Science – not (Image: AP/Press Association Images)

Japan’s scientific whaling programme in the Antarctic is not “for purposes of scientific research”, and therefore must stop. That is the ruling by the UN’s International Court of Justice today in The Hague, the Netherlands.

Australia was suing Japan over the issue of commercial whaling, which is banned under the international whaling treaty in 1986. Japan insisted its whaling activities were carried out to gain scientific understanding of whale stocks needed to resume whaling, which is legal under the treaty. Both countries say they will abide by today’s judgement. There is no appeal.

The court did not rule whether the whales, whose meat is sold to cover the costs of the hunt, were caught commercially or not. But it cited evidence – supported by Japan’s own expert witness – that catch sizes were not set to meet scientific objectives. Rather, said court president Peter Tomka, a desire for certain catch sizes seemed to have determined the scientific plan, “rather than the other way around”.


Now the whales – and the whaling treaty – may depend on what Japan does next. Statements by Japanese officials during the hearings suggested that Japan might leave the International Whaling Commission – the body governing world whaling. That might irrevocably weaken global protection of whales.

Killing for data

Japan initially opposed the moratorium, and in 1987 started making annual whaling expeditions to the Antarctic, under treaty provisions allowing whales to be killed to provide data needed for management.

In 2010 Australia brought a case against Japanese whaling to the ICJ. Besides detailed problems with Japan’s scientific justification, Australia charged that Japanese officials had admitted in 1987 that rather than gather scientific data, the aim was simply to continue whaling.

The ICJ ruled today that neither official comments nor sale of the meat made Japanese whaling commercial under the treaty – what mattered was whether its purpose was scientific or not. This case marked the first time, says Sarah Gregerson of environmental law firm Client Earth, that the ICJ had to cross-examine scientists about what is or is not science.

Japan’s whaling programme has long been accused of being a front for commercial whaling, and of little scientific value. Since 2005, the judges said, the programme has produced only two peer-reviewed scientific papers, on seven minke whales taken very early on, and neither addressed the hunt’s stated goals of studying the size, structure, feeding and competition of minke, fin and humpback whale populations. As this post-2005 phase “has involved the killing of about 3,600 minke whales, the scientific output to date appears limited”, the judges commented.

“Lab-coat of science”

Japan argued that the court could “no more impose a line separating science from non-science than it could decide what is or is not Art.” It accused Australia of opposing whaling for political or cultural reasons and cloaking these “in the lab-coat of science”.

But Japan’s scientific witness, Lars Walløe of the University of Oslo, Norway, admitted under Australian cross-examination that for minke whales, “I do not really know how they have calculated the sample sizes”. The sample size is central to collecting statistically meaningful data.

Walløe conceded that the 18 fin whales Japan has caught were too few to yield any useful information, while a planned catch of humpback whales was “worthless” for revealing variations in such variables as pregnancy rates.

The ICJ observed that the goals of Japan’s scientific whaling programmes before and after 2005 did not change much, yet in 2005 the sample size was doubled for minke whales, and 50 fins and 50 humpbacks per year were added. The plan was to observe changes in stomach contents, blubber thickness and other variables over six years for minke, 12 for the other two species.

Laughter in court

The evidence, declared the ICJ, “should allow one to understand why that sample size is reasonable in relation to achieving the programme’s objectives, when compared with other possible sample sizes that would require killing far fewer whales.” To laughter in the court, presiding judge Peter Tomka read that the absence of such evidence supported “Australia’s contention that a predetermined overall sample size has dictated the choice of the research period and rate of change to be detected, rather than the other way around.”

Finally, the court noted, Japan had caught far fewer whales than the plan called for, even before harassment by anti-whaling activists – half the planned minke catch, only 18 fins, and no humpbacks. But “neither the plan’s objectives nor methods were revised” – which is odd if the samples really were needed to achieve scientific aims. Moreover, it said, “little attention was given to the possibility of using non-lethal research methods more extensively”.

Japan’s whaling “can broadly be characterized as scientific research” but “the evidence does not establish that [its] design and implementation are reasonable in relation to achieving its stated objectives.” Hence, the ICJ concluded, Japan’s Antarctic whaling “is not for purposes of scientific research as defined by the treaty” – and must stop.

“It is to be expected,” they added, “that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits” for whaling.

Japan is likely to comply. “As a responsible member of the global community, Japan will abide by the decision of the court,” said Japan’s deputy foreign minister Koji Tsuruoka, who led the Japanese delegation to the hearing.

But it could now leave the IWC whaling treaty, then attempt to rejoin it and hope to be granted an opt-out to the moratorium on Antarctic minke whales – and resume catching them commercially. There is a precedent for this: the IWC allowed Iceland to resume commercial catches of endangered fin whales in 2006.

This story was updated with additional background and analysis

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