.

So the case starts with a primer for the judges as Australia presents layer after layer of information.

The result is incredibly accessible.

Members of the Delegation of Japan at the opening of the hearings in the case concerning Whaling in the Antarctic (Australia v. Japan; New Zealand intervening).  Copyright: UN Photo/ICJ-CIJ/ANPiO/Bas Arps. Courtesy of the ICJ. All rights reserved.You don’t need any specialist knowledge to understand the presentations, and at this stage, there are no complicated legal documents.

It is quite the opposite to what I had expected, and in coming years every new student of the whaling issue would do well to first go and read this case.

All the documents are online with yesterday’s oral proceedings already written up. Another option is to view the video: at times it will have you on the edge of your seat.

Japan argues that Article VIII of the IWC Convention which governs ‘scientific whaling’ is a get out clause which allows it to do whatever it wants.

If Japan were correct, what would be the point of the IWC?

Australia made the case well that this clause, which was first inserted in the earlier 1937 whaling convention and then included in the 1946 International Convention for the Regulation of Whaling, should not be seen in isolation but as a part of the whole.

And the whole includes not just the whaling convention itself, but the accretion of decisions over the years and the evolution of practice of the IWC that now includes so much conservation work that Japan’s scientific whaling sticks out like a sore thumb.

Yet, even in 1946, in a vastly different world, scientific whaling was intended to allow only the odd specimen to be taken, perhaps for a museum skeleton. And it certainly wasn’t drafted to allow any country to avoid any decision and take as many whales as it felt like.

Today, we learned from Professors Philippe Sands and Marc Mangel that ‘scientific whaling’ does not qualify as science because it doesn’t contain testable hypotheses, is not properly peer-reviewed at the design stage and few results are published in proper journals. The two papers that have been published are irrelevant to the work of the IWC, namely the conservation of whales and the management of whaling.

In short, as Sands summarised the practice of scientific whaling, “it is a useless exercise”.

He finished by commenting on the vast collection by Japan of data from the body parts of dead whales. He quoted Henri Poincaré, who was one of France's greatest mathematicians and the author of La Science et l'Hypothèse.

“Science is built up with facts as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house.”


For more information on our efforts to end the commercial hunting of whales, visit our campaign page.

*Some of the information presented today was in the IFAW document In the name of Science.

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