Australia: Fights Back

12 Jul 2013

Information note N°7

Whales at the International Court of Justice

The Hague, The Netherlands, 2nd hearing of Australia, July 9th – 10th

The second round of hearings for Australia was presented from July 9th to July 10th and announced a call to order in the Court by the Attorney-General of Australia, Marc Dreyfus. Australia’s return to the stand signalled the return, in force, of clear legal arguments. Australia restated that their case was “about the failure of one country to comply with its international legal obligations not to conduct commercial whaling, an obligation which that country accepted voluntarily but then immediately began to subvert.” Australia also hammered down the unfounded arguments that Japan had unjustly presented against them in their first round of hearings. They squarely stated that not only was Japan’s case an offence to Australia it was an offence to all Contracting Governments of the International Whaling Commission (IWC), the scientific community and the International Court of Justice.

On the “baseless allegations”, “completely devoid of legal argument” Australia set the record straight. On the allegations that Australia breaches international law by means of endorsing the activities of Sea Shepherd they replied that they have “called for all vessels in the Southern Ocean, including those of Japan and Sea Shepherd, to comply with international law in their actions”. That it is in this very context “respect of international law” that they have brought their dispute before the Court. Australia stated that they “take seriously” their international obligations including search and rescue in the Southern Ocean. In response to Japan’s allegations on Australia’s “moral crusade” against whale eating countries and the “spirit of cultural imperialism” they rebutted that it is simply not the reality, Australia respects other countries’ cultures they added that this case is not about culture but about respecting international law. (1) (see Japan Strikes Back information note N°4).

Addressing Professor Pellet’s derogatory attacks on Australia’s “alleged persecution of the minority by the majority” and portrayal as a “puppet” master of unnamed sovereign countries at the IWC Australia retorted that they are unfounded and hold no substance. Concerning Australia’s diplomatic magical powers in ensuring the continuation of the moratorium Mr Crawford an Australian co-agent replied that he wished his “country had even half the diplomatic clout” that Japan attributed to them. Australia underlined that the allegations are “imputing bad faith” on Japan’s part and “impugn” the integrity of scientists, they highlighted the fact that these arguments “speak volumes for the weakness of the Japanese case” and is actually a criticism towards the Court.

While trying to find any legal arguments in Japan’s first round of oral arguments, Australia found no evidence that JARPA II was respecting International law spelt out by the Convention. In fact they found that Japan’s arguments could be characterised by “silence, contradiction and disparagement.” Australia even wondered if Japan’s council had read each others oral presentations. No evidence was presented to the Court on a true scientific assessment between JARPA I and JARPA II, nor on the methods of killing or on sample size. Nothing in the Japanese case justified the permits to kill humpback whales or fin whales. There was no justification either as to the jump from a proposed quota of 350 minke whales in JARPA I to between 850 and 935 minke whales in JARPA II (not far from Japan’s commercial quotas from in the 1986-1987 season) (see Poincaré v. Montaigne, Information note N°5).

On the issue JARPA’s “scientific” objectives, obtaining age data via earplugs, changes in blubber thickness, whale competition assessed through stomach content, monitoring of the Antarctic eco-system and the testing of the estimate safe catch levels of the Revised Management Procedure (RMP) the response was simple: JARPA I and JARPA II have not, in any way, opened up any doors on the questions (see Australia v. Japan Information note N°1). Zooming in on the earplugs, the only objective which could justify the lethal take of whales, Australia highlighted that in 26 years of the whale massacre neither JARPA I nor JARPA II have produced any sound scientific knowledge on natural mortality based on age data (see The End of the Japanese Fairy Tale). No true hypotheses or findings have been established and it was as “if Japan [told the] Court that a room full of body parts of hundreds or thousands of dead whales is science.

It appears that Japan has also patted themselves on their own back as the compliments that they said the Scientific Committee accorded them are “flawed”. Not one related to JARPA II which is the subject of Australia’s case and they were often compliments which originated from Intersessional Workshops where the majority of scientists present were Japanese. Indeed, Australia pointed out that it must have been a great deal of hard work to find any sort of compliment at all. To demonstrate, once again, the criticism of the Scientific Committee on the JARPA II program Australia projected slides with reviews of the program with statements such as: “An evaluation of sample sizes depends on each of the objectives being better specified, with an identification of those quantities that need to be estimated to achieve the objectives . . . The precision of the estimate and its relation to sample size and sampling design should be determined. Such an analysis is a pre-requisite for an evaluation of the appropriateness of the sample size and sampling design.” Once again Australia referred to the countless Resolutions by the IWC demanding that JARPA cease. In response to Japan’s accusations that the 63 scientists who refused to participate in the “review” of JARPA II, being “simply politically motivated boycotters”, Australia spelt out some of the scientific merits of these boycotters and invited the council of Japan “to stick to the merits, to the law”.

Japan’s evidence on the trackline of the vessel presented to the Court could not be confirmed by any authority. Furthermore, it was in contradiction with the information presented in Japan’s memorial (see Poincaré v. Montaigne, Information note N°5). Interesting evidence was presented on the capacity of the Japanese factory ship Nisshin-Maru. Indeed, Japan declared that the vessel’s capacity corresponded to 1,650 tonnes of whale meat and not 3,200 tonnes. Therefore in order for Japan to fulfil their “self-allocated” quota they would require two factory ships or use refuelling vessels with refrigeration capacity, which they do not do. It would seem that this fact only emphasized Australia’s argument that the whaling activities are commercial by nature; the quotas are not fulfilled in order to keep market prices of whale meat high.

On the question of legitimacy of the Court and Australia’s Exclusive Economic Zone (EEZ) claims, it would seem that Japan was grasping at straws. Indeed, Australia has a reservation in place which limits the jurisdiction of the International Court of Justice in certain maritime boundary disputes. This reservation however is “only directed at disputes about maritime boundaries or exploitation issues arising between Australia and another State with overlapping claims pending resolution of maritime boundaries between them.“ There is no such situation between Australia and Japan. Moreover, Japan’s whaling activities covers half of the Southern Ocean including areas thousands of nautical miles eastward from any claimed Australian waters. And Australia is clearly not in a “dispute” with Japan over the right to exploit the same resource they obviously have no interest in exploiting whales.

Australia has focused their case on JARPA II in the South and not included JARPN in the North due to their strong interest and participation in understanding the Antarctic ecosystem. Yet, it should be noted, that their application to the Court states that they consider JARPN II to also breach Japan’s international obligations. In the remedies sought by the Court they request that JARPA II cease and that any authorisations, permits or licences linked to pseudo “scientific whaling” be revoked. They also request that Japan provides assurances and guarantees that no further action in similar programs be implemented until it has been brought into conformity under international law. With a bit of luck and common sense, the whale song might also be heard in the Northern oceans where JARPN II targets northern minke whales, bryde’s whales and sperm whales (see Australia v. Japan Information note N°1).

In short “It could be said that [Japan] have nailed their flag rather firmly to a shaky and dangerous mast.” They have not found any juridical grounds to support their case. They have shown their “bad faith” in respect to the spirit of the Convention and acted on unilateral interests rather than collectively with the “nations of the world” as spelt out by the text. They have not presented the Court with any solid scientific justification for JARPA II. Japan has also exaggerated the scope and purpose of Article VIII and their “bad faith” has been demonstrated by permit after permit allocated year after year.

In diplomatic language Australia’s message is unequivocal. Australia is asking the Court that Japan cease their commercial whaling now. Over the course of the hearings Australia has shown that Japan’s activities cannot be qualified as “scientific” and that they are violating the spirit and the text of the Convention. To illustrate this, Australia revealed how Japan’s actions are illegal as, according to paragraph 10 (e)* of the IWC, they are to refrain from killing all whale stocks for commercial purposes.

In conclusion, Australia hoped that, during the second round of proceedings, Japan would demonstrate “good faith” by not presenting any further legal arguments as Australia would not be able to reply. Having said this, it would seem that they would not be surprised if this tactic were to be employed. Australia made an indirect appeal to the Judges that if this was the case the Court could of course redirect the legal question towards Australia, therefore permitting a response.

(1) In commercial terms the most interesting species, for the Japanese, is the minke whale. It is for this very reason that they lodged an objection to the Southern Ocean Sanctuary in the extent that it applies to Antarctic minke whale stocks. In this context, legally, Japan would have the right to whale Antarctic minke whales if the moratorium is lifted.

*10 (e) Notwithstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits.

**7 (b) In accordance with Article V(1)(c) of the Convention, commercial whaling, whether by pelagic operations or from land stations, is prohibited in a region designated as the Southern Ocean Sanctuary. This Sanctuary comprises the waters of the Southern Hemisphere southwards of the following line: starting from 40 degrees S, 50 degrees W; thence due east to 20 degrees E; thence due south to 55 degrees S; thence due east to 130 degrees E; thence due north to 40 degrees S; thence due east to 130 degrees W; thence due south to 60 degrees S; thence due east to 50 degrees W; thence due north to the point of beginning. This prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this Sanctuary, as may from time to time be determined by the Commission. However, this prohibition shall be reviewed ten years after its initial adoption and at succeeding ten year intervals, and could be revised at such times by the Commission. Nothing in this sub-paragraph is intended to prejudice the special legal and political status of Antarctica.




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