The Convention for the Regulation of Whaling and the associated recent litigation before the International Court of Justice reveal a great deal about the status and power of international law in the 21st Century. Japan's infamous JARPA II whaling programme has been widely criticised as disguised commercial whaling, contrary to the international moratorium on commercial whaling. The ICJ ruled last year that the JARPA II programme was indeed unlawful because the whaling licences involved had not been granted for purposes of scientific research, as demanded by the Convention. The extensive JARPA II programme therefore shows the continued power of local cultural traditions to obstruct the demands of international law. The ICJ judgment, conversely, shows the intensity of review to which the ICJ feels willing to go in deciding whether a specific State has violated its obligations under public international law. The Court engaged in detailed, factually nuanced analysis of the nature of Japan's JARPA II programme in concluding that it was not being undertaken for scientific purposes. The litigation is also testament to the determination of governments and NGOs to ensure the rules of public international law are enforced. Nonetheless, however audible the aims of the ICJ, there may be grounds to conclude that its interpretation of the Convention was legally flawed and amounted to an improper expansion of the investigative power of international juristic bodies. Amendment of the Convention expressly to allow such review may be a more juridically satisfactory solution.
James C. Fisher, University of Tokyo, Japan
Stream: International Law: Contemporary Issues and Solutions
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