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David @ Tokyo

Perspective from Japan on whaling and whale meat, a spot of gourmet news, and monthly updates of whale meat stockpile statistics



ICJ: Australia v. Japan Part 3

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.


Whales must be such a big deal over there if this truly is a party election move. I bet it wouldn't make enough difference to bother with all this in the UK and it's pretty obsessive here as it is. I can't even begin to imagine Australia's version of it.
Refusal of Japan to accept recommendations of the IWC"...
refers to 33 Resolutions passed by the member nations condemning Japan's whaling.
Double standards rule, why don't the anti whalers protest against the Aussie merano sheep industry that is REALLY cruel, with animals never seeing the daylight etc, in Sweden at least our biggest departement store boycotts Aussie merano sheep products,

Why don't the anti whalers and SS blockade the so called death ships with live sheep ship transports from Austarlia to the Middle East???

You anti whalers are focusing on trivial things, let's instead focus on REAL ANIMAL ABUSE. To eat and kill a few whales ain't no crime against the law nor is it a crime against animals!
Hi johngrey, not sure if it is a direct election move, but Australia's Labor party does appear to have sold out it's whaling policy to the commerical anti-whaling industry; winning votes from the well intentioned but deluded seems like the most plausible motive.

Hi Anonymous. So what. 33 resolutions "condemning Japan's whaling" are not legally binding. Australia has taken this to the ICJ, which is a venue for settling legal disputes, not for broadcasting meaningless propaganda.

Hi Ann, it's all about the anti-whalers making themselves feel good. There's a word for that, I won't use it. But I think you are probably more well aware of this than I am :)
Funny how Australian courts have deemed the illegal whaling by Japan to be just that, illegal.

No-one here is fooled by the scientific research claims by the Japanese Whalers.
But that's not what it's about, is it? You don't care about scientific research, whichever way. As I understand it's more about the blanket protection. You just farm any reason afterwards to justify it. If it were not the scientific research, you would've farmed other excuses to criticize them with. I honestly don't know whether you're being deliberately deceptive or doing so unintentionally out of passion. I'd like to believe it's the latter, but at times what the campaigners say and do make it so hard to believe.
I see that as well as a problem , that the Japanese call the whaling research. They should call it commercial, like the Norwegians and do research on the commercial catch.

WWF stated " in the dark tunnel of the decline of biodiversity , the minke whale population( increase) is one of the few lights in the dark tunnel..."

How is it with minkes and the Red List? Are they still Red Listed.

You anti whalers should think about the horrors with factory farming, I weep for the animals there...realise finally that the whales are OK!!!!

Re the Fin whales, my opinion is that fewre should be hunted if any at all right now...
A clarification here. Minke whales are in the Northern Hemisphere classified as " Least Concern" . I'm rust now:)))( I'm a birder now)SH are probably DD.
A part of me agrees and disagrees on that. As it stands the commercial whaling would probably require leaving the IWC, and from the conservation standpoint that isn't ideal. Usually having multiple perspectives help. That's what IWC and its research are for.

Leaving Japan alone on the lethal research is actually quite a profound issue in my eyes. If only the others actually helped IWC and participated in the process alongside Japan, even funding or sharing the burden with them, I suspect there would've been much greater input from all sides in shaping their research programme. Why bother with IWC otherwise?

I'm not one to assume that Japan's programme is necessarily ideal, but it's bizarre when some people (and yes I know we brits are at fault too on this, before somebody points it out) protest for the sake of it by throwing any reason they can come up with.

It seems to me that the campaigners are more often than not barking up the wrong tree. It also doesn't help that, when challenged on this matter, they either throw fits, hide under the rock, or resort to some unanswerable rhetoric and innuendo about compassion and humanity, when every other aspect of their own countries easily go against such virtues as they see fit.

The problem with me is that I'm thinking lately all these discrepancies are actually intentional which would be the worst thing we can do. I have no proof of that, but the whole anti movement would make you uneasy especially when your own nation is a part of it. Japan is often accused of fudal barbarism on whaling, but the more detail I look into the more I can't help but feel that it is us who fit into precisely that description.
Anonymous, Australia can pass laws that are inconsistent with it's international obligations if it so chooses, but the research whaling doesn't fall under Australia's jurisdiction. (You'll notice that Australia doesn't try to assert otherwise in its application to the ICJ.)

It's the same with me possessing whale products. That's also illegal under Australian law. The reason I'm not taken to court for possession of whale products is because I too don't fall under Australian jurisdiction. Simple stuff?

Also, I do not know who you are claiming to speak on behalf of when you say "No-one here", but note these points from Justice Allsop's ruling:

1) "... this proceeding has been conducted on the premise that JARPA (and later JARPA II) are not challenged as lawful permits under the Whaling Convention and thus it was not asserted that the impugned activity of the respondent was and is not scientific research"

2) "The evidence reveals that the whaling activity ... was undertaken by a fleet of five vessels ... the MV Nisshin Maru, being the base ship where the slaughtered whales were processed and research carried out"

That is, the Australian courts themselves recognised the activity as research whaling.
I tend to think that the anti-whalers run around in circles with their arguments for the latter reason you give, johngrey. At least the majority of them, especially the supporters. They most probably in my estimation do mean well but zealotry clouds their judgement, and ultimately their belief that whaling is "wrong and must be stopped" comes first, and they tack various arguments on the back of this, no matter how flawed, to try to justify their belief and give their argument a semblance of rationality.

This is why so often we see anti-whalers coming up with contradictory statements. E.g. "there is no demand for whale meat! stop whaling!" versus "they are exploiting whales for commercial profits! stop whaling!".

On the other side, there are also a lot of people out there who would be out of a living if the commercial anti-whaling industry were to collapse. Whether they consciously behave in the manner they do so as to ensure their livelihood is something that we can but ponder. Watch Whale Wars? Some of the people on the crew with their "Stand by to ram" beanies seem like they have probably never had an honest job in their lives. (Ann, that guy with the scraggly whiskers and turned-up nose from your neighbourhood is a prime example!)
Ann, Japan should just give up on the IWC as a management body, everyone including the Japanese negotiators know that it's useless. Whether it's for research or straight commercial exploitation, either way it doesn't matter, so long as it is sustainable or otherwise won't have deleterious effeccts on the stocks in question. When the government as a whole will come around and make this judgement remains to be seen, and perhaps because of Australia's offering the chance to have the dispute over Article VIII and the meaning of the ICRW reviewed by the ICJ, this may be some time off. Perhaps this court case will be the fastest way to bring the matter to a suitable conclusion, however. What do you think?
A little levity for today: http://youtu.be/WH_MBwQhGgA
Peter H from SS wrote an article that was published in a Faroe paper , and plead them to stop killing pilot whales.
It was also mentioned that the FAROE PEOPLE HAD RECENTLY SAVED AN ORCA.
I don't deal much with the whales issue any more because I think it is outdated but a funny circus. I would ever , never understand why the anti whalers, read GREENPEACE ,think it's OK TO EAT and torture livestock, but eat a whale steak is banned????Especially if you consider the good and free life the whales live and what a hell for animals the factory farming is.
So Peter H is recommending the FAROES TO SKIP the whale beef and eat imported anibiotic and hormone infested meat from animals that have endured cruelsome transports and lived in hell!!!
I say may the anti whalers be born as battery hens or pigs in gestations stalls in their next life, I curse them !
I would like to put a bad spell on them , but I finally think they will be punished when the right day will come!
Hilarious! The Chaser: Humpback Whales trying to save Peter Garrett: http://youtu.be/vBdjf8q-77A
A bunch of retards, Know all you facts before posting up rubbish please. JAPAN "SCIENTIFIC" whaling. BULLSHIT.
Excuse me, I realised that I am the one posting up bullshit. But hey, that's why I post anonymous oneliners.
well well well, looks like we have some blog sabotage going on here. The first anonymous is quite correct, you are a bunch of retards who are so completely deluded it actually makes me laugh. I myself love a good anonymous one liner, keeps things fresh. The second anonymous is obviously some whale meat loving creep who thought they would take upon themselves to try and be funny. Probably David himself.

Oh, and just thought I would let you fools know, whale meat is full of mercury... its heaps good for you... PSYCH.

Lucky for you whaling came to an end today! After years of trying to look like they were making themselves useful, the Japanese whaling fleet turned on their tails and fled. A statement was released saying that they couldn't risk the lives of their crew because of the 'harassment' Sea Shepherd was dishing out. I agree Japan, rotten butter is so very very scary. Much scarier than a harpoon being driven into your flesh while you writhe around in agony.

You are all just trying to be antagonistic. Get over yourselves. Seriously. If you feel so strongly about human entitlement to meat consumption go have a BBQ or something.
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