Article VIII of the International Convention for the Regulation of Whaling imposes duties on the nations of the Convention with respect to the issuance of special whaling permits "for purposes of scientific research." Japan issued a series of such special permits under the "Japanese Whale Research Programme under Special Permit in the Antarctic" (JARPA II). Australia alleged and presented evidence to the effect that Japan was issuing permits for commercial purposes under the pretext of research, thereby violating the zero catch limits of the Convention. Australia also alleged that Japan was also violating international environmental convention by failing to take appropriate step to assure that in its failure to ensure that the whaling activities not cause damage to the environment of other states or areas.
1. The International Court of Justice had jurisdiction to resolve this dispute because both parties had consented to compulsory jurisdiction under the Court's Statute and because it involved a treaty, the Convention for the Regulation of Whaling. Do you think that Japan anticipated that a third party like the Court would enforce the Convention in this way when it entered into the Convention? Do you think that Whaling in the Antarctic (Australia v. Japan) will discourage countries from entering into such treaties?
2. The Court noted that Japanese authorities had engaged in "scant analysis and justification for the underlying decisions" and this was very important in the Court's decision that the JARPA II program was not really "for research purposes." What if Japan had prepared a better "paper trail" with lengthy analyses, but the same result? Would they have won? What if there had been analysis, but the Court determined that the analysis was wrong?
3. The Court never explicitly accused Japan's program as being conducted as a cover for continued whale hunting. Do you think that's what the substantive decision means? Can Japan avoid this problem by withdrawing from the Convention? What would prevent Japan from withdrawing?