The Case concerning Whaling in the Antarctic(Australia v. Japan; New Zealand intervening)

다국어 초록 (Multilingual Abstract)

The Case Concerning Whaling in the Antarctic is primarily based on a dispute over the interpretation of the International Convention for the Regulation of Whaling (ICRW). Article VIII provides that “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 . . . .” (emphasis added).
Utilizing this exception, Japan announced the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA) in the 1987/88 season. Japan commenced the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) during the 2005/6 season. The stated objectives of JARPA II include monitoring the Antarctic ecosystem, modeling competition among whale species, clarifying changes in stock structure, and improving the management of minke whale stocks. After research is conducted, meat from harvested whales is sold for consumption and profits are used to support the Institute for Cetacean Research.
On 31 May 2010, Australia instituted proceedings against Japan in the ICJ. Australia filed its memorial on May 9, 2011, and Japan filed a counter-memorial on March 9, 2012. On 20 November 2012, New Zealand filed a Declaration of Intervention in the Registry, and the Court granted permission to intervene on 6 February 2013.
Australia claims that Japan’s large scale whaling under JARPA II violates its obligations under the ICRW, as well as its other international obligations for the preservation of marine mammals and marine environment under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Biological Diversity (CBD).
Japan however argues that the Court lacks jurisdiction over Australia’s claims, and that, as a result, New Zealand’s application to intervene lapses. In the alternative, Japan argues that Australia’s claims should be rejected because the whaling activities are conducted for the purposes of scientific research, which is permitted under the ICRW. Australia counters that Japan is engaging in commercial whaling under the guise of “research.”A public hearing was held from on 26 June to 16 July 2013. The Court’s judgment will be rendered at a public sitting but is not expected for several months.
This is the first time for Japan to appear as a party to a dispute at the ICJ. For Australia, it is the first time since the 1973 Nuclear Test case for the country to institute proceedings; it last appeared in the ICJ as the Respondent in the East Timor case which began in 1991.
If the judgment is unfavorable to Japan, the country might withdraw from the IWC. In the past, Japan has threatened to do so and form an alternative – and presumably more whaling-friendly – organization. Such actions will probably initiate a domino effect among other pro-whaling countries. Alternatively, if the judgment favors Japan, the IWC may regain credibility among pro-whaling countries that feel isolated due to the organization’s increasingly conservationist stance. In addition, such a decision may encourage anti-whaling countries to be more flexible in their stance against whaling.

참고문헌 (Reference)

• 1 Hope M. Babcock, "Why Changing Norms is a More Just Solution to the Failed International Regulatory Regime to Protect Whales than a Trading Program in Whale Shares" 32 : 3-, 2013
• 2 Casey Watkins, "Whaling in the Antarctic: Case Analysis and Suggestions for the Future" 25 : 49-, 2012
• 3 Natalie Klein, "Whales and Tuna: The past and future of litigation between Australia and Japan" 21 : 143-, 2009
• 4 "U.N. Convention on the Law of the Sea" 1833 : 3-, 1982
• 5 Howard Schiffman, "The International Whaling Commission: Challenges from within and without" 10 : 367-, 2004
• 6 "The International Whaling Commission"
• 7 "The Guardian, Justin McCurry, Australia Threatens Legal Action Over Japanese Whaling"
• 8 "The Antarctic Treaty" 402 : 71-, 1958
• 9 Tara Jordan, "Revising the International Convention on the Regulation of Whaling: A Proposal to End the Stalemate within the International Whaling Commission" 29 : 833-, 2012
• 10 International Whaling Commission, "Resolution on JARPA II"
• 11 International Whaling Commission, "Resolution on JARPA"
• 12 International Whaling Commission, "Proposed Consensus Decision to Improve the Cons ervation of Whales from the Chair and Vice-Chair of The Commission"
• 13 International Court of Justice, "Press Release, Australia Institutes Proceedings against Japan for Alleged Breach of International Obligations Concerning Whales"
• 14 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"
• 15 International Court of Justice, "Nuclear Test Case (Austl. v. France)"
• 16 Sarah Suhre, "Misguided Morality: The Repercussions of the International Whaling Commission's shift from a policy of regulation to one of preservation" 12 : 305-, 1999
• 17 International Court of Justice, "Memorial of Australia, Whaling in the Antarctic"
• 18 International Court of Justice, "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion"
• 19 Maya Park, "Japanese Scientific Whaling in Antarctica: Is Australia Attempting the Impossible?" 9 : 193-, 2011
• 20 "International Court of Justice, Whaling in the Antarctic"
• 21 "International Convention for the Regulation of Whaling" 61 : 72-, 1946
• 22 "Humane Soc'y Int'l Inc. v. Kyodo Senpaku Kaisha Ltd. [2005] FCA 664 (Austl.)"
• 23 "Humane Soc'y Int'l Inc. v. Kyodo Senpaku Kaisha Ltd. (2008) FCR 3 (Austl.)"
• 24 International Court of Justice, "Gabcikovo-Nagymaros (Hungary v Slovakia)"
• 25 Japan Times, "Flexibility Needed on Whaling Issue"
• 26 Donald K. Anton, "False Sanctuary: The Australian Antarctic Whale Sanctuary and long-term stability in Antarctica" 8 : 17-, 2008
• 27 International Court of Justice, "Declaration of Intervention by New Zealand, Whaling in the Antarctic (Austrl. v. Japan: N.Z. intervening)"
• 28 International Court of Justice, "Declaration of Intervention by New Zealand, Whaling in the Antarctic (Austrl. v. Japan: N.Z. intervening)"
• 29 International Court of Justice, "Declaration Recognizing the Jurisdiction of the Court a s Compulsory (Australia)"
• 30 International Court of Justice, "Counter-Memorial of Japan, Whaling in the Antarctic (Austl. v. Japan: N.Z. intervening)"
• 31 "Convention on International Trade in Endangered Species of Wild Fauna and Flora" 993 : 244-, 1973
• 32 Mike Iliff, "Compromise in the IWC: Is it possible or desirable?" 32 : 997-, 2008
• 33 International Court of Justice, "Application Instituting Proceedings, Whaling in the Antarctic"