Australia’s ICJ proceedings look like the latest high stakes manoeuvre in a diplomatic poker game with Japanese whalers
Where there are lawyers, there will be argument.
Australia laid its cards on the table on Friday, announcing its intention to file International Court of Justice (ICJ) proceedings, to stop Japanese whaling in the Southern Ocean.
Recourse to the ICJ has, to date, been rejected by New Zealand, although not ruled out. Instead, we’ve thrown our weight behind trying to negotiate a consensus outcome, via the Small Working Group on the Future of the International Whaling Commission (IWC).
The timing is curious: Is Australia playing a high-stakes poker game to bolster the success of the talks, or scratching a domestic political itch?
Their latest move is a policy endorsed in New Zealand by the Green Party, and backed by some legal advice. Since 2006, the International Fund for Animal Welfare (IFAW) has sponsored three expert international lawyers’ panels, each differently composed, but all in essential agreement, to review the legality of Japanese ‘scientific’ whaling under special permit. Reports were delivered to the Australian and New Zealand governments each time, recommending legal action. Here is the full 2006 report, and summaries of the subsequent panels.
Australian Professor Donald Rothwell, who conducted a whistle-stop tour of New Zealand last week, in what turned out to be the lead-up to Australia’s announcement, was a member in 2006, and chair of the subsequent Australian panels.
In Slaughtering Science: The Case Against Japanese Whaling in the Antarctic (IFAW, May 2006), panel members concluded that the legitimacy of Japan’s actions could and should be challenged under the International Convention for the Regulation of Whaling and the United Nations Convention on the Law of the Sea, because:
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‘Scientific’ whaling contravenes the article VIII exemption, and violates the commercial whaling moratorium. Commercial and economic interests are being furthered under the guise of research.
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It is an abuse of the article VIII rights. There may be implied limits on the scope of proper scientific purposes that are being exceeded.
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It raises questions of compliance with articles 64, 65, 87, 116, 117, 119, 120, 240, 241 and 251 of the Law of the Sea.
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It may be an abuse of rights contrary to article 300 of the Law of the Sea, by interfering with the legitimate interests of other countries in keeping whales alive (eg, longitudinal research programs, whale watching).
In 2009, the Canberra IFAW panel focused on other environmental risks for the Antarctic arising out of Japan’s whaling endeavours (eg, the Nisshin Maru explosion and fire, and risks from refuelling at sea). The panel endorsed the previous legal opinions, but recommended also using the Antarctic Treaty System to enforce environmental obligations on Japan, to make its whaling activities more difficult and less likely to be viable.
The Convention on International Trade in Endangered Species may also be relevant: Japan is taking some endangered fin whales (around 10, with a quota of 50), and also has a humpback whale quota of 50 (although not currently taking any).
The panels have taken the view that any legal action would allow an immediate injunction to be sought, halting the Japanese whaling program in the meantime.
The Australian action will be based on this or similar advice. However, New Zealand’s own advice disagrees. The detail of it is withheld — as one would expect, with litigation still a live possibility — but in May 2006, this is what Cabinet was advised:
In the latter part of last year and earlier this year the non-government organisations community in Australia mounted a campaign to persuade Australia to take Japan to the International Court of Justice (ICJ) or to another legal forum over its scientific whaling programme. An opinion on the legal options was provided by Professor Donald Rothwell … When the Australian government made it clear that it was not interested in taking Japan to court, the Australian non-government organisations and some of their New Zealand counterparts sought to persuade New Zealand to take up the case. Those efforts were firmly resisted by the New Zealand Whaling Commissioner, Rt Hon Sir Geoffrey Palmer.
Sir Geoffrey based his position on research undertaken by the Ministry of Foreign Affairs and Trade which had confirmed that, while there were reasonable prospects for establishing a jurisdictional basis for a claim … the prospects of winning on the merits of the case were slim. The research also considered and rejected an alternative suggestion from Professor Rothwell that Australia (or New Zealand) should raise the Japanese scientific whaling programme in bodies of the Antarctic Treaty system. A summary of that research is set out in the attached [withheld] Annex.
Accordingly, we consider that New Zealand should not seek to take a legal case against Japan … because such actions would be unlikely to succeed and could be counterproductive to the pro-conservation cause and to New Zealand’s overall interests.
I’m not equipped to wade into this legal fray. I really do not want to. However, it’s apparent even on the face of IFAW’s own analysis that there will be lots of room for argument about the scope of article VIII, to take one example. The argument, as laid out in IFAW’s 2006 report, relies heavily on qualitative subjective assessments of the value and legitimacy of Japan’s ‘science’. These matters have already seen perennial protracted argument in the IWC, which no doubt continues in the present round of talks.
As to the alleged commercial subterfuge, the IFAW report also refers to paragraph 2 of Article VIII, which says:
“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”.
The report dryly observes:
“This allows considerable room for interpretation by the issuing Government, including considering it a mandate for the commercial sale of products from scientific whaling”.
It is also clear from the IFAW material that it is predicated throughout on “the failure of diplomatic efforts through the IWC”. That alleged failure of diplomacy predates the present talks, and refers to the ‘old’ IWC methods. IFAW concluded that:
“The IWC remains the dominant international forum for the management of whaling and IWC member governments must continue to use the opportunities presented by that forum to address JARPA II” and “It is important to note that challenging JARPA II through international treaties or laws isn’t a substitute for ongoing diplomatic efforts …”.
Australia’s timing is, therefore, peculiar. Why now? What would be lost by holding their hand for a few weeks, to see if the Small Working Group has in fact failed?
The partial quote above continues (my emphasis):
“It is important to note that challenging JARPA II through international treaties or laws isn’t a substitute for ongoing diplomatic efforts. Such approaches would actually support and complement diplomatic efforts and may strengthen these approaches by providing impetus for the Government of Japan to seek a diplomatic solution”.
This offers a glimpse of a best case scenario: the aforementioned well-intentioned poker game, with a bit of ‘good cop bad cop’ thrown in. Who knows whether New Zealand and other key players (eg, the US) are implicit parties to this. The greater likelihood I think is that Australia has simply unilaterally decided to be ‘helpful’, in a similar spirit to Sea Shepherd’s endeavours. All anti-whalers are bringing to the table what they can, to try to lever Japan in the right direction, and get the right outcome. Only hindsight will tell us whether the net effect was positive.
It may also be filling a domestic political need. Australia made a promise, which would be more difficult to deliver on should the talks succeed. However, they seem to have pre-determined that no Southern Ocean whaling is acceptable whaling, and the talks cannot deliver that objective. This may well be true. But it is an escalation of their February position, which did not commit them to legal action, or zero Southern Ocean whaling: they said they would file in the ICJ by November, if the take had not been significantly reduced or halted.
The jeopardy is huge. It turns on the legal analysis. If the ICJ case is as flimsy as New Zealand assessed it, the impetus for Japan is more likely to be in the direction of folding the talks, making Australia the scapegoat for that outcome, and pursuing its IWC and whaling status quo, while it waits for legal validation.
So meantime, we wait, to learn whether by good management, good luck, or some combination of the pair, we can come out of this, whales intact.