Japan argues that it's a 'scientific debate, not a legal one'
Japan is currently testifying at the ICJ, The Hague and arguing that the court should not rule in favour with Australia as this is simply a ‘scientific debate amongst scientists’.
The core of their argument is that Japan is not required to gain approval from the International Whaling Commission (IWC), simply to submit their whaling proposal to thh Scientific Committee for ‘review and comment’.
Under the International Convention for the Regulation of Whaling (ICRW) countries considering giving special permits for lethal research indeed, must submit the proposals to the Scientific Committee of the IWC for review and comment.
However, the Scientific Committee is not the final deciding body for the IWC, despite what Japan would like to argue.
The Scientific Committee has to advise the IWC whether the objectives and methodology of the research meet certain criteria. The main criteria are its necessity for the Comprehensive Assessment or other ‘critically important’ reason; that the results cannot be obtained by non-lethal means; that it will produce reliable answers to the questions being addressed; and that it will not have an adverse effect on the stock. Non-lethal research is preferred by the IWC as part of its commitment to conservation as required under the ICRW.
The Commission then expresses its opinion on the special permit proposal.
The IWC website goes onto say,
“The Commission often makes comments on any proposals its receives from Contracting Governments to establish or modify special permit programmes. It does this by passing Resolutions“
The Court must be careful not to fall for this Japanese argument, and we hope that it is fully advised on the actual reality of the IWC processes.
The IWC has been cautious about passing resolutions in the last few years as countries have been seeking to lower the tension in debates, but the last resolution I can find on JARPA (I stand ready to be corrected) is from 2007, and which says,
Resolution 2007-1 RESOLUTION ON JARPA
WHEREAS paragraph 7(b) of the Schedule establishes a sanctuary in the Southern Ocean;
RECALLING that the Commission has repeatedly requested Contracting Parties to refrain from issuing special permits for research involving the killing of whales within the Southern Ocean Sanctuary, has expressed deep concern at continuing lethal research within the Southern Ocean Sanctuary, and has also recommended that scientific research involving the killing of cetaceans should only be permitted where critically important research needs are addressed;
CONSCIOUS that the Scientific Committee last year convened a workshop to analyse the results of JARPA 1, which is reported in SC/59/REP 1;
NOTING that the Workshop agreed that none of the goals of JARPA 1 had been reached, and that the results of the JARPA 1 programme are not required for management under the RMP;
FURTHER NOTING that the Government of Japan has authorised a new special permit programme in the Antarctic, JARPA II, in which the take of minke whales has been more than doubled, and fin whales and humpback whales have been added to the list of targeted species;
CONCERNED that fin whales in the Southern Hemisphere are currently classified as endangered, and that humpback whales in the JARPA II research area may include individuals from depleted breeding populations overwintering in the waters of certain Pacific Islands;
CONVINCED that the aims of JARPA II do not address critically important research needs;
NOW THEREFORE THE COMMISSION
CALLS UPON the Government of Japan to address the 31 recommendations listed in Appendix 4 of Annex O of the Scientific Committee report relating to the December 2006 review of the JARPA I programme to the satisfaction of the Scientific Committee;
FURTHER CALLS UPON the Government of Japan to suspend indefinitely the lethal aspects of JARPA II conducted within the Southern Ocean Whale Sanctuary.