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Whaling in the Antarctic: Part V - Experts & Scientific Evidence

I will be exploring the issues addressed in today's post in more detail in an upcoming paper so this particular blog is going to be kept a bit shorter than the others.

First, it is important to state the obvious—international environmental law is inextricably connected to scientific and technical developments. One need look no further than climate change to understand just how connected our (changing) understanding of the natural world is to determining the appropriate form/function of the regulatory response. Further, and in addition to using and incorporating scientific knowledge during the development of international law, science and other forms of expertise have also become important aspects of international environmental dispute adjudication. Unfortunately—or fortunately, depending on your perspective—we do not have an “International Environmental Court” to deal with these increasingly technical problems. The ICJ did create a Chamber for Environmental Matters in 1993, but this chamber was effectively ended in 2006 without ever hearing a case.

Lawyers and judges may be expert in statutory interpretation but they are not, generally speaking, also expert in all things scientific or technical. Still, as identified above, it is critical that the appropriate and necessary evidence get before the Court to ensure informed decision-making and adjudication. There are different ways that this goal can be accomplished at the ICJ. The Court can arrange for the preparation of an expert opinion (Article 67 of the ICJ’s Statute), experts can appear as advocates/counsel before the court, an agent appearing on behalf of a party can become versed in the necessary scientific or technical information and present it, or a party can call experts/witnesses as part of its case (Article 65) in accordance with its declared list of intended witnesses/experts (Article 57). In the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), the Court made it apparent that it prefers the latter method because it allows the experts to be cross-examined by the opposing party and to be questioned by the Court. At paragraph 167 of the Pulp Mills judgment the Court stated:

“...those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.”

This is exactly what happened in the Whaling Case. As described in paragraphs 20-21 of the Judgment, Australia called two experts during the public hearings: (1) Professor Marc Mangel (Distinguished Research Professor of mathematical Biology and Director of the Center for Stock Assessment Research, University of California, Santa Cruz); and (2) Nick Gales (Chief Scientist for Australia’s Antarctic Program). Japan also called one expert, Professor Emeritus Lars Wolloe from the University of Oslo and marine mammal advisor to the Government of Norway. Each expert was examined in chief, cross examined, and asked questions from the Court. Additionally, each expert provided a written statement that preceded their testimony.

It is obvious in reading the portion of the judgment that investigates the term “scientific research” (paragraphs 73-86) and the term “for purposes of” (paragraphs 87-97), and more importantly part 3 of the judgment titled “JARPA II in light of Article VIII of the Convention” (paragraphs 98-227), that the Court utilized and worked with the evidence presented by the experts. This decision may very well represent a model for the preferred use of experts in this judicial forum moving forward.

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MLK on Just and Unjust Laws

What is an unjust law that one has a moral obligation to disobey? MLK in this interview provides the critical test, namely that one be willing to pay the penalty for diobedience. If one is not ready to accept that penalty, then the law is not truly that unjust. OR watch the short clip below to hear it more powerfully:

 

Whaling in the Antarctic: Part IV - The Standard of Review & Science on Trial

Both Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) and the broader debate surrounding the international governance of whales engage questions surrounding the appropriate application of science in regulatory decision-making. The International Convention for the Regulation of Whaling (ICRW) and its preambular statements that aspire to achieve both conservation and sustainable use, has been interpreted in different ways by States with varied objectives that use science to buttress their position. For example, does a conservation goal justify the shift towards preservation exemplified by the International Whaling Commission since introduction of the commercial moratorium? Conversely, does the perpetuation of the commercial moratorium, which was likely meant to be a temporary measure, frustrate the goal of sustainable use of whale resources if available scientific evidence suggests that some species are abundant enough to sustain an annual take? Moving one step further, should whales be afforded non-human legal person status and protected from any future lethal use (i.e., the right to life)? Is such an argument scientifically justified or is it an attempt to impose one culture’s ethos upon other cultures? These are all questions that inform the current whaling debate; however, today’s post will focus on what exactly the Court had to consider to adjudicate Australia’s claim and what standard of review it employed in reviewing JARPA II in light of the ICRW’s Article VIII “special permit” provision.

In considering the relationship between Article VIII and the object and purpose of the ICRW identified above, the Court noted at paragraph 57 of the Judgment that Australia emphasized conservation and that “Article VIII, paragraph 1, should be interpreted restrictively because it allows the taking of whales, thus providing an exception to the general rules of the Convention which give effect to its object and purpose of conservation”. Alternatively, Japan argued “that the power to authorize the taking of whales for purposes of scientific research should be viewed in the context of the freedom to engage in whaling enjoyed by States under customary international law”. Taking into account both the preamble and other guidance documents produced by the IWC, the Court concluded that such scientific research programmes can pursue the goals of conservation and/or sustainable use, management of other living marine resources or ecosystems, and other hypothesis testing processes. Importantly, it noted at paragraph 61 that the validity of permit issuance pursuant to Article VIII will not simply turn on the issuing State’s subjective belief that said permits are “for the purposes of scientific research”. How then did the Court determine if the permits issued by Japan for JARPA II met this purpose?

The Court establishes a two-part objective test at paragraph 67 of the Judgment for determining whether JARPA II falls within the scope of Article VIII: (1) does the programme involve “scientific research”; and (2) is the “killing, taking and treating whales” done “for purposes of scientific research”. This second step requires objective assessment of the reasonableness of the design and implementation of the programme in light of its stated objectives. In other words, did JARPA II produce scientific research, and if so, can Japan demonstrate that its permitted killing of whales was reasonable in light of JARPA II’s objectives?

Finally, it is worth noting that at paragraph 69 the Court expressly states that it will limit its investigation to JARPA II in light of Article VIII and will not delve into or attempt to solve the many “matters of scientific or whaling policy … aware that members of the international community hold divergent views about the appropriate policy towards whales and whaling”.

I will end today’s post by drawing your attention to the importance of some of these other issues. As hinted at earlier in this post, whaling generally, and commercial whaling specifically, remains one of the most controversial international environmental issues. In addition to continuing to resolve differing opinions and seek compromise on this divisive issue, it is imperative that the international community find a way to achieve meaningfully address other persistent threats and advance holistic whale management. These other threats include: the impact of climate change; bycatch and fishing gear entanglement; ship strikes; the impact of marine pollution; habitat degradation; the impact of noise; and even the consequences of whale watching and ecotourism. This is the task moving forward.    

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Whaling in the Antarctic: Part III - Jurisdiction

As described in my introduction to jurisdiction of the International Court of Justice (ICJ) in yesterday’s blog titled Nature of the Challenge & the Outcome, Australia based its application to the Court on the basis of each State’s optional declaration of compulsory jurisdiction. Japan asserted in its Counter-Memorial and during oral argument that the ICJ lacked jurisdiction to hear the case based on its interpretation of Australia’s optional declaration. Essentially, States can craft their declarations such that certain types of disputes are excluded from compulsory jurisdiction. And, pursuant to the principle of reciprocity, Japan can use Australia’s reservation to challenge jurisdiction since it only has to answer the claim if Australia has accepted the Court’s jurisdiction over the matter at hand. In short, if this claim came within Australia’s excluded type then Japan could properly assert that the Court is not entitled to adjudicate the dispute. So, what exactly does Australia’s declaration exclude? It reads:

“[A]ny dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.”

This reservation relates to the delimitation of the maritime zones memorialized and/or created in the United Nations Convention on the Law of the Sea, with delimitation referring to the determination of the limits of each zone when there are competing or overlapping claims (i.e., two adjacent or opposite States are geographically close enough that each cannot claim the full extent of various maritime zones without both claiming the same area). Such disputes are often settled through bi-lateral treaties or recourse to international dispute resolution, with the result being division of the contested area. Does this situation qualify? The ICJ decided that it did not, dismissing Japan’s argument.

At this point you might be wondering what maritime zone is potentially engaged since the dispute is occurring in the Southern Ocean around Antarctica. Good question! The treaty system that is in place in the Antarctic prevents novel claims for territorial sovereignty on the continent of Antarctica but remains neutral with respect to its impact upon pre-existing sovereignty claims. Australia made such a sovereignty claim in the 1950s prior to the current treaty system taking effect. Australia has also claimed an exclusive economic zone based on this pre-existing territorial claim. This claim has been hotly contested and opposed.

Japan interpreted Australia’s reservation such that the scientific whaling issue did relate to a disputed area (owing to the fact that Japan does not recognize Australia’s exclusive economic zone claim) that is sufficiently linked to exploitation of the whale resource through JARPA II in or adjacent to this disputed area. In considering this interpretation and coming to its conclusion on jurisdiction, the ICJ noted that the reservation requires a maritime delimitation dispute which simply does not exist in this situation (see paragraphs 38-40 of the Judgment). As such, Japan’s jurisdictional challenge was unsuccessful and the Court proceeded to adjudicate the claim.

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Whaling in the Antarctic: Part II - Nature of the Challenge & the Outcome

Disputes between States can be brought before the International Court of Justice (ICJ)—the dispute resolution organ of the United Nations—in three ways. First, a treaty may expressly provide that disputes between States Parties, being those members of the treaty that have signed and ratified the treaty thereby creating binding legal obligations, shall be submitted to the Court for resolution. Second, States can agree to accpt the ICJ’s jurisdiction for a discrete issue through Special Agreement. Third, and pursuant to Article 36(2) of the ICJ's Statute, States “may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes” relating to: treaty interpretation; questions of international law; whether a fact exists that proves a breach of an international obligation; or the sort of reparation owed due to a breach of an international legal obligation. Sixty-nine States have made an optional declaration.

In the Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Australia utilized the third option and initiated its challenge by written application to the Registrar of the ICJ. This option was available because both Japan (in 2007) and Australia (in 2002) had made the requisite optional declarations accepting compulsory jurisdiction (see more here).

Australia’s Application asserts that the second phase of Japan’s Antarctic research program (JARPA II, as described in yesterday’s blog Setting the Scene) violates key provisions of the regulatory Schedule of the International Convention for the Regulation of Whaling (ICRW). Specifically, that JARPA II, as proposed and implemented, violates the Schedule’s prohibition on killing whales for commercial purposes found in paragraph 10(e) and the prohibition on commercial whaling in the Southern Ocean Sanctuary found in paragraph 7(b) (see paras. 35-36 of Australia’s Application). Australia’s written argument (called a Memorial) also sought relief for an alleged breach of paragraph 10(d) of the Schedule, which prohibits the use of “factory ships or whale catchers attached to factory ships” for killing/treating whales, excepting out the minke whale (see page 276 of Memorial).

At its core, argument and analysis into the allegations set out above would turn on a detailed assessment of Article VIII of the ICRW. Article VIII(1) provides that:

Notwithstanding anything contained in this Convention 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 subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted. [emphasis added]

In short, this “special permit” potentially exempts lethal take from operation of the Schedule provisions described above so long as it is “for purposes of scientific research”. The national permits for minke, fin, and humpback whales that I described in yesterday's post were granted by the Japanese government to a not-for-profit research organization called the Institute for Cetacean Research, which further contracted out each annual take.  

And the core issue emerges: are the permits issued for JARPA II “for the purposes of scientific research” and consequently exempt from operation of the Schedule? If Article VIII is not satisfied then Japan is exposed for Schedule breaches.

The ICJ ultimately declared that Japan violated the three paragraphs of the Schedule identified above and, owing to JARPA II’s ongoing status as a program, ordered that any existing permit be revoked and that it not be granted any other permits under Article VIII (para. 245 of the Judgment).

Starting tomorrow, I will explore certain key aspects of the decision in more detail.

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Whaling in the Antarctic: Part I - Setting the Stage

On 31 March 2014, the International Court of Justice (ICJ) delivered its judgment in the case of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening). The decision comes nearly four years after Australia’s Application to the ICJ in May 2010. This decision is attracting considerable attention from the international community and popular media owing to the fact that whaling is a ‘hot-button’ animal welfare and international environmental law issue that has political, emotional, and cultural dimensions.

Whales have historically been valued as an important natural resource (think oil, meat/blubber, and 'whalebone'). Unfortunately, international regulation of this resource has proved ineffective for some time. After centuries of mismanagement, over-exploitation, and stock collapse resulting in species-switching (whereby industry shifted from species to species following depletion), the international community sought meaningful cooperative regulation through the 1930s and 1940s. After two failed agreements, the international community negotiated the International Convention for the Regulation of Whales (ICRW) in 1946 at an international conference convened by the United States of America. This whaling convention, which entered into force in 1948, currently has 88 Contracting Governments (i.e., States parties). Canada is not party to the ICRW.

The preamble to the ICRW indicates that the Contracting Governments seek to achieve “the proper conservation of whale stocks and thus make possible the orderly development of whaling”. This regime is implemented by the International Whaling Commission (IWC), which is “composed of one member from each Contracting Government” (Article III(1)). The ICRW purports to regulate whaling within all of the waters where whaling occurs (Article I(2)) and as a treaty, its development has been made possible by the creation and amendment of a regulatory Schedule that “forms an integral part” of the Convention. The large so-called ‘great whale’ species—including familiar species such as the blue whale, humpback whale, fin whale, minke whale, gray whale, bowhead whale, and right whale—are regulated by the ICRW/IWC regime pursuant to this Schedule. Importantly, the Schedule can be amended only by a vote of the IWC that carries a three-quarters majority (Article III(2)).

Despite the initial purpose of achieving a sustainable, orderly whaling industry, the Contracting Governments voted in favour of a temporary moratorium on commercial whaling in 1982 and this became effective in the 1986-87 whaling season when zero-catch quotas were set for the regulated species in paragraph 10(e) of the Schedule. This does not mean that all whaling stopped. Norway and Iceland continue to whale commercially by virtue of the fact that they opted out of this Schedule amendment as permitted by Article V(3) of the ICRW. Further, after Japan withdrew its initial objection to the commercial moratorium, it initiated a scientific whaling program called the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA), which began its second phase (JARPA II) in 2005-06. JARPA II witnessed the annual national issuance of permits to take, hunt and kill 850 minke whales (+/- 10%), 50 fin whales, and 50 humpback whales (no humpback whales have been killed owing to political pressure). This has attracted considerable attention owing to the belief held by some nations that this was commercial whaling disguised as science when commercial whaling and specifically commercial whaling within whaling sanctuaries—which the Southern Ocean is—are both prohibited (paragraph 7(b) of the Schedule).

With this background in mind, I plan to deliver an 8-10 part series that investigates important aspects of this whaling case, some of its implications, and its relevance in the Canadian context. I hope you can follow along!

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