Scientific research on whales

Written question from Terje Aasland (A) to the Minister of Fisheries and Coastal Affairs

Document number: 15:1488 (2012-2013)

Delivered: 14 June 2013

Sent: 14 June 2013

Answered: 20 June 2013 by the Minister of Fisheries and Coastal Affairs, Lisbeth Berg-Hansen

 

Question

Terje Aasland (A): I am aware that Australia has instituted proceedings against Japan regarding scientific research on whales in the Antarctic. Has Norway considered intervening before the court, and what is Norway’s view on the international legal basis for scientific research on whales?

Reasoning

Questions regarding whaling are important to Norway. In this connection I am also of the opinion that scientific research on whales is important for responsible management of whales. Australia, a known opponent to whaling, has now instituted proceedings against Japan before the International Court of Justice in The Hague concerning the taking of whales for scientific research purposes by Japan in the Southern Ocean and contends that this research cannot be justified under the Whaling Convention. As the Science Committee of the Whaling Commission is meeting in Korea these days and as the proceedings in The Hague start later this month, it is important to be clear on this issue.

Answer

Lisbeth Berg-Hansen: I agree with the member of the Storting about the importance of whaling and scientific research on whales in order to ensure responsible management of marine resources. I am aware that Australia has instituted proceedings before the International Court of Justice in The Hague against the government of Japan. The case concerns the Japanese scientific research programme known as JARPA II, which entails the taking of a certain number of whales in the Southern Ocean. Australia contends that this is in breach of the International Convention for the Regulation of Whaling, done at Washington on 2 December 1946 (1946 Convention). New Zealand has a similar claim and has recently been authorized by the Court to intervene in the proceedings.

Together with the Foreign Minister I have therefore considered whether Norway should file a declaration of intervention before the Court. On the basis of an international law assessment made by the Legal Department of the Ministry of Foreign Affairs, we have however concluded that this would not be necessary. Without having any basis for taking a position on any of the concrete issues that are going to be considered by the Court, I will in the following simply indicate some of the key elements in the assessment:

The taking of whales for scientific purposes is expressly regulated in Article VIII of the 1946 Convention. This provision makes it clear that any State party may take whales for purposes of scientific research “notwithstanding anything contained in this Convention”.  The number of whales to be taken and other modalities are to be decided by the State concerned “as the Contracting Government thinks fit”. The taking of whales in accordance with the provisions of this Article “shall be exempt from the operation of this Convention”.

The terms of Article VIII are unambiguous. The decision-making powers in this matter rest with the State party concerned. As opposed to other mechanisms under the 1946 Convention, the taking of whales for scientific purposes is therefore not the object of multilateral decision-making in the International Whaling Commission or other Convention organs.

The State Party concerned retains a very broad margin of appreciation ( deciding such restrictions as the State “thinks fit”).The discretion to be exercised is not qualified by references to criteria of “necessity”, “proportionality” or other similar requirements. It is the State party that has to assess and decide upon which modalities would be appropriate or suitable in order to promote the scientific purposes concerned. As long as the activity is in accordance with Article VIII, it does not fall under any other regulatory mechanism of the Convention.

The decision-making powers regarding the taking of whales for scientific purposes rest with the State party concerned and not with any organ under the 1946 Convention. This is not the same as leaving the issue unregulated. The State concerned has to issue the appropriate regulations, within its own domestic legal system while acting in good faith in the application of Article VIII. The State party concerned will also have to take into account any advice provided by the Scientific Committee under Article VI -  such advice, however, being recommendations, as opposed to decisions or injunctions.

It is reasonable to assume that the requirement of interpretation in good faith of a treaty also applies to Article VIII of the 1946 Convention. Both the International Court of Justice and the Permanent Court of Arbitration have in previous cases provided guidance as to the interpretation of such requirements. For instance, it has been confirmed that “bad faith” may not be presumed – and this entails that the party alleging “bad faith” would have the burden of proof in this regard.

Article VIII refers to “purposes of scientific research” in the plural form. This points to potentially broad and varied scientific aims. It is, for instance, reasonable to assume that such research may be directed at gathering data that may lead to increased knowledge not only of a particular whale species or several species, but also be geared towards the identification of trends in one or several ecosystems that may impact whale species. It is, moreover, reasonable to infer that the reference also allows for data gathering that may contribute to detecting long term developments that may have a bearing on future possibilities of sustainable management of a species. Based on a consideration of the terms of the provision in their context, Article VIII highlights the intrinsic value of continuity in scientific data collection, as well as the premise that catches stemming from scientific research have subsequently to be sold. Continued gathering of scientific data may also prove to be relevant in the context of the moratorium on commercial whaling (against which Norway has entered a reservation), due to such moratorium essentially being a temporary suspension pending further decision as to future management.

The object and purpose of the 1946 Convention are clearly set out in several of its provisions. There is a continuous emphasis not only on conservation, but also on optimum utilization of whale resources.

The 1982 United Nations Convention on the Law of the Sea not only refers to conservation, but expressly also “exploitation”, “management” and “study” of marine mammals in its Articles 65 and 120, which are applicable respectively in the exclusive economic zone and on the high seas. Therefore, the 1982 Convention does not lead to any different interpretation of the 1946 Convention. It is rather the contrary.  It confirms the continuing validity of the object and purpose of the 1946 Convention.

Subsequent practice of the State parties which establishes their agreement regarding the interpretation, shall be taken into account in the interpretation of the treaty.  Such agreement can, however, not be inferred from mere majority voting of convention organs. The International Whaling Commission does not have implied powers that would allow it to redefine the terms of the 1946 Convention or its purposes. This implies that the objectives and purposes of the 1946 Convention relating to conservation and sustainable use of whale resources cannot be amended by, for instance, a decision on a moratorium taken by the International Whaling Commission.

The above elements in the assessment are based on the principles of interpretation of treaties in customary international law, as reflected in Articles 31-33 of the 1969 Vienna Convention on the Law of Treaties. The general rule of interpretation of treaties applies also to conventions on conservation and responsible management of marine living resources, such as the 1946 Convention. This requires grounding the interpretation of the treaty on a reading in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of the object and purpose of the treaty (based on the authentic text of the Treaty, which in this case is English).

We do not find any reason to doubt that the International Court of Justice will interpret the provisions concerning scientific research in the 1946 Convention in the light of widely recognized principles of interpretation of treaties. We are also confident that the Court will consider the relevant legal questions in an objective manner, irrespective of the often politically or emotionally charged contexts surrounding discussions related to whaling.