In the Whaling in the Antarctic (Australia v. Japan, New Zealand intervening) before the International Court of Justice (ICJ), Australia claims that Japan violates its obligations under the International Convention for the Regulation of Whaling (ICRW) by conducting the programme (JARPA II), and requests for an injunction. On March 31, the Judgment was delivered: Australia won.
The position of the Court concerning the legal issue of the case can be displayed by quoting the succinct sentence of Judge Greenwood in his Separate Opinion:
“the Court is not concerned with the moral, ethical or environmental issues relating to Japan’s whaling programmes in the present case but only with whether JARPAR II is compatible with Japan’s international legal obligations under the ICRW.”
Indeed, the Court confines itself to the rather technical task of interpreting the Convention, in particular Article VIII, paragraph 1 and more specifically, the meaning of the phrase “for the purpose of scientific research”. This phrase is divided into two elements: “scientific research” and “for the purpose of …”, and the Court adopts a two-step review approach. In the first step, it assesses whether JARPAR II involves scientific research. In this step the Court admits that JARPAR II can be seen as “scientific research” in a broad sense. In the second step, however, it comes to the conclusion that JARPAR II is not “for the purpose of” scientific research since it fails to meet the objective standard set out by the Court. Taken together, the Court rules that JARPAR II does not fall within the scope of Article VIII, paragraph 1, that Japan has breached its legal obligation under the ICRW, and accordingly, remedies are issued.
The distinction between “scientific research” and “for the purpose of …” is criticized by Judge Xue in her separate opinion saying it “unduly complicates the meaning of the phrase”. Indeed, stating that JARPAR II is “scientific research” but at the same time not “for the purpose of” scientific research is logically problematic at first sight. However, an explanation might be that the Court, when examining the special permit authorized by Japan under JARPAR II, places not so much emphasis on what Japan said (the claimed objectives of the programme; in step I), but on what it actually did (the design and the implementation of the programme; in step II). The design of the programme (including the key substantive elements: the use of lethal methods; the scale of sampling size; the time frame; the output etc.) as well as its implementation in reality are examined to see whether they are reasonable in relation to achieving the stated objectives. Here, a standard of reasonableness is applied by the Court. In order to pass the test, Japan is expected by the Court to justify itself and that the justification must be reasonable. Failing to do so will result in adverse consequences i.e. JARPAR II will not be seen as falling within the scope of Article VIII (1) and will therefore be deemed illegal. In this respect, the observation by Judge Owada in his dissenting opinion is precise:
“the Judgment appears to be applying the standard of objective reasonableness in such a way that it is the granting Party that bears the burden of establishing that … is reasonable in order for the programme to be qualified as a genuine programme ‘for the purpose of scientific research’”.
That is an exemplary case of reversal of the burden of proof. The Court, however, does not explain why in this case a deviation to the rule of “semper necessitas probandi incumbit ei qui agit” is necessary. In contrast, bearing an international environmental law perspective in mind, Judge Cancado explains convincingly in his separate opinion that JARPAR II, as an exception to the object of conservation should be justified by Japan.
Not surprisingly, some would find the Judgment disappointing: “it should have made a contribution to the development of international environmental law (IEL)”, they might say. The reason is perhaps that, as Judge Greenwood stated on another occasion, “the primary role of the Court is to settle dispute, but not to develop international law”. Anyway, if a dispute could be settled without referring to the IEL, why does the Court bother to get involved in this hornets’ nest?
Though the Judgment would appear to be modest, its significance should not be underrated in the sense that: for the first time in the history of the ICJ, a state, as an erga omnes partes to a multilateral treaty, comes before it to claim for the collective interest and wins.