Japan’s claims of scientific whale research & cultural determinism on thin legal ice in International Court
THE AMAZON PINK DOLPHIN’S VOICE-05/07/2013
Japanese Whaling Ban Urged By Australia In Highest U.N. Court
THE HAGUE, Netherlands — Japan’s annual whale hunt is a commercial slaughter of marine mammals dressed up as science, Australian lawyers argued Wednesday as they urged the United Nations’ highest court to ban the hunt in the waters around Antarctica.
Australia’s case at the International Court of Justice, supported by New Zealand, is the latest step in years of attempts by governments and environmental groups to halt the Japanese whaling fleet’s annual trips to harpoon minke and fin whales for what Tokyo argues is scientific research allowed under international law.
Australia calls the research claim a front for a commercial hunt that puts whale meat, considered a delicacy in Japan, on plates across the country. Commercial whaling was halted by a 1986 moratorium.
“Japan seeks to cloak its ongoing commercial whaling in the lab coat of science,” Australia’s agent to the court, Bill Campbell told the 16-judge panel in the wood-panelled Great Hall of Justice in The Hague.
“You don’t kill 935 whales in a year to conduct scientific research. You don’t even need to kill one whale to conduct scientific research,” Campbell told journalists.
Japan insists its hunt is legal under a 1946 convention regulating whaling.
The case in The Hague covers Japan’s hunt in the Southern Ocean around Antarctica, but Japan also hunts in the northwestern Pacific.
“Japan’s research programs have been legally conducted for the purposes of scientific research, in accordance with the International Convention for the Regulation of Whaling,” Japan’s Deputy Minister for Foreign Affairs Koji Tsuruoka said outside the courtroom. “Australia’s claim is invalid. Japan’s research whaling has been conducted for scientific research in accordance with international law.”
But Australia argued that the scientific whaling program, under which thousands of whales have been killed in factory ships plying Antarctic waters, was set up simply to sidestep the 1986 moratorium on commercial whaling.
“No other nation, before or since, has found the need to engage in lethal scientific research on anything like this scale,” Australian Solicitor-General Justin Gleeson told the judges.
Japan’s government claims the research is needed to provide data on whale populations so that the international ban on commercial hunt can be re-examined or hopefully lifted eventually based on scientific studies.
“This is something we are prepared to demonstrate: That our program is in line with Article Eight of the convention and is not commercial whaling at all,” said Noriyuki Shikata, spokesman for Japan’s delegation at the court.
Shikata also said that Japan would be challenging the court’s jurisdiction to hear the case, but did not elaborate on the reason for the challenge.
Australia is presenting its legal arguments this week and Japan will make its case starting July 2. New Zealand also gets a chance to outline its arguments July 8.
The Sea Shepherd environmentalist group, whose pursuit of Japanese whalers ensures the hunt makes news each year, said that the opening of the case was a victory for whales and vindication of the group’s controversial tactics in confronting the harpooners in the icy waters of the Southern Ocean.
“Without that, trade considerations would have been more important than the slaughter of whales in Australian waters and the Antarctic whale sanctuary,” said Geert Vons of the Dutch arm of Sea Shepherd, who was in court to watch proceedings.
“It’s a shame it’s taken 10 years, but it is good that Australia is making this public statement by bringing this case against Japan.”
Campbell sought to broaden the dispute by casting Japan’s decision to kill whales as undermining the global consensus to protect the broader environment.
“There is now broad recognition … that the environment and its constituent elements are a common resource which has to be safeguarded and managed by collective action,” he said.
He also highlighted the devastating effect of wide-scale whaling before it was reined in by the 1946 convention, saying that the global blue whale population was estimated at 235,000-307,000 before whaling. A 1998 estimate put the population at “a mere 2,280 worldwide,” he said.
The court will take months to issue a final and binding decision on the legality of Japan’s hunt.
Australian officials are hoping that the court will deliver a judgment by the end of the year, ahead of the Southern Hemisphere summer, when Japan’s annual hunt begins near Antarctica.
Greenpeace campaigner John Frizell said he was impressed by the opening of the case.
“We have heard very strong arguments from Australia why this whaling should cease and I certainly hope they will prevail,” he said outside court. “This is commercial whaling and it should stop.”
Source: Huff Post Green
Dispatches from The Hague: Tony Press, CEO of the Antarctic Climate and Ecosystems Cooperative Research Centre at the University of Tasmania, is in The Hague for four weeks of hearings at the International Court of Justice. The case will decide whether Japan’s scientific whaling in the Southern Ocean can continue. Tony will report as each week’s hearings close.
It was a clash of values this week in the International Court of Justice, as Japan defended its scientific whaling program. Japan argued that Australia was imposing its cultural values on Japan, and had failed to show that Japan was in breach of international law.
“We wish to emphasise that the case concerns the legality of Japan’s activities under international law, not ethical values or the evaluation of good or bad science,” Japan’s deputy foreign minister, Mr Koji Tsuruoka said.
Playing politics with whales
Mr Tsuruoka went on to say, “Why does Australia take such a position? Are all whales endangered or sacred? I understand the emotional background to this position, but fail to understand how it can be translated into a legal or scientific position.”
Japan says Australia cannot use the Whaling Convention to impose its will unilaterally on other nations or to change the International Whaling Commission (IWC) into an organisation opposed to whaling or make it a “preservation committee”.
Professor Payam Akhavan from McGill University painted Australia’s opposition to Japan’s whaling program as pandering to public opinion. Referring back to an Australian statement last week, Akhavan said, “Australia seeks to cloak its political and cultural preferences in the lab-coat of science”.
He went on to quote a statement by Ian Campbell, a former Australian environment minister. Mr Campbell said in 2006: “many cultures and traditions don’t belong in a modern world”. Prof Akhavan said that the former Foreign Minister subsequently went on to support the work of the activist group Sea Shepherd.
Japan argued the Whaling Convention is clear in its construction and purpose: it is for “the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”.
How to find out how old a whale is
Killing a whale is the best way to get certain types of information, Japan said.
Getting biopsies from non-lethal methods, Japan argues, is inefficient and killing is much easier. And, for example, ear plugs, used to estimate the age of whales, can only be collected by lethal whaling. Japan called Professor Lars Walløe, of University of Oslo and a former Norwegian Commissioner to the Whaling Commission, as its sole expert witness.
In rejecting last week’s evidence that Japan’s scientific research was not testing an hypothesis, Prof Walløe said that 19th Century geneticist Gregor Mendel had worked for a long time without an hypothesis, and that there were other examples in modern science.
Resuming commercial whaling
Japan’s goal is to resume commercial whaling, and its scientific whaling program was designed to advise the process, Japan said.
Australia has argued that Japan’s scientific whaling program was commercial whaling in disguise, but Japan said commercial whaling would be undertaken in a different manner and would be concentrated on areas heavily populated by whales. Japan said its current whaling program “commercially… makes no sense”.
Japan argued strongly that the permit to kill whales for scientific purposes was issued at Japan’s discretion alone. In contrast to the claims made by Australia that Japan had ignored the Whaling Commission, Japan said that it had provided the scientific committee of the Whaling Commission with its research plan and they reviewed the plan and made comment. Japan said it had considered these comments before issuing its permit to kill whales. This research, Japan said, was to provide “the best scientific advice” in order to achieve the most important goal of resuming “sustainable commercial whaling”.
Throughout the case, reference has been made to whether Japan is acting in “bad faith” by continuing lethal whaling in the Southern Ocean Whale Sanctuary. Japan hit back yesterday that these kinds of accusations of “bad faith” should be made against Australia, not Japan.
The case resumes next Monday with New Zealand appearing to present argument in favour of its intervention, followed on Tuesday and Wednesday with the second round of oral argument by Australia and observations on New Zealand’s intervention.
Source: The Conversation
JAPAN’S expert witness has withstood an Australian attack on his independence to tell the UN’s top court that Tokyo’s whaling program is definitely science-based.
Physiologist Lars Walloe gave evidence at the International Court of Justice (ICJ) in the Hague on Wednesday.
Australia wants the 16-judge panel to ban Japan’s annual hunt in the Southern Ocean on the basis it’s not “for purposes of scientific research”.
But Professor Walloe, from the University of Oslo, insists Japan’s JARPA research program is legitimate under the 1946 whaling convention.
“It is definitely a scientific research program,” the Norwegian scientist told the court.
“The programs are giving critical information about the ongoing changes in the Antarctic ecosystem.”
Canberra last week argued Japan didn’t need to kill whales but could instead rely on satellite tagging, tracking and biopsy sampling.
“In the strict theoretical sense it’s possible to obtain the genetic information by biopsy sampling,” Professor Walloe admitted on Wednesday.
“But it’s much more easy, and thus much more efficient, to obtain genetic samples from killing whales than biopsy sampling.”
Australia’s own expert, US mathematician Marc Mangel, last week acknowledged the method for ageing whales was lethal, requiring the examination of ear plugs.
And Professor Walloe on Wednesday said it was crucial to know the age of whales to determine growth rates, age at sexual maturity and mortality rates.
Canberra also claims the JARPA program “has offered nothing more than the information that Antarctic minke whales eat a great deal of krill”.
But the University of Oslo academic said Australia’s position proved it hadn’t read the relevant paper presented to the International Whaling Commission’s scientific committee in 2012.
“The main point in the paper is the amount of food in the forestomach of Antarctic minke whales has declined over the JARPA years,” Prof Walloe said.
Australia stated last week that Japan’s research was not science but rather “a heap of body parts taken from a large number of dead whales”.
Responding directly to that criticism, Professor Walloe pointed out that the Australian Antarctic Division had a page on its website titled “Data mining enhances scientific knowledge”.
Australian solicitor-general Justin Gleeson SC later questioned Professor Walloe’s independence.
Mr Gleeson noted he’d been awarded the Order of the Rising Sun in 2009 for promoting Japan’s fisheries policy.
But the professor returned fire by stating he’d also worked with scientists from Russia, Denmark and the United States.
He then had a dig at Australia’s second expert witness, Nick Gales, who is the chief scientist of the Australian Antarctic Division.
“I’m an independent witness,” Professor Walloe said.
“Much more so than, for instance, Dr Gales is an independent witness.”
The three-week ICJ hearing is scheduled to conclude on July 16.
Canberra is hoping the court will issue a ruling banning whaling by the end of the year – soon enough to halt the next whaling season.
Source: The Australian
Editorial: SELVA-Vida Sin Fronteras
Gustavo López Ospina
Pieter Jan Brouwer
Assistant: Emilia Romero
The Amazon Pink Dolphin’s Voice is associated with the International Environmental Mission, a grass roots citizens movement created by Chilean Senator Juan Pablo Letelier.
SELVA Vida Sin Fronteras acknowledges Kevin Schafer’s important contribution towards protecting the highly endangered Amazon pink fresh water dolphin. Title photographs of our “The Amazon Pink Dolphin’s Voice” were taken by Mr. Schafer.