NOTE ON THE INTERNATIONAL WHALING CONVENTION (1946)

1. 
   What is the coverage of the IWC? Does it concern all cetaceans (some 80 species) or just 13 species of "great" whales? Does it concern especially endangered species?
   
2. 
   What is the objective of the IWC? Is the objective preservation of cetaceans or to ensure their future economic exploitation?
   
3. 
   How are decisions taken by the International Whaling Commission? See Article III.
   
4. 
   Can state-parties be bound by decisions of the Commission against their will? See Article V.
   
5. 
   Article VIII concerns "research" whaling. Is research whaling defined? What is research whaling?
   
6. 
   How are disputes relating to whaling settled under the Convention?
   
7. 
   Two states engage in commercial whaling within their EEZs: Norway and Iceland. Only Japan carries out extensive "research" whaling under Article VIII. Why do you think Japan characterizes its whaling as "research" whaling? Whale products are commonly sold commercially in Japan.
   
8. 
   The United States and many other nations have singled out Japan for criticism over its whaling activities. Under the US Marine Mammal Protection Act⁴³, the United States prohibits not only the taking of whales within its EEZ, but also prohibits the importation of marine mammals and marine mammal products into the United States. Under the US Endangered Species Act, the United States prohibits imports of products derived from whales that are on the endangered species list.⁴⁴ The United States has also announced that it will not enter into any Governing International Fishing Agreement (GIFA) with Japan. Since a GIFA is a prerequisite for fishing in the US EEZ, this action effectively bars Japanese vessels from fishing in US waters. However, Japan has already been barred from fishing in US waters by the action of US fisheries councils and has not sought to fish in US waters since 1988.⁴⁵ Under the Pelly Amendment of 1971, 22 USC sec. 1978, if the Secretary of Commerce certifies to the President that nationals of a foreign state are diminishing the effectiveness of an international fishery conservation program, the President has discretion to ban the importation of fishery products from that state. The Pelly Amendment was invoked against Japan by the Department of Commerce in 2000, but President Clinton declined to invoke trade sanctions.⁴⁶
   
9. 
   Japan's whaling activities in the southern ocean have generated particular controversy as is evident in the following case:
   

___ F.3d ____

KOZINSK, Chief Judge:

You don't need a peg leg o r an eye patch. When you ram ships; hurl glass containers of acid; drag meta l-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high –powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Plaintiffs - Appellants (collectively, "Cetacean") are Japanese researchers who hunt whales in the Southern Ocean. The United States, Japan and many other nations are signatories to the International Convention for the Regulation of Whaling art. VIII, Dec, 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74, which authorizes whale hunting when conducted in compliance with a research perm it issued by a signatory. Cetacean has such a permit from Japan. Nonetheless, it has been hounded on the high seas for years by a group calling itself Sea Shepherd Conservation Society and its eccentric founder, Paul Watson (collectively "Sea Shepherd"). Sea Shepherd's tactics include all of those listed in the previous paragraph.

Cetacean sued under the Alien Tort Statute, 2 8 U. S.C. § 1350, for injunctive and declaratory relief. The statute provides a cause of action for "a tort . . . committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. Cetacean argues that Sea Shepherd's acts amount to piracy and violate international agreements regulating conduct on the high seas. The district court denied Cetacean's request for a preliminary injunction and dismissed its piracy claims. We have jurisdiction over the order denying the injunction pursuant to 28 U. S.C. § 1292 (a). We also have jurisdiction to review the dismissal of the piracy claims because the district court's reasoning for dismissing them is "inextricably intertwined with" its reasons for denying the preliminary injunction. Smith v. Arthur Andersen LLP, 421 F.3d 989, 998 (9th Cir. 2005) (internal quotation marks omitted).

"[The definition of piracy under the law of nations . . . [is] spelled out in the UNCLOS, as well as the High Seas Convention," which provide almost identical definitions. United States v. Dire, 680 F. 3d 446, 469 (4th Cir. 2012) ; see United Nations Convention on the Law of the Sea ("UNCLOS") , art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397; Convention on the High Seas, art. 15, Apr. 29, 1958 , 13 U S.T. 2312 , 450 U. N.T.S. 82. The UNCLOS defines "piracy" as ''illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship . . . and directed . . . on the high seas, against another ship . . . or against persons or property on board such ship." UNCLOS art. 101 emphasis added); see also Convention on the High Seas art. 15.

The district court's analysis turns on an erroneous interpretation o f "private ends" and "violence." The district court construed "private ends" as limited to those pursued for "financial enrichment." But the common understanding of "private" is far broader. The term is normally used as an antonym to "public" (e. g . , private attorney general) and often refers to matters of a personal nature that are not necessarily connected to finance (e . g . , private property, private entrance, private understanding and invasion of privacy). See Webster' s New Int' l Dictionary 1969 (2 d . ed. 1939) (defining "private" to mean "[b]elonging to , or concerning, an individual person , company, or interest").
We give words their ordinary meaning unless the context requires otherwise. The context here is provided by the rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state. See Douglas Guilfoyle, Piracy Off Somalia : UN Security Council Resolution 1816 and IMO Regional Counter Piracy Efforts, 57 Int'l & Comp . L.Q. 690, 693 (2008) (discussing the High Seas Convention); Michael Bahar, Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti- Piracy Operations, 40 V and J. Transnat'l L. 1, ,32 (2007); see also Harmony v. United States, 43 U.S. (2 How.) 210, 232 (1844) ("The law looks to [piracy] as an act of hostility . . . being committed by a vessel not commissioned and engaged in lawful warfare.") . Belgian courts, perhaps the only ones to have previously considered the issue, have held that environmental activism qualifies as a private end. See Cour de Cassation [Cass.] [Court of Cassation] Castle John v. N V Mabeco, Dec. 19 , 1986 , 77 I. L .R . 537 (Belg.). This interpretation is "entitled to considerable weigh t." Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010) ( internal quotation marks omitted) . We conclude that "private ends" include those pursued on personal, moral or philosophical grounds, such as Sea Shepherd's professed environmental goals. That the perpetrators believe themselves to be serving the public good does not render their ends public. The district court's interpretation of "violence" was equally off-base. Citing no precedent, it held that Sea Shepherd's conduct is not violent because it targets ships and equipment rather than people. This runs a foul of the UNCLOS itself, which prohibits "violence . . . against another ship" and "violence . . . against persons or property. "UNCLOS art. 101. Reading "violence" as extending to malicious acts against inanimate objects also comports with the commonsense understanding of the term, see Webster's New Int’ l Dictionary 2846, as when a man violently pounds a table with his fist. Ramming ships, fouling propellers and hurling fiery and acid-filled projectiles easily qualify as violent activities, even if they could somehow be directed only at inanimate objects.

Regardless, Sea Shepherd's acts fit even the district court's constricted definition. The projectiles directly endanger Cetacean's crew, as the district court itself recognized. And damaging Cetacean's ships could cause them to sink or become stranded in glacier- filled, Antarctic waters, jeopardizing the safety of the crew.

The activities that Cetacean alleges Sea Shepherd has engaged in are clear instances of violent acts for private ends, the very embodiment of piracy. The district court erred in dismissing Cetacean's piracy claims.

II. PRELIMINARY INJUNCTION

"A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Natural Res. D ef. Council Inc ., 555 U.S. 7, 20 (2 008). We review the district court's denial of the preliminary injunction for abuse of discretion. Harris v. Bd. of Supervisors, L.A. Cnty., 366 F. 3d 754, 760 (9th Cir. 2004). "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment o f the evidence."

Cetacean sought its injunction pursuant to three international agreements: the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ("S UA Convention"), art. 3, Mar. 10,1988, S. Treaty Doc. No. 101 - 1 , 1678 U.N.T.S. 222, the UNCLOS and the Convention on the International Regulations for Preventing Collisions at Sea ("COLREGS"), Oct. 20, 1972, 28 U.S.T. 3459, 1050 U.N.T.S. 18.

The SUA Convention prohibits acts that endanger, or attempt to endanger, the safe navigation of a ship. SUA Convention art. 3. Cetacean presented uncontradicted evidence that Sea Shepherd's tactics could seriously impair its ability to navigate. The district court nonetheless concluded that, since Sea Shepherd has not yet disabled any of Cetacean's ships, it's unlikely it would succeed in the future. This was clear error. The district court overlooked the actual language of the Convention, which prohibits 'endanger[ing]" safe navigation. Id. This requires only that Sea Shepherd create dangerous conditions, regardless of whether the harmful consequences ever come about. As to whether Sea Shepherd's tactics actually are dangerous, the record disc loses that it has rammed and sunk several other whaling vessels in the past.

The district court also erred by failing to recognize that Sea Shepherd, at the very least, attempted to endanger the navigation of Cetacean's ships. An attempt is sufficient to invoke the SUA Convention, even if unsuccessful. Sea Shepherd's repeated claims that its efforts are merely "symbolic" and "employed so as to ensure maximum safety" are disingenuous. How else can it explain that it has switched to metal-reinforced prop- fouling ropes? Reinforced ropes carry the same symbolic meaning as normal ropes, but they are far more destructive. Nor does symbolism require Sea Shepherd to bring its ships dangerously close to Cetacean's. The district court's conclusion that Cetacean wasn't likely to succeed on its SUA Convention claims rested on an implausible determination of the facts and an erroneous application of law; it was an abuse of discretion.

2. The UNCLOS

F or the reasons explained above, Part I, supra, the district court erred in its assessment of Cetacean's UNC LO S piracy claims, and consequently abused its discretion in assessing the likelihood of success on these claims.

The district court did find that Cetacean is likely to succeed on the merits of its claims under the COLREGS. The COLREGS state obligatory and universal norms for navigating ships so as to avoid collision. Crowley Marine Services, Inc. v. Maritrans, Inc., 530 F. 3d 1169, 1172-73 ( 9th Cir. 2008). Sea Shepherd deliberately navigates its ships dangerously close to Cetacean's ships. The district court's finding that this is likely a violation of the COLREGS is adequately supported by the record.

The district court determined that injury is possible, but not likely," even though it found that the projectiles Sea Shepherd launches at Cetacean's ships "are an obvious hazard to anyone who [sic] they might hit" and that Sea Shepherd navigates its ships ''in such a way that a collision is highly likely. "Sea Shepherd itself adorns the hulls of its ships with the names and national flags of the numerous whaling vessels it has rammed and sunk. See Appendix. The district court's observation that Cetacean hasn't yet suffered these injuries is beside the point. Cetacean's uncontradicted evidence is that Sea Shepherd's tactics could immobilize Cetacean's ships in treacherous Antarctic waters, and this is confirmed by common sense: A dangerous act, if committed often enough, will inevitably lead to harm, which could easily be irreparable.

C. BALANC E OF EQUITIES

The district court correctly found that the balance of equities favors Cetacean. As it noted, "[a]bsent an injunction, the whalers will continue to be the victims of Sea Shepherd's harassment," but "Sea Shepherd . . . points to no hardship that it will suffer if the court imposes an injunction ."

"The public interest inquiry primarily addresses impact on non-parties rather than parties. "Bernhardt v. L.A. Cnty., 339 F. 3d 920, 931(9th Cir. 2003) ( internal quotation marks omitted). This is particularly the case where "the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009). The primary public interests at issue here are the health of the marine ecosystem, Winter, 555 U.S. at 25-2 6; see also Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1177 (9th Cir. 2006 ) , and the safety of international waterways.

Where a valid law speaks to the proper level o f deference to a particular public interest, it controls. Our laws defining the public interest in regards to whaling are the Whaling Convention Act and the Marine Mammal Protection Act, both of which permit whaling pursuant to scientific permits issued under the Whaling Convention. 16 U.S.C. § 1372; 16 U.S.C. § 916c. Cetacean's activities are covered by such a permit and thus are consistent with congressional policy as to the marine ecosystem.

Our laws also reflect a strong public interest in safe navigation on the high seas. As already discussed, Sea Shepherd's activities clearly violate the UNCLOS, the SUA Convention and the COLREGS ; as such , they are at loggerheads with the public interest of the United States and all other seafaring nations in safe navigation of the high seas.

The district court also considered the interest in keeping U.S. courts out of the international political controversy surrounding whaling. But enjoining piracy sends no message about whaling; it sends the message that we will not tolerate piracy. This is hardly a controversial view, as evidenced by a joint statement from the United States, Australia, the Netherlands and New Zealand condemning dangerous activities in the Southern Ocean. Joint Statement on Whaling and Safety at Sea from the Governments of Australia, the Netherlands, New Zealand, and the United States: Call for Responsible Behavior in the Southern Ocean Whale Sanctuary (Dec. 13, 2011), available at

http://www.state.gov/r/pa/prs/ps/2 011/1 2/ 178704. htm. Refusing the injunction sends the far more troublesome message that we condone violent vigilantism by U.S. nationals in international waters.

The district court also rejected Cetacean's claims on international comity grounds. While there is a public interest in maintaining harmonious international relations, it's not a factor here. An Australian court has entered default judgment against Cetacean, purporting to enjoin it from whaling in Antarctic coastal waters over which Australia claims sovereignty. The district court's deference to Australia's judgment in that case was an abuse o f discretion. To begin, the district court misunderstood the Australian judgment, which addressed the legality of Cetacean's activities, not Sea Shepherd's. Whatever the status of Cetacean's whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia's court orders.

Additionally, comity applies only if the foreign court has competent jurisdiction. But the United States doesn't recognize Australia's claims of sovereignty over Antarctic waters. See Note from U.S. Deputy Representative to the United Nations, to Secretary-General of the United Nations (Dec. 3, 2004); Note from Embassy of the United States, to Australian Department of Foreign Affairs and Trade (Mar. 31, 1995). By according comity to Australia's judgment, we would implicitly recognize Australia's jurisdiction, in contravention of the stated position of our government. The conduct of foreign affairs is within the exclusive province of the Executive, and we must defer to its views, see Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839); cf. Mingtai Fire Ins. Co. v. United Parcel Serv., 177 F. 3d 1142 1147(9th Cir. 1999).

An injunction is an equitable remedy. Winter, 555 U.S. at 32. While the Winter factors "are pertinent in assessing the propriety of any injunctive relief," id., traditional equitable considerations such as laches, duress and unclean hands may militate against issuing an injunction that otherwise meets Winter's requirements. Here, however, the district court abused its discretion in denying the injunction based on unclean hands.

The district court held that Cetacean's hands are unclean because, " [i] n flouting the Australian injunction, the whalers demonstrate their disrespect for a judgment of a domestic court." Because neither the United States nor Japan recognizes Australia's jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order. Moreover, the unclean hands doctrine requires that the plaintiff have "dirtied [his hands] in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant." Republic Molding Corp. v. B. W. Photo Utils., 319 F. 2d 347, 349 (9th Cir. I963) . Cetacean has done nothing to acquire the rights to safe navigation and protection from pirate attacks; they flow automatically from customary international law and treaties. Nor is there anything remotely inequitable in seeking to navigate the sea lanes without interference from pirates.

* * *

The undersigned being July authorized by the Government of Australia:

1. 
   On behalf of the Government of Australia and pursuant to Article 36, paragraphs 1 and 2 and Article 40 of the Statute of the Court and Article 38 of the Rules of Court, I have the honour to submit to the Court the present Application instituting proceedings against the Government of Japan .
   
2. 
   The present Application concerns Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic ("JARPA II"), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling ("ICRW"), as well as its other international obligations for the preservation of marine mammals and the marine environment.
   
3. 
   Australia has consistently opposed Japan's JARPA II program, both through individual protests and demarches and through relevant international forums, including the International Whaling Commission ("IWC").
   

4. 
   The Court has jurisdiction over the present dispute in accordance with the provisions of Article 36, paragraph 2 of its Statute, by virtue of the operation of the declarations of acceptance made respectively by Australia, dated 22 March 2002 and by Japan, dated 9 July 2007.
   

Japan's obligations under the ICRW

5. 
   In 1982 the IWC adopted under At1icle V (1)(e) of the ICRW a "moratorium" on whaling for commercial purposes fixing the maximum catch of whales to be taken in any one season at zero. This was brought into effect by the addition of paragraph 10 (e) to the Schedule to the ICRW which provides that:
   

Japan objected to paragraph 10 (e) within the prescribed period but subsequently withdrew its objection.

6. 
   In 1994 the IWC adopted under Article V (1)(c) of the ICRW the Southern Ocean Sanctuary. This was brought into effect by the addition of paragraph 7 (b) of the Schedule to the ICRW which provides that:
   

Japan objected to paragraph 7 (h) within the prescribed period in relation to Antarctic minke whale stocks and has not subsequently withdrawn its objection.

7. 
   Under the Schedule to the ICRW, Japan is therefore obliged:
   

1. 
   by paragraph 10 (e), to refrain from killing all whale stocks for commercial purposes: and
   
2. 
   by paragraph 7 (b), to refrain from commercial whaling in the Southern Ocean Sanctuary for all whale stocks other than minke whale stocks.
   

8. 
   In accordance with Article 26 of the Vienna Convention on the Law of Treaties and with customary international law, Japan is obliged to perform those obligations in good faith.
   

9. 
   Following the introduction of the moratorium, Japan ostensibly ceased whaling for commercial purposes. But at virtually the same time Japan launched the "Japanese Whale Research Program under Special Permit in the Antarctic" ("JARPA I")⁴⁷ which it purported to justify by reference to Article VIII of the [ICRW, under which a Contracting Government may issue special permits to its nationals authorizing that national to "kill, take and treat whales for the purposes of scientific research . . ." (emphasis added).
   

10. 
    JARPA I commenced in the 1987-1988 season and continued until the 2004-2005 season. The focus of JARPA I was the killing and taking of Antarctic minke whales (Balaenoptera honuerensis) within the Southern Ocean Sanctuary. Approximately 6,800 Antarctic minke whales were killed in Antarctic waters under JARPA I. This compares with a total of 840 whales killed globally by Japan for scientific research in the 31-year period prior to the moratorium. Whale meat caught during JARPA I was taken to Japan where it was placed on commercial sale.
    

11. 
    JARPA II commenced in the 2005-2006 season with a two-year feasibility study. The full-scale JARPA II then commenced in the 2007-2008 season. Although Japan has purported to justify JARPA II by reference to the special permit provision in Article VIII of the ICRW, the scale of killing, taking and treating carried out under this program greatly outweighs any previous practice undertaken on the basis of scientific permits in the history of the IWC.
    

12. 
    The focus of JARPA II is on the killing and taking not only of Antarctic minke whales but also of fin whales (Balaenoptera physalus), humpback whales (Megaptera novaeangliae) and possibly other species within the Southern Ocean Sanctuary. During the feasibility stage of JARPA II (2005-2006/2006-2007). 1364 Antarctic minke whales and 13 fin whales were killed; 551 Antarctic minke whales were killed during the 2007-2008 season; and 680 Antarctic minke whales and one fin whale were killed during the 2008-2009 season. Media reports suggest 506 Antarctic minke whales and one fin whale were killed in the 2009-2010 season, but these data have yet to be formally reported to the IWC. Whale meat caught during JARPA II has been taken to Japan where it has been placed on commercial sale. Japan maintains an annual quota for future seasons of JARPA II of 850 ± 10 % Antarctic minke whales. 50 fin whales and 50 humpback whales. Despite this annual quota, Japan has refrained from killing humpback whales as part of the JARPA II program.
    

13. 
    In brief, the status of the whale stocks which are the principal focus of JARPA II is as follows:
    

14. 
    Minke whales. There appears to have been a substantial decrease in the abundance estimates of Antarctic minke whales. This is evident from the data collected by the two, decadal long, circumpolar surveys conducted between 1985-1986 and 2003-2004 (CPII and CPIII). The several methods that have been presented to the Scientific Committee of the IWC all suggest a substantial decrease in the abundance estimates of Antarctic minke whales during the period of the surveys. The population structure of the Antarctic minke whales remains unknown, so there is a risk of depletion of small stocks.
    

15. 
    Fin whales. Virtually nothing is known about the abundance or recovery of fin whales in the Southern Hemisphere and there is no assessment of these stocks underway by the Scientific Committee of the IWC. Following massive takings (750,000 between 1904 and 1979 in the Southern Hemisphere alone), fin whales were classified in the 1970s as protected stocks under the ICRW and have also been classified as "endangered" (at a very high risk of extinction) by the International Union for the Conservation of Nature (IUCN). Of the three species targeted by JARPA II, this is the one about which the least is known, but it is probable that they are still severely depleted relative to the pre-1904 population. There are limited indications of some recovery in population numbers in the Southern Hemisphere but no agreed population estimate exists. Also, the population structure of the Southern Hemisphere fin whales remains unknown. Accordingly, there is a risk of the depletion of small stocks.
    

17. Under Article VI of the ICRW the IWC may from time to time make recommendations to any or all parties on any matters which relate to whales or whaling and to the objectives and purposes of the ICRW which include, first and foremost, "safeguarding for future generations the great natural resources represented by the whale stocks".

18. The IWC has made numerous recommendations to Japan that it not proceed with JARPA II. It has done so against the background of earlier recommendations that special permit whaling must meet critically important research needs (1987): that it be conducted in a manner consistent with the Commission's conservation policy and ensure that the recovery of populations is not impeded (1987); that it only be permitted in exceptional circumstances (1995, 1998, 1999); that it be conducted using non-lethal techniques (1995-1999); and that it ensure the conservation of whales in sanctuaries (1995-1998).

19. In 2003 the IWC called on Japan to halt the JARPA program, or to revise it so that it is limited to non-lethal research methodologies. It recommended that no additional JARPA programs be considered until the Scientific Committee of the IWC had, amongst other things, completed an in-depth review of the results of sixteen years of JARPA, and further recommended that any such programs be limited to non-lethal research.

20. In 2005 the IWC:

"STRONGLY URGED the Government of Japan to withdraw its JARPA II proposal or to revise it so that any information needed to meet the stated objectives of the proposal is obtained using non-lethal means."

21. In 2007 the IWC:

"CALLED UPON the Government of Japan to suspend indefinitely the lethal aspects of JARPA II conducted within the Southern Ocean Whale Sanctuary."

22. Japan has refused to comply with any of these recommendations.

IWC Negotiations

23. In 2008 the IWC established a Small Working Group on the Future of the IWC, comprising 33 countries (including Australia and Japan), whose mandate included consideration of the issue of special research permits. In 2009, the IWC noted that the Small Working Group had not been able to reach its goal of agreeing a package or packages on the future of the IWC by IWC61 (2009). The IWC agreed "to intensify its efforts to conclude a package or packages by IWC62 (2010) at the latest", reconstituted the Small Working Group for a further year and formed a core Support group of 12 key countries (including Australia and Japan) to assist the Chair of the IWC in discussions on the Future of the IWC and to prepare material for submission to the Small Working Group, on the firm understanding that "nothing is agreed until everything is agreed".

24. The first product of Support Group negotiations, the draft "Consensus Decision to Improve the Conservation of Whales", was presented as an incomplete draft to the meeting of the Small Working Group in March 2010 under cover of the Chair's Report to the Small Working Group on the Future of the IWC.

25. The draft Consensus Decision addressed the taking of whales allegedly pursuant to Article VIII in the following terms:

"The Commission will continue to address the different views that exist amongst the members on key issues regarding whales and whaling; including research by special permit...Proposals will be developed to address these issues for consideration during the initial five years of the arrangement."

26. In March 2010, Australia tabled a proposal in the small Working Group which, in addressing its concerns with the draft Consensus Decision, identified as one of its four major priorities that:

"Australia needs to see an immediate end to unilateral so-called "scientific" whaling purportedly conducted under Article VIII of the ICRW. From the outset, Australia has been clear that we consider any new approach must include an agreement to bring an immediate end to this form of whaling and must put in place a mechanism and timetable to address the reform of Article VIII of the ICRW to permanently end this practice."

27. The Support Group was unable to reach consensus on the draft Consensus Decision. On 22 April 2010 the IWC Chair and Vice-Chair produced a "compromise text" for consideration by member Governments at IWC62 in June 2010, emphasizing that the proposed "Consensus Decision" it contained "does not represent an agreed approach of the Support Group or the SWG".

28. Under that proposal, whaling by special permit would be suspended for ten years and a Working Group would be established to continue to examine a number of issues, including research conducted by special permit. It would report omits progress to the Commission by 2013.

29. While Japan indicated a willingness to negotiate on the numbers and species targeted by its programs in the context of a negotiated package, it continued to reiterate the "scientific" justification for JARPA II and it purported legality under international law. It has become clear that current and proposed IWC processes cannot resolve the key legal issue that is the subject of the dispute between Australia and Japan, namely the legality of large-scale "special permit" whaling under JARPA II.

Refusal of Japan to Comply with other Bilateral and Multilateral Requests

30. Australia has consistently raised, both within and outside the IWC, its concerns over the JARPA II program, asking Japan on several occasions to withdraw or substantially revise it.

31. On 21 December 2007, Australia together with 29 other countries and the European commission sent an Aide Memoire to the Government of Japan to inform Japan of its "strong objection to the resumption of the second Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II)..." The Aide Memoire (reproduced at Annex 1) concluded by urging "Japan to join the international community and cease all its lethal scientific research on whales and assure the immediate return of the vessels which are implementing JARPA II".

32. Japan responded that it was fully aware of the strong reaction of the international community to its scientific whaling program and in particular it’s proposed take of humpback whales. Japan states that the purpose of the program was to undertake research on the appropriate means of managing whaling and was in line with the relevant international conventions. Japan indicated that, while it would not change its research program, it would postpone its plans to hunt humpback whales as long as the process of "normalization" in the IWC proceeded.

33. Australia has appointed a Special Envoy on Whale conservation whose role is to engage with Japan, as well as other important IWWC partners, with a view to progressing Australia's position on Japan's special permit whaling programs. Discussions held by the Special Envoy with the Government of Japan have not resulted in any substantial modification or termination of the whaling program. Indeed Japan continues to reiterate the "scientific" justification for the JARPA II and its legitimacy under international law.

34. The focus of the present dispute is the conduct of Japan in proposing and implementing the JARPA II "scientific whaling" program in the Southern Ocean as described above. But it is relevant to note that Japan is also conducting, since 2000, a similar northern hemisphere program ("JARPN II"), which presents analogous issues. Australia considers that the JARPN II also breaches Japan's international obligations.

Obligations Breached by Japan

35. In proposing and implementing JARPA II, Japan has breached and is continuing to breach its international obligations.

36. In particular, Japan has breached and is continuing to breach the following obligations under the ICRW:

(a) the obligation under paragraph 10 (e) of the Schedule to the ICRW to observe in good faith the zero catch limit in relation to the killing of whales for commercial purposes; and

(b) the obligation under paragraph 7 (b) of the Schedule to the ICRW to act in good faith to refrain from undertaking commercial whaling of humpback and fin whales in the Southern Ocean Sanctuary.

37. Moreover, having regard to the scale of the JARPA II program, to the lack of any demonstrated relevance for the conservation and management of whale stocks, and to the risks presented to targeted species and stocks, the JARPA II program cannot be justified under Article VIII of the ICRW.

38. Further, Japan has breached and is continuing to breach, inter alia, the following obligations:

(a) under the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES")⁴⁸, the Fundamental Principles contained in Article II in relation to "introduction from the sea" of an Annex I listed specimen other than in "exceptional circumstances", and the conditions in Article III (5) in relation to the proposed taking of humpback whales under JARPA II; and

(b) under the Convention on Biological Diversity, the obligations to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction (Article 3), to co-operate with other Contracting Parties, whether directly or through a competent international organization (Article 5), and to adopt measures to avoid or minimize adverse impacts on biological diversity (Article 10 (h)).

39. These provisions are to be interpreted and applied in the light of each other, and of Japan's obligations under customary international law.

Remedies Sought By Australia

40. For these reasons, and reserving the right to supplement, amplify or amend the present Application, Australia requests the Court to adjudge and declare that Japan is in breach of its international obligations in implementing the JARPA II program in the Southern Ocean.

41. In addition, Australia requests the Court to order that Japan:

(a) cease implementation of JARPA II;

(b) revoke any authorizations, permits or licenses allowing the activities which are the subject of this application to be undertaken; and

(c) provide assurances and guarantees that it will not take any further action under the JARPA II or any similar program until such program has been brought into conformity with its obligations under international law.

NOTES AND QUESTIONS

Consider the allegations in Australia's Application to the ICJ. What result? For analysis, see Donald K. Anton, Dispute Concerning Japan's JARPA II Program of "Scientific Whaling" (Australia v. Japan) ASIL Insight, July 3, 2010, Volume 14, Issue 20, available at http://www.asil.org/insight.

1. Does the ICJ have jurisdiction over this dispute? Both Australia and Japan have accepted the "compulsory" jurisdiction of the ICJ under the "optional clause" of the Statute of the International Court of Justice, Art. 36 (2).

AUSTRALIA
22 March 2002

The Government of Australia declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing this declaration. This declaration is effective immediately.

This declaration does not apply to:

(a) any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement;

(b) any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, 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;

(c) any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the Court only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited less than 12 months prior to the filing of the application bringing the dispute before the Court.

DONE at Canberra this 21st day of March, two thousand and two.

(Signed) Alexander John Gosse Downer,

Minister for Foreign Affairs of Australia

JAPAN

"I have the honour, by direction of the Minister for Foreign Affairs, to declare on behalf of the Government of Japan that, in conformity with paragraph 2 of Article 36 of the Statute of the International Court of Justice, Japan recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation and on condition of reciprocity, the jurisdiction of the International Court of Justice, over all disputes arising on and after 15 September 1958 with regard to situations or facts subsequent to the same date and being not settled by other means of peaceful settlement.

This declaration does not apply to disputes which the parties thereto have agreed or shall agree to refer for final and binding decision to arbitration or Judicial settlement.

This declaration does not apply to any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court.

This declaration shall remain in force for a period of five years and thereafter until it may be terminated by a written notice."

New York, 9 July 2007

(Signed) Kenzo Oshima

Permanent Representative of Japan to the United Nations

Note that, although Australia has proclaimed an EEZ around its claimed territory in Antarctica⁴⁹, Australia's Application to the ICJ does not allege that Japan has violated its national fishing or conservation regulations. Australia's claim to an Antarctic EEZ is very controversial and is disputed by many countries. Under the Antarctic Treaty of 1959, the continent of Antarctica is open to all for observation and scientific research (Article VII). Article IV (1) of the Antarctic Treaty provides, however, that "Nothing [in this] treaty shall be interpreted as ... a renunciation ... of ... a claim to sovereignty'' over any portion of Antarctica. However, Article IV(2) of this treaty forbids any enlargement of an existing claim. Thus, the Antarctic Treaty is ambiguous about the existence of an EEZ. The concept of a 200 mile EEZ was not accepted in international law in 1959, so it can be argued that Australia's claim is an enlargement of its sovereignty claim. Australia's entitlement to an Antarctic EEZ is accepted in Australian domestic law, and Australia's declaration of a whale sanctuary within its claimed EEZ in implementation of the IWC's Proclamation of a Southern Ocean Whale Sanctuary is accepted by Australian courts. In 2008, the Federal Court of Australia issued declaratory relief and an injunction against Kyodo Senpaku Kaisha Ltd, a Japanese whaling company operating in the Southern Ocean within the claimed Australian EEZ. See Humane Society International Inc. v. Kyodo Senpaku Kaisha Ltd., [2008] FCA 3 (15 Jan. 2008). The result in this case is both praised and criticized. Compare Donald K. Anton, False Sanctuary: the Australian Antarctic Whale Sanctuary and Long-Term Stability in Antarctica, Cornell Law School Berger International Speaker Papers (9-19-2008); and Chris McGrath, Australia can lawfully stop whaling within its Antarctic EEZ, EDO NSW Seminar, Sydney, 21 February 2008.

Australia did not invoke the Antarctic Treaty for dispute settlement since the relevant provision, Article XI does not provide for compulsory jurisdiction. And of course the International Whaling Convention itself does not have any provision for dispute settlement.

2. 
   Read carefully the provisions of the International Convention on the Regulation of Whaling (ICRW), which is reprinted in the Documentary Supplement. Now read the allegations contained in paragraphs 5, 6, 7 and 8 of Australia's Application. Are these allegations common ground, or will Japan dispute these allegations? Consider Australia's use of the terms "ostensibly" and "purported" in these allegations.
   
3. 
   The Conduct of Japan. The allegations in paragraphs 9 to 16 are primarily factual assertions. Under the ICJ's Rules of Court (1978), parties may attach to their pleadings certified copies of documents in support of their allegations. (Art. SO). Parties may also introduce evidence through witnesses and experts. (Art. 57). The Court may ask the parties to provide additional evidence or explanations. (Arts. 62 and 67). The Court may also request information from any "public international organization." (Art . 69). The ICJ may want to ask the IWC or outside experts for information dealing with paragraphs 14, 15, and 16 of the Application.
   
4. 
   The JWC recommendations and negotiations with Japan. Paragraphs 17 to 34 detail the history of recommendations and negotiations with Japan.
   
5. 
   Breaches of obligations by Japan. Australia alleges two breaches of specific obligations contained in the Schedule to the ICRW. The crux of the dispute between Australia and Japan is that Japan is conducting commercial whaling under the guise of research whaling. Why did Australia not allege a violation of ICRW Article VIII? Australia alleges only that the JARPA II program "cannot be justified under Article VIII." In light of the importance of this allegation, should Australia have provided more details as to why Article VIII is insufficient to justify Japan's conduct.
   
6. 
   Abuse of rights. UNCLOS Article 300 prohibits "abuse of rights" and requires good faith. Why did Australia not allege an abuse of rights? The prohibition against abuse of rights is also a norm under customary international law. See Michael Byers, Abuse of Rights: An Old Principle, A New Age, 47 McGill L. J. 389, 427-429 (2002); Gillian Triggs, Japanese Scientific Whaling: An Abuse of Right or Optimum Utilization? 5 Asian-Pacific J. Envt'l L. 33 (2002). How will this issue be decided? Will the outcome of the case turn on the evidence adduced by the parties as to the nature of scientific research with respect to whales? Is the matter of scientific research to be judged by objective criteria or is this matter up to the subjective determination of each individual party to the ICRW?
   
7. 
   Convention on International Trade in Endangered Species {CITES). Minke, Fin and Humpback whales are listed in Appendix I of CITES. Article 11(1) of CITES states that trade in an Appendix I endangered species "must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances." Article III(5) of CITES states that the "introduction from the sea" of an Appendix I species may only be done with a Certificate from an appropriate scientific authority that certifies that three conditions have been met: (1) the action will not be detrimental to the survival of the species; (2) the recipient of the specimen is equipped to house and care for the specimen; and (3) the specimen will not be used for commercial purposes. Are these provisions applicable to the JARPA II program?
   
8. 
   The Convention on Biological Diversity. Both of the obligations cited in the Australia Application are qualified by the phrase: "as far as possible and appropriate". Are these soft law obligations enforceable?
   

2. 
   Remedies. How do you evaluate the remedies asked by Australia? If the suit is successful, will whaling be ended in the Southern Ocean?
   

2. 
   Amendment of the ICRW. How do you evaluate the ICRW as a legal instrument? What amendments would you suggest? A dispute resolution procedure? A compliance procedure? Should enforcement of the Convention be left to the individual parties or be within the remit of the IWC?
   

The marine ecosystems of the world are rich and varied. The United Nations Environment Programme⁵⁰ has identified 64 Large Marine Ecosystems (LME) adjacent to continental areas that are rich in biological productivity and biodiversity. These ecosystems produce about 95% of the world's annual marine fisheries catch and contribute an estimated $12.6 trillion in goods and services annually to the world's economy. LMEs have distinct bottom topography, oceanographic features such as currents or water circulation, biological productivity, and biodiversity, and are usually areas encompassing 200 000 square kilometers or more. Within each of these large ecosystems are hundreds of diverse types of additional ecosystems, each with its own distinctive hydrography, oceanography, and trophic relationships. All of these ecosystems are vulnerable to degradation through human activities, such as fishing down food webs, pollution, offshore resource exploitation, and shipping activities. In recent years there is a growing movement to take concrete steps to preserve sensitive marine ecosystems from degradation.

Many policy instruments call for ecosystem-based action to protect marine areas from degradation.

• 
  UNCLOS Article 194, para. 5 provides that measure to protect the marine environment” shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life."
  
• 
  Agenda 21, the Action Programme adopted in Rio de Janeiro by the United Nations Conference on Environment and Development in 1992, provides that "States should identify marine ecosystems exhibiting high levels of biodiversity and productivity and other critical habitat areas and provide necessary limitations on use in these areas, through ... the designation of protected areas." (para. 17.86).
  
• 
  The Plan of Implementation of the World Summit on Sustainable Development (Johannesburg, 2002) confirmed the need for "the establishment of marine protected areas consistent with international law." (para. 32, c).
  
• 
  The UN Food and Agriculture Organization International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2008) call for conservation management measures to achieve long-term conservation and sustainable use of deep-sea fish stocks that ensure adequate protection for marine ecosystems. (para. 70).
  
• 
  The 2010 Conference of the Parties to the United Nations Convention on Biological Diversity adopted a recommendation that encourages parties to establish marine protected areas for conservation and management of biodiversity. (Decision X/31).
  

• 
  The United Nations General Assembly adopted in 2010 Resolution 65/37 on "Oceans and the Law of the Sea" stressing the need for states to "intensify their effort" to conserve vulnerable marine ecosystems.
  

State A, an island state with a large territorial sea and exclusive economic zone, is active in assuring the protection of marine ecosystems within its jurisdiction. The legislature of State A has passed a Marine Sanctuaries Act under which defined areas of the ocean located in its territorial sea or EEZ may be formally designated as qualifying to be one of the following categories:

• 
  A Marine Managed Area (MMA). A MMA is a named, discrete geographic marine or estuarine area designated by law and intended to protect, conserve, or otherwise manage a variety of resources and their uses.
  
• 
  A Marine Reserve (MR). A MR is a discrete marine or estuarine area that is designated so the managing agency can achieve one or more of the following:
  

1. 
   Protect or restore rare, threatened, or endangered native plants, animals or habitats in marine areas;
   
2. 
   Protect or restore outstanding, representative, or imperiled marine species, communities, habitats and ecosystems;
   
3. 
   Protect or restore diverse gene pools; or
   
4. 
   Contribute to the understanding and management or marine resources and ecosystems by providing the opportunity for scientific research in outstanding marine habitats or ecosystems.
   

• 
  A Marine Park (MP). A MP is a designated marine or estuarine area that possesses unique or distinctive characteristics and opportunities for spiritual, scientific, educational and recreational opportunities.
  
• 
  A Marine Protected Area (MP). An MP is a designated marine or estuarine area that contains cultural objects of historical, archaeological and scientific interest or outstanding geological features.
  

Questions:

1. 
   State A would like to gain international recognition for the areas it has designated under its national law. What avenues are open under international law to preserve and protect marine areas of these types?
   
2. 
   State A is concerned about marine areas beyond national jurisdiction. State A is in the forefront of adopting restrictions prohibiting its own nationals from exploiting or disrupting areas beyond national jurisdiction that have unique gene pools, ecosystems, or geological or cultural characteristics. Is there any mechanism under international la w to protect areas of the seas beyond national jurisdiction?