## Facts

- Australia sued Japan in the International Court of Justice challenging Japan’s Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II).
- Australia alleged JARPA II was not genuine scientific research and violated the International Convention for the Regulation of Whaling (ICRW) and its Schedule, including the commercial whaling moratorium, factory-ship restrictions, and the Southern Ocean Sanctuary.
- Japan asserted that ICRW Article VIII(1) allows special permits to kill, take, and treat whales “for purposes of scientific research,” exempting JARPA II from the Schedule limits.
- New Zealand intervened as of right under ICJ Statute Article 63(2) as a party to the ICRW, asserting an interest in the Convention’s construction.
- Japan raised a jurisdictional objection based on a reservation in Australia’s compulsory-jurisdiction declaration, arguing the dispute related to maritime delimitation or exploitation of disputed maritime areas.
- The Court addressed jurisdiction and then assessed whether the lethal taking authorized under JARPA II was “for purposes of” scientific research within Article VIII(1).

## Issues

1. Whether Australia’s reservation to compulsory jurisdiction barred the Court from hearing the dispute.
2. How “for purposes of scientific research” in ICRW Article VIII(1) should be interpreted, including the extent of state discretion in characterizing a program as scientific.
3. Whether JARPA II’s design and implementation made the lethal taking of whales “for purposes of” scientific research under Article VIII(1).
4. If Article VIII(1) did not apply, whether Japan’s conduct breached the ICRW Schedule (moratorium, sanctuary, and factory-ship provisions) and what remedies were required.

## Decision

- The Court held it had jurisdiction; Australia’s reservation did not apply because no maritime delimitation dispute existed between the parties.
- The Court found that, viewed generally, JARPA II contained activities that could be characterized as scientific research, but that was insufficient to bring lethal takes within Article VIII(1).
- The Court applied an objective standard asking whether the program’s design and implementation were reasonable in relation to its stated scientific objectives.
- The Court concluded the evidence did not establish that JARPA II’s design and implementation were reasonable in relation to its stated objectives; therefore, the special permits were not “for purposes of scientific research” under Article VIII(1).
- Because Article VIII(1) did not justify the whaling, Japan breached its obligations under the ICRW Schedule, including the commercial whaling moratorium and related restrictions applicable in the Southern Ocean Sanctuary.
- The Court ordered Japan to revoke existing JARPA II authorizations, permits, and licenses and to refrain from granting further permits under JARPA II.

## Legal Principles

- A treaty exception for “scientific research” does not apply merely because a program has scientific components; the relevant question is whether the killing, taking, and treating are “for purposes of” scientific research.
- Article VIII(1) is an exception within the ICRW framework and must be interpreted consistently with the Convention’s object and purpose and the operation of Schedule conservation measures.
- The Court may conduct objective review of a state’s invocation of Article VIII(1) rather than deferring entirely to the state’s characterization.
- The operative test is whether elements of a program’s design and implementation are reasonable in relation to its stated scientific objectives, including the scale and necessity of lethal sampling, time horizon, and demonstrated scientific output.
- If Article VIII(1) does not apply, whaling activities must comply with Schedule restrictions, and noncompliance may warrant orders to revoke permits and cease the challenged program.

## Conclusion

The Court rejected Japan’s jurisdictional objection and held that JARPA II did not qualify under ICRW Article VIII(1) because its design and implementation were not shown to be reasonable in relation to its stated scientific objectives; Japan was ordered to revoke existing JARPA II permits and to stop issuing further JARPA II permits, and its whaling under that program was found inconsistent with the ICRW Schedule.


Whaling in the Antarctic (Austl. v. Japan), Judgment, 2014 I.C.J. Rep. 226 (Mar. 31)