Australia’s long-running dispute with Japan over whaling in the Southern Ocean is about to enter a new phase. Next week hearings will commence at the International Court of Justice (ICJ) in The Hague in the case Australia has brought against Japan over the legality of its Southern Ocean whaling program.
What does the whaling program involve?
Called JARPA II, it’s the second phase of Japan’s whaling program in the Southern Ocean, which commenced in 2005 (following the original JARPA program which began in 1987).
Under JARPA II, the Japanese government has issued permits to the Institute for Cetacean Research to take up to 850 minke whales, 50 fin whales and 50 humpback whales each year for the purposes of scientific research. These “special permits” issued by Japan rely upon Article VIII of the 1946 International Convention for the Regulation of Whaling, which makes direct reference to the ability of signatories to the convention to issue permits for the purposes of “scientific research”. Australia has been a longstanding critic of Japan’s so-called “special permit” whaling, arguing it is really commercial whaling in disguise and flouts the moratorium on commercial whaling introduced in 1982.
What is Australia’s legal case against whaling?
Australia will argue that Japan’s conduct of its JARPA II whaling program in the Southern Ocean breaches international law because:
- Japan has failed to observe the zero-catch limit in relation to the killing of whales for commercial purposes set by the 1946 International Convention for the Regulation of Whaling
- Japan is undertaking commercial whaling in the Southern Ocean Whale Sanctuary established by the International Whaling Commission under the convention
- Japan’s activities are not consistent with Article VIII of the convention due to the scale of JARPA II
- Japan has breached and is continuing to breach provisions of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora and the 1992 Convention on Biological Diversity.
Japan is expected to challenge the jurisdiction of the court to be able to hear the case but has not indicated any other arguments it will make. It is also anticipated that Japan will seek to directly counter the Australian legal argument and assert that its conduct of JARPA II is consistent with the convention.
Who else is involved?
In 2012 this case took an interesting turn when New Zealand announced its intention to intervene in its capacity as a party to the Whaling Convention. NZ has made written submissions in support of Australia’s interpretation of the convention and has been granted time to make a short oral submission to the court. Japan raised objections over NZ’s intervention because of the presence of an NZ judge as a member of the court and because Australia had appointed a judge ad hoc.
The International Court is comprised of 15 judges elected for nine-year terms by the United Nations General Assembly and Security Council. If a state is appearing before the court that does not have a national among the judges, it is permitted to appoint a “judge ad hoc”, who joins the court only for those proceedings and who performs the same functions as the permanent members of the court. Australia’s judge ad hoc is Professor Hilary Charlesworth, and so 16 judges will determine this case. Japanese national Hisashi Owada is a permanent judge.
However, Japan argued Australia’s ad hoc judge was part of a “litigation strategy” being employed by Australia and NZ that the court should not have permitted. In a procedural ruling handed down in February 2013 the court dismissed Japan’s objections and permitted NZ a right of intervention.
The hearings are scheduled to commence on June 26 and run until July 16. Recent cases before the ICJ have been on average decided in six months, so a decision could be handed down during the middle of the 2013/14 whaling season (in Australia’s summer). As there is no right of appeal, Australia will be hoping for a decisive legal victory.
Has Australia done this kind of thing before?
Australia’s first and only appearance before the ICJ as an applicant was in the nuclear tests case against France in 1973. The last occasion Australia was before the court involving a dispute was the Nauru case in 1995, when it was the respondent in those proceedings. Although Australia is not therefore a frequent litigant before the International Court, the fact that it was prepared to take one of its closest allies to the court indicates how significant an issue whaling had become for the government.
However, whether the court’s judgment will end the whaling impasse remains to be seen. Much will therefore depend upon how Australia advances its legal argument in The Hague over the next few weeks.
It is heartening to see lawyers of conscience finding a legal international process to protect the environment.
Are you guys preparing legal action against people who wilfully emit carbon? Surely that too, is an international crime, perhaps against the Commons.
Roger, if the Japanese (and a few other countries) were allowed to take what they wanted from the oceans, they would be stripped bare in a generation. This isn’t just environmental protection, it’s holding the points open to prevent a certain train smash.
In stark contrast, the earth has been the most life-friendly at times when carbon dioxide levels were at their highest.
To try and advance the case of the carbon religion in response to a very informative article about international law and whaling is cheeky at least, ignorant at worst.
Frivolous and vexatious litigation at its worst.
This case was launched purely for domestic political purposes.
The Australian case, as summarised above, has been widely acknowledged as doomed to failure by senior Australian government officials.
As if it needed further debunking, here is a run through the major points raised above:
1. Japan has failed to observe the zero-catch limit in relation to the killing of whales for commercial purposes set by the 1946 International Convention for the Regulation of Whaling.
Wrong. All whales harvested by Japan are done so under Article VIII of the ICRW which provides for a scientific harvest, to which the zero-catch limit explicitly does not apply. The ICRW does not define “scientific”, nor does it provide prerequisites for the issuance of special permits. The wording is drafted very, very widely. Regardless, the scientific results of JARPA II are publicly available, reported to the IWC as required, and published in peer reviewed journals. Further, JARPA II does not exhibit any commercial qualities, howsoever defined those may be. The argument is bunk.
2. Japan is undertaking commercial whaling in the Southern Ocean Whale Sanctuary established by the International Whaling Commission under the convention.
Wrong. Japan lodged the relevant objection to the terms of the “sanctuary” with the IWC with regards to minke whales upon the establishment of the “sanctuary”(however lacking in legal basis that establishment may have been). It is therefore legally entitled to harvest minke whales under Article VIII within the boundaries of the “sanctuary”.
3. Japan’s activities are not consistent with Article VIII of the convention due to the scale of JARPA II.
Article VIII is silent on matters of scale, which is left to the issuer of special permits to determine. The scale of JARPA II harvests are determined in accordance with scientific requirements for minimum sample sizes to allow for accurate statistical analysis. Previous smaller scientific samples taken by Norway were found to be insufficient for scientific purposes. Nonetheless, scale is irrelevant. The purpose of the harvest is determinant. This argument too is bunk.
4. Japan has breached and is continuing to breach provisions of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora and the 1992 Convention on Biological Diversity.
The ICJ has no jurisdiction to hear matters relating to CITES. Under the Article VIII of the Convention, negotiation is the means by which disputes are settled. Failing negotiation, arbitration can be undertaken by mutual consent of the disputing parties. Both Australia and Japan have specifically excluded the option of arbitration. So the court cannot hear the matter relating to CITES. This argument is not just bunk, but stillborn.
Even if the ICJ did have jurisdiction to hear the CITES claim, it could only do so with regards to Japan’s harvest of humpback whales. But unfortunately, Japan has not harvested humpback whales. So this argument too is not just bunk, it is stillborn.
How this appallingly deficient case made it to the ICJ is unclear. That the Australian government should have acted upon such questionable legal advice is troubling indeed. The cost to both the Australian and Japanese taxpayers of this nonsense is immense. The politicians and “academics” who promoted and initiated the action shall wear this cost forever as a crown of thorns.
The Americans were against launching the case. The New Zealanders were against it too. So was anyone else who even remotely knew what they were talking about.
What a complete and utter waste of time and taxpayer money.
Ryohei Uchida, what you say is all legalese window dressing and the same rubbish wheeled out by the Japanese in the international forum.
The Japanese would have already stripped the oceans bare if nobody intervened.
I don’t begrudge anyone the right to eat what they like to eat but there is no sustainable way to harvest whales in the wild. If whale can’t be farmed humanely then it has to be off the menu.
I wonder what science they learn about whales by eating them?
Ryohei Uchida – the same joke of a human that commentspams all whaling articles on ABC news. Only a self-interested scumbag would use the name of an ultra-nationalist warmonger as their internet handle.
Don’t feed the troll guys. The length of his comment merely illustrates that he is (rightfully) worried that Australia will win this case and in any event Sea Shepherd will never stop messing with the Japanese whalers, all of whom I would gladly watch drown in the icy waters where they disobey international law.
Bye Japanese whaling program.