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Whaling in the Antarctic: Australia v. Japan - week one

Dispatches from The Hague: Tony Press, CEO of the Antarctic Climate and Ecosystems Cooperative Research Centre at the University of Tasmania, is in The Hague for four weeks of hearings at the International…

Hearings have opened: is Japan’s whaling scientific, or just hunting? International Court of Justice

Dispatches from The Hague: Tony Press, CEO of the Antarctic Climate and Ecosystems Cooperative Research Centre at the University of Tasmania, is in The Hague for four weeks of hearings at the International Court of Justice. The case will decide whether Japan’s scientific whaling in the Southern Ocean can continue. Tony will report as each week’s hearings close.

The case begins

Australia has just wrapped up its first round of oral submissions Australia v. Japan, a case that covers whale hunting, the meaning of science, and some finer points of international law.

It is being heard by the International Court of Justice (ICJ) in The Hague and will continue until 16 July 2013. You can read the background here.

The Registry of the ICJ has had so much public and diplomatic interest in the case, it has had to abandon pre-booking for the public to view the proceedings. Instead it has resorted to “first-in-best-dressed” on a daily basis.

This week it was Australia’s turn to present its case to the court – they’ve been on the floor of the court since Wednesday morning. This oral argument complements the reams of written material and statements provided to the Court (all the background and written materials are available as they are released by the Court).

Australia’s case was stated at the outset by Bill Campbell QC from the Attorney-General’s Department, and reiterated and reinforced by each subsequent piece of oral evidence. Australia says that Japan’s continued pursuit of Special Permit Whaling (the JARPA II program, commonly referred to a “Scientific Whaling”) is in breach of its obligations under international law (the International Convention for the Regulation of Whaling 1946).

Australia contends that the JARPA II permits, granted by Japan to itself under the provisions of Article VIII of the whaling convention, are a mere artifice. The permits are designed to allow Japan to continue commercial whaling in contravention of the moratorium on commercial whaling imposed under the Convention, the Southern Ocean Sanctuary which it created, and the restrictions on the use of factory ships. “Japan seeks to cloak its ongoing commercial whaling in the lab-coat of science”, according to Australia.

At various times in presenting its case, Australia has referred to statements by prominent Japanese politicians and officials to underline its argument that the permits granted for whaling are “retro-fitted” to suit a commercial and political purpose. In 1984 the then Director-General of the Japan Fishing Agency said “… after the moratorium commences, the path to ensure the continuation of [Southern Ocean] whaling would be … to position it as a research whaling activity which has a scientific nature”. In February this year the Japanese Fishery Minister said “I don’t think there will be any kind of an end for whaling by Japan.”

A heap of stones

In putting its case that JARPA II is not science, Australia produced two expert witnesses to contradict Japan’s assertion that the lethal whaling they undertake is for legitimate scientific purposes. There have only been six other cases since the international court was established in 1946 where expert witnesses have been called to testify and be cross-examined.

Australia’s expert witnesses, Dr Nick Gales (Chief Scientist of Australia’s Antarctic program and long-standing Australian representative to the Scientific Committee of the International Whaling Commission) and Professor Marc Mangel, Distinguished Professor of Mathematical Biology at the University of California, Santa Cruz, gave evidence that lethal whaling was entirely unnecessary for the purpose for which Japan issued its permits.

Professor Mangel’s evidence was based his view that JARPA II was not scientific research. Scientific research in this context, his evidence contends, requires that it possess four essential characteristics:

  • Defined and achievable objectives that aim to contribute knowledge important to the conservation and management of whale stocks.

  • The application of appropriate methods likely to achieve those objectives.

  • Periodic, independent peer review of research proposals and results (and the capacity for consequential adjustment to the research program).

  • The research should be designed to avoid adverse effects on the stocks being studied.

Australia contends that the JARPA II research program fails to meet any and all of these criteria.

Dr Gales gave evidence that the method of lethal whaling (harpooning) was unnecessary for meaningful research into the conservation or management of whales. Data that had been obtained from Japan’s previous lethal whaling program, JARPA (which ran from 1987 to 2005), could not be used reliably to manage or conserve whale stocks. Likewise the data from JARPA II was not required.

Much of Gales’ evidence centred on ways scientists can study whales without killing them: tagging with satellite transmitters to study movements; short-term tags to study feeding behaviour and habitat use; and taking small biopsies to study genetics and stock structure. In cross examination by Australia Dr Gales said that while these methods for studying whales were used by other research groups (including from Japan), they were not used at all in the JARPA II program.

To emphasise Australia’s case that the collection of samples in JARPA II was not science, Mr Philippe Sands QC quoted Jules Henri Poincare: “Science is built up of facts, as a house is built of stones; but an accumulation of facts is no more science than a heap of stones a house”.

“An outright case of commercial whaling”

Australia concluded its first round of oral argument on Friday morning saying that JARPA II was “an outright case of commercial whaling”. Australia argued that Japan’s persistent practice of ignoring the resolutions of the whaling convention in relation to lethal whaling, and the recommendations of the Scientific Committee regarding research, clearly showed that Japan was failing “… to act in good faith”.

To highlight this point Australia drew on a statement by one of Japan’s former convention warriors, the formidable Masayuki Komatsu. In response to a convention resolution regarding Japanese whaling, he said “… it’s none of your business”. Australia then went further and argued that Japan’s continued conduct constituted “abuse of right” under international law.

Japan gets the chance to respond to Australia from July 2. There’s much more to say in this case, and much at stake for both Australia and Japan.

Join the conversation

19 Comments sorted by

  1. Ieyasu Tokugawa

    Daimyo

    That last line there about there being much at stake for Australia was a little curious. What exactly is at stake? What possible loss will Australia suffer in the likely event that Japan's cetacean harvest is confirmed to be legal (apart from dented pride)?

    I suspect that a significant driver of Australia's rabid anti-whaling extremism is the sense of self-righteousness and moral superiority it derives from preaching on the matter, howsoever erroneous those sensations may be. When this case is…

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    1. Karsten Mohr

      Cat Herder

      In reply to Ieyasu Tokugawa

      You seem to only post on here and various other websites to defend Japan's whaling program!? Calling it a harvest says it all. A few points of yours are wrong:
      - worse per capita for C02 emissions is Qatar.
      - worlds largest consumer of southern blue fin tuna is Japan. Even wiki says Japan's quota was cut in half recently? Making Australia have the largest quota, after Japan.
      Interesting choice of username?

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    2. Ieyasu Tokugawa

      Daimyo

      In reply to Karsten Mohr

      Well who else's whaling program would you like me to defend? There are only so many hours in the day you know.

      On your 'corrections':

      * Quite right. But I disregarded tinpot gulf oil states in my consideration because, let's face it, they are insignificant.

      * I did not make mention of the largest consumer of SBT. I made mention of the largest catcher of SBT, which is Australia.

      (it's interesting how suddenly quiet Australia becomes on the topic of marine conservation when it has a profitable industry involved, wouldn't you say?)

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    3. John Newton

      Author Journalist

      In reply to Ieyasu Tokugawa

      I don't know why I bother, but here are the facts about southern blue fin tuna.

      Firstly, Australia applies strict quotas to all endangered fisheries including SBT.

      Secondly, and I don't approve of this but it falls within the law, young fish are 'ranched' and raised for catching.

      Thirdly the SBT is eaten. Very little whale is eaten in Japan - there are currently around 5000 tonnes of frozen whale meat in storage - presumably from the 'scientific catch'

      Fourthly we don't pretend that the SBT fishery is scientific and sell it commercially as the Japanese do.

      And finally, we adhere rigidly to quotas unlike the Japanese, who
      whaling historian and commentator Kondo Isao found, from 1950 concealed the facts of harvesting sperm whales and told lies about the numbers caught.

      As I said, I don't know why I bother.

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    4. John Newton

      Author Journalist

      In reply to Ieyasu Tokugawa

      And a little more information for you Sir:

      A 2006 report by the Commission for the Conservation of Southern Bluefin found that Japan had illegally caught up to $6 billion worth of the fish over the past 20 years. The report said that if Japan had stuck to its catch quota, the stock of Southern Bluefin would be at least five times larger.

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    5. sof g

      person

      In reply to Ieyasu Tokugawa

      What is at stake is:
      Japanese whalers are constantly entering Australian waters to whale when they do not have the correct permits - to hunt whales in Australian waters is a breach of our sovereignty and they are therefore committing illegal acts in Australian waters.
      There are also a lot of people who take it in their minds to take the 'law in their own hands' and attack Japanese whalers - it is not possible to outlaw this - nor would people want to. It is better instead to prevent Japanese whalers…

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    6. Karsten Mohr

      Cat Herder

      In reply to Ieyasu Tokugawa

      The reason I raised consumption of SBT was to illustrate the major consumer market, Japan, which used to have the largest quota until recently. Without the demand why would any one supply it? In 1998 Australia stopped allowing Japan's Tuna fleet to dock due to over fishing. http://www.abc.net.au/landline/content/2006/s1946367.htm

      At least calling it a harvest is honest!

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    7. William Hughes-Games

      Garden weed puller

      In reply to Ieyasu Tokugawa

      Hi Leyasu
      There are a couple of ways in which Australia will loose if the case goes in favour of Japan.

      Whales are actually important for the positive effect they have on fish stocks. Japan is shooting herself in the foot by not stopping the harvest of whales. Japan has a huge stock of Whale meat in its freezers which it can't sell. You would be better off leaving the whales alone and harvesting the increased stocks of fish.

      Many nations, including Australia have a burgeoning whale tourist industry, which is being effected by Japanese whaling.

      It seems to me that it is Japan that is whaling despite whaling having no commercial benefit to Japan just out of pride. Have a look at this article and then act in your own national interest.
      http://mtkass.blogspot.co.nz/2011/09/whale-poo.html

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    8. William Hughes-Games

      Garden weed puller

      In reply to John Newton

      Just because one side is wrong doesn't make the other side right. We have trashed most of the fish stocks of the world and continue to trash the remaining remnant. We could manage the problem technically quite easily but vested interests get in the way. Japan is wrong for killing whales and any country that harvests fish unsustainably is wrong. Look at the record of Canada on her own Grand banks. Get Farley Mowat's book "Sea of Slaughter".
      http://mtkass.blogspot.co.nz/2010/12/fisheries-policy-lets-change-tacks.html

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    9. Graeme Jensen

      Postgraduate Student at The University of Melbourne

      In reply to John Newton

      Well said! There should be more international pressure put on Japan regarding the illegal harvest of fisheries as well as the whaling issue! The fact that Japan views whaling as a solution to the problem of shrinking marine resources shows the lack of understanding they have for commonsense conservation efforts!

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    10. Graeme Jensen

      Postgraduate Student at The University of Melbourne

      In reply to William Hughes-Games

      I suspect the existence of a territorial aspect to this issue as well. Proof of continuous economic and cultural related activity in marine environment has been used by Japan to back up territorial claims to marine areas in the past.

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  2. Marilyn Shepherd

    pensioner

    What a pity Australia has so little care about human beings that they leave drowned refugees in the water as shark bait.

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    1. sof g

      person

      In reply to Marilyn Shepherd

      What a pity the government does not see people as people and instead prefers to play with peoples lives for their political manoeuvring! The government is very out of step with the population and human rights but I am glad they are at least doing this.

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  3. Mountain Ship

    logged in via Facebook

    Whales. Equal emotion emotion emotion. Nothing more nothing less.
    Save the rest of the animal kingdom and I might be impressed.

    No just let's just save the whales because we can obtain financial gain from doing it.

    As far as southern bluefin concerned, quota was reduced because of the Australian industry overfishing their quota with Government knowledge and support.

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  4. tomas white

    project manager

    It’s hard to fathom the logic of this highly expensive case, all the lawyers, airfares, flash accommodation, dinners and grog and all other hangers on doing noble work when something in the back of my mind wonders if the funds would be better spent on trying to stop the extinction of Australia’s small mammals. Yes, Australia (global environmental warrior) has one of the highest mass extinction rates anywhere in the world going on right in its own backyard. Extinction means they aren’t coming back yet no one seems to give a toss. It’s all about vilifying the Japanese for taking a few minke whales for their dinner. Maybe if they were hunting Blue Whales I might start to care. Time Australia stepped of the catwalk and tidied things up at home. Who wants to be known as saving a few minke while hundreds of endemic Australian species completely disappear? Or are there whales and animals?

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    1. David Semmens

      logged in via Twitter

      In reply to tomas white

      You might want to look up how much Australia is investing into conserving mammals in Australia. I'll bet it's more each year than this one-off court case will cost. I'll also bet that if the money invested in this court case was diverted to preserving Australian animals it would have an insignificant effect on the problem of species declines.

      You might also want to look up which species of whales the Japanese are harvesting. It's not just minke whales, they take fin and humpbacks in the Southern Ocean and sei and sperm whales in the north. They're all on the IUCN Red List and sei and fin whales are in the endangered category along with blue whales.

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