Information note N°4
Whales at the International Court of Justice
The Hague, The Netherlands, 1st hearing of Japan, July 2nd – July 3rd
Japan, a country surrounded by sea, states that they “would be the last to misuse whales as resources because [they] know [they] benefit from the fruits of the sea”. Japan goes back in time explaining that they joined the International Whaling Commission (IWC) in 1951 “at a time when, amidst the devastation of war, whale meat helped prevent starvation” for a country with scarce land resources. They go even further back in time and point at the irony of history as it was whaling that forced them to interact with the international community after three hundred years of isolation. Japan stated that in the 19th century, “major maritime powers engaged in massive scale whaling demanded that Japan open up its ports to supply their whalers”. And it is this very subject, whaling, which today puts in question Japan’s compliance with the international community and international law and has brought them, for the first time, before the International Court of Justice.
It is now Japan’s turn to accuse Australia of a unilateral interpretation of the text and spirit of the international Convention. Japan told the Court that they believe Australia’s argument and interpretation of the role of the IWC to be founded on cultural beliefs by a nation that perceives the whale is an intelligent and almost sacred animal. Australia’s reading of the preamble, written clearly in black and white, overlooks the purpose of the Convention “to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”. Japan states that it is Australia’s unilateral interpretation of the Convention which puts the multilateral Convention at risk. Sentimental, emotional feelings should not stop other countries from pursuing their cultural traditions. For Japan, who claims to have been a whaling country for over 2,000 years, traditional practices are being persecuted. “For the anti-whaling moral crusaders, saving whales that are clearly not endangered outweighs saving foreign cultures and communities”.
Japan’s interpretation of the Convention is that its purpose is to manage whale stocks for present and future generations to exploit. Japan states that they fully respect the IWC Convention and that they carry this out in complete “good faith” and in full accordance with Article 31 of the Vienna Convention on the Law of Treaties “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Japan’s “good faith” is demonstrated by the simple fact that they have remained within the framework of the Convention. Japan believes that “bad faith” stems from anti-whaling countries. More specifically, they reproach Australia for “disguising” the temporary moratorium, under a permanent moratorium. Moreover, Japan argued that the moratorium was implemented only through the pressure of anti-whaling countries. On behalf of Japan, Mr. Akhavan stirred up a strong image stating that Australia, along with other anti-whaling countries, have “hijack[ed] the IWC”. It is therefore Australia’s anti-whaling stance which has twisted the purpose of the IWC with a bias.
For Japan, the case concerns the legality of their activities in regard to Article VIII of the IWC. However, the debates should not be focused on the “evaluation of good or bad science”. On scientific grounds, Japan challenged Australia claiming that they and other anti-whaling Contracting Governments refuse to consider scientific evidence on the current recovery of whale stocks. The only reason Japan signed the moratorium was because it was to be revised in 1990 based on scientific evidence. The very reason that Japan undertook their scientific program was because “Japan wants to resume commercial whaling based on science in a sustainable manner”. In the name of science Japan counterattacks Australia stating that without Japan’s “data” the Scientific Committee would not be able to “demonstrate that the resumption of commercial whaling on a sustainable basis is possible”. They believe that without their scientific contribution the moratorium would continue “indefinitely”. Japan’s “good faith” is reflected by their very willingness to present scientific findings to the Scientific Committee.
The fact that Australia is uniquely focusing on “scientific whaling” in the Southern Oceans and the fact that they have not called upon other international Conventions (see information note n° 3 [1]) is, according to Japan, a clear indication that the case is not based on a breach of the Convention but on the question of territorial waters and the exploitation of resources. Their belief is that it is Australia is trying to protect their sovereignty on a “self-proclaimed” Exclusive Economic Zone (EEZ), within the Antarctic; that Australia is trying to enforce their sovereignty to Antarctic waters without putting their claim on the line. On these grounds, Japan believes that it is not within the competence of the International Court of Justice to decide on whether Japan is in compliance with the Convention.