David @ Tokyo

Continuing on from where I left off last time, at point 9 in Australia's document instituting "proceedings against Japan for alleged breach of international obligations concerning whaling"...


9. From this section through to point 16, Australia describes the "Conduct of Japan".

In point 9 Australia says that "Following the introduction of the moratorium, Japan ostensibly ceased whaling for commercial purposes". Australia previously noted accurately in point 5 that Japan had originally objected to the "moratorium" part of the IWC's Schedule (Japan cited the lack of scientific basis for the moratorium, required under the whaling convention), as is provided for under the terms of the ICRW, but that Japan subsequently withdrew that objection. (This was due to pressure from the US as part of a trade-off on other fisheries related issues).

Australia's document continues, "But at virtually the same time Japan launched" it's original JARPA program, "which it purported to justify by reference to Article VIII of the ICRW". Australia notes that Article VIII provides for Contracting Governments to issue special permits to catch whales "for the purposes of scientific research", adding emphasis to those words.

What Australia appears to want to say through this is that it will argue that Japan started its research program at the same time as it ceased commercial whaling as a means of circumventing the "moratorium".

This is a standard argument that might have come straight from the repertoire of the commercial anti-whaling industry, and is clearly logically flawed. First and foremost, if it was Japan's aim to continue catching whales for commercial purposes, it could have done so by simply not withdrawing it's objection to the "moratorium". Furthermore, the numbers of whales caught under commercial whaling at that time dwarf both numbers of whales taken in the JARPA programme as well as numbers of whales caught today under JARPAII. For example, catches for Antarctic minke whales taken under objection in the first years of the "moratorium" were just under 5,000 whales (the quota was then split between Japan and the USSR). Subsequent special permit catches under the original JARPA program were far smaller, around 300 whales a year. That is, Japan's catches under the special permit were equivalent in simple number terms to around just 6% of the numbers that might otherwise be taken under commercial whaling operations continued under objection. Even if only Japan's allocation of the quotas from that time were counted, the number would still be well under 20%. Hardly like for like. Thirdly, the crash in whale meat inventory levels (illustrated by official statistics) following Japan's decision to withdraw its objection to the "moratorium" and commence the JARPA program is also testament to this. What had been a commercial scale level of whale meat supply was slashed by the moratorium to the limited supply of by-product originating from the JARPA research program.

But most importantly, there is plenty of evidence that biological data has always been collected by Japan from it's special permit catches. Not to mention Japan's own research, some of this biological data is to this day utilised by the IWC's Scientific Committee in it's work as well (see for example the ongoing work on catch-at-age analysis for minke whales that appears in this year's IWC Scientific Committee report). From a legal point of view I imagine that this point is the one that is important. Australia will struggle to successfully argue that special permit catches, which have produced biological data that is used by the IWC's Scientific Committee, are not actually bona fide special permit catches in accordance with the ICRW. If special permit catches that produce such data are not genuine special permit catches then what would be?

Moving on.

10, 11, and 12. In these three points Australia refers to the numbers of whales caught under Japan's special permit programs, and draws a comparison between the numbers taken in them with numbers taken under research programs conducted by Japan prior to the "moratorium". Already above regarding point 9, I have remarked on the drastic decrease in numbers of whales taken by Japan subsequent to their decision to withdraw their objection to the "moratorium" and commence the JARPA program. Australia fails to acknowledge those facts, and here seeks rather self-servingly to make comparisons between the period before the "moratorium" - when thousands of whales were taken under commercial whaling operations each year, and the period after Japan withdrew it's objection to the "moratorium" - when the numbers of whales taken under commercial whaling in the Antarctic became zero.

The comparison is nonsensical, as clearly, and as is mentioned in the text of the ICRW, biological data can be obtained from whales that are caught for commercial purposes. Without commercial catches, the data cannot be obtained. Note that the whaling convention requires, in "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."

Yet in the post moratorium period, in the absence of commercial whaling operations, the only remaining method of obtaining this biological data is through special permit catches. Without both commercial catches and special permit catches, a range of biological data would become unavailable. So for Australia to seek to compare numbers of whales caught under special permit before and after the moratorium as a kind of test of the scientific nature of the post moratorium research is absolute nonsense. This doesn't strike me as a serious legal argument posed by a government at the ICJ. It does however strongly resemble commercial anti-whaling industry propaganda.

Further to this, Japan's special permit catches were also started in response to the justification given by proponents of the moratorium, namely that scientific data and understanding at the time was insufficient to allow for catch limits to be safely set. But there was never advice from the Scientific Committee that a moratorium was warranted.

One group of scientists (including names such as K. R. Allen, D. Butterworth, P. B. Best, M. Cawthorn amongst others) from the IWC's Scientific Committee issued "A statement on moratorium proposals" in Annex M of the 1982 Scientific Committee report, in which they noted, amongst other things:

The possible effect of a moratorium on our knowledge of the dynamics of currently exploited whale stocks obviously depends on the level of research effort that will be mounted in the absence of a fishery. Previous experience has shown that protection of a stock usually results in a substantial drop in the amount of incoming data, and in the level of effort directed at assessing the stock. If the moratorium is to be a useful scientific exercise, we must be sure that there is the possibility of obtaining the information that we require on the population dynamics of protected populations, otherwise when the moratorium is lifted our knowledge will not have improved to any great extent.

They concluded:

It is difficult to see, for instance, how a moratorium will improve our knowledge of replacement yield in the Southern Hemisphere minke whale, unless there is a level of research effort substantially in excess of that currently mounted

Japan's special permit program in response to the moratorium clearly represented a substantial increase in research effort, as called for by this group of scientists.

The FAO observer also noted in 1982:

Another justification for a moratorium is that not enough is known about the dynamics of whale populations, and that no catches should be taken until adequate knowledge is obtained. The objection to this is 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 scientific views as these are consistent the actions subsequently taken by the Japanese government in response to the moratorium, but again from the legal point of view, what appears to be most relevant is the wording of Article VIII of the ICRW which says the special permits are subject to "... conditions as the Contracting Government thinks fit". Australia is free to disagree with Japan on this matter, but if the plain English meaning of the agreement takes priority in law, then I expect that Japan will win this legal argument in court.

Also in these points 10 through 12, Australia notes that "whale-meat caught ... was taken to Japan where it [was/has been] placed on commercial sale". This argument too is straight from the propaganda reels of the commercial anti-whaling industry.

The ICRW says in part 2 of Article VIII that,

Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.

In accordance with this, Japan's government has directed that the whales taken be processed and the proceeds sold as food through market channels - the normal use of whale meat in Japan. Japan's government uses the revenues from the sales of this food to help offset the costs of the research for the following year, and the remainder of the costs are covered with tax-payer funds.

Australia's attempt to characterize this as "commercial sale" is presumably a part of their overall argument that Japan is circumventing the "moratorium" on commercial whaling. Yet this too is ridiculous - just where does the Australian government believe the Japanese government's profit motive?

As is the case, the Japanese tax-payer loses, not makes, money on the research operations (a point that the small band of Japanese anti-whalers often point out, hoping the program would be included in the waste-cutting initiatives of the current government, to no avail). And again more importantly, even if this was profit motivated "commercial sale" (to help reduce Japan's mountain of public debt?!) it seems to be irrelevant anyway, in legal terms. Special permit catches under Article VIII are "exempt from the operation of [the] Convention". That alone is the clincher, but even putting that aside, the "moratorium" itself only specifies zero "catch limits for the killing for commercial purposes of whales". But the whales are caught for scientific purposes, so that the by-product meat were placed on "commercial sale", as Australia portrays it, wouldn't change the legality anyway, in my view. What Australia has to show is that the whales are not being caught for the purposes of scientific research, but it's application as it stands is bereft of such arguments.

To top all this off, the IWC itself in 1986 recommended that, in relation to special permit catches,

taking into account Paragraph 2 of Article VIII of the Convention, following the completion of scientific treatment the meat as well as the other products should be utilised primarily for local consumption.

While legally non-binding, Japan is acting in accordance with this recommendation from the IWC.

Moving on, once again.

13, 14, 15, and 16. Through these points, Australia gives what it admits is a "brief" description of the status of whale stocks that are the subject of research under JARPA II. It is unfortunate but perhaps not to be unexpected that Australia would opt to present a "brief" description rather than a more comprehensive one that would give a suitably balanced view of the current situation.

On Antarctic minke whales, Australia refers to "two, decadal long, circumpolar surveys conducted between 1985/86 and 2003/04 (CPII & CPIII)", and that the methods used to analyse data from the circumpolar surveys all indicate a decrease in abundance estimates between the CPII and CPIII series. This much is true, however as the IWC Scientific Committee report noted this year,

Conclusions reached about the reasons for these changes should integrate information from other sources such as changes in ice coverage during the survey periods concerned.

Essentially the reason for the decrease in estimates has not been established, and this is under investigation (also as noted in section 2.5 of this document). However, as the SC report notes, even the lowest of the abundance estimates produced puts the numbers of Antarctic minke whales at 382,000 (with a CV of 0.17). Considering only the areas where the JARPA II program samples whales, the number of whales taken would amount to perhaps at worst 0.5% of the total population numbers each year (that's rough on my part but probably not far off the mark). Meanwhile Japan's research has demonstrated that this species has a high rate of fertility, and thus it's hard to imagine that this sort of level of catch, spread out over the entire JARPA II research area, could be detrimental to the health of the stocks in question. In any case if the Antarctic minke whale numbers more than 300,000 then it is the most abundant baleen whale species in the world.

Further, Australia says "The population structure of the Antarctic minke whales remains unknown". This kind of binary statement in black and white terms is unscientific and ignores the basic approach towards uncertainty that has been adopted within the IWC Scientific Committee.

While indeed our knowledge is not 100% complete, much is known of the population structure. The IWC Scientific Committee review of the results obtained through JARPA noted that

A considerable amount of work has been undertaken on population structure since the mid-term review held in 1997 (IWC, 1998) . It was agreed that there are at least two stocks of Antarctic minke whales present in the JARPA research area, and an area of transition in the region around 150°-165°E was suggested . The data do not support the current IWC management Areas for Antarctic minke whales.

Despite this advance in knowledge, to Australia the population structure is still simply "unknown". Or perhaps Australia will just ignore any scientific knowledge obtained through methods involving lethal sampling of whales. When it comes to the ICJ, adopting such bias towards relevant scientific data is unlikely to win Australia any brownie points. These facts represent serious obstacles to a successful challenge at the ICJ. As I said elsewhere, the Australia public may not be aware of these facts, but the ICJ panel of judges will no doubt be made very well aware, and how Australia plans to counter that is something that remains to be seen.

Finally, says Australia, in light of this that "there is a risk of depletion of small stocks."

This binary statement again is unscientific and irrational. While "risk" may exist due to uncertainty, the plausibility of such risk warrants proper consideration.

In the real world where humans make decisions every day, there is for example the risk that one's aeroplane may explode or crash during flight. How many people consider this risk and opt never to fly? Another example is the risk that one may be attacked by a criminal if they leave their home. How many people consider this risk and opt to stay at home all day in safety? A further example - if one stays at home, there is a risk that one may be trapped or killed in the event of an earthquake leading the building to collapse. How many people consider this risk and opt to never stay at home and, sleep in the park instead? We can go on like this in circles infinitely.

The IWC Scientific Commitee itself recognises the importance of considering plausibility of various risks when considering catch limits for commercial whaling under it's Revised Management Procedure. Yet Australia in it's application to the ICJ has adopted to highlight a worst case scenario of which, so far as I am aware, there is no evidence in support. As alluded to above, one might equally dream up "worst case" scenarios to argue in favour of limited harvests of whales. Ultimately, until plausibility of these "risks" is properly taken into consideration (this in itself remains a hurdle especially when politicised issues such as whaling are involved) the arguments are worthless.

Australia makes similar arguments regarding risk with respect to Fin whales and Humpback whales. Humpback whales are a mute point since Japan has elected to put sampling of that species on hold for the time being.

Also regarding Fin whales, Australia makes a couple of odd statements. First is that Fin whales were classified as a "protected stock" by the IWC in the 1970s. This is true. But that the Fin whale was classified as a protected stock in 1970 is not of great relevance today in the 21st century. Various whale species are currently recovering from past over-exploitation that largely occurred prior to the 1970s (that was the whole point of protecting them, and in most cases the protections came well before the "moratorium" was adopted in 1982). Japan's government believes from the research it has been conducting that this species has been recovering since protection, obviously to the point where limited research catches are feasible. Secondly Australia refers to the IUCN Red List classification of Fin whales as "endangered (at a very high risk of extinction)". The IUCN Red List classification system is a generic one that is applied to all species regardless of their individual characteristics and are intended for a specific purpose. The reason that the Fin whale is classified as such is not because they aren't recovering, but because in the past they were heavily over-exploited and so depleted beyond a certain threshold that the IUCN uses. Despite a probable ongoing recovery in numbers, the IUCN judges that the species remains below the threshold. Yet it seems most likely that given more time and additional research the Fin whale will eventually be down-listed, as happened recently with Humpback whales.

But Australia's reference to the IUCN Red List does remind one of Australia's hypocrisy in using this as part of their argument against any takes of Fin whales. For Australia continues to exploit the Southern Bluefin Tuna, which is classified by the IUCN as not only "endangered", but as "critically endangered". And Australia's exploitation of this species is not for scientific purposes with a view to facilitating future resource management - Australia's exploitation of these tuna is purely for commercial purposes. Most ironically, they sell these tuna products mainly in Japanese markets. It's a very valuable industry to Australia, one that obviously don't wish to give up.

Yet if Australia were serious with its arguments regarding Fin whales, they would have already ceased exploitation of Southern Bluefin Tuna, at least for commercial purposes, to be consistent.

Clearly there is great hypocrisy in Australia's position, and one has to question whether Australia's policy of maintaining limited exploitation of "critically endangered" southern bluefin tuna is appropriate, and if it is, whether Australia's opposition to extremely limited catches of fin whales should be dropped. My personal view is that Australia's policy on whales is makeshift and they are just grasping at any old reason that they can think of without properly considering the consequences. Australians are emotional about whales, and thus anything becomes justifiable.


Getting there. A Part 3 is necessary to finish this off, and will be done sometime in the following days.

Labels: ICJ Australia v. Japan