David @ Tokyo

Australia has warned Japan's "scientific" whaling is a dangerous precedent with potentially catastrophic effects, as the case to end the hunt opened at the International Court of Justice.

Oh, do tell.

Australian Government counsel Bill Campbell, QC, told the court that according to Japan's interpretation of the global whaling treaty, any member country would be free to decide its own scientific kill.

That is precisely what the International Convention for the Regulation of Whaling says in the first part of Article VIII.

"I ask the court to consider the consequences if the other 88 member states of the International Convention on the Regulation of Whaling had the capacity and conducted whaling on the same basis as Japan," Mr Campbell said.

Japan asserted its right to take up to 935 minke whales in the Antarctic, he said. "If each were to act the same way, a total of 83,215 minke whales a year would be killed.

 

"If one took Japan's view of the convention this would be entirely permissible. Of course, the consequences of taking 83,215 minke whales a year would be catastrophic for the minke whale population but in Japan's view would be legal."

Australia is asking the ICJ to consider a both hypothetical and very implausible scenario that is entirely distinct from reality.

Firstly, none of the other 88 (is it?) contracting governments to the ICRW do have the capacity to conduct the sort of research that Japan is undertaking. Only Japan has both the equipment and the personnel it requires (and even Japan's equipment is get dated).

Secondly, Australia's implausible scenario overlooks the obvious feature of the ICRW - that it is an international agreement which is meant to facilitate cooperation amongst contracting governments who share a common goal. It is absurd to suggest that 89 contracting governments of the same international whaling agreement would all go off independently and conduct similar lethal research programs bringing a grand total take to 83,215 whales. Why would they even have an agreement if that were their intention? A basic assumption underlying the notion that contracting governments will cooperate with one another is that they share the same goals. But this is not true at the International Whaling Commission, which has been stacked with anti-whaling nations in recent years. The goal of the anti-whaling nations is to prevent the whaling nations from being able to achieve results in accordance with the stated aims the ICRW, which includes conservation and utilization of whale resources. Australia has frequently stated as much quite publicly with respect to it's own stance.

Thirdly, in terms of the ICRW, the implausible scenario Australia suggests should be considered to be legal - because the ICRW text does allow for it, in legal terms. But as I understand the remit of a court, it is not to make the law, but to judge what is and is not in accordance with it. The ICRW text does say that any Contracting Government may grant special permits to it's nationals and set the number of whales to be taken as it sees fit. It has long been evident that Australia does not like this provision, but that is no justification for the ICJ to rule in Australia's favour. On the contrary it suggests that Australia ought to cease to be a Contracting Government if it can no longer agree to the terms of the agreement to which it is adhered.

Mr Campbell said the court meeting in The Hague had an important opportunity to decide for the world what did, and did not constitute scientific activity, and Australia did not believe Japan's whaling was scientific.

Although Campbell talked about dangerous precedents, just imagine if the ICJ were to rule in Australia's favour. Not only would the text of an international agreement have been summarily ignored, but it would likely possibly have repercussions for other areas where similar scientific methods are deployed, such as fisheries stock assessment.

"In short,  Japan seeks to cloak its ongoing commercial whaling in the lab coat of science," he said.
"It simply is not science."

Not particularly persuasive argumentation is it - just forceful statement of Australia's long held stance.

An American mathematician has been named as a surprise witness for Australia in the case.
The choice of University of Southern California fisheries stock assessment expert Marc Mangel indicates Australia will be attacking the fundamental scientific basis of the Japanese program.

This was the most interesting thing in the story. Although Australia proclaims that what Japan is doing is not science, they have produced a fisheries stock assessment expert to make an argument. Fisheries stock assessment science is precisely the field of science that Japan's research programmes aim to contribute to (and indeed the IWC's own scientific committee has utilised Japan's data for such purposes). One of course assumes that the expert will attack aspects of what Japan does. However in doing so they will be drawing much attention to the fact that Japan's research does bear a great deal of resemblance to stock assessment research - which is no coincidence because that is what Japan has said it is, all along. But any deficiencies in the Japanese research that the expert may point to could not, to my mind, result in the programme being judged to be fundamentally commercial in nature, rather than research compliant with the requirements of the ICRW. With an entire research institute in Japan dedicated to the research since it began, and even the IWC's Scientific Committee making use of Japan's data, it is impossible to imagine any sane judgement by which the ICJ could overlook such facts and focus only on the "commercial" elements of the JARPA II programme - which themselves are required by the ICRW itself.

Professor Mangel's detailed scientific report is to go before the ICJ, along with evidence from Australia's Nick Gales, one of the world's leading proponents of non-lethal whale research.

Dr. Gales is unlikely to be able to produce a set of like-for-like data equivalent to what Japan has gathered with non-lethal whale research methods. If, for example, Dr. Gales were able to produce multi-year set of whale sample' age data (such as that which the IWC's Scientific Committee has used, offering thanks to Japan for provision of the data in the process) he might have a case, but in reality he has no such data sets to show.

On the Japanese side, only one witness has been notified to the court - a Norwegian expert on whaling, Lars Walloe.
Professor Walloe designed the legal Norwegian commercial whaling program, which is carried out under formal objection to the International Whaling Commission's moratorium on commercial whaling.

Best of luck to the Japanese team and Professor Walloe.