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On Law, Science and Whales

The case of Australia v. Japan

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June 27, 2013

The article originally appeared on TheConversaton.com on June 27, 2013.

By Ian Hurd

The International Court of Justice (ICJ) meets this week to begin hearing its most prominent case in years. It pits two heavyweights, Australia and Japan, against each other in a legal and political dispute over whale hunting, the meaning of “science”, and the finer points of international legal interpretation.

Japan is a leader among the half-dozen remaining whale hunting countries. While global opinion has shifted decisively toward whale preservation, Japan (along with Iceland, Russia, and the Danish territories of Greenland and the Faroe Islands, among others) continues to hunt whales. Japan kills about 500 to 1000 whales each year.

A Conventional Contradiction

Both Australia and Japan are signatories to the international convention that regulates whale hunting. This treaty establishes annual catch limits for states, set since 1986 at zero. Effectively a moratorium on commercial whale hunting, it is a violation of international law for a government to permit its fishing fleet to take whales.

The contradiction is unmistakable: the international organisation responsible for regulating whale hunting has declared a halt to commercial hunting, yet several of its largest members continue to kill whales and supply the meat to stores, restaurants, and even school lunches. It might lead one to a cynical conclusion about the power of international law. However, the legal question is more complicated than that, and this makes the ICJ case even more interesting.

The whaling treaty allows for countries to kill whales for non-commercial purposes – specifically for scientific research and for aboriginal subsistence. With an eye on these provisions, in the 1990s Japan created a semi-official body called the Institute of Cetacean Research and required whale hunting boats to apply for “scientific” permits for their catches. It then collects data from their catches and publishes reports.

The Rule of Law

The ICJ is the chief legal organ of the United Nations, whose role is to settle legal disputes between governments. When one government believes another is failing its legal obligations, it can ask the ICJ to decide the issue. However, as both states must agree to the case going forward, the court tends to receive relatively anodyne disputes.

Given the choice, Japan would no doubt prefer that the whaling case disappears. But governments of both nations declared years ago that they would accept the court’s jurisdiction over any dispute involving a state that had made a similar declaration.

In other words, the countries commit themselves to the international rule of law under the ICJ. But it also means countries might find themselves answering to the court about the legality of their own policies in situations where they would rather not.

A Philosophical Question

The court will decide whether Japan’s whale hunting fits into the definition of “scientific” research. If it does, then there is presumably no violation of the treaty and it is lawful. If it does not, then Japanese whale hunting is illegal. The court’s decision on the matter is final and binding on the parties, and there is no possibility of appeal.

What is “science”? To say this is a difficult question is an understatement. No one seriously expects the ICJ to settle a question that confounded Aristotle, Alhazen, Galileo, and Einstein among many others.

But the court cannot address the heart of the dispute without saying something about whether Japan is stretching the language of the treaty beyond breaking point, and that means giving an account of where science ends and commerce begins.

The two countries have been busy compiling data and evidence about the scientific payoff – or lack thereof – from Japan’s whale hunting, and much of the argument in the case will be over what counts as science and who gets to decide. Japan’s position is that the treaty leaves it up to each member to decide how to dispense permits for scientific whaling.

The Currency of Politics

The case shows the political role of the ICJ. Its formal mandate is to decide legal questions between states, but such questions are only ever brought to its attention when there is a pressing political objective behind the question. The court’s legal decision is therefore sought as part of a political strategy to advance certain state interests above others. Domestic legal theory usually takes a dim view of such politicised cases, but international law is different – because countries decide for themselves when to pursue disputes through legal channels, international legal disputes are always political disputes by proxy.

The political dispute will not and cannot be resolved by the conclusion of this case. The court’s judgement will become part of the broader political discourse around the issue, and in so doing it will join with arguments that are cast in very different terms, including on the sustainability of Japanese subsidies for its whaling fleet and the safety of whale meat for human consumption.

The weight of the legal reasoning may well have a significant impact on the politics of whaling. The ICJ talks in the language of law but it trades in the currency of politics.

- Ian Hurd is an associate professor of political science at Northwestern University.