On 31 March 2014, the International Court of Justice (the “Court” or the “ICJ”) delivered its judgment in the case Whaling in the Antarctic (Australia v Japan, New Zealand intervening). The case represents the latest in a recent line of disputes brought before the Court related to complex issues of scientific and factual evidence. The Court held that the Second Phase of Japan’s Whale Research Program under Special Permit in the Antarctic (“JARPA II”) was not in accordance with three provisions of the Schedule to the International Convention for the Regulation of Whaling (the “ICRW” or the “Convention”). The decision adds to the jurisprudence of the Court on treaty interpretation in general, the application of the principle of proportionality and issues concerning the marshalling and presentation of complex evidence, including expert evidence.
Australia instituted proceedings against Japan on 31 May 2010 in the dispute concerning the compatibility of JARPA II with obligations assumed by Japan under the ICRW. This is the first time that Japan has appeared before the ICJ.
On 20 November 2012, New Zealand submitted a declaration of intervention to the Court, in accordance with its right to intervene as a State Party to the ICRW under the ICJ Statute. Japan expressed concern that the intervention of New Zealand might raise certain procedural issues regarding the equality of the parties to the dispute, arguing that New Zealand and Australia, as parties in the same interest, would have two judges of their nationality on the bench, namely Judge Kenneth Keith, from New Zealand, and the ad hoc judge that Australia would appoint. In its Order of 6 February 2013, the Court held that New Zealand’s declaration of intervention was admissible, finding that Australia and New Zealand could not be regarded as being ‘parties in the same interest’ (because New Zealand was not a ‘party to the proceedings’) and that, consequently, Australia could exercise its right to appoint an ad hoc judge.
The Schedule to the ICRW requires States Parties, inter alia: to respect the moratorium prohibiting the killing of whales from all stocks for commercial purposes (para. 10 (e)); not to undertake commercial whaling of fin whales in the Southern Ocean Sanctuary (para. 7 (b)); and to observe the moratorium on the taking, killing or treating of whales, except minke whales, by factory ships or whale catchers attached to factory ships (para. 10 (d)). Article VIII of the ICRW sets out an exception to the obligations of the Convention, permitting States Parties to the ICRW to “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”. This exception was the basis of Japan’s main defence in the case.
Australia argued that JARPA II was not a programme for the purposes of scientific research within the meaning of Article VIII and that Japan had breached the obligations set out in the Schedule when it authorised lethal whaling operations in the Southern Ocean. Japan argued that the prohibitions under the Schedule did not apply to JARPA II, as this was a programme undertaken for the purposes of scientific research and therefore fell within the Article VIII exemption.
Both Japan and Australia had made declarations accepting the compulsory jurisdiction of the Court. Nevertheless, in its declaration Australia excluded from the jurisdiction of the Court “any dispute concerning or relating to the delimitation of maritime zones… 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.” Japan argued that the Court did not have jurisdiction over the whaling dispute because this dispute “related to the exploitation” of a maritime zone claimed by Australia (namely, the asserted Australian Antarctic Territory) or of an area adjacent to such a zone. The Court rejected Japan’s interpretation of Australia’s reservation and held that a dispute concerning maritime delimitation between the Parties must exist for the reservation to apply, with the result that Japan’s objection to the Court’s jurisdiction could not be upheld. In interpreting Australia’s reservation, the Court referred to its previous jurisprudence regarding the emphasis to be placed on the intention of the depositing State.
In order to evaluate whether JARPA II fell within the exception provided for in Article VIII of the ICRW, as claimed by Japan, the Court first interpreted that provision and found that Article VIII was an integral part of the Convention. It observed that Article VIII had to be interpreted in light of the object and purpose of the Convention and taking into account other provisions of the Convention, including the Schedule. The Court observed that neither the preamble nor other provisions of the Convention justified either an expansive or a restrictive interpretation of Article VIII, thereby rejecting the arguments of Japan, Australia and New Zealand in that regard.
The Court then considered the relevance of resolutions of the International Whaling Commission (“IWC”), a body established under the ICRW. The IWC has the power to adopt binding amendments to the Schedule and to make recommendations. Australia argued that that IWC resolutions regarding the use of lethal methods must inform the Court’s interpretation of Article VIII because they constituted “subsequent agreement between the parties regarding the interpretation of the treaty” and “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”, within the meaning of Articles 31(3)(a) and 31(3)(b) of the Vienna Convention on the Law of Treaties (“VCLT”), respectively. Japan, on the other hand, emphasized that the relevant IWC resolutions were adopted pursuant to the power of the Commission to make recommendations and were not binding.
The Court noted that “many IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan”. It thus concluded that such recommendatory resolutions could not be regarded as establishing the agreement of the parties regarding the interpretation of Article VIII, within the meaning of Article 31(3)(a) or (b) of the VCLT. It followed that while Japan should give due regard to the IWC recommendations, it was not legally bound to use lethal methods only where no other methods were available.
Standard of Proof/Burden of Proof
Under Article VIII of the ICRW, a State may issue special permits to its nationals to kill whales for the purposes of scientific research subject to certain restrictions and conditions. Japan argued that it had discretion in determining what constitutes a scientific research programme for the purpose of Article VIII. The Court rejected this argument and held that an objective standard of review must be applied to the granting of permits under Article VIII.
Regarding the burden of proof, the Court has previously held that the applicant (i.e., Australia, in this case) must establish its case and that a party asserting a fact must establish it. However, the Court held in the Whaling case that it was up to Japan to “explain the objective basis for its determination” that JARPA II used lethal methods for the purposes of “scientific research” within the meaning of Article VIII. The determination that Japan bore the burden of proof regarding the design of JARPA II was criticized in the dissenting opinion of Judge Abraham.
The Court rejected the criteria put forward by Australia to define “scientific research”, but did not find it necessary to devise alternative criteria or offer a general definition of the term. In order to ascertain whether the use of lethal methods by JARPA II was “for purposes of” scientific research within the meaning of Article VIII, the Court undertook a means-end proportionality analysis. It considered that the relevant test was “whether the elements of a programme’s design and implementation are reasonable in relation to its stated scientific objectives”.
Taken as a whole, the Court considered that JARPA II involved activities that could broadly be characterized as scientific research, but that the evidence did not establish that the programme’s design and implementation were reasonable in relation to achieving its stated objectives. It followed that the permits granted by Japan under JARPA II were not “for purposes of scientific research” in accordance with Article VIII. Consequently, by twelve votes to four, the Court held that Japan had violated certain provisions of the Schedule to the ICRW and ordered Japan to “revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme”.
Presentation of Expert Evidence
The Whaling case is notable, among other things, in that both parties presented written and oral evidence from scientists as ‘experts’, rather than as counsel or witnesses. The use of experts in ICJ proceedings, not appearing as counsel, has historically been rare. It has traditionally been more common for technical experts to be part of the legal team representing a State, sometimes appearing as expert counsel. Importantly, unlike expert counsel, the testimony of a technical or scientific expert will be treated as evidence and the expert may be cross-examined by the other party.
The Parties’ decision in the Whaling case to submit expert testimony as such, rather than from expert counsel, forms part of a broader trend towards the increasingly professional and forensic nature of litigation before the Court. Shortly after the hearings in the Whaling case last year, the Court was due to hear further substantial expert (and fact witness) evidence in the Aerial Herbicide Spraying (Ecuador v Colombia) case.1 In part, this trend has been dictated by the complex scientific and factual nature of some of the disputes being addressed to the Court. It may also have been informed by the Court’s obiter dicta in the Pulp Mills (Argentina v Uruguay) case. In that case, both Argentina and Uruguay had submitted statements presented by experts appearing as counsel during oral proceedings. With regard to those statements, the Court noted, in an uncharacteristically blunt passage, that it:
“would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers that 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.”
Australia called two experts to give evidence at the hearings. They were examined in chief by counsel for Australia, cross-examined by counsel for Japan, and then asked questions by a number of Members of the Court. On 3 July 2013, Japan called another expert to give evidence, and he was examined in a similar fashion. Again, while such examination procedures have been commonplace in most domestic litigation and international arbitration proceedings for many years, they have historically been unusual for the Court.
The case is also of interest regarding the role of the ICJ Registry in determining whether evidence submitted complies with procedural requirements. Prior to the oral hearings, Japan submitted certain written points of technical criticism of the written expert evidence submitted by Australia. Australia objected to this submission of Japan on the basis that the author had not been previously presented as an expert or a witness by Japan, and that her criticisms amounted to new evidence, submitted only three weeks before oral proceedings, contrary to the procedures for the submission of evidence agreed upon by the Parties. Five days before the hearings commenced, the Registrar informed the Parties that the Court had decided that the material concerned “will not be treated as expert evidence but rather as any other observations of the Government of Japan.”
The Court’s Application of the Principle of Proportionality
As mentioned above, in order to determine whether JARPA II fell within the exception provided for in Article VIII ICRW, the Court examined whether the programme’s design and implementation were reasonable in relation to achieving its stated objectives. Such a means-end proportionality analysis has been used by international courts and tribunals in the context of other treaties, though the rationale underlying its application to Article VIII of the ICRW is not immediately obvious. The Court adopted this interpretative methodology to balance competing interests protected by the ICRW, perhaps influenced by cases of the World Trade Organisation cited by the Parties. In light of this approach, parties in future ICJ cases may wish to consider the impact of a proportionality-type analysis upon questions related to the performance of treaty obligations.
1. Volterra Fietta appeared in that case as counsel for Colombia. The case was settled shortly before the hearing.