David @ Tokyo

*** Note --- this post was drafted back in July, but I've only uploaded it as of August 5 ***

As I remarked prior to the recent IWC meeting, I consider the IWC meetings to be a waste of time. This has been the case for years, but through the blatantly paralyzed nature of the latest meeting, IWC 62, number of people sharing this view has likely increased further.

Perhaps the focus will now shift from the battlegrounds of the IWC to the ICJ, the International Court of Justice, where Australia has commenced proceedings over Japan's activities conducted in the international waters of the Antarctic. This will be the subject of this post.

Before continuing, I will say again at the outset that I remain skeptical that Australia will see this process through to it's conclusion. The history of the court action is tied with the electoral aspirations of the Australian Labor party, previously led by Kevin Rudd. While campaigning for office Rudd pledged to the Australian public to take court action against Japan over it's whaling activities, and the Australian public lapped it up. Then this year - another election year, with his poll ratings sinking, Rudd had his government initiate the promised court action.

It didn't save him though. Australians were perhaps fed up with Rudd over more pertinent issues, and Rudd was rolled shortly thereafter by his deputy, Julia Gillard.

Seeking a fresh mandate, Gillard has now called elections for late August. A sudden shift against her party in the polls has the result in doubt, but the question that remains in my mind is if after the elections, when and for what reason, the Australian PM directs the court action to be dropped. Citing the views of fellow, but less excitable anti-whaling allies New Zealand and the United States of America may be once such option for the political face-saving spin.

Yet my skepticism may prove to be misplaced (whether this would indicate that Australia's politicians are serious about "saving whales" or just believe that "whales are expendable for political purposes" is debatable).

So at the very least for argument's sake, in this post I want to take a closer look at the application whereby "Australia institutes proceedings against Japan for alleged breach of international obligations concerning whaling".


Get the court documents here.

So far there is the initial press release indicating Australia's action.

There is another in which the ICJ notes that it ...

Fixes the following time-limits for the filing of the written pleadings:

9 May 2011 for the Memorial of Australia;

9 March 2012 for the Counter-Memorial of Japan; and

Reserves the subsequent procedure for further decision.

From this it seems that if Australia does proceed, the matter will be before the courts for quite some time. At least perhaps in the interim this may assist to de-politicise the issue at the international level. (It seems however that as usual Sea Shepherd intend to ignore the law in the meantime and continue with their harassment against the JARPA II research and other escort vessels.)

Finally, Australia's application itself can be found here. The document contains 43 points (plus an Annex), and I'm going to trot through them one at a time.


1. Nothing to say about this one.

2. Here Australia alleges that Japan is "in breach of obligations assumed ... under the [ICRW], as well as its other international obligations for the preservation of marine mammals and the marine environment (my emphasis added).

Note here that Australia uses the word "preservation", rather than "conservation". Preservation is a one method of conservation, but not the only method, nor do the the words have equivalent meaning. This choice of words is perhaps a reflection of Australia's domestic policy regarding marine mammals. Of course, to talk of the preservation of living things - which eventually die - is somewhat nonsensical. Preserving species, by conserving numbers of their members however, is not, but it isn't clear that this is what Australia is referring to.

3. Australia notes that it "has consistently opposed Japan's JARPA II program". Why this is mentioned in the court proceedings, I do not know. Australia's opposition to whaling activities outside its jurisdiction, and the legality of whaling activities outside its jurisdiction are distinct matters. Australia's dislike of these activities is of no legal relevance as far as I am aware.

4. Just a point about the ICJ's jurisdiction.

5. From here the "Content of the dispute" is described.

Australia refers to the adoption by the IWC in 1982 of the so-called "moratorium". Curiously, Australia quotes the "moratorium" paragraph from the IWC Schedule, albeit snipping away some of the Schedule text. Here's what the IWC Schedule actually says, with the bits snipped out by Australia shown in bold.

(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.

Due to this wording (snipped by Australia), some believe that the moratorium has already expired effectively, but in Japan's case I doubt they will make this central to their counter-arguments. (It would be interesting to hear the ICJ's view on this though, as that would have some clearly significant implications.)

6. Australia refers to the 1994 Southern Ocean Sanctuary text from the IWC Schedule, which notes that "commercial whaling" is prohibited in the area specified in the text.

With both points 5 and 6, Australia appears to be claiming that Japan is in breach of these parts of the Schedule because Australia would have it that Japan's activities in the Antarctic are "for commercial purposes".

I think this argument will struggle on (at least) two levels.

Firstly, the IWC Convention's Article VIII states "Notwithstanding anything contained in this Convention", which includes the Schedule and thus the "moratorium" text, "any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.

The "Notwithstanding anything contained in this Convention" words mean that the "moratorium" text is irrelevant to the provisions Article VIII, as do the words "treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention".

Essentially the Convention explicitly states that it does not regulate special permit whaling, and delegates the responsibility to the Contracting Governments. So it appears that Australia, having itself adhered to this agreement, will have major difficulty in having the court accept that Japan is in breach of its obligations. Seemingly Australia would need to show that Japan's government does not, in fact, "think fit" the conditions under which it is issuing special permits for whaling (which is too ridiculous for Australia to consider attempting), or find a legal argument to counter this clearly stated text from the convention itself. That will be a nigh impossible feat, and I expect the ICJ will find in favour of Japan there.

Secondly, note the 4th point of Article VIII, which reads: "Recognizing that continuous collection and analysis of biological data in connection with the operations of factory ships and land stations are indispensable to sound and constructive management of the whale fisheries, the Contracting Governments will take all practicable measures to obtain such data."

Through it's issuance of special permits, "continuous collection and analysis of biological data" is precisely what Japan's government has been facilitating, in accordance with the directive of the ICRW.

Due to the "moratorium" precluding the acquisition of any such data from the time from which Japan was bound by it, biological data obtained through special permit whaling operations were the alternative to the data vacuum the moratorium would have otherwise brought about. The FAO observer to the IWC at the time the "moratorium" was adopted noted that "... the best, if not the only, way to determine the sustainable yield of a whale stock is carefully monitored harvesting. Certainly our knowledge of whale stocks is far from complete, and there can be considerable argument on just how large a catch can be sustained from individual stocks. However, these doubts are no reason for not taking moderate, and carefully monitored catches from stocks which appear to be in a healthy condition."
Such views as these were ignored by the majority of the IWC's membership when they voted for the "moratorium" in 1982, despite the convention requirement that such decisions be based on scientific findings. Japan will no doubt illustrate to the court the biological data that it has collected, and argue its efficacy.

At the IWC and in the media, Australia's spokespeople denigrate or ignore the data that Japan's programs have produced, as well as the fact that the biological samples are utilised within the IWC Scientific Committee for matters of importance, such as the ongoing assessment of Antarctic minke whales. For the political purposes of the Australia government, denigrating and ignoring inconvenient facts may be a successful strategy, but they will need a different approach in the legal setting of the ICJ. For whereas the Australian public are not presented with (or do not well understand) evidence that is contrary to what they believe about Japan's programs, that will surely not be the case with the panel of ICJ judges, who will consider evidence from Japan side of the issue.

7. In light of its points 5 and 6, Australia argues that Japan is therefore obliged
(a) "... to refrain from killing all whale stocks for commercial purposes"

Hate to be picky, but this is sloppy drafting. "Killing all whale stocks"? Presumably this should have said "killing whales from all stocks".

And also, notes Australia:
(b) "... refrain from commercial whaling in the Southern Ocean Sanctuary ..."

If the moratorium is still valid today in 2010, then Australia is correct about Japan's current obligations while those parts of the IWC Schedule are in force (notwithstanding Japan's objection with respect to Antarctic minke whales). However, of course, Japan will argue that it has granted Article VIII special permits, as opposed to permits for commercial purposes.

8. Australia refers to the Vienna Convention on the Law of Treaties and customary international law requirements that obligations be performed in "good faith".

This is interesting, as I'd argue that Australia has hardly fulfilled its own obligations at the IWC in good faith. Indeed at the recent IWC meeting Australia worked to undermine and kill any chance of a successful compromise through convincing enough IWC members that there should be no agreement. Australia is opposed to the object and purpose of the ICRW to which it is adhered. It is not seeking to fulfil its obligations in good faith, but to have the obligations changed after the fact in a manner that is consistent with its current domestic cultural views. The "good faith" option for Australia is to exercise its right to withdraw from the convention, rather than attempt to defeat the object and purpose of the convention that does exist.

As for it's suggestion that Japan isn't acting in "good faith", Australia's recently developed cultural aversion to whaling may lead them to wish that "good faith" means that the "moratorium" amendment to the IWC Schedule should freeze all obligations under the agreement that are incompatible with Australia's current views, but in a legal sense this is like living in a fantasy world. Australia's views on whaling hold no more legal weight than those of any other Contracting Government. When considered in light of the ICRW, Japan's actions are clearly in accordance with the object and purpose, and thus ought be considered "good faith" by the ICJ.


Coming soon in Part 2 (and perhaps a Part 3 if necessary) I'll look at the rest of Australia's application, highlighting more selective quoting from the ICRW by Australia, some faulty arguments made, the apparent lack of proper scientific understanding forming the basis for Australia's claims, and also highlight some Australian hypocrisy concerning exploitation of marine species.

Labels: ICJ Australia v. Japan