{"id":1944,"date":"2013-07-12T00:00:29","date_gmt":"2013-07-11T23:00:29","guid":{"rendered":"https:\/\/robindesbois.org\/laustralie-riposte-2\/"},"modified":"2016-04-05T09:49:02","modified_gmt":"2016-04-05T08:49:02","slug":"laustralie-riposte-2","status":"publish","type":"post","link":"https:\/\/robindesbois.org\/en\/laustralie-riposte-2\/","title":{"rendered":"Australia: Fights Back"},"content":{"rendered":"

Information note N\u00b07<\/strong><\/p>\n

Whales at the International Court of Justice<\/strong><\/p>\n

The Hague, The Netherlands, 2nd hearing of Australia, July 9th \u2013 10th<\/strong><\/p>\n

The second round of hearings for Australia was presented from July 9th to July 10th and announced a call to order in the Court by the Attorney-General of Australia, Marc Dreyfus. Australia\u2019s return to the stand signalled the return, in force, of clear legal arguments. Australia restated that their case was \u201cabout the failure of one country to comply with its international legal obligations not to conduct commercial whaling, an obligation which that country accepted voluntarily but then immediately began to subvert.\u201d Australia also hammered down the unfounded arguments that Japan had unjustly presented against them in their first round of hearings. They squarely stated that not only was Japan\u2019s case an offence to Australia it was an offence to all Contracting Governments of the International Whaling Commission (IWC), the scientific community and the International Court of Justice.<\/p>\n

On the \u201cbaseless allegations\u201d, \u201ccompletely devoid of legal argument\u201d Australia set the record straight. On the allegations that Australia breaches international law by means of endorsing the activities of Sea Shepherd they replied that they have \u201ccalled for all vessels in the Southern Ocean, including those of Japan and Sea Shepherd, to comply with international law in their actions\u201d. That it is in this very context \u201crespect of international law\u201d that they have brought their dispute before the Court. Australia stated that they \u201ctake seriously\u201d their international obligations including search and rescue in the Southern Ocean. In response to Japan\u2019s allegations on Australia\u2019s \u201cmoral crusade\u201d against whale eating countries and the \u201cspirit of cultural imperialism\u201d they rebutted that it is simply not the reality, Australia respects other countries\u2019 cultures they added that this case is not about culture but about respecting international law. (1) (see Japan Strikes Back information note N\u00b04<\/a>).<\/p>\n

Addressing Professor Pellet\u2019s derogatory attacks on Australia\u2019s \u201calleged persecution of the minority by the majority\u201d and portrayal as a \u201cpuppet\u201d master of unnamed sovereign countries at the IWC Australia retorted that they are unfounded and hold no substance. Concerning Australia\u2019s diplomatic magical powers in ensuring the continuation of the moratorium Mr Crawford an Australian co-agent replied that he wished his \u201ccountry had even half the diplomatic clout\u201d that Japan attributed to them. Australia underlined that the allegations are \u201cimputing bad faith\u201d on Japan\u2019s part and \u201cimpugn\u201d the integrity of scientists, they highlighted the fact that these arguments \u201cspeak volumes for the weakness of the Japanese case\u201d and is actually a criticism towards the Court.<\/p>\n

While trying to find any legal arguments in Japan\u2019s first round of oral arguments, Australia found no evidence that JARPA II was respecting International law spelt out by the Convention. In fact they found that Japan\u2019s arguments could be characterised by \u201csilence, contradiction and disparagement.\u201d Australia even wondered if Japan\u2019s council had read each others oral presentations. No evidence was presented to the Court on a true scientific assessment between JARPA I and JARPA II, nor on the methods of killing or on sample size. Nothing in the Japanese case justified the permits to kill humpback whales or fin whales. There was no justification either as to the jump from a proposed quota of 350 minke whales in JARPA I to between 850 and 935 minke whales in JARPA II (not far from Japan\u2019s commercial quotas from in the 1986-1987 season) (see Poincar\u00e9 v. Montaigne, Information note N\u00b05<\/a>).<\/p>\n

On the issue JARPA\u2019s \u201cscientific\u201d objectives, obtaining age data via earplugs, changes in blubber thickness, whale competition assessed through stomach content, monitoring of the Antarctic eco-system and the testing of the estimate safe catch levels of the Revised Management Procedure (RMP) the response was simple: JARPA I and JARPA II have not, in any way, opened up any doors on the questions (see Australia v. Japan Information note N\u00b01<\/a>). Zooming in on the earplugs, the only objective which could justify the lethal take of whales, Australia highlighted that in 26 years of the whale massacre neither JARPA I nor JARPA II have produced any sound scientific knowledge on natural mortality based on age data (see The End of the Japanese Fairy Tale<\/a>). No true hypotheses or findings have been established and it was as \u201cif Japan [told the] Court that a room full of body parts of hundreds or thousands of dead whales is science.<\/p>\n

It appears that Japan has also patted themselves on their own back as the compliments that they said the Scientific Committee accorded them are \u201cflawed\u201d. Not one related to JARPA II which is the subject of Australia\u2019s case and they were often compliments which originated from Intersessional Workshops where the majority of scientists present were Japanese. Indeed, Australia pointed out that it must have been a great deal of hard work to find any sort of compliment at all. To demonstrate, once again, the criticism of the Scientific Committee on the JARPA II program Australia projected slides with reviews of the program with statements such as: \u201cAn evaluation of sample sizes depends on each of the objectives being better specified, with an identification of those quantities that need to be estimated to achieve the objectives . . . The precision of the estimate and its relation to sample size and sampling design should be determined. Such an analysis is a pre-requisite for an evaluation of the appropriateness of the sample size and sampling design.\u201d Once again Australia referred to the countless Resolutions by the IWC demanding that JARPA cease. In response to Japan\u2019s accusations that the 63 scientists who refused to participate in the \u201creview\u201d of JARPA II, being \u201csimply politically motivated boycotters\u201d, Australia spelt out some of the scientific merits of these boycotters and invited the council of Japan \u201cto stick to the merits, to the law\u201d.<\/p>\n

Japan\u2019s evidence on the trackline of the vessel presented to the Court could not be confirmed by any authority. Furthermore, it was in contradiction with the information presented in Japan\u2019s memorial (see Poincar\u00e9 v. Montaigne, Information note N\u00b05<\/a>). Interesting evidence was presented on the capacity of the Japanese factory ship Nisshin-Maru. Indeed, Japan declared that the vessel\u2019s capacity corresponded to 1,650 tonnes of whale meat and not 3,200 tonnes. Therefore in order for Japan to fulfil their \u201cself-allocated\u201d quota they would require two factory ships or use refuelling vessels with refrigeration capacity, which they do not do. It would seem that this fact only emphasized Australia\u2019s argument that the whaling activities are commercial by nature; the quotas are not fulfilled in order to keep market prices of whale meat high.<\/p>\n

On the question of legitimacy of the Court and Australia\u2019s Exclusive Economic Zone (EEZ) claims, it would seem that Japan was grasping at straws. Indeed, Australia has a reservation in place which limits the jurisdiction of the International Court of Justice in certain maritime boundary disputes. This reservation however is \u201conly directed at disputes about maritime boundaries or exploitation issues arising between Australia and another State with overlapping claims pending resolution of maritime boundaries between them.\u201c There is no such situation between Australia and Japan. Moreover, Japan\u2019s whaling activities covers half of the Southern Ocean including areas thousands of nautical miles eastward from any claimed Australian waters. And Australia is clearly not in a \u201cdispute\u201d with Japan over the right to exploit the same resource they obviously have no interest in exploiting whales.<\/p>\n

Australia has focused their case on JARPA II in the South and not included JARPN in the North due to their strong interest and participation in understanding the Antarctic ecosystem. Yet, it should be noted, that their application to the Court states that they consider JARPN II to also breach Japan\u2019s international obligations. In the remedies sought by the Court they request that JARPA II cease and that any authorisations, permits or licences linked to pseudo \u201cscientific whaling\u201d be revoked. They also request that Japan provides assurances and guarantees that no further action in similar programs be implemented until it has been brought into conformity under international law. With a bit of luck and common sense, the whale song might also be heard in the Northern oceans where JARPN II targets northern minke whales, bryde’s whales and sperm whales (see Australia v. Japan Information note N\u00b01<\/a>).<\/p>\n

In short \u201cIt could be said that [Japan] have nailed their flag rather firmly to a shaky and dangerous mast.\u201d They have not found any juridical grounds to support their case. They have shown their \u201cbad faith\u201d in respect to the spirit of the Convention and acted on unilateral interests rather than collectively with the \u201cnations of the world\u201d as spelt out by the text. They have not presented the Court with any solid scientific justification for JARPA II. Japan has also exaggerated the scope and purpose of Article VIII and their \u201cbad faith\u201d has been demonstrated by permit after permit allocated year after year.<\/p>\n

In diplomatic language Australia\u2019s message is unequivocal. Australia is asking the Court that Japan cease their commercial whaling now. Over the course of the hearings Australia has shown that Japan\u2019s activities cannot be qualified as \u201cscientific\u201d and that they are violating the spirit and the text of the Convention. To illustrate this, Australia revealed how Japan\u2019s actions are illegal as, according to paragraph 10 (e)* of the IWC, they are to refrain from killing all whale stocks for commercial purposes.<\/p>\n

In conclusion, Australia hoped that, during the second round of proceedings, Japan would demonstrate \u201cgood faith\u201d by not presenting any further legal arguments as Australia would not be able to reply. Having said this, it would seem that they would not be surprised if this tactic were to be employed. Australia made an indirect appeal to the Judges that if this was the case the Court could of course redirect the legal question towards Australia, therefore permitting a response.<\/p>\n

(1) In commercial terms the most interesting species, for the Japanese, is the minke whale. It is for this very reason that they lodged an objection to the Southern Ocean Sanctuary in the extent that it applies to Antarctic minke whale stocks. In this context, legally, Japan would have the right to whale Antarctic minke whales if the moratorium is lifted.<\/p>\n

*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.<\/p>\n

**7 (b) In accordance with Article V(1)(c) of the Convention, commercial whaling, whether by pelagic operations or from land stations, is prohibited in a region designated as the Southern Ocean Sanctuary. This Sanctuary comprises the waters of the Southern Hemisphere southwards of the following line: starting from 40 degrees S, 50 degrees W; thence due east to 20 degrees E; thence due south to 55 degrees S; thence due east to 130 degrees E; thence due north to 40 degrees S; thence due east to 130 degrees W; thence due south to 60 degrees S; thence due east to 50 degrees W; thence due north to the point of beginning. This prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this Sanctuary, as may from time to time be determined by the Commission. However, this prohibition shall be reviewed ten years after its initial adoption and at succeeding ten year intervals, and could be revised at such times by the Commission. Nothing in this sub-paragraph is intended to prejudice the special legal and political status of Antarctica.<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n

<\/p>","protected":false},"excerpt":{"rendered":"

Information note N\u00b07 Whales at the International Court of Justice The Hague, The Netherlands, 2nd hearing of Australia, July 9th \u2013 10th The second round of hearings for Australia was presented from July 9th to July 10th and announced a call to order in the Court by the Attorney-General of Australia, Marc Dreyfus. Australia\u2019s return to the stand signalled the return, in force, of clear legal arguments. Australia restated that their case was \u201cabout the failure of one country to comply with its international legal obligations not to conduct commercial whaling, an obligation which that country accepted voluntarily but then immediately began to subvert.\u201d Australia also hammered down the unfounded arguments that Japan had unjustly presented against them in their first round of hearings.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[55],"tags":[78,84,81,79,77,80],"class_list":["post-1944","post","type-post","status-publish","format-standard","hentry","category-arctique-et-antarctique-balisage","tag-australie","tag-baleine","tag-chasse-scientifique","tag-commission-baleiniere-internationale","tag-japon","tag-moratoire"],"_links":{"self":[{"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/posts\/1944","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/comments?post=1944"}],"version-history":[{"count":0,"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/posts\/1944\/revisions"}],"wp:attachment":[{"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/media?parent=1944"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/categories?post=1944"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/robindesbois.org\/en\/wp-json\/wp\/v2\/tags?post=1944"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}