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Brighton, C --- "Speculation and Significance: Japan’s Scientific Whaling Before the International Court of Justice" [2011] NZYbkIntLaw 1; (2011) 9 New Zealand Yearbook of International Law 3

Last Updated: 15 July 2015

SPECULATION AND SIGNIFICANCE: JAPAN’S SCIENTIFIC WHALING BEFORE THE INTERNATIONAL COURT OF JUSTICE

C Brighton*

I. Introduction

[T]here’s an Article in the Convention that effectively allows Japan to write its own permit to kill as many whales in the name of “science” ... they go down and slaughter these whales, blow them up with explosives, slice them up and sell them in restaurants. That’s not science ... It’s a loophole that Australia wants to reform.1

On 31 May 2010 the Australian Ambassador to The Netherlands applied to the International Court of Justice (ICJ) to institute proceedings against Japan in relation to Japan’s JARPA II scientific whaling program.2 Australia alleged, inter alia, that the granting of special permits under JARPA II was in contravention of the prohibition of commercial whaling under the International Convention on the Regulation of Whaling (ICRW).

This article will discuss a number of approaches that might be taken by the ICJ in its determination of Australia’s application and the consequential implications that the case may have for the regime established under the ICRW. Part I will present a brief introduction to the issues surrounding the current case. It will discuss the history of whaling and the development of the international whaling regime and its various entities. It will also introduce the concept of scientific permit whaling and discuss Japan’s scientific whaling operations and the criticism that they have attracted. Part II encompasses the substantive discussion of the ICJ case. It will begin by briefly setting out the proceedings to date then move to a discussion of the alleged breaches of international law and the various approaches that might be taken by the ICJ in addressing them.

Australia maintains that Japan’s authorisation of whaling through JARPA II violates international law. These violations can be divided into two groups. First, those that relate to obligations under the ICRW, and second, those that relate to wider obligations under other international instruments. This article will focus on the former though this by no means reflects a belief that the other allegations bear no merit.

Australia claims that Japan has violated two provisions found in the schedule to the ICRW: first, paragraph 10(e), which establishes the moratorium on all commercial whaling, and second, paragraph 7(b), which establishes the prohibition of all commercial whaling within the Southern Ocean Whale Sanctuary, as it relates to whale stocks other than minke whales. This latter claim is limited in light of an objection lodged by Japan at the inception of the Sanctuary that specifically excluded its application to minke whales.3

Crucially, Australia maintains that, contrary to Japan’s claims, Japan’s conduct cannot be excused by the exemption relating to scientific whaling in art VIII that permits the taking of whales for scientific purposes.4 As art VIII has the potential to legitimise Japan’s conduct, much of the case will turn on the interpretation and application of this provision.

The current case before the ICJ over Japan’s allegedly “scientific” whaling in Antarctica is an attempt by the Australian Government to have the loop-hole created by the right to carry out scientific whaling effectively closed. However, because the ICJ is bound to give effect to the terms of the Convention, the potential for achieving this goal in the long term is therefore limited. Blood in the water is always going to be a hot topic. The extent of the controversy over whaling however, reflects a division of views so ferociously held that no solution will be reached until both sides are willing to compromise.

II. From Whaling to Whale Conservation

A. Towards an International Whaling Regime

Norway and Great Britain began whaling in the Antarctic region in around 1904. Japan entered the scene in 1934 and was followed shortly by Germany, Panama, the United States and Denmark.5 The abundance of whales in the area made Antarctic whaling hugely profitable, however, by 1965 the depletion of whale stocks had led to a decline in Antarctic whaling operations6 and set the scene for a growing awareness of the dangers of over- exploitation. Once a major whaling country, Australia has become one of the leading anti-whaling states within the International Whaling Commission (IWC). Australia began whaling in the early 19th century and carried out extensive whaling operations from a number of off-shore whaling stations.7

By the late 1970s however, Australia’s policy on whaling began to shift in line with an international trend towards whale conservation. In 1980 Australia passed legislation prohibiting whaling8 and by 1989 had become a staunch anti- whaling nation. Japan has continued its whaling operations in the Southern Ocean. While these operations are no longer characterised as commercial operations, Japan remains a pro-whaling nation and has advocated within the IWC for a reinstatement of commercial whaling in the Southern Ocean.9

The international whaling regime centres upon the ICRW which entered into force in 1948.10 Article III(1) of the ICRW provided for the creation of an International Whaling Commission comprised of one representative from the government of each member state, with each member holding a single vote.11 The schedule of the ICRW is a core aspect of the whaling regime; it contains detailed regulations setting out matters such as catch quotas, stock classifications, methods to be used by whaling operations and the timing of whaling seasons. A three quarters majority is required in order to pass any amendment to the Convention’s schedule. The requirement of only a simple majority for all other decisions within the IWC reflects the non- binding nature of IWC resolutions.12 The lack of enforcement mechanisms within the ICRW and the IWC coupled with the non-binding nature of IWC resolutions are perhaps the greatest hurdles to both the effective functioning and development of the whaling regime.

B. The Scientific Committee

The ICRW requires that all amendments to the schedule “shall be based on scientific findings”.13 To this end, the Commission established a Scientific Committee comprising of up to 200 of the world’s leading whale biologists. The role of the Committee is to supplement and advise the IWC on scientific matters. Inter alia, the Committee is mandated to review all proposed scientific permits by states exercising their right to take whales for scientific purposes under art VIII. Under paragraph 30 of the schedule, all states issuing scientific permits must submit their proposed permits to the IWC to be passed on to the Committee.14 Once the Committee has reviewed the proposed permits, it is required to present recommendations regarding the permits to the IWC.15 There is however, a significant weakness in this review system. While the schedule makes it clear that states must submit all proposed permits for review, it does not indicate what, if any, consideration those states then have to give to the recommendations that the Committee makes. There is no enforcement provision. Recalling that the IWC itself has no enforcement mechanisms either, the fact that the Committee’s reviews could eventually make their way into an IWC resolution does little to remedy this omission. It is highly likely that the implications of the Committee’s inability to bind member states will play a prominent role in the current ICJ case.

C. Towards Conservation and Conflict

1. From Whaling Conservation to the Conservation of Whales

The asserted purpose of the Convention, as set out in the preamble, reflects an attempt to balance two conflicting aims. The first focuses on the conservation of whale stocks for future generations in consideration of the over fishing that has occurred in the past.16 The second focuses on the establishment of a system to both regulate whaling and ensure the development of whale stocks with a view to benefitting the whaling industry.17 Both these purposes must be acknowledged. However a number of developments within the whaling regime suggest that the balance of this dual purpose has shifted considerably.

The first, and most obvious development reflecting this shift was the establishment of the moratorium on all commercial whaling under paragraph 10(e) of the schedule, which came into force in 1986.18 The decision to effectively ‘pause’ commercial whaling was motivated by concerns “over past management failure, uncertainties in present assessments and management activities related to an inadequate knowledge of the whales, and the lack of satisfactory methods of killing”.19 In effect, concerns over the effect of large scale commercial whaling on whale conservation overrode the immediate commercial interests of the whaling industry. While there has been considerable discussion over the establishment of a revised management scheme to replace the moratorium, no decision has been reached. Rather, the conservation focus of the IWC has become further cemented.20

In 2003 the IWC released the Berlin Initiative. The initiative noted the international recognition of the IWC’s “meaningful contributions to the conservation of great whales”, and further stated that “the Commission has gradually developed an extensive conservation-oriented agenda”.21 The Initiative also established a Conservation Committee that is mandated to prepare and recommend a future conservation agenda for the IWC. Alongside these developments, the creation of the Indian Ocean Whale Sanctuary in 197922 and the Southern Ocean Whale Sanctuary in 199423 demonstrates a clear conservation-agenda. The implications of this shift to the interpretation of the existing obligations under the ICRW will be discussed further below.

These developments however, have not been embraced by all members of the IWC. Japan has consistently expressed its disapproval of the IWC’s increasing conservation focus. The Japanese Government initially opposed the moratorium24 and while it later withdrew its objection,25 it has continued to advocate for the resumption of commercial operations. A number of pro- whaling nations, including Japan, opposed the Berlin Initiative, and when the Southern Ocean Whale Sanctuary was established, Japan lodged an objection to its application to minke whales.26 In sum, while it is clear that there is a shift towards a greater conservation focus in the IWC, it is equally clear that this shift has led to increased polarisation between the members.

2. Division Within the IWC

The polarisation of the IWC has become increasingly problematic over the years. On the one hand, anti-whaling nations such as Australia maintain that there is insufficient scientific evidence of a recovery of stocks to justify ending the moratorium. They assert that precaution must be maintained in light of the potential irreversible damage that commercial whaling may cause. On the other hand, pro-whaling states such as Japan and Norway have become increasingly frustrated with the continuation of the moratorium despite asserted findings that certain species of stocks may be capable of sustaining commercial whaling.27 Indeed, Japan has threatened28 on a number of occasions to withdraw from the ICRW.29

The effect of this stalemate is a stagnation of the IWC and its ability to carry out its proper mandate. The lack of meaningful progress towards an agreement on the Revised Management Scheme (RMS) is an apt example of this. In 1994, with a view to eventually lifting the moratorium and acceptance of the need for effective management of stocks when this occurs, the IWC adopted the Revised Management Procedure (RMP).30 The RMP is a scientifically robust computerised formula used to determine allowable catches of some whale species. It was devised by the Scientific Committee over eight years. Before the RMP can be implemented, the IWC has agreed that an inspection and observation scheme, namely the RMS, must be in place to ensure that the agreed quotas are not exceeded. Developing such a scheme requires the IWC to reach agreement on a number of political and value-based (as opposed to strictly scientific) considerations.31 So far very little concrete agreement has been reached.

Japan claims that the reason why no agreement on the RMS has been reached is because anti-whaling governments have engaged in delaying tactics.32 Anti-whaling parties however, argue that some of the biggest delays have arisen from Japan and Norway’s refusal to accept true transparency in the monitoring of whaling.33 The lack of progress has attracted criticism and questions as to the ability of the IWC to fulfil its mandate. Indeed, in

2004, the IWC itself expressed its concern that “the failure to reach broad agreement on the RMS in the near future may seriously jeopardise the ability of the IWC to fulfil its responsibilities”.34

Polarisation is clearly a significant problem within the whaling regime. Pro-whaling nations face vigilant opposition to any attempts to achieve concrete agreement to the resumption of controlled commercial whaling. Anti-whaling states are similarly powerless in their attempts to close the apparent loop-hole in the moratorium created by the art VIII right to carry out scientific whaling. The current case before the ICJ represents an attempt by Australia to remove the possibility of art VIII being used as a loophole in a forum ostensibly unaffected by the political pitfalls that fetter the IWC.

D. Article VIII - Japan and Special Permit Whaling

1. The Special Permit Exception

The right to carry out whaling operations for scientific purposes is set out in art VIII, paragraph 1 of which states that:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this article shall be exempt from the operation of this Convention.

Article VIII requires parties to transmit to the IWC, in so far as practicable, and at intervals of not more than one year, all scientific information available to that government with respect to whales and whaling, including the results of research conducted.35 As noted above, before any such permits are granted, parties must submit proposals to the Scientific Committee in sufficient time to allow the Committee to review and comment on them.36

2. Japanese Scientific Whaling

Japan has been carrying out scientific whaling in Antarctica, including within the Southern Ocean Whale Sanctuary, since 1987. To date there have been two phases of the Japanese Antarctic whaling research program. Permits were issued under “Japanese Whaling Research Program under Special Permit in the Antarctic”, or JARPA as it is referred to, up until the 2004/2005 season. JARPA initially proposed an annual take of 300 (+/-10%) Antarctic minke whales. However, this was raised to 400 (+/- 10%) in 1995.37 In the 18 years that JARPA was in operation over 6800 whales were taken from Antarctic waters by Japanese vessels. This can be compared with the 840 whales taken by all states globally in the 31 year period prior to the establishment of the moratorium.38 Following the completion of JARPA in 2005, the Japanese government announced the second phase of its Antarctic program: JARPA II, which would begin in the 2005/2006 season and last indefinitely.39 JARPA II proposes the taking of 850(+/- 10%) minke whales, over double that under JARPA. JARPA II further extends the species sampled to include 50 humpback whales and 50 fin whales. The stated objectives of JARPA II are to:

• monitor the Antarctic ecosystem;

• model competition among whale species and develop future management objectives;

• elucidate temporal and spatial changes in stock structure; and,

• improve the management procedure for Antarctic minke whale stocks.40

Despite the IWC requesting that no further special permit whaling program be considered by Japan until the Scientific Committee had completed an in-depth review of the results of JARPA,41 Japan has issued a number of permits under JARPA II.42

The Government of Japan maintains that its scientific whaling operations focus only on species that have recovered from the depletion caused by over- fishing in the 1960s and do not pose a risk of endangering whale populations. Japan further asserts that its operations are not in breach of Japan’s obligations under the ICRW as they fall within the permitted exception for scientific whaling under art VIII.43 These assertions however have been widely contested, not least by the IWC and by some within the Scientific Committee itself.

3. Questionable Motives

The asserted scientific character of Japan’s whaling operations has been strongly contested by state parties, commentators and scientists. It is argued that the scale and execution of the program demonstrates that Japan’s primary motivation is commercially rather than scientifically-focused.44 Correlations can be seen between the cessation of Japan’s commercial whaling and the escalation of its scientific operations. Under JARPA II, Japan estimates an annual take equating to almost half the number of all whales ever taken under special permit by all other nations combined.45 These numbers are fast approaching the commercial quotas for Antarctic minke whales that were in place prior to the establishment of the moratorium, thus giving rise to the suggestion that Japan’s scientific whaling is, in reality, a continuation of their commercial operations in disguise.

Examination of the asserted scientific basis of Japan’s research reinforces rather than alleviates these concerns. The fact that Japan has published very little of the results of its research in peer-reviewed literature, and has not consistently transferred that data to other members of the IWC, appears inconsistent with what would be expected of a scientifically-mandated program.46 Indeed, the science behind JARPA and JARPA II itself has been questioned. It has been argued by a number of prominent scientists that the data collected by the Japanese operations is neither necessary nor reliable.47 As it is the scientific character of JARPA and JARPA II that place them within the art VIII exception, these arguments threaten not only the legitimacy of Japan’s activities, but also their legality. It is on the basis of these concerns that Australia lodged its claim before the International Court.

III. The Whaling Debate Before the International Court of Justice

A. Proceedings to Date

On 31 May 2010 Australia lodged an application with the ICJ commencing proceedings against Japan.48 Australia alleged that JARPA II was in breach of obligations assumed by Japan under the ICRW and other international obligations for the preservation of marine mammals and the marine environment. On this basis, Australia requested the Court to order Japan to:

• cease its implementation of JARPA II;
• revoke any permits, authorisations or licenses relating to activities that are subject to the application; and
• provide assurances that it will not take any further action under JARPA II or a similar program unless this action is brought into conformity with Japan’s obligations under international law.

In a joint statement on 11 December 2010, Australia and New Zealand announced that New Zealand would be submitting a request to ‘intervene’ as a third party in the Antarctic Whaling Case.49 Previously, it had been suggested that New Zealand might file as a joint party in the legal action. Australia however, welcomed the change because, as New Zealand currently has a judge presiding on the ICJ bench, the joining of the two actions would have resulted in Australia losing its right to appoint a judge for the case.50 Australia’s memorials were submitted to the ICJ on 9 May 2011, while Japan’s counter memorials were submitted on 9 March 2012.51 Both memorials remain confidential. Each party will now have an opportunity to reply. The date for the hearing before the ICJ, based on time lines from recent cases before the ICJ over the past 10 years, is projected to be some time in 2014, with the judgment of the Court likely to be handed down in late 2014 to 2015.52

B. The Heart of the Matter – Australia’s Arguments Before the ICJ

1. The Framework of Australia’s Case

The legal grounds set out in Australia’s application can be divided into two rough groups: those that relate to Japan’s obligations under the ICRW, and those that relate to two other international conventions: the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)53 and the Convention on Biological Diversity (CBD).54

A number of specific barriers to the second group of claims suggest that the claims under the ICRW are likely to prove the strongest. These include: Japan’s reservations to the application of CITES to various whale species;55 the suspension of all takes of humpback whales under JARPA II56 (which are the sole focus of one of the CITES claims); and, importantly, the likelihood that Japan will contest the ICJ’s jurisdiction to hear and determine Australia’s claims under CITES and CBD.57

Furthermore, a number of the claims under CITES and CBD are based on similar arguments to those under ICRW. The aforementioned hurdles aside, if the ICJ finds that JARPA II does not constitute “scientific whaling” for the purposes of ICRW, it is also likely to find that Japan could not have reasonably been satisfied that the whales taken would not be used for primarily commercial purposes, as required under art II of CITES. Similarly, if Japan is found to be in breach of its procedural obligations under ICRW, it is also likely to be found to be in breach of the obligation to co-operate under art 5 of CBD. For these reasons, and in the interest of presenting a succinct discussion, this paper will focus on the allegations relating to Japan’s obligations under the ICRW.

2. The Alleged Breaches of the ICRW

Australia claims in its application that Japan has violated two provisions found in the schedule to the ICRW: first, paragraph 10(e) of the schedule, which establishes the moratorium on all commercial whaling, and second, paragraph 7(b), which establishes the prohibition on all commercial whaling within the Southern Ocean Whale Sanctuary.58 Japan does not deny that whales are being lethally taken under JARPA II or that some of the take occurs within the Southern Ocean Whale Sanctuary. Japan’s core contention is that whales taken under JARPA II are taken for scientific rather than commercial purposes. Australia’s success before the ICJ will therefore turn upon its contention that Japan’s conduct cannot be excused by the exemption relating to scientific whaling in art VIII.

3. Interpreting Australia’s Claims Under the ICRW

Where a case turns on the application of a particular provision the first task for the court in question is to establish how that provision is to be interpreted so as to determine the scope and nature of the obligations or rights contained in it. Only then can the court determine whether or not the party in question has committed a substantive breach. As there have been no previous cases providing guidance as to the proper interpretation of art VIII, the ICJ is likely to begin by interpreting it in accordance with the general rules of treaty interpretation set out in art 31 of the Vienna Convention of the Law of Treaties (VCLT).59

Under art 31(1) of the VCLT all treaties must be interpreted in good faith, in accordance with the ordinary meaning of the terms, in their context and in light of the object and purpose of the treaty. “Context” is defined in art 31(2) of the VCLT, while art 31(3) further notes the parties’ subsequent practice, subsequent agreements, and relevant rules of international law are to be taken into account in addition to the context.60

The whaling regime has undergone considerable changes and developments since it entered into force. Not least of these being the imposition of the moratorium and the creation of the whale sanctuaries that are so central to the case at hand. One question that the ICJ will have to address is whether the context, object and purpose and relevant rules of international law are, for the purposes of interpreting art VIII, those that existed in 1946 or those that exist today. Further, as international environmental law has seen considerable developments since 1946, the Court will also have to determine whether the “relevant rules of international law” include newly developed norms and principles.

Addressing first the matter of the relevant context and object and purpose, it is important to consider the nature of the ICRW and the regime that it established. As Bowett notes, the ICRW established a continuing regime, with organs like the Commission performing continuing functions under that regime. Such a regime ought to be viewed as a dynamic instrument, capable of adapting to changing circumstances through a process of interpretation. It ought not to be viewed as a static statement of rights and obligations that are fixed and unchangeable.61 The ICRW both anticipates the amendment and adaption of the regime it established, and that the organs under it will have to accommodate and take such changes into account. Accepting this, it would be illogical to argue that those provisions that are affected by changes within the whaling regime are not to be interpreted in light of them.

The impact of developments in international law on the interpretation of the ICRW is somewhat different to developments within the ICRW regime itself. There is no universally accepted approach to intertemporality as it applies to treaty interpretation. In one of the draft versions preceding the now art 31 of the VCLT, United Nations Special Rapporteur Sir Humphrey Waldock stated that a treaty provision ought to be interpreted “in the light of the general rules of international law in force at the time of its conclusion”.62

This however was dropped from the final draft of the VCLT on the basis that it was too narrow and restrictive. The International Law Commission considered that:63

[T]he relevance of rules of international law for the interpretation of treaties in any given case was dependent on the intentions of the parties, and that to attempt to formulate a rule covering comprehensively the temporal element would present difficulties. It further considered that correct application of the temporal element would normally be indicated by interpretation of the term in good faith.

The view that the parties’ intention ought to guide the role of intertemporality in each case has received considerable support both from commentators64 and the ICJ itself.65 It has been noted however, that imputed intention alone is not sufficient, any assertion as to the intention of the parties must be evidenced in the text of the treaty itself.66 The question in relation to art VIII of the ICRW is whether there is any indication that the parties intended or anticipated that developments in international law would be taken into account in the exercise of the right to grant scientific permits.

The first point to be made here is that the Whaling Convention established a dynamic rather than static regime. This is reflected in the use of the phrases “system of regulation” and “orderly development” in the preamble.67 The preamble further acknowledges that the approach taken by the regime in achieving its aims is likely to change over time.68 Rather than simply setting out rights and obligations, the Convention anticipated the creation of bodies that would have on-going functions that would inevitably be carried out in a changing international legal framework. This is significant. In Gabcikovo-Nagymaros Case, for example, the ICJ found that developments in environmental knowledge and international law could not be said to have been entirely unforeseen by the parties.69

The second point to be made is that the text of art VIII itself notes that permits are to be “subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit”.70 Accepting that the focus and demands of scientific research are ever-changing, it is logical that governments would be expected carry out determinations of what restrictions are appropriate at varying intervals throughout their research programs. As with any other decision that might have environmental effects, a government considering what restrictions and catch limits ought to be placed on art VIII permits is required to do so in accordance with existing international law. To argue that art VIII should not be interpreted by reference to international law as it stands today would be to argue that the operation of art VIII effectively frees governments from acting in accordance with certain contemporary international rules simply because they are acting under that provision. This cannot be correct. Article VIII clearly anticipates that states will undertake decision making processes regarding whether or not to issue special permits on an on-going basis. It would be illogical if these decisions were not to be based on international law as it stands at the time. This forward looking nature of art VIII, in addition to the dynamic nature of the ICRW regime, is therefore evidence that it was intended to be applied and interpreted within the most current international legal framework.

One final preliminary point must be made before embarking on a discussion of the potential interpretations that the ICJ may adopt. The ICJ is an adjudicatory body. Its role is to determine how the relevant international law ought to be applied to the facts before it. It does not have specialised or extensive scientific expertise. This however, ought not to impede the ability of the Court to hear a scientifically-intensive case such as the Antarctic Whaling Case. Experts can be called to present and explain scientific evidence.71 It is the role of the Court to assess the reliability and validity of each source. Where the scientific position is demonstrably unclear or uncertain, the role of the Court as an adjudicatory body is to apply the law to this uncertainty.72

Depending on who bears the evidentiary onus, the Court might find that they have not succeeded in discharging it. Alternatively, the Court might set out what the legal position will be once the scientific position is clear. If, for example, a specific body has been mandated to make scientific determinations, the Court may clarify the effect of a determination of that body. As stated by Judges Simma and Al-Khasawneh in the Pulp Mills on The River Uruguay

Case “the task of a court of justice is not to give a scientific assessment of what has happened, but to evaluate the claims of the parties before it and whether such claims are sufficiently well-founded so as to constitute evidence of a breach of a legal obligation”.73

Accepting these observations, this article will discuss three possible interpretations of art VIII that may be open to the ICJ and suggest which of these the Court is most likely to take in light of the rules of treaty interpretation set out in art 31 of the VCLT.

(a) Option One – Unfettered Right to Grant Permits

A plain reading of the words of art VIII is capable of supporting the conclusion that the provision confers on all member states an unfettered right to grant permits for scientific whaling. There are however two practical issues with such an interpretation. First, the phrase “for the purposes of scientific research” in art VIII is vague and undefined. The question of what does and does not constitute quality “scientific research” is inherently open to disagreement.74 This is demonstrated in relation to the whaling debate by the disagreement over the asserted scientific basis and relevance of JARPA II. One of the core arguments behind JARPA II for example is the theory that various whale species are competing with each other.75 Japan has asserted that the “management” (culling) of certain species can therefore promote the recovery of particularly depleted but commercially valuable species such as the blue whale.76 This theory has been heavily contested. Indeed, at the 2006 meeting of the IWC, 63 scientists, representing over half of the countries present, signed a paper which described Japan’s competition theory as “unsubstantiated”.77

They claimed that there were no accepted models to indicate any level of competition between whales, nor, indeed, that krill production is controlled by top-down influences.78 Scientific conflicts such as this are characteristic of the whaling debate. The use of a vague and contestable phrase such as “scientific research” as the lynchpin for the legitimacy and legality of state operations under art VIII is therefore hugely problematic. Without any definitive test or standard for review it is impossible to distinguish between legitimate differences stemming from factors such as the procedures and models adopted and inferences drawn, and those differences that are in fact signals of illegitimate motives and smoke-screen ‘science’.

This brings us to the second issue. The potential for disagreement under art VIII could be easily resolved if the ICRW assigned the role of settling scientific disputes to a specific entity. The most obvious candidate for such a role is the Scientific Committee. However, as noted above, nothing in art VIII grants the Committee the power to make binding statements, or even specifies the extent to which states must comply with its recommendations.79

Article VIII states that “[n]otwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit ... subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit ”.80 The ordinary meaning of these words would suggest that governments are afforded complete discretion in the granting of permits. The dangers in such an interpretation are clear. Scientific agreement could be used as a justification for any manner of whaling operations so long as some form of scientific basis is asserted. Further, the lack of binding enforcement mechanisms would render any abuse beyond the power of the IWC’s control. This would constitute a significant victory for pro-whaling states. The legitimacy of Japan’s programs aside, it would equate to a drastic widening of the loophole that art VIII has been alleged to have become.

The ICJ is unlikely to adopt such an interpretation. Not because it would be undesirable to allow the existence of a loop-hole per se, as such judgments fall outside of the role of the Court, but rather because such an interpretation does not stand up to the rules set out in art 31 of the VCLT. The pre-moratorium commercial quotas, the establishment of the moratorium and the creation of the whale sanctuaries all fall within the context of art VIII. If states were able to use the right found in art VIII to take as many whales as they wished without restriction, the function of the pre-moratorium quota system, the efficacy of the moratorium and the protection afforded by the sanctuaries would all be undermined. This is further supported by consideration of the object and purpose of the ICRW.81

If, as likely, states were to take advantage of this unfettered discretion, the result would be that many species would be put at risk of depletion. This would undermine both of the ICRW’s fundamental purposes, namely the conservation of whale stocks and the orderly development of the whaling industry. Indeed, if one considers that the regime was established as a response to concerns of over-fishing, an unregulated and unfettered right to grant permits would arguably be inconsistent with the entire premise of the regime. It is therefore likely that the ICJ will move to an alternate interpretation.

(b) Option Two - A Limited Discretion

If the ICJ were to find that the right to grant permits is not unrestricted, the issue becomes how that right might be interpreted as a restricted right in light of the lack of enforcement provisions within the ICRW. It would be difficult if not impossible for the Court to find that states exercising the right to grant permits under art VIII are subject to specific mandatory restrictions. Under art 26 of the VCLT however, “every treaty that is in force is binding upon the parties and must be performed by them in good faith”.82 It would therefore be open to the Court to find that a failure to take account of certain relevant considerations in the exercise of art VIII may constitute a breach of good faith. The context, object and purpose and rules of international law relevant to the interpretation of art VIII suggest that there are a number of matters that a state acting in good faith would take into consideration.

The first and most obvious development is the establishment of the Scientific Committee and the inclusion of a mandatory review of all permits under paragraph 30 of the schedule. As noted above there is no ostensible obligation for states to take the Committee’s review, or, for that matter, the IWC resolutions that have been based upon them, into consideration in granting permits under the ICRW. However, as all states agreed to the establishment of the review process, it might be viewed as a failure to act in good faith if a state were to then disregard that agreement and completely ignore or dismiss recommendations made following a permit review. Consequently, it is open for the ICJ to find that states wishing to exercise their right under art VIII must take into account, in good faith, any relevant recommendations of the Committee and resolutions of the IWC.

The second development that is relevant to the interpretation of art VIII is the provision of a set of guidelines for the review of scientific permits. As noted, the ICRW does not define “scientific research”. Indeed, owing to the potential for disagreement over what is ‘good’ science, any attempt to reach consensus as to a definition is unlikely to achieve much. The Scientific Committee, however, has devised a set of guidelines that are open enough to

accommodate differing views of what is and what is not legitimate science. Instead of setting a test for the validity of the science behind research operations the guidelines focus on how the research is justified. The guidelines set out a number of considerations to be taken into account by the Committee in the review of proposed permits and thus also by states in devising proposals to submit for review. These include, inter alia, whether:83

• the research is essential for conservation and management of whales, the work of the Scientific Committee or other critically important research needs;

• the methodology and sample size are likely to provide reliable answers to the questions being asked;

• the questions can be answered using non-lethal research methods; and

• the catches will have an adverse effect on stock levels.

While the guidelines were not enshrined in a single resolution, they were derived from a series of prior resolutions. The first of these was IWC Resolution 1986-Appendix 2, which is understood to have been adopted by consensus.84 The 1986 resolution recommended a number of factors that both the Scientific Committee and governments ought to take into account in reviewing and granting permits. These included, inter alia: whether the objectives of the research might be achieved through non-lethal means; whether the proposed research is essential for the rational management of stock; and whether the whales to be taken are necessary for that research.85

Later resolutions have reiterated similar factors for consideration.86

The guidelines do not impose a binding obligation on states that choose to grant art VIII permits. Indeed the 1986 resolution merely reiterated that governments should not grant permits until after a review has been carried out by the Scientific Committee87 and recommended that governments “should take into account the guidelines drawn up by the Scientific Committee” prior to deciding on the granting of art VIII permits.88 However, it is open for the ICJ to find that the development of the guidelines is relevant to an interpretation of the phrase “scientific research” and the nature of the good faith obligation under art VIII. It is open for the ICJ to find that states that grant permits under art VIII that fail to give effect to the guidelines in a significant way may not actually be carrying out whaling for “scientific research”, and furthermore may not be acting in good faith in exercising their art VIII right.

The final significant development that may have an impact upon how the right to grant permits under art VIII is interpreted is found within the realm of international environmental law. The most relevant development here is that of the precautionary principle. While prevention has been recognised as a principle of customary international law for many years,89 the concept of precaution as a norm of international law has only come to the forefront of environmental discourse recently. The rise of the precautionary principle signals a shift away from the primacy of scientific proof and acknowledges the limitations of scientific prediction.90 The precautionary principle is based upon the existence of scientific uncertainty regarding an activity and the potential for substantial harm to result from the activity if it is permitted to go ahead in the face of that uncertainty. Scientific uncertainty exists where either the scientific community is in agreement that more research is needed in the area, or the manifest disagreement between scientists demonstrates that this is the case.91 In accordance with this principle, actors wishing to engage in activities that potentially involve the risk of serious harm bear the burden of proving the safety of the proposed activities before the activities are permitted to proceed.92 In adjudication, the principle effectively reverses the evidentiary onus from the party alleging a breach of international law onto the party accused of committing it.93

The status of the precautionary principle at international law however, is uncertain. The principle has been incorporated into a number of international instruments including: the Rio Declaration;94 the Treaty of Rome;95 the United Nations Framework Convention on Climate Change;96 the Montreal Protocol on Substances that Deplete the Ozone Layer;97 the Convention for the Protection of the Marine Environment of the North East Atlantic;98 and the Convention on Biological Diversity,99 to name just a few. The ICJ has also referred to the precautionary principle in a number of its decisions but these references fall short of actual endorsements, and to date, the Court has declined to rule on the principle’s legal status.100 Indeed, the closest the ICJ has come to an endorsement is in the Pulp Mills on The River Uruguay where the ICJ accepted that “a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute” but held that “it does not follow that it operates as a reversal of the burden of proof ”.101

One of the reasons for the ICJ’s reluctance to make such a ruling is the lack of clarity within the principle itself. Two uncertainties are especially problematic. The extent to which the proposed activity must be shown to be a direct cause of the anticipated threat is not clear. Neither is it clear just how grave a threat would have to be before the principle could be invoked. These ambiguities hinder the practical utility of the principle.102 If these difficulties were removed, the ICJ might be more willing to apply the principle in a specific case. For example, if an instrument or international regime had already prescribed the application of the principle, then the wider principle that exists today might be used to assist in the interpretation or application of those provisions.

A number of provisions and developments within the ICRW suggest that the precautionary principle, or alternately a precautionary approach already exists within the regime. The parties have in fact already accepted both the significance of precaution within the whaling regime and set out the manner in which it ought to be taken into account by the parties. The moratorium was established as a response to concerns “over past management failure, uncertainties in present assessments and management activities relation to an inadequate knowledge of the whales, and the lack of satisfactory methods of killing”.103 It is an apt example of a situation where an activity has been prohibited on the basis of scientific uncertainty surrounding the potential harm that it may cause. The IWC’s work towards the RMS and RMP is a further demonstration of the principle in action. Both the RMS and RMP represent efforts from within the IWC to ascertain the scope of the risk of commercial whaling and identify sustainable catches of some species. In addition to this, as noted above, states are required to submit all proposals for special permit whaling to the Scientific Committee before they are granted.104

These proposals are required to include information setting out: the objectives of the research, including the value of the research; the methods to be used, including why non-lethal methods are considered insufficient; an assessment of potential effects of catches on the stocks involved, including estimates as to species abundance and the predicted impact of the permit on stocks taking into account uncertainty.105 States are therefore already required to provide information assessing the potential risks involved in the granting of proposed permits, and to set out why these risks are not sufficiently grave to warrant not granting the permits.

In light of this it would be open to the ICJ to find that the precautionary principle has been accepted as being instrumental to the review of art VIII permits. It would therefore also be open to the Court to find that a failure to take the outcome of a review by the Scientific Committee or a subsequent resolution into consideration constitutes a failure to act in good faith in exercising the art VIII right. It is worth noting that this would fall short of imposing an obligation to adhere to the recommendations of the Scientific Committee or the IWC into art VIII. A consideration of whether a state has acted in good faith is case specific and is based upon multiple factors. It might be that a state considers the recommendations and chooses to alter or amend the proposal, or it might be that the state enters into dialogue with the Scientific Committee to further prove why the permits are justified. Either way, the outcome is conditional on the circumstances and the approach that the Scientific Committee and IWC choose to take.

It is the view of this author that an interpretation of art VIII that acknowledges the right of states to grant permits, but which also recognises that this right is not unfettered, represents the most accurate interpretation of art VIII under the art 31 of the VCLT rules. Not only does this interpretation align with an ordinary meaning of the words read in their context but it is further supported by the object and purpose of the ICRW. Whether it is indirectly via the concerns of the IWC or more directly through the application of the precautionary principle, all of the factors discussed above reflect, in varying degrees, a need to ensure the protection and development of whale populations. The ICRW aims to achieve a dual purpose, namely the conservation of whale stocks for future generations and the development of the whale industry. Both of these aims would be frustrated if states could unilaterally grant scientific permits for any number of whales from any species without consideration of any restrictions or guidelines.

While it is the view of this article that the ICJ is likely to adopt a version of this second option, it is worth noting that one final option exists.

(c) Option Three – A Redundant Discretion

If it is accepted that art VIII must be interpreted in light of the guidelines of the Scientific Committee and the precautionary principle, it might be argued that it is impossible, at least for the time being, for governments to grant special permits for the lethal taking of whales and not be in breach of their obligation to act in good faith. One of the factors that are set out in the Scientific Committee’s guidelines for review of scientific permits is whether the research objectives could be achieved using non-lethal methods.106 This was also emphasised in the 1986 resolution and is reflected in the requirements for proposals presented by governments to the Scientific Committee under paragraph 30 of the schedule. Similarly, the IWC recalled in resolution 2003-2 that it was the view of the IWC that special permit whaling should only be conducted using non-lethal research techniques unless it was scientifically or practically unfeasible.107 In resolution 2003-2 the IWC noted that art VIII of the ICRW had been drafted and accepted by state parties in 1946, at a time when few alternatives to lethal investigations existed. The situation today is very different. The resolution further reaffirmed that the non-lethal techniques available today usually provide better data at less cost to both animals and budget.108 This view was shared by a number of scientists from the Scientific Committee who have argued that “[t]he strongest scientific argument in favour of lethal sampling – the collection of genetic samples for determining population structure – could be conducted far more efficiently using non-lethal biopsy techniques”.109 Indeed, a number of recent and on-going research surveys being carried out in Antarctica demonstrate that non-lethal techniques can be used to fulfil the same research objectives of many lethal programs.110 The question today is therefore whether, in light of developments in science and methodology, it can ever be said that non-lethal techniques are not scientifically or practically feasible? If it is shown that non-lethal techniques are capable of substituting lethal techniques, it is arguable that in order to be acting in good faith in light of the Scientific Committee’s guidelines, states must forgo all permits that propose lethal methods.

The clear problem with this argument is that it renders a large part of art VIII redundant. Article VIII clearly states that governments are permitted to grant permits to kill whales for scientific purposes. While the ordinary meaning of the terms can be interpreted to bear restrictions in light of certain developments, it is difficult to conceive the ICJ adopting an interpretation that completely contradicts the text of a provision. For this reason the ICJ is unlikely to adopt such an interpretation in this broad form. It would however, be open for the ICJ to amalgamate elements of this option with option two. The ICJ could, for example, find that a government exercising their right under art VIII could not, in good faith, lethally take certain species of whales in light of the gravity of the threat to their population. Such a conclusion could be achieved through the application of the precautionary principle, which we have already established might be found by the ICJ to be relevant to the interpretation and thus the application of art VIII.

There is significant scientific uncertainty surrounding the abundance of certain whale species. In 2005, the 63 scientists who presented their joint statement to the IWC regarding JARPA II noted that stock structuring remains poorly defined in all species. The scientists made especial mention of both the lack of any agreed estimates of fin whale abundance, population trend, or stock structure and the lack of information about certain small poorly understood and highly threatened populations of humpback whales in the South Pacific.111

The Government of Japan has repeatedly estimated that the population of humpback whales has increased by almost 17,000 animals, or more than 100%.112 The plausibly of such a huge increase, and indeed the scientific explanation given for it, has been contested within the scientific community.113

This uncertainty is significant because of the risk of potentially irreversible population depletion. Indeed, members of the Scientific Committee as well as the IWC itself have expressed concern over the potential impact of scientific programs on both fin and humpback populations.114

It would be open to the ICJ to find that the uncertainty surrounding certain species is sufficient to warrant precaution. The hesitancy of the Court in the past suggests that it is unlikely to give its unqualified approval to the principle in this case. Within the context of the ICRW however, the Court may find that precaution is implicitly required under art VIII. As the Scientific Committee is the body mandated with making scientific determinations within the whaling regime, the Court could find that it is the role of the Committee to both determine the scope of the precautionary measures that must be taken and identify the species to which it would apply.

4. Applying the Chosen Interpretation to JARPA II

Once the ICJ has established how art VIII is to be interpreted it will turn to a determination of whether or not JARPA II falls within that interpretation. The outcome of this application will then dictate whether or not Japan’s conduct is in breach of its obligations in relation to the moratorium and the Southern Ocean Whale Sanctuary. Each of the three options identified will be discussed separately. However, in order to allow for a more in-depth discussion of option two, we will depart from the above order and discuss option one and three first.

(a) Applying Option One – The Unfettered Discretion

If the ICJ adopts option one, under which states have an unfettered discretion to grant scientific permits, it would be likely to find that JARPA II falls within the art VIII exception. The JARPA II permits are granted by the Japanese Government, and all purport to be for scientific research, thus fulfilling all the requirements under this interpretation of the provision. The only potential issue might arise in relation to the procedural obligations under art VIII and paragraph 30 of the schedule to the ICRW. While Australia did not mention procedural breaches in its initial application, these may be included in its full memorials.

Paragraph 30 states that governments:

... shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them.

The use of the word “shall” signals that the obligation to provide information is mandatory. A failure to fulfil the requirements set out in paragraph 30 would therefore constitute a breach of the ICRW. Japan announced its decision to initiate JARPA II and submitted its proposal to the Scientific Committee directly before the 57th annual meeting of the IWC in June 2005.115 This was in direct contradiction of the IWC’s recommendation of 2003 that no additional JARPA programs be considered by Japan until the Scientific Committee has completed an in-depth review of the results of JARPA.116 The first phase of JARPA II’s feasibility study commenced during the austral summer of 2005/06. The Scientific Committee was not able to conduct its first review of JARPA II until 2007, where there was considerable disagreement over the value of this research both within the Scientific Committee and the Commission.117 Furthermore, 63 members of the Committee declined to engage in the review of JARPA II on the basis that they felt that such a review would not be scientifically defensible. They stated that it would be “scientifically invalid” to review the JARPA II proposal before the IWC had had a chance to conduct a full review of the results of the original 18 year JARPA program. The Scientists stated that “[b]y bringing this proposal forward at this time the Government of Japan has substantially compromised the capacity of the Scientific Committee to perform its task as designated by the Commission in its “Guidelines for the Review of Scientific Permit Proposals””.118

On the basis of these comments it would be open for the ICJ to find that Japan failed to meet its obligations under paragraph 30 to submit the JARPA II proposal before any permits were issued under it in sufficient time to allow the Scientific Committee to review and comment on it.

If the ICJ were to find that Japan is in breach of its procedural obligations two issues would arise. The first is whether and to what extent this breach affects the legitimacy of the permits issued under JARPA II. Had Japanfulfilled its obligation under paragraph 30, it is likely that the Scientific Committee would have issued a report. This report in turn would have included recommendations and observations that might then have been adopted into an IWC resolution. Accepting that the Court has not interpreted the exercise of the right to grant permits under art VIII as being constrained by an obligation to take into account the recommendations of the Scientific Committee or the IWC, it would be open for the Court to find that Japan would have been free to grant the permits whether a breach was committed or not. Japan’s conduct under JARPA II would therefore be legal and Australia would not be successful in securing the cessation of JARPA II.

The second issue concerns the legal consequences of the finding of a breach on the part of the Government of Japan. Under the International Law Commission’s Articles on State Responsibility (ILC Articles) a state that commits an internationally wrongful act must cease that wrongful act, not repeat it, and provide reparation.119 The extent to which the finding of a breach would affect the continuing operation of JARPA II and the existing permits issued would depend on the extent to which the ICJ considered Japan’s breach to affect JARPA II’s legitimacy, as already discussed.

Reparation can take the form of restitution, compensation or satisfaction, as appropriate, and in that order.120 In this case both restitution and compensation are likely to be found to be inappropriate. It would appear to be impossible to re-establish the situation that existed before Japan committed the breach. Similarly, it is unlikely that any financially assessable damage could be identified as flowing from the breach. While Australia could, for example, attempt to establish a causative relationship between a depletion of whales caused by the permits issued and a loss of profits flowing from tourist activities, this would be extremely difficult to prove. Furthermore, this argument would fail if the ICJ held that Japan’s breach did not affect the validity of the permits already issued. This leaves the option of satisfaction. Under the ILC Articles, satisfaction may “consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality”.121 Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible state.122

(b) Applying Option Three – The Redundant Discretion

This article has argued that the ICJ is unlikely to interpret art VIII as no longer permitting the lethal taking of whales as it is inconsistent with the ordinary meaning of the text. Were the ICJ however, to adopt this interpretation, then Japan would not be able to claim the exception found in art VIII. If, as is more likely, the ICJ were to adopt this interpretation in conjunction with option two and only in regards to certain species, then Japan would not be able to claim the art VIII exception as it relates to its taking of those species. In both cases, Japan’s conduct under JARPA II would constitute a breach of the prohibition of all commercial whaling found both under paragraph 10(e), which established the moratorium on all commercial whaling, and paragraph 7(b), which created the Southern Ocean Whale Sanctuary of the schedule to the ICRW (in relation to Japan’s take of whale species other than minke whales).123 Following the same argument set out in relation to option one, it would also be open for the Court under this option to find that Japan is in breach of its procedural obligations under paragraph 30 in addition to the substantive breach of paragraphs 10(e) and 7(b).

Under the ILC Articles, Japan would have to cease the implementation of JARPA II, revoke all licences and permits allowing the lethal taking of whales under JARPA II, and provide reparation.124 For the same reasons that restitution and compensation would be unlikely to be seen as appropriate forms of reparation for a procedural breach, it is unlikely that they would be seen to be appropriate in relation to a breach of paragraph 7(b) and 10(e). If however, it was possible to establish a causative connection between tourist profit losses (for example if reduced sightings led to reduced revenue or the closure of certain whale watching operations) and a depletion of whales owing to JARPA II, it would be open to the ICJ to order proportionate compensation. The more likely situation however, would as with the procedural breach, be that Japan would be ordered to give satisfaction. If this interpretation were adopted by the ICJ and applied in this manner, Australia would be successful in obtaining all the remedies sought in its application.125

(c) Applying Option Two – The Limited Discretion

Out of the three options discussed, this interpretation is the most consistent with the rules set out in art 31 of the VCLT. This article has discussed three potential factors found in the context and relevant rules of international law that might impact upon an interpretation of what exactly the exercise of the right to grant scientific permits in good faith under art VIII entails. Namely:

• whether Japan has taken into account, in good faith, the comments made by the Scientific Committee and IWC;

• whether Japan has acted in good faith in ensuring that the permits that it grants under art VIII comply with the guidelines set by the Scientific Committee; and

• whether Japan has acted in good faith and taken the precautionary principle into consideration in its decision to grant permits under art VIII.

It would be open for the ICJ to adopt an interpretation that includes all or only some of these factors.

In relation to the first factor, a good starting point is the fact that Japan’s scientific whaling programs have been condemned by the Scientific Committee and IWC on numerous occasions. While it is difficult to predict the conclusions that the ICJ might come to, a number of observations can be made. First, Japan proposed a second scientific whaling plan that included lethal methods even though the IWC had expressed the general opinion that special permit whaling should be terminated and scientific research limited to non-lethal methods only,126 and should refrain from involving the killing of cetaceans in sanctuaries.127 Second, Japan proposed JARPA II directly after the completion of JARPA despite the IWC’s recommendation in 2003 that no additional JARPA programs be considered by Japan until the Scientific Committee has completed an in-depth review of the results of JARPA.128 Third, Japan initiated the first phase of JARPA II in the 2005/6 season regardless of the fact that the IWC “strongly urge[d]” it to withdraw the JARPA II proposal or revise it to include only non-lethal techniques.129

Fourth, Japan continued to implement JARPA II despite the criticism included in the Scientific Committee’s 2006 review. This included the written statement presented by the 63 scientists who not only condemned Japan’s procedural conduct but made a number of observations that suggested that it was unlikely that JARPA II would fall within the guidelines.130 These views were also expressed by the IWC, which called upon Japan to both suspend indefinitely the lethal aspects of JARPA II conducted within the Southern Ocean Whale Sanctuary and address the recommendations made by the Scientific Committee in its 2007 review.131

On the basis of these observations, it would be open to the ICJ to find that Japan has not taken the recommendations of the Scientific Committee or the IWC into account in the exercise of its right under art VIII. Indeed, to the contrary, it appears that Japan has disregarded the recommendations and, at times, acted directly contrary to them. This might prove a sufficient basis for a finding of a lack of good faith on the part of the Government of Japan in contravention of art 26 of the VCLT.

Turning to the second factor, it should be noted that the vast amounts of scientific evidence that the parties will adduce to determine this point may prove problematic for the ICJ. Indeed, Japan may make a strategic decision to flood the Court with scientifically complex evidence. It is difficult to predict what the ICJ would do in such a situation. It would be open to the Court to rely heavily on the Scientific Committee’s assessment of the evidence, and the testimony of experts, however it is of the utmost importance that the Court be seen to have based its final judgment on its own convictions, rather than inadvertently delegating this role.132

This article does not attempt to speculate as to the scientific legitimacy of JARPA II or its compliance with the guidelines. Indeed, it would be impossible to do so conclusively without access to the evidence that will be presented to the ICJ during the hearing. It is however, worth noting a number of observations made by the 63 scientists in their 2006 statement declining to review JARPA II that are of relevance to JARPA II’s compliance with the guidelines.133 The scientists noted that most of the data collected under JARPA II is not required under the management procedure currently accepted by the IWC and that the proposal’s objectives are based on several assumptions that are either unsubstantiated or incorrect. Furthermore, the proposal had no end date by which it could be assessed or a well-defined hypothesis and performance criteria by which its success could be assessed. The scientists noted that the use of non- lethal means (biopsy) has been clearly demonstrated to address temporal and spatial changes in stock structuring, thus throwing into question Japan’s claim that non-lethal means are not a viable option.

The 63 scientists further noted that the research methodologies specified in the proposal are very poorly developed and presented, thus potentially discrediting the reliability of the JARPA II results. Regarding the effects of catches on stocks, the scientists noted concern over: the impact of the program in light of apparent substantial decline in abundance of Antarctic minke whales; the targeting of species that were subject to massive over-exploitation during earlier whaling, and whose populations still remain well below their pre-exploitation abundance; the potential take of humpback whales from small poorly understood and highly threatened populations in the South Pacific; and the potential impact of takes of humpback whales on existing, non-lethal research programs in Australia, New Zealand and elsewhere in the Pacific. The 63 scientists’ observations were made, and were acknowledged to have been made, on the basis of insufficient evidence. Accepting this caveat, the scientists suggest that it is highly likely that JARPA II does not comply with the Scientific Committee’s guidelines.134

Consequently, Japan’s decision to conduct JARPA II, while also aware of the concerns raised by both the Scientific Committee and the IWC regarding its compliance with the guidelines, might be held to demonstrate a failure to act in good faith in exercising the right to grant permits under art VIII and thus a breach of art 26 of the VCLT.135

The final relevant factor is whether Japan has acted in good faith and taken the precautionary principle into consideration in its decision to grant permits under art VIII. Once again, speculation is difficult. The extent to which Japan ought to have acted with caution is determined by the level of the risk created by its proposed catches in relation to the levels of uncertainty as to the abundance of various species. Scientific evidence is likely to play a significant role in this determination. This argument will potentially be most successful in relation to humpback and fin whales as these are the species whose populations are believed to be the most at risk. Here, Japan’s decision to halt all takes of humpback whales until more information as to their abundance is known, is a strong factor in its favour. Nevertheless, evidence relating to recent declines in minke whale stocks might counter this. Once again, it is not the role of this article to predict the outcome of such a determination. Ultimately, the application of this factor is likely to turn on an assessment of both current and previous stock estimates, as well as the evidence in Japan’s possession at the time each permit has been granted.

In sum, the ability of this paper to speculate as to how the ICJ might apply a limited discretion interpretation of art VIII to JARPA II is extremely limited. This is both due to a lack of evidence and to the fact that the specific nature of the interpretation that the ICJ will adopt is not known. The observations made above however appear to suggest that there is a strong case that Japan has failed to act in good faith in the exercise of the right to grant scientific permits under art VIII. Following the same argument set out in relation to option one, it would also be open for the Court under this option to find that Japan is in breach of its procedural obligations under paragraph 30 in addition to the substantive breach of paragraphs 10(e) and 7(b) ICRW. Under the ILC Articles Japan would be required to cease its breaching conduct. This would mean that Japan would have to cease the implementation of JARPA II. Should Japan wish to continue scientific whaling, it would have to propose a new program that is consistent with a good faith interpretation of the exercise of art VIII. Japan would also have to provide reparation, which, as noted above, would be likely to take the form of satisfaction.136

5. Significance for the Future

This article has presented a number of observations regarding the potential options open to the ICJ in the interpretation and subsequent application of the ICRW to Japan’s JARPA II. It has been contended that the most appropriate interpretation is likely to lead to an outcome that finds Japan in breach of its obligation to exercise the right found in art VIII in good faith. While this might appear prima facie to constitute a success for Australia and the anti- whaling states, it is important to acknowledge the longer term implications of such a decision.

The identification of certain restrictions on the exercise of art VIII does not remove the practical difficulties presented by the lack of enforcement mechanisms within the ICRW. While states are likely to alter their operations to take into account the factors highlighted by the ICJ, it would be unrealistic to expect that states will not push the boundaries. The ability of the IWC and the Scientific Committee to take action against states that they suspect are not acting in good faith remains debateable and Australia and other concerned states cannot initiate proceedings in the ICJ every time an abuse of good faith is suspected.

The lack of enforcement mechanisms within the ICRW is a reflection of the unwillingness of the parties to be bound by that which they have not expressly consented to. It is not within the power of the ICJ to inject an enforcement mechanism into the Convention when it does not exist, neither is it within the power of the Court to impose binding obligations upon state parties without their consent. A ruling which discusses the character of ‘good faith’ in the exercise of a right falls short of transforming the identified factors into obligations binding the parties. Consequently, a finding of a breach of good faith is unlikely unless the failure to act in good faith is clearly apparent. The likelihood of a finding of a breach of good faith on the part of Japan in the Antarctic Whaling Case is greatly assisted by the defiance of Japan’s conduct. The degree to which Japan has disregarded the recommendations of the IWC and Scientific Committee both generally and in relation to JARPA II’s compliance with the guidelines, and the threat it poses to certain stocks, present excellent material with which to argue a breach of good faith.

States such as Japan however, are unlikely to act with such obvious defiance following a ruling by the ICJ that imposes restrictions on the manner in which they exercise their art VIII right. It is entirely conceivable that Japan and other whaling states will alter their scientific whaling operations so that they appear to conform to these restrictions without necessarily altering the substance of their programs that greatly. It might be that despite Australia’s efforts before the ICJ, for all practical purposes, the whaling regime finds itself in effectively the same position as it was before the case was heard: with a number of states carrying out asserted scientific whaling operations to the great concern of a large contingent of the IWC and Scientific Committee.

Two broad possibilities might be identified for the future of the IWC.

Either the international community accepts the status quo (or a slightly altered version of it), under which scientific whaling is carried out in a highly unregulated manner to the objection of many. The potential less politically attractive alternative is for the parties to accept that some form of compromise is needed if the IWC is to move forward in any tangible way. It might be argued that a compromise that permits a small amount of highly regulated whaling in return for greater control over all whaling operations, including for example the amendment of art VIII and the creation of greater binding obligations in relation to scientific whaling operations, might be more appropriate in the long run than allowing the status quo to continue. Indeed, while the polarisation of the IWC has so far proved fatal to all attempts at negotiation, some of the major players have signalled a readiness to re-address the issues.137 Since 2006 various IWC members have been meeting to discuss the future of the IWC. This has led to the creation of a Small Working Group on the Future of the IWC and a number of intercessional meetings.138 In 2010 the IWC released a compromise proposal under which all current whaling operations would come under the control of the IWC. The proposal would effectively permit existing commercial whaling but would impose strict enforceable quotas and rigorous monitoring procedures.139 No consensus has yet been reached and negotiations are on-going.

The reality is that whaling is a practice that is unlikely to withstand the tests of time. Younger generations within even the most vigilant pro-whaling states are expressing increasing discomfort with their countries’ activities. If this is the case then, until it fades out, perhaps instead of fighting a battle against the text of an out-dated convention, conservation-minded nations should focus on ensuring that the whaling which will inevitably occur under the ICRW is as controlled, restricted and humane as possible.

IV. Conclusion

The Whaling in the Antarctic Case presents a number of opportunities for the ICJ to clarify the nature of the obligations and rights held by parties under the ICRW. For the purposes of Australia’s allegations, much of the case will turn on an interpretation of art VIII and the nature of the right to grant permits for scientific whaling. Article VIII was created at a time when commercial whaling was permitted. As a result, the provision lacks a number of specific definitions and requirements that would be likely to have been expressly stated had it been drafted within the regime as it stands today. These difficulties however, are not completely insurmountable. This paper has presented three potential interpretations of art VIII, but has submitted that an interpretation that grants states a limited discretion is the most appropriate. This interpretation takes into account various legal developments and contextual factors that suggest that there are some restrictions on the exercise of the right to grant permits. Rather than imposing mandatory rules into the exercise of art VIII, consideration of these factors is relevant in determining whether a state has acted in good faith in its exercise of the art VIII right.

Time will tell whether the outcome of the ICJ case has any significant impact on the use of scientific whaling by states like Japan. The finding of restrictions to the exercise of the right to grant permits that are based on good faith does not equate to the imposition of an enforcement mechanism into the ICRW. Furthermore, the line between acting in good faith and merely acting under the guise of good faith is far from black and white. The potential for abuse of art VIII is likely to remain even after the ICJ hands down its judgment, though perhaps to a slightly lesser degree. This is a reflection not of the inadequacies of international adjudication, but rather of the nature of treaty law. States cannot be bound to that which they have not agreed. Consequently, the ICJ cannot impose rules or enforcement mechanisms into a provision if they are not there already. If the potential for art VIII to be used as a loop-hole to get around the prohibition on whaling is to be closed once and for all then art VIII itself will have to be amended. The current polarisation of the IWC however, prevents any progress or agreement being made either on the regulation of scientific whaling or the development of the regime itself. Pro-whaling states are unlikely to consent to an amendment that reduces their right to take whales without being offered something else in return. Article VIII is, in other words, a bargaining tool that pro-whaling states are unlikely to give up easily. The international whaling community will either have to accept the status quo, and thus the mostly unregulated application of scientific whaling, or accept that some compromise is needed. Until both parties are willing to compromise, all that is being achieved in this wider whaling debate is the blowing of hot steam.

* New Zealand Ministry of Justice, Wellington. This research was carried out at the Australian National University in Canberra under the supervision of Professor Donald R Rothwell. I am extremely thankful for Professor Rothwell’s guidance and assistance in completing this paper.

1 Interview with Senator the Hon Ian Campbell, Minister for the Environment and Heritage of Australia, (Tracey Grimshaw, Today, Channel Nine, 22 June 2005).

2 Whaling in the Antarctic (Australia v Japan), Government of Australia, (Application Instituting Proceedings), ICJ 2010 General List No 148 (31 May 2010) [“Application Instituting Proceedings”].

3 See International Convention on the Regulation of Whaling (opened for signature 2 December 1946, entered into force 10 November 1948), schedule, footnote to [7(b)].

4 Application Instituting Proceedings, above n 2, at [37].

5 Sam Blay and Karen Bubna-Litic “The Interplay of International law and Domestic Law: The case of Australia’s efforts to protect whales” (2006) 23 EPLJ 465 at 468-9.

6 M Maffei “The Protection of Whales in Antarctica” in F Francioni and T Scovazzi (eds) International Law for Antarctica (2nd ed, Kluwer Law International, The Hague, 1996) at 171-224.

7 Commonwealth of Australia “Whales and Whaling: Report of the Independent inquiry Conducted by the Hon Sir Sydney Frost” (Australian Government Publishing Service, Canberra, 1978) at 26-37.

8 Whale Protection Act 1980 (Cth).

9 International Fund for Animal Welfare “Japan Commercial Whaling Proposal Rejected by IWC” (press release, 21 June 2005).

10 International Convention on the Regulation of Whaling.

11 International Convention on the Regulation of Whaling, art III (1).

12 International Whaling Commission Rules of Procedure, section E. The current Rules are those as amended at the 57th Annual Meeting, Ulsan, Republic of Korea, 20-24 June 2005.

13 International Convention on the Regulation of Whaling, art V (2).

14 International Convention on the Regulation of Whaling, schedule, at [30].

15 IWC Rules of Procedure, above n 12, at M:4.

16 Reflected at [2], [3], [6] and [7] of the preamble.

17 Reflected at [4], [6] and [8] of the preamble.

18 International Convention on the Regulation of Whaling, schedule [10(e)].

19 Chairman’s Report of the Thirty-Third Annual Meeting [1981] 32 Rep Int Whal Commn 35 at [7.1].

20 See Section C.2 below.

21 Berlin Initiative on Strengthening the Conservation Agenda of the International Whaling Commission IWC Res 2003-1 (2003), (emphasis added).

22 Chairman’s Report of the Thirty-First Annual Meeting [1979] 30 Rep Int Whal Commn 34 at [9].

23 Chairman’s Report of the Forty-Fifth Annual Meeting [1993] 44 Rep Int Whal Commn 32 at [16.6], and Chairman’s Report of the Forty-Sixth Annual Meeting [1994] 45 Rep Int Whal Commn 33 at [12.3].

24 Chairman’s Report of the Thirty-Third Annual Meeting, above n 19, at [7.1].

25 This can largely be attributed to threats from the United States that it would impose fishing and importation sanctions on Japan under two pieces of national legislation: the Pelly Amendment and the Packwood-Magnuson Amendment. Following these threats, Japan and the US entered into negotiations which culminated in the 1984 Baldridge-Murazumi Agreement under which Japan agreed to withdraw its objection. See Gene S Martin Jr and James W Brennan “Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments” (1988) 17 Denv J Int’l L & Pol’y 293.

26 International Convention on the Regulation of Whaling, at [7(a)] footnote.

27 In 1990 the Scientific Committee estimated minke whale stocks to be approximately 760,000. The Committee has since stated that these estimates may not be accurate. See T A Branch and D S Butterworth “Southern Hemisphere minke whales: standardised abundance estimates from the 1978/79 to 1997/98 IDCR-SOWER surveys” (2001) 3 J Cetacean Res Manage 143; Joji Morishita “Multiple analysis of the whaling issue: Understanding the dispute by a matrix” (2006) 30 Marine Policy 802.

28 For example, Minoru Morimoto, Japan’s chief delegate to the IWC, announced during the 2003 IWC meeting that Japan may withdraw from the ICRW in response to what he termed a hijacking of the IWC by anti-whalers – see “Reaction to Lost Votes: Japan Threatens to Pull out of the IWC” Japan Times Online ( Japan, 21 June 2003).

29 It should be noted that Iceland did withdraw from the ICRW in 1993. When it became evident that other pro-whaling states were not going to follow suit, Iceland attempted to re-join but was rejected on a number of occasions. In 2002 Iceland was controversially permitted to re-join the ICRW subject to a reservation to the moratorium.

30 Resolution on the Revised Management Scheme IWC Resolution 1994-5 (1994) (Report of the International Whaling Commission) at 45:43-4.

31 G P Donovan “The International Whaling Commission and the Revised Management Procedure” (in E Hallenstvedt and G Blichfeldt (eds) Additional Essays on Whales and Man (High North Alliance, Lofoten, 1994) at 4-10.

32 Morishita, above 27, at 805.

33 Phillip J Clapham and others “Whaling as Science” (2003) 53 Bioscience 210 at 318.

34 Resolution on Completion of the Revised Management Scheme (R MS) [2004] IWC Resolution 2004-6 (2004).

35 International Convention on the Regulation of Whaling, article VIII (3).

36 International Convention on the Regulation of Whaling, schedule, at [30].

37 Donald K Anton “Antarctic Whaling: Australia’s Attempt to Protect Whales in the Southern Ocean” [2009] Envtl Aff L Rev 319 at 321.

38 Resolution on JARPA II IWC Res 2005-1 (2005) at [6].

39 Government of Japan Plan for the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) - Monitoring of the Antarctic Ecosystem and Development of New Management Objectives for Whale Resources IWC Doc SC/57/O1 ( June

2005) [“JARPA II Proposal”].

40 Ibid.

41 Resolution on JARPA II IWC Res 2003-3 (2003).

42 Japanese Special Permits – Antarctica IWC Doc IWC-CCG-914 (2011).

43 “The Position of the Japanese Government on Research Whaling” The Ministry of Foreign Affairs of Japan <www.mofa.go.jp>.

44 See for example, Clapham and others, above n 33, at 211; Nicholas J Gales and others “Japan’s Whaling Plan under Scrutiny” (2005) 435 Nature 883.

45 S Childerhouse and others “Comments on the Government of Japan’s Proposal for a Second Phase of Special Permit Whaling in Antarctica ( JARPA II), SC/57/O22” [“63 Scientists’ Joint Statement”].

46 See Gales and others, above n 44, at 883.

47 63 Scientists’ Joint Statement, above n 45.

48 Application Instituting Proceedings, above n 2.

49 Murray McCully “Joint Statement Australia and New Zealand Agree on Strategy for Whaling Legal Case” (press release, 11 December 2010).

50 Ibid.

51 Whaling in the Antarctic (Australia v Japan) (Order) ICJ (13 July 2010).

52 Donald R Rothwell “Whaling in The Antarctic (Australia v Japan) Important Current and Projected Key Dates” (paper on file with the author).

53 Convention on International Trade in Endangered Species of Wild Fauna and Floora (opened for signature 3 April 1973, entered into force 1 July 1975).

54 Convention on Biological Diversity (opened for signature 5 June 1992, entered into force 29 December 1993).

55 Reservations entered by parties. See <www.cites.org>.

56 Ministry of Foreign Affairs of Japan “Press Conference by Japanese Minister for Foreign Affairs Masahiko Koumura” (press release, 22 December 2007).

57 See Donald K Anton “Dispute Concerning Japan’s JARPA II Program of “Scientific Whaling” (Australia v Japan)” ( July 8 2010) American Society of International Law Insights <www.asil. org>.

58 Japan has objected to the obligations in [7(b)] of the schedule as they relate to minke whales. Consequently this alleged violation relates only to the taking of fin and humpback whales, see the International Convention on the Regulation of Whaling, schedule, footnote to [7(b)].

59 Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980).

60 Ibid.

61 D W Bowett “Legal Opinion on Schedule Provision for prior Review of Scientific Permits and Prohibition of Whaling by Operations failing to supply all data Stipulated” IWC Doc IWC/31/9 (28 April 1996) at 1.

62 Humphrey Waldock “Sixth Report of the Special Rapporteur, Sir Humphrey Waldock” (1966) 2 YILC 5.

63 “Draft Articles on the Law of Treaties with Commentaries” (1966) 2 YILC 187 at 222.

64 See for example, Hugh Thirlway “The Law and Procedure of the International Court of Justice 1960-1989 Part Three” (1991) 62 BYIL 1 at 52; Campbell Mclachlan “The Principle of Systemic Integration and Article 31(3)(C) of The Vienna Convention” [2005] 54 ICLQ 279 at 317.

65 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14 at [204].

66 Mclachlan, above n 64, at 317.

67 International Convention on the Regulation of Whaling, preamble, [7] [8].

68 Ibid, at preamble at [6].

69 Gabcikovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7 at [104].

70 Emphasis added.

71 Charter of the United Nations; Statute of the International Court of Justice, art 50.

72 Caroline E Foster Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (Cambridge University Press, Cambridge, 2011) at 29.

73 Pulp Mills on The River Uruguay (Argentina v Uruguay) (joint Dissenting opinion of Judges Al- Khasawneh and Simma) [2010] ICJ Rep 108 at [4].

74 Foster, above n 72, at 10.

75 JARPA II Proposal, above n 39.

76 See Institute of Cetacean Research “Why Whale Research” (2006) <www.icrwhale.org> and J Morishita and D Goodman “Competition between fisheries and marine mammals-feeding marine mammals at the expense of food for humans” in B Phillips, B A Megrey and Y Zhou (eds) Proceedings of the Third World Fisheries Congress (American Fisheries Society, Beijing, 2003).

77 63 Scientists’ Joint Statement, above n 45.

78 Ibid.

79 See Section II.B above.

80 Emphasis added.

81 See Section II.C.1 above.

82 Vienna Convention on the Law of Treaties, art 26.

83 Scientific Committee Handbook: The work of the IWC’s Scientific Committee and its procedures (October 2009) International Whaling Commission <www.iwcoffice.org> at 11-12 [“Scientific Committee Handbook”].

84 Report of the International Panel of Independent Legal Experts on: Special Permit (“Scientific”) Whaling under International Law (Paris, 12 May 2006) at 27.

85 Resolution on Special Permits for Scientific Whaling IWC Res (1986) 1986-Appendix 2, at [11].

86 For example see, Resolution on Whaling under Special Permit [2003] IWC Res 2003-2 (2003).

87 Resolution on Special Permits for Scientific Whaling, above n 82, at [15] (emphasis added).

88 Ibid, at [10] (emphasis added).

89 See for example, Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4 at 22.

90 Foster, above n 72, at 18.

91 Ibid, at 11.

92 Ibid, at 18.

93 It should be noted that this reversal of the burden of proof is not accepted as strongly in practice as by the principle’s proponents. International courts have generally required parties seeking to rely on the principle to at least adduce sufficient evidence to show a prima facie risk. Compare Pulp Mills on The River Uruguay (Argentina v Uruguay), above n 65 with Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624. That said, the moratorium on commercial whaling, which was established in response to concerns over whale stock, and which can only be lifted with the consent of all members of the ICRW, arguably suggests that a strict reverse-burden approach has already been utilised within the IWC. See Patricia Birnie, Alan Boyle, Catherine Redgwell, International Law and the Environment (Oxford University Press, Oxford, 2009) at 158-9.

94 Declaration of the United Nations Conference on Environment and Development UN Doc A/ CONF.151/26 11 (1992), principle 15.

95 Treaty Establishing the European Economic Community (opened for signing 25 March 1957, entered into force 1 January 1958), art 130r(2).

96 United Nations Framework Convention on Climate Change (opened for signature 9 May 1992, entered into force 21 March 1994), art 3.3.

97 Montreal Protocol on Substances that Deplete the Ozone Layer (opened for signature 16September 1987, came into force 1 January 1989) at [6].

98 Convention for the Protection of the Marine Environment of the North East Atlantic (opened for signature 22 September 1992, entered into force 25 March 1998), art 2(2)(a).

99 Preamble.

100 See Pulp Mills on The River Uruguay (Argentina v Uruguay), above n 65, at [164]. Other International Tribunals have been similarly hesitant in their approach, see Southern Bluefin Tuna case (New Zealand v Japan; Australia v Japan) above n 93, at [77] and [90(1)(c) and (d)]; and European Community Measures Concerning Meat and Meat Products (Hormones) (Appellate Body Report) (1998) WTO Doc WT/DS26/AB/R

101 Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 65, at [164].

102 M Heazle “Lessons in Precaution: The International Whaling Commission’s Experience with Precautionary Management” (2006) 30 Marine Policy 496 at 501.

103 Chairman’s Report of the Thirty-Third Annual Meeting [1981] 32 Rep Int Whal Commn 35 at [7.1].

104 International Convention on the Regulation of Whaling, schedule [30].

105 Guidelines for the Review of Scientific Permit Proposals International Whaling Commission <www.iwcoffice.org>. These guidelines represent an elaboration of the requirements set out at [30] of the schedule to the International Convention on the Regulation of Whaling.

106 Scientific Committee Handbook, above n 83, at 12

107 Resolution on Whaling under Special Permit IWC Res 2003-2 (2003).

108 Ibid.

109 Gales and others, above n 44, at 883.

110 For example, Baseline Research on Oceanography, Krill and the Environment-West (BROKE- West) see Steve Nicol “BROKE-West Breaks Ground in Marine Research” (27 October 2011) <www.antarctica.gov.au> and The Southern Ocean Non-Lethal Research Partnership, see Simon Childerhouse “Annual Report of the Southern Ocean Research Partnership 2009/10” (2020) Southern Ocean Research Partnership <www.marinemammals.gov.au>.

111 63 Scientists’ Joint Statement, above n 45; also see Gales and others, above n 44, at 884; and Resolution on JARPA II, above n 38.

112 K Matsuoka and others “Distribution and Abundance of Humpback, Fin, and Blue Whales in the Antarctic Areas IIIE, IV, V and VIW (35 E-145 W)” ( January 2005) Institute of Cetacean Research <www.icrwhale.org>.

113 Phillip J Clapham and others “The whaling Issue: Conservation, Confusion, and Casuistry” (2007) 31 Marine Policy 314 at 315.

114 63 Scientists’ Joint Statement, above n 45; Gales and others, above n 44, at 884.

115 JARPA II Proposal, above n 39.

116 Resolution on Southern Hemisphere Minke Whales and Special Permit Whaling [2003] IWC Res 2003-3.

117 “Chair’s Report of the 59th Annual Meeting” (May 2007) International Whaling Commission <www.iwcoffice.org> at 39-41.

118 63 Scientists’ Joint Statement, above n 45.

119 International Law Commission “Responsibility of States for Internationally Wrongful Acts” [2001] 2(2) YBIL 1, arts 30-31.

120 Ibid, at art 34.

121 Ibid, at art 37(2).

122 Ibid, at art 37(3).

123 As noted above, Japan has lodged an objection to paragraph 7 of the schedule as it relates to minke whales. See International Convention on the Regulation of Whaling, footnote to [7(b)].

124 International Law Commission, above n 119, arts 30-31.

125 Application Instituting Proceedings, above n 2, at [40-41].

126 Resolution on Whaling Under Special Permit IWC Res 2003-2 (2003).

127 Resolution on Whaling Under Special Permit IWC Res1998-4 (1998).

128 Resolution on Southern Hemisphere Minke Whales and Special Permit Whaling IWC Res 2003-3 (2003).

129 Resolution on JARPA II, above n 38.

130 63 Scientists’ Joint Statement, above n 45.

131 Resolution on JARPA IWC Res 2007-1 (2007).

132 Foster, above n 72, at 136.

133 63 Scientists’ Joint Statement, above n 45.

134 Ibid.

135 See Resolution on JARPA, above n 131.

136 International Law Commission, above n 119, arts 30-31.

137 See United States and New Zealand “Resolution to Maintain Progress at the IWC” (presented at the 2011 IWC annual meeting, Jersey, 12 July 2011).

138 For more information on the Future of the IWC process see <www.iwcoffice.org>.

139 Proposed Consensus Decision to Improve the Conservation of Whales from the Chair and Vice- Chair of the Commission IWC Doc IWC/62/7rev (2010) Agenda item 3.