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Australia; Japan: Legality of Scientific Whaling Program Challenged in International Court

(June 10, 2010) On June 1, 2010, the International Court of Justice (ICJ) released information on the proceedings instituted by Australia against Japan for alleged breaches of international obligations concerning whaling. (Press Release, ICJ, Australia Institutes Proceedings Against Japan for Alleged Breach of International Obligations Concerning Whaling (June 1, 2010), available at The Australian government had earlier announced that it had decided to bring the proceedings, saying that it has “always been firm in our resolve that if we could not find a diplomatic resolution to our differences over this issue, we would pursue legal action.” (Press Release, Stephen Smith MP, Peter Garrett MP, & Robert McClelland MP, Government Initiates Legal Action Against Japanese Whaling (May 28, 2010), available at

Australia contends that Japan “has breached and is continuing to breach the following obligations under the ICRW” [International Convention for the Regulation of Whaling]:

(a) the obligation under paragraph 10 (e) of the Schedule to the ICRW to observe in good faith the zero catch limit in relation to the killing of whales for commercial purposes; and

(b) the obligation under paragraph 7 (b) of the Schedule to the ICRW to act in good faith to refrain from undertaking commercial whaling of humpback and fin whales in the Southern Ocean Sanctuary. (ICJ, supra.)

Australia's application further states:

Having regard to the scale of the JARPA II programme, the lack of any demonstrated relevance for the conservation and management of whale stocks, and to the risks presented to targeted species and stocks, the JARPA II programme cannot be justified under Article VIII of the ICRW (this article regulates the granting of special permits to kill, take and treat whales for purposes of scientific research). (Id.)

The Japanese Government responded to Australia's action by saying that it would “strenuously defend” its current whaling program. (Peter Alford, Australia Takes Japan to Court on Whaling,THE AUSTRALIAN, May 28, 2010, available at
.) A statement issued by the Japanese Embassy in Canberra said:

It is regrettable and not constructive that the Government of Australia has decided to initiate international legal action against Japanese research whaling while all concerned parties still continue rigorous negotiations to achieve a diplomatic solution at the International Whaling Commission (IWC). (Press Release, Embassy of Japan (Canberra), Japan's Position on Australia's Announcement for its Legal Action Against Japanese Whaling (May 28, 2010), available at

Australia's action follows the release in April this year of a proposal by the Chair of the IWC aimed at reducing the number of whales killed. The proposal would effectively remove the existing moratorium on commercial whaling by allowing a limited whaling quota in coastal waters for a specified period, while also cutting the annual quota for scientific whaling in the Southern Ocean. A vote on the proposal is expected to be held at the IWC's annual meeting, to be held in Morocco from June 21-25, 2010. (Brigid Glanville, New Zealand Angry over “Offensive” Whaling Proposal, AUSTRALIA NETWORK NEWS, Apr. 23, 2010, available at

Australia disagrees with the current proposal as it wants a complete ban on whaling in the Southern Ocean. (Peter Garrett, Australia Wants Whaling Ban: Garrett, SYDNEY MORNING HERLAD, Apr. 28, 2010, available at
.)It has been reported that Australia decided to institute the legal challenge now because it is concerned that it will lose the legal basis for its case if a compromise agreement is made. The Australian Prime Minister had stated earlier this year that Australia would take legal action if Japan did not end its whaling in the Southern Ocean by November 2010. (Tom Arup, Australia to Take Japan to Court over Whaling, SYDNEY MORNING HERALD, May 29, 2010, available at

New Zealand also considers that the catch limits currently proposed by the IWC fall “seriously short of providing a realistic basis for a diplomatic solution to the whaling issue.” (Press Release, Hon. Murray McCully, Whaling Proposal Falls Seriously Short, Says McCully (Apr. 23, 2010), available at
.) In response to Australia's course of action, the New Zealand government stated that, while it considers there is still room to make progress at the IWC meeting, it would also consider filing proceedings against Japan. (Press Release, Hon. Murray McCully, New Zealand Looking at All Avenues on Whaling Issue (May 28, 2010), available at