Australia vs Japanese whaling: Will the International Court uphold the obvious?


Australian Government legal action against Japanese whaling

Australian Government legal action against Japanese whaling in the International Court of Justice; home insulation program.

KELLY: The final phase of legal proceedings against Japanese whaling gets underway this week in the International Court of Justice in The Hague. Australia is seeking a ban on Japan’s so-called scientific hunt, which has seen more than 10,000 whales killed in the Southern Ocean since 1988. Japan has told the court that Australia’s case is, quote, confused and illogical and out of touch with contemporary international law.

Federal Attorney-General Mark Dreyfus QC, will represent Australia in the ICJ for the remaining few days of this case. Mark Dreyfus, good morning, welcome to RN Breakfast.

DREYFUS: Good morning Fran.

KELLY: Attorney-General, the case has been underway now for more than a week and a half. You, as a silk, will be representing Australia to close this case. What’s the main thrust of your closing argument?

DREYFUS: I can’t go into the detail of exactly what we’re going to say because we don’t want to jeopardise our position with the court, but I’ll be responding to Japan’s claims, squarely meeting their case, and as you said in the introduction, the essence of our case is that Japan’s whale hunting is not science, it’s commercial, and that Japan is not entitled to issue special permits to itself that allow hundreds of whales to be killed each year.

KELLY: Let’s go to some of the points that Japan has made in its case, and the point that one of the judges has laid out, India’s Dalveer Bhandari. He’s posed a key question, and I’ll just quote to you: “What injury, if any, has Australia suffered as a result of Japan’s alleged breaches of the International Convention for the Regulation of Whaling?”

Now, this is a question posed by one of the judges at the court. Can you answer that threshold question?

DREYFUS: Well, I’ll be answering the judges’ questions in court, because that’s what the judges have invited us to do, but Australia is a party to the Whaling Convention and, as for all other parties to the Whaling Convention, we’re entitled to have Japan act in accordance with international law. That’s our interest in this case.

We say that what Japan is doing is not in accordance with international law, that they’re in breach of their international obligations. We’ve said that already in the first round of our case. We’ll be saying it again, and that’s key to this, that all parties to international conventions like this are entitled to ensure that there is compliance with the convention.

KELLY: Alright, well, let’s go to that, Japan’s case. The International Whaling Commission requires that non-lethal research be applied when possible, but it doesn’t actually go so far as to outlaw lethal research. Do you accept the Japanese claim that Australia focuses too much on the lethal methods used to cull whales?

DREYFUS: We say not only that the international law has evolved since 1946, but the science has evolved since 1946 and is continuing to evolve, and our scientists have made it clear to the court that any useful research on whales can be done by non-lethal means.

And we’ve seen just this summer, the Australian Antarctic Division achieve a world first, Fran, in putting satellite tracking devices on whales that stay on the whales for several months and enable our scientists to learn a great deal about the lives of whales, where they go, what they do and what their habits are. None of those are possible with lethal research, and we say that there’s no longer anything useful that’s been learned from killing whales.

KELLY: Japan makes the point in the court that its scientific program, known as JARPA II, it describes it as the most comprehensive research program ever carried out on whales in the Antarctic ecosystem. It says it has concrete research objectives, and it makes the point that it has the support of the International Whaling Commission Scientific Committee. That’s a major problem for Australia in its case, isn’t it?

DREYFUS: Well, we actually think that Japan simply hasn’t met the main thrust of Australia’s case, which is that there is no scientific hypothesis that’s been tested by any of their research programs and that what they are doing isn’t really science. That’s what the key point in this case is about, and our view is that, so far, Japan has not met the propositions put forward by the two expert witnesses that we’ve called, has not met the main thrust of our case.

KELLY: I heard some of the Japanese argument broadcast, and it was going more to the emotive. It’s told the court that Australia is on an alarmist crusade intended to impose Australian cultural preferences over the Japanese. Are you worried about that argument carrying some weight with the court? How do you answer that?

DREYFUS: This case is not about cultural differences. It’s about science and facts. That’s what is going to resolve this case. But I’ve got to say, Fran, both Australia and Japan are running their cases in a robust way, there’s a lot at stake here. We’ve tried hard to resolve the dispute we have with our friend Japan through diplomatic means. Now we’re at court, and we’re giving it the best shot that we can.

KELLY: There is a…

DREYFUS: [inaudible] court…

KELLY: I beg your pardon.

DREYFUS: The court is the right place to resolve what is a serious dispute between our two countries.

KELLY: There is a lot at stake, and the court’s decision will be binding with no appeals. What happens then if we lose? Does Australia accept Japan has at least a legal right to hunt whales?

DREYFUS: Australia and Japan are both responsible members of the international community. Win or lose, both our countries would be expected to comply with the court’s rulings. It’s the highest court in the world, there’s no appeal from it, and if a nation were to fail to comply with a judgement of the International Court of Justice, enforcement would be a matter for the Security Council.

KELLY: So that means Australia has to drop any kind of protests at the Whaling Commission or we couldn’t again send any Customs vehicles down to the Antarctic to monitor what’s going on down there?

DREYFUS: Not at all. We would continue to insist on compliance with Japan’s obligations under the convention and would continue our diplomatic efforts to persuade Japan to stop what we regard as unnecessary whale hunting.

KELLY: Our guest this morning is the Federal Attorney-General, Mark Dreyfus who’s joining us from The Hague. Mark Dreyfus, on another issue that could fall within your portfolio – the criticism by the Queensland Coroner of the Federal Government over the home insulation program, in particular the deaths of three young Queensland workers. Prime Minister, Kevin Rudd has now apologised unreservedly. Is he as leader of the Government admitting the Government liability here?

DREYFUS: Oh, not at all. That’s not the way that tort law works in Australia. It’s absolutely appropriate for the Prime Minister to have apologised. As I said last week, I’ve met with the representatives of the families of all four of the young men who died. I’ve apologised. I’ve expressed sincere regret on the part of the Government.

And I think it’s important for people to actually read what the Coroner had to say. I hadn’t read it when I was commenting last Friday just after the report was released. I’ve had a chance since then to read it and you’ll see from the report that almost the whole of the report is taken up with a very close examination of the deaths – the three young men in Queensland, the tragic deaths and in every case there’s concentration on what the employers of those three young men failed to do.

There’s some criticism in a part of the report of inadequacies in the Queensland Government and there’s some criticism, but it by no means takes up very much of the report, of the inadequacies of the program. But again, as I’ve said last week, there is here a failure to comply with occupational health and safety laws by the employers of these three young men. And that’s to my mind the primary cause of what occurred and that’s indeed what the Coroner said in the report.

KELLY: Will the Government be offering compensation if it’s apologised – will it be offering compensation?

DREYFUS: The two things don’t go together, Fran. What’s important here is that the Government learned lessons and that’s why we commissioned reports from Allan Hawke, from the CSIRO, from a firm of consultants, Booz & Co. and it’s indeed why the Auditor-General conducted a very lengthy inquiry into the home insulation program, made some recommendations all of which we have acted on.

KELLY: Does that mean it won’t be offering compensation?

DREYFUS: Well, that’s what I think what we’ve got to look at is what’s important at the policy level, what’s important in the way in which programs like this might be designed in future, what sort of guidelines we need to bring to bear. And I’m simply not going to comment on the hypothetical situation that you’re posing there.

I would say again as I commented last Friday. The Government made sure that the families of the young men who died have all had access to appropriate legal representation and advice for them, not just in relation to the inquest that’s been held but legal advice in relation to any claims that they might make.

KELLY: Mark Dreyfus, thank you very much for joining us on Breakfast.

Source: The International News Magazine

Australia Whaling Stand: Attorney General Dreyfus Will Oppose Japan’s Whaling

The retort came after Japanese representatives said that the anti-whaling position taken by Australia is “civilising mission and moral crusade” out of sync with global sustainability. They were to the United Nation’s International Court of Justice in The Hague.

Mr. Dreyfus stressed that Australia will be on its toes when it address the proposed scientific whaling program by Japan. He reiterated he will fight the Japanese plan even if his country loses its rights for a bid to stop yearly killing of the mammals.

The Attorney General will be attending the UN’s top court of law next week to present his case against Japan. Australia’s anti-whaling stand holds that Japan is not using its whaling programme for research or scientific study but for whale meat, a staple in the Japanese diet.

Mr. Dreyfus continued to say, that this debate is about factual data and science and it has nothing to do with culture.
Traditionally, the Japanese have had the longest lifespans, attributing the longevity to a fish-based diet. In the winter, blubber and whale meat provide sustenance for the Japanese.

He commented that if the ruling is against Australia, the court’s order will be accepted. At the same time, Mr. Dreyfus said that the battle against Japan’s whaling programme would not end there.

“On the contrary, we’re talking about protecting the world’s environment, we’re talking about ongoing science. Australia has our own scientific program, none of which involves killing whales,” Melbourne’s ABC Radio reported.

“We will continue to use diplomatic means to argue the point that we are making, the points that we are making within the international whaling commission and that we’ll be arguing with Japan that they should stop doing what they are doing,” reported

In follow-ups after the court verdict, the Australian side will send invitations to the Japanese so that they can join in on ground breaking research. Among these new technologies are tracking whales by satellite.

Responding to an allegation that Australian researchers beef up support for a group against whaling, Sea Shepherd, is “simply misplaced”.

“Sea Shepherd, along with other boats, have got the right to come to Australian ports and that’s all that we have ever said about Sea Shepherd,” said Mr. Dreyfus.

 Source: International Business Times

New Zealand intervenes in whaling case

High stakes battle: Sea Shepherd ship Steve Irwin closes in on the Japanese research vessel Nisshin Maru earlier this year.

High stakes battle: Sea Shepherd ship Steve Irwin closes in on the Japanese research vessel Nisshin Maru earlier this year. Photo: Reuters/Sea Shepherd

New Zealand has rejected Japan’s claim to be legally whaling in the Antarctic as an attempt to reduce the global whaling treaty to an industry cartel.

Intervening in the International Court of Justice case brought by Australia against Japan on Monday, the NZ Attorney General, Chris Finlayson, said the treaty’s purpose was not the protection of commercial whaling.

Instead Mr Finlayson told the ICJ in The Hague that the International Convention for the Regulation of Whaling was intended to be for the conservation and development of whale stocks.

Its key article eight on “special permit” scientific whaling, which is being argued before ICJ, did not give carte blanche to any member country to sidestep the rest of the treaty, he said.

Under the article, Japan currently issues its whalers with permits to kill up to 935 minke whales, 50 fin whales, and 50 humpback whales in the Antarctic.

Over 26 years more than 10,000 whales have been killed in the program, including 18 fin whales, but the humpback quota has been suspended.

Japan told the court last week that article eight unambiguously said decision-making power on permits rested with the state party concerned.

Mr Finlayson said Japan had tried to sew together snippets of the article to construct a blanket exemption from other parts of the treaty.

“Far from creating a blanket exemption, the words create an obligation on the contracting government to operate within the words of the convention when issuing a special permit,” Mr Finlayson said.

New Zealand counsel’s, Penelope Ridings, said countries which chose to issue special permits had obligations to objectively determine the lowest number of whales necessary to kill.

Dr Ridings said “strident unilateralism” by any country issuing a special permit would be contrary to international obligations for meaningful co-operation.

Australia has told the court that Japan’s scientific program is commercial whaling cloaked in the lab. coat of science.

Japan replied that Australia was on an alarmist crusade to impose its cultural preferences over the Japanese.

NZ’s intervention came in the third week of the hearing, ahead of the appearance of Australian Attorney General Mark Dreyfus on Tuesday as final submissions begin.

Source: The Age Environment


Editorial: SELVA-Vida Sin Fronteras

Editorial Committee

David Dunham

Arno Ambrosius

Gustavo López Ospina

Mariana Almeida

Frank Brouwer

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. 

~ by FSVSF Admin on 8 July, 2013.

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