Information note n° 5
Whales at the International Court of Justice
The Hague, The Netherlands, 1st hearing of Japan July 2nd – July 4th
From June 26-28, Australia’s first round of hearings, issues on the purpose of scientific research and on the rationale of hypothesising were raised by the Court. The “positive” contribution to science of JARPA II was put into question. The objectives of the JARPA II program are considered by Australia to be the equivalent of “examining only the European red squirrel to understand what is happening to the European ecosystem” and science which is not built on solid ground. For memory, one of the objectives of JARPA II is to better understand biological parameters in the Antarctic ecosystem (see Information note N°1 for information on Japan’s JARPA objectives). Australia quoted Henri Poincaré, the French Professor, who wrote in 1905 that “science is built up of facts, as a house is built of stones; but an accumulation of facts is no more science than a heap of stones a house”. According to Australia, Japan’s collection of dead whales is not contributing to the stepping stones of scientific progress but a simple proliferation of useless stones.
On behalf of Japan, Professor Alain Pellet, suggested that “true science” following Montaigne “is an ignorance which knows itself”. He endeavoured to demonstrate that the JARPA II program has scientific motives and that its very existence is due to the moratorium on whaling. He added that whaling went hand in hand with the collection of scientific data, used to better understand the evolution of stocks and the annual recruitment of whales. “It might be regrettable but necropsy is the only way to know the age of whales”. Surprisingly, Japan’s own scientific expert Professor Walløe from Norway stated on the 3rd of July that he had great difficulty in trying to make sense of Japan’s statistical calculations of sample size, which he suggested must be based on some statistical method from a textbook. While the debates are particularly heated over quotas of fin and humpback whales, Professor Walløe admitted that he had not even consider these species catch proposals as he did “not like them”. Later on July 4th, on behalf of Japan, Mr Boyle, Professor of International Law at the University of Edinburgh, presented the textbook in question and projected the formula used by Japanese scientists, though as a lawyer and a non-scientist he hadn’t “the foggiest idea” what it meant. It would seem that when trying to understand Japan’s scientific logic everyone but Japanese scientists will remain ignorant.
In rebuttal to Australia’s criticism and argumentation that Japan’s JARPA whaling activities fall under the category of commercial whaling, Japan replied that “Australia is wrong about its motive” that they started “special permit whaling” precisely because paragraph 10(e)* of the Convention recognised the need for the “best scientific advice” to lift the moratorium. The timing of the moratorium which came into force in 1986 and the starting date of JARPA in 1987, was precisely to search for the best scientific advice. Japan justified the fact that they take whales from the Southern Seas on the grounds that when the moratorium is lifted, they will carryout commercial whaling in this area. Therefore, they must carry out their science to justify the return of commercial whaling in this zone. Japan stated that there are many characteristics of JARPA that cannot be justified by commercial whaling. They claim that their methods are different from regular whaling as the scientific vessels follows a trackline, zigzagging every 10 degrees of longitude, with the objective of obtaining research data on the distribution of whales therefore only spending 20% of their time in areas known to have a high density of whales.
In response to Australia’s criticism of the lack of peer review articles Japan stated that the IWC Scientific Committee is composed of over 150 international scientific experts, and that the Committee itself is peer review. Concerning the size of the catches, Japan stated that even if the Nisshin Maru is 3,200 cubic meters this does not correspond to 3,200 tonnes of whale meat that the vessel’s capacity is actually 1,650 tonnes corresponding to 400 minke whales. Therefore Australia’s observation that catch size corresponds to capacity is not correct. Japan also argued that under paragraph 2 of Article VIII they are under obligation to process the whale meat.
Editorial note: Paragraph 2 of Article VIII states: “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”.
*10 (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.
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