David @ Tokyo

Returning again to my series on Australia's ICJ application, this is Part 3. Parts 1 and 2 here and here.

I got up to point 17 last time, and so it's there that I continue on. From this point Australia describes what it says is the "Refusal of Japan to accept recommendations of the IWC"...

The legal value of this entire section escapes me (admittedly I am a legal layman). What Australia means by "accept recommendations" isn't entirely clear, but presumably they wish to say that Japan isn't acting in accordance with the recommendations of the IWC.

Firstly, there is no legal obligation for any Contracting Government to act as such. Recommendations are just that - recommendations.

Secondly, Japan has acted in accordance with various recommendations - just not all the recommendations that Australia would like. But just because Australia's official policy purports to desire something, that does not mean it is even reasonable let alone legally binding. Australia's legal advisers are surely aware of this, and thus one has to question the purpose of adding this section to their application. Is it just to fill out some extra pages, to make their application appear more substantial? Or is it just to take advantage of the opportunity to splurge the typical anti-whaling propaganda that the Australian government always rehashes?

Nonetheless, let's humour this. In point 17 Australia makes reference to Article VI of the convention, which reads as follows:

Article VI

The Commission may from time to time make recommendations to any or all Contracting Governments on any matters which relate to whales or whaling and to the objectives and purposes of this Convention.

Australia's text says that the conventions purposes "... include, first and foremost, "safeguarding for future generations the great natural resources represented by the whale stocks"."

This is quite an astonishing statement for Australia to make - through deliberate omission (amusingly when I search for other sources that state such an interpretation the only one that I can find is this Wikipedia page, which even references this blog as a source!)

What the convention actually says in its preamble is substantially more than that. The text which Australia has selectively quoted in fact reads:

"Recognizing the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks;"

The word "recognizing" is not insignificant, yet Australia has snipped it out and purports that what follows it is the "first and foremost" purpose of the convention. Yet this particular statement by itself is something that was recognized by the drafters of the convention, but being recognized does not make it the "first and foremost" purpose of the convention. It was the "first" point recognized in the convention, but there is nothing to suggest that coming "first" before subsequent points makes them any less important. And to suggest the item is "foremost" is also without any substantiation.

Additionally if one reads the rest of the preamble one finds that it also "recognizes" other points such as the fact that "increases in the size of whale stocks will permit increases in the number of whales which may be captured without endangering these natural resources". (Read the whole thing if you are unfamiliar with it)

But finally, the ultimate purpose of the convention is quite clearly stated at the end of the preamble:

"Having decided to conclude a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry;"

These words are unequivocal with respect to the purpose of the convention. Yet Australia has tried to distort this in it's application. One can't imagine the ICJ panel of judges will look favourably upon such a level of argumentation by Australia.

Still further, as I highlighted back in 2007, British politicians, while anti-whaling like Australia, are clear on this point too, as seen from the records of British parliament in 1991:

It is clear that the Japanese, the Norwegians and the Icelanders are members of the International Whaling Commission so as to achieve an agreed international rule for resumed whaling of the minke and the fin whale stock. We are not fools. We know that that is the purpose. In a sense, that is what the constitution of the organisation says, so that is a legitimate expectation on their part.

I don't think the Australians are fools either, but for some reason this sort of nonsense has made it's way into Australia's application.

That Australia can not honestly accept the purpose of the ICRW is at the heart of this whole dispute.

Moving along.

Through points 18 through 21, Australia enumerates some past IWC recommendations that Australia presumably agreed with, and concludes in point 22 that "Japan has refused to comply with any of these recommendations". As I noted above, IWC recommendations aren't legally binding in the first place (nor necessarily reasonable recommendations either).

On the other hand, Japan has acted in accordance with other IWC recommendations that Australia doesn't list, such as the one from 1986 that I highlighted in the previously part of this series that recommends that "following the completion of scientific treatment the meat as well as the other products should be utilised primarily for local consumption."

Does Australia believe that it should legally be able to pick and choose those recommendations to which Japan must abide by? Surely not. Australia is no more nor less than Japan nor any other sovereign state.

Through points 23 through 26, Australia describes the "IWC negotiations". For Australia to use the word "negotiations" is ironic, since Australia's position was always that Japan would have to do as Australia desires for there to be an agreement. Australia itself notes that it argued that it "needs to see an immediate end to" special permit whaling. This selfish and inflexible position on the part of Australia illustrates clearly that it was entirely unwilling to compromise or even show an understanding of the fact that there was a point of mutual disagreement between Australia and Japan.

Moreover, if Australia is dissatisfied with Article VIII of the ICRW, or other parts of the ICRW (including those parts that it ignores), it has the right under Article XI of the convention to withdraw from it. That Australia has not done so, and purports to participate in "negotiations" with it's inflexible position and unreasonable demands gives the impression that Australia's true intent is simply to defeat the object and purpose of the ICRW. That is essentially the best option for politicians who are trying to appeal to voters in anti-whaling electorates.

Points 27 and 28 cover some more recent IWC history, but point 29 is more interesting in that Australia says "It has become clear that current and proposed IWC processes cannot resolve the key legal issue that is the subject of the dispute between Australia and Japan". This is perhaps the only point in Australia's entire application that I can find myself in clear agreement with. If Australia wishes to test it's interpretation of the ICRW at the ICJ, this is a positive thing in that at the end of the matter it will be very clear as to who is right and who is wrong. The result, if it comes as I believe it will, will be a devastating blow to the commercial anti-whaling industry and governments such as Australia who appear to have sold out their policy stances to that industry in a cynical hunt for votes.

In points 30 through 32, Australia mentions the "Refusal of Japan to comply" with some other "requests" Australia made by itself and with some of it's anti-whaling friends. Again, these requests are not legally binding, and simply making such requests repeatedly does not increase their legal power, as far as I know. This is just, as with point 17, Australia filling it's application with propaganda rather anything resembling a serious legal argument.

In point 33 Australia continues to blow it's own horn, trumpeting it's appointment of a "whale envoy" (Sandy Hollway), as well as the failure of this appointment to achieve anything that Australia ostensibly hoped for. (The appointment was an election commitment by the previous Rudd government, if I recall correctly.)

In point 34, Australia notes that although this case is with respect to the Southern Ocean, it feels the same way with regards to Japan's activities in the western north pacific. They didn't want to have anyone thinking Australia wasn't opposed to whaling activities in the northern hemisphere, I guess, hence they added this in?

Coming towards it's conclusion, Australia lists what it describes as "Obligations breached by Japan" in points 35 through 39. The first three refer to the ICRW, and naturally what Australia claims here I consider nonsense based on what I have covered already up to this point. Point 38 in particular refers to CITES, with which I am less familiar and not inclined to examine closely here considering the rest of Australia's application.

In point 40, Australia notes that it hopes the Court will agree with it, and that it may "supplement, amplify or amend the present Application" as it has the right to. I can only expect that this will be the case given the nature and quality of the application as it stands. (I still remain of the view that there is a good possibility that the Australia government drops this action to save face. After all, it seems elections may be out of the way for the next 3 years now perhaps.)

In point 41 Australia notes its wish-list (good luck), and of final significance, in point 42 Australia notes that it will appoint an adhoc judge. As I understand it, the way the ICJ operates is a panel of judges will sit on the case, and here because Australia does not currently have a judge on the panel, it has the right to appoint one. Ultimately the ICJ panel of judges will rule by way of majority decision. I believe we are yet to hear who Australia's adhoc judge will be, and indeed the judge may ultimately vote against Australia anyway. Still, one would hope they don't appoint a patsy, just so as to ensure they don't lose the case by unanimous decision - that would be very poor form indeed.

Labels: ICJ Australia v. Japan