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

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

By Tony Press, University of Tasmania

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.

Tony Press receives funding from the Australian Government's Cooperative Research Centres Program. He is the CEO of the Antarctic Climate and Ecosystems Cooperative Research Centre.

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