L’arrêt de la Cour internationale de Justice du 27 janvier 2014 dans l’affaire du Différend maritime (Pérou c. Chili)

Abstract

On 31 March 2014, the International Court of Justice delivered its judgment on the dispute between Australia (with New Zealand as the intervening State) and Japan. In light of the 1946 International Convention for the Regulation of Whaling, Australia and New Zealand called into question the lawfulness of the Special Permits granted under the second phase of the “ Scientific Research Program on Whales under the Special Permit in the Antarctic” (JARPA II). Japan, on the other hand, invoked the discretion offered by the first paragraph of Article VIII of the Convention relating to scientific research. These opposing views of the object and purpose of the Convention reflect the legal and political tensions that divide the International Whaling Commission (IWC) and its scientific committee. However, the judgment demonstrates that the Court determined not to intervene in matters beyond the specific dispute submitted to it. By twelve votes to four, the Court considered that Japan had failed to fulfill its obligations relating to commercial whaling. It ruled to oversee the exercise of discretionary powers by Japan and thus considered that the unreasonable nature of JARPA II prevents it from being characterized as scientific whaling. Instead, JARPA II was deemed to fall within the scope of the various moratoria applicable to commercial whaling. In its judgment, the Court blurs the line between a legal assessment of the whaling program and a scientific assessment. It considers that the unreasonableness character of JARPA II makes it fall into the scope of the various moratoria applicable to commercial whaling. Another important aspect of the judgment lies in the value the Court grants to the Acts (mandatory or not) of the IWC, and the role they can play in the modification and interpretation of the Convention, as well as the obligation of Member States to take them into account. Ultimately, the Court chose to refer to the Law of Treaties, rather than Environmental Law, to call upon States to rationalize their behavior within the IWC.