Trouble on the High Seas: A Need for Change in the Wake of Australia v. Japan

IntroductionLook sharp, all of ye! There are whales hereabouts! If ye see a white one, split your lungs for him!-Moby Dick1Since the days of Herman Melville's whaling adventures-which provided the inspiration for his literary masterpiece, Moby Dick-the practice of whaling has evolved into a contentious international environmental issue.2 In order to "provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry," the International Convention for the Regulation of Whaling (ICRW) was signed in 1946.3 The ICRW established the International Whaling Commission (IWC), an inter-governmental body that is tasked with collectively deciding how to regulate the whaling industry and promote whale conservation.4 Although a moratorium on commercial whaling has been in place since 1986, the government of Japan has continued to practice special-permit whaling in accordance with Article VIII of the ICRW.5 A special permit under Article VIII allows member countries to kill whales for scientific research purposes and places regulatory power in the hands of individual governments rather than the IWC.6 Japan's special-permit program-known as JARPAII-was the subject of a suit filed by Australia in 2010, charging Japan with disguising a commercial whaling venture in the Antarctic as a scientific research program.7 On March 31, 2014, the International Court of Justice (ICJ) ruled against Japan in Australia v Japan: New Zealand Intervening, finding that Japan's whaling program lacked scientific merit and thus violated three provisions of the Schedule to the ICRW.8 As a result of the judgment, Japan was required to formally discontinue its JARPA II program.9Although the outcome in Australia v Japan: New Zealand Intervening is undoubtedly a win for the whales, the judgment itself may accomplish little more than ending one Japanese whaling program to make room for another.10 In November 2014, Japan announced its proposed research plan for a new scientific whaling program, NEWREP-A, to launch in 2015.11Part I of this Comment provides background on the facts of Australia v Japan: New Zealand Intervening, as well as pertinent portions of the ICRW. Part I also outlines the procedural history of the proceedings before the ICJ. Part II highlights each party's arguments and the ICJ's analysis. Part III analyzes this judgment in light of Japan's new proposed research program and discusses the case's implications on the interpretation and ap4 plication of Article VIII of the ICRW. Part III also urges the IWC to maintain greater oversight over the issuance of special permits and adopt procedures to address member noncompliance.I.BackgroundOn May 31, 2010, Australia filed an application instituting proceedings against Japan before the ICJ.12 At the center of the suit was JARPA II, Japan's special-permit scientific whaling program, which launched in 2005.13 JARPA II is the successor to JARPA, Japan's first research program in the Antarctic introduced during the 1987-88 whaling season.14 As scientific whaling programs, both JARPA and JARPA II were regulated under Article VIII of the ICRW.15 In its pertinent part, 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."16 These special permits may be issued notwithstanding the ICRW's contents.17 Contracting Governments are given a fair amount of discretion in crafting these programs because the research is "subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit."18 Article VIII simply requires Contracting Governments to submit collected scientific information and data to the IWC "in so far as practicable, and at intervals of not more than one year."19In March 2005, Japan submitted to the IWC Scientific Committee its plan for JARPA II. …