David @ Tokyo

Labels: ICJ Australia v. Japan

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

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

*** 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