Information note n°3
Whales at the International Court of Justice
The Hague, The Netherlands, 1st hearing of Australia, June 26th – June 28th
In his opening statement for Australia, Mr Campbell projected an image of a Japanese vessel with “Legal Research under the ICRW”* painted on the side and yet another whale lying dead on the slipway. For Australia, this is the image and language of a country trying to convince itself that they are contributing to science and thereby respecting the law. The international community and more specifically the international scientific community is not convinced.
Australia’s arguments concentrate on current activities of JARPA II (see Australia v. Japan information note n°1) and how its activities breach the text and the spirit of International Whaling Commission (IWC). They chose not to bring into the debates other international conventions such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) or the Convention on Biological Diversity though their case could have equally applied to these international treaties. According to Australia, Japan has not respected the principle of “good faith”, defined by the 1969 Vienna Convention on the Law of Treaties (Article 26 states : “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”). Throughout the course of the hearings Australia, has illustrated and explained clearly the evolution of the IWC to its current status which could be summed up by the first lines in the preamble as “recognizing the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks”.
The first environmental dispute treated by the International Court of Justice in 1997 Gabcíkovo – Nagymaros Project, (Hungary v. Slovakia on the construction of dams and levees on the banks of the Danube) underlines the obligation of Contracting Governments to exercise the functions of an international treaty in a reasonable way in order to achieve the objectives of the Convention therefore demonstrating “good faith”. According to Australia, Japan has demonstrated “bad faith” in their refusal to acknowledge numerous Resolutions published by the Commission dating back to the 1990s. Indeed the Scientific Committee has called on Japan to cease using lethal methods for scientific research in the Southern Ocean and more specifically in designated whale sanctuaries. In general criticism from the IWC concerning Japanese “special permit whaling” has been robust with many reminders and injunctions. The Commission states that JARPA I and JARPA II do not address critical scientific needs nor does it reflect the conservation objective spelt out by the text of the Convention.
Australia’s case consists in showing the Court that Japan’s whaling does not fall under the requirements of Article VIII of the IWC (scientific whaling) but rather under the category of commercial whaling. Seven key features show that Japan’s whaling is in fact commercial.
– Firstly, the mere size and repetitive nature of JARPA operations cannot be justified by scientific needs.
– Secondly, following the moratorium, it has been business as usual with the catches carried out in the same way and the meat sold on the same markets.
– The third point presented is that before the moratorium the Japanese did not see the need to carryout lethal scientific research on such a large scale.
– The fourth element is related to the business-like nature of the operation which is to say that the goal is to maintain a whaling industry with market profits used to carry on with commercial activities.
– The fifth feature is Japan’s clear intention to disguise commercial whaling under the “lab coat of science”.
– The sixth argument is that the Japanese have not carried out any clear scientific reviews or critical questioning of the scientific rational to the whaling program.
– Last but not least, according to Australia, the constant refusal by Japan to accept the collective role of the Convention and of the Scientific Committee of IWC indicates, “the pursuit of commercial gain” by the Japanese whaling industry. Therefore Japanese “scientific whaling” under the definition of the Convention is “commercial whaling” and is illegal given that the Japanese signed the moratorium (see The End of the Japanese Fairy Tale).
In order to determine if Japan’s activities are scientific in nature a definition of what constitutes genuine scientific activity must be established. This definition must be established before Australia can demonstrate that Japan’s whaling activities in the Southern Seas are “erroneously” characterized as scientific. Therefore on the afternoon of Wednesday June 26 and Thursday June 27, the Court took a philosophical and epistemological turn. Scientific experts were called upon by Australia and questioned by the Japanese and the Judges. The scientific experts demonstrated that Japan’s interpretation of Article VIII is unilateral, meaning they and only they decide what science is. Japan reviews alone, and determines alone if the science is good or bad, and whether they should continue with their scientific program. According to Australia, this unilateral interpretation of Article VIII is dangerous. If each Contracting Government interpreted the text in the same manner it could permit the total destruction of whale stocks in a matter of years. Indeed, Australia demonstrates to the Court that science is multilateral and perhaps one could add universal. According to Australia, science and in this case Article VIII of the Convention must be subject to review by all Contracting Governments and by the international scientific community as a whole. The environment and more specifically the biodiversity of the oceans does not know boundaries and must be managed by collective action in order to safeguard resources. Ultimately it is for the International Court of Justice to decide if the Japanese has complied with their obligations to the IWC and more specifically with Article VIII and it is not for Japan to decide.
The Court has raised numerous questions on the meaning of “scientific research”. According to the experts, the lethal take of an animal, in scientific wording, is called a “sacrifice” such a term is employed as any future information which could be obtained from the organism is lost. Australia has repeatedly demonstrated to the Court that the “sacrifice” of such an iconic species for body parts such as earplugs and stomach contents as well as the “flensing” (removing the blubber) of whales indeed does not contribute to scientific research. In eighteen years of JARPA program the only conclusive information is that minke whales in the Antarctic eat an enormous quantity of krill. This information is insufficient and useless to the understanding of the Antarctic ecosystem.
For two and a half days Australia presented its arguments before the 16 judges at the International Court of Justice in The Hague. If it is proven that Japanese whaling is not “scientific” it falls under the category of killing whale stocks for “commercial” proposes which is banned by the 1986 moratorium. Australia is requesting that JARPA II ceases, which, in the current state of affairs, could continue indefinitely.
Editorial note: science is only just starting to scrape the surface on the wide scope of whale’s positive cyclic contribution to marine ecosystems the Court must consider their “sacrifice” for Japan’s science. (please see Robin des Bois’ file “Of Whales and Their Usefulness”
* International Convention for the Regulation of Whaling (ICRW) the founding treaty of the International Whaling Commission (IWC)
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