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Whaling in the Antarctic: the case concludes

Posted on July 17, 2013

Australia and Japan’s case on whaling in the Antarctic, heard in the International Court of Justice, wound up on Tuesday. In presenting Japan’s final arguments Professor Payam Akhavan of Harvard University claimed “it would not be an exaggeration to say that Australia’s case now hangs by a thread”.

Utilisation, not preservation

Japan said that the Court should look at “the applicable law” of the Whaling Convention and again argued that its purpose was the “conservation and management of whale stocks” and the “optimum utilisation of the whale resources”. Sustainable whaling is clearly one, if not “the fundamental objective” of the Whaling Convention, Japan said. “But Australia does not accept sustainable commercial whaling”.

In response to arguments from Australia and New Zealand regarding Special Permit Whaling under the oft mentioned Article VIII of the Convention, Japan said that it was “an exemption from the Convention, an exemption that permits whaling for the purposes of scientific research”. This exemption, Japan argued, allowed each State freedom to decide for itself what should be included in its program of scientific research.

An ANZAC collusion

Referring to a 2010 joint press release from the then Australian Foreign Minister, Kevin Rudd, and New Zealand’s Foreign Minister Murray McCully, Japan said the two Parties “have acted in collusion in this case” and “clearly prejudiced Japan in these proceedings”.

Japan also referred to interviews with Australian Attorney-General Mark Dreyfus. Japan said it was clear that “irrespective of the Court’s decision, Australia will continue its campaign of confrontation at the IWC” and that “Australia will stop at nothing”.

Science on trial – but what is art?

On Australia’s arguments about science, Japan said “Australia’s best case is that there is some scientific disagreement” on aspects of Special Permit whaling. “But the question before the Court is not whether Japan could improve its scientific research. It is whether it has no scientific merit at all; or whether it is commercial whaling in disguise”.

Emeritus Professor Lowe, an expert on international law from Oxford University, argued for Japan that “there is no uniquely correct formula” for what is scientific research. He said that there might be differences among scientists about Japan’s Special Permit whaling, but “these are debates about scientific questions”. He went on to say “the Court can ask: could a reasonable State regard this [JARPA II] as a properly framed inquiry? But it can no more impose a line separating science from non-science than it could decide what is or is not Art”.

While some might think Japan’s whaling program is bad science or unnecessary science, Japan’s view is that it is “an absurd exaggeration to say that it is not scientific research at all”.

Science – implications for other international agreements

Professor Allan Boyle from the University of Edinburgh argued that if Japan’s lethal whaling program was not scientific research, “then neither are the research activities of institutions providing advice on sustainable catch levels for fisheries worldwide”. He went on to say that the case could have “broad systemic” implications across the whole field of international environmental law.

In summing up on the last day of the case, Professor Alain Pellet of the University of Paris Ouest, said Australia had “an elitist and metaphysical view of science”. He went on to say that some scientists’ “anti-whaling bias might be stronger than their objectivity”.

Bad faith and fig leaves

On Australia’s arguments about “bad faith”, Japan said that this was a “legal euphemism for intentional deception. Australia’s case is that Japan has lied, and that it has done so systematically, as a matter of State policy for almost 30 years”. Japan said that this was a serious accusation and an affront to a nation.

Japan again argued that it was Australia that had acted unreasonably. If Australia, in 2010, had not abruptly rejected consensus on reform of the International Whaling Convention things may have been different. But Australia had said “it was now time to close the door on the Proposed Consensus Decision” on reform of the International Whaling Commission. Had Australia not done what it did the Commission would have been saved from the brink of collapse.

Professor Pellet later said that Australia was arguing that Japan’s Special Permits were the “fig leaves of commercial whaling”. But Australia and others, he said, replaced the objects and purpose of the Convention with “utterly ideological” opposition to whaling.

On the brink of collapse

More than once in this case it was inferred or stated that the International Whaling Commission was on the brink of collapse. Japan referred to the Kingdom of Denmark’s actions in unilaterally implementing a catch quota for Aboriginal subsistence whaling, because the Commission could not agree on their proposal for catch limits for 2013 and beyond. Denmark had indicated that it could “withdraw from the Convention before 1 January 2014”.

Japan went on to say that “if the hijacking of the Convention continues… soon there will be no whaling nations at the IWC… Soon there will be two competing international organisations…There will be a Whaling Commission and an anti-Whaling Commission”. Japan reflected again on this scenario in its final summing up.

What do we want? When do we want it?

Last week Australia asked that the Court “to adjudge and declare” that:

  • Japan is in breach of its international obligations in authorising and implementing its whaling program in the Southern Ocean
  • Japan refrain from authorising or implementing special permit whaling; and
  • Japan cease its whaling program immediately.

Australia also asked the Court to declare that Japan’s JARPA II whaling program is “not a program of scientific research” within the meaning of the Whaling Convention.

In summarising Japan’s argument in the case, the Deputy Minister for Foreign Affairs, Mr Koji Tsuruoka, thanked the Court and said “we have been able to present to the World the truth about Japanese scientific whaling”. He then went on to infer that if it was not possible for Japan to conduct its scientific whaling “the only way out is to leave”.

Mr Tsuruoka asked the Court “to adjudge and declare that the claims of Australia are rejected”.

When will we ever learn?

The Court will now retire to consider the vast amount of written and oral evidence before it. A Court official said that it usually takes the International Court of Justice four to six months to consider its cases.

That might not satisfy those who would like a decision soon to stop the next season of Japanese whaling in the Antarctic.

Source: The Conversation, story by Tony Press

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