Whaling on trial, can Japan defend the indefensible

Judges of the International Court of Justice at the opening of the hearings on Whaling in the Antarctic. UN Photo/ICJ-CIJThe seats are pretty uncomfortable in the gallery at the back of the International Court of Justice (ICJ) in The Hague, quite different to the comfortable chairs below for the delegations and the judges.

We stand as the judges file in and  the second week of the hearing into the Australian government’s case against Japanese whaling continues. 

Japan opens its response to Australia, which will last all week. It has to be said that its lawyers are good. To the completely uninitiated, it might at first glance come over that Japan feels what it is doing is perfectly reasonable. All it wants to do is good science and the opposition from Australia is irrational.

Japan argues that its research (which includes attempts to fertilise cow ova with minke whale sperm) is good science. To do this, you need an in vitro fertilisation laboratory with all the tools of the trade of a bona fide scientist.

Last week, Australia argued convincingly that this kind of thing just isn’t proper science. It is no more science than it would be to use the same Petri dishes in the same lab to bake a cake. The International Fund for Animal Welfare (IFAW) agrees with this – so-called scientific whaling is sham science and merely commercial whaling by another name.

Not surprisingly, Japan is focusing very much on attacking Australia. But here in the court, Australia is representing a much bigger constituency than its own nationals.

Twenty-three nations voted in favour of the Southern Ocean Whale Sanctuary; only Japan voted against. There are no southern hemisphere countries that support Japan’s Antarctic whaling, except maybe those that have exchanged their votes for development aid and other inducements (a rather polite word for an activity that is too disreputable to mention in this blog).

There are only three nations left killing whales for openly commercial purposes but Japan seems unaware that the world has changed since it joined the IWC in 1951. For Japan, things haven’t moved on since Melville described the whale as a “spouting fish” – whales are a resource to be exploited and so Japan invokes fisheries convention after fisheries convention in support of its case.

As a newcomer to the ICJ, I must say that I am puzzled by aspects of Japan’s legal representation. On Japan’s team is Professor Alan Boyle, an expert in the United Nations Convention on the Law of the Sea, a convention that he quoted from extensively in making Japan’s case.

Why then did he fail to mention Article 64 of the convention which refers to highly migratory species and the cooperation required to ensure conservation? 

Article 65, also omitted, specifically mentions marine mammals and allows international organisations to prohibit their exploitation if they so wish.

Cooperation isn’t exactly a feature of Japan’s policy on its ‘scientific whaling’ and it ignores the prohibition on hunting required under both the moratorium on commercial whaling and the Southern Ocean Whale Sanctuary decisions.

Selective use of data is not allowed for scientists, but lawyers must operate to different rules.

In most cases that come before the ICJ, there will be convincing arguments on both sides and often the judgment will seek to find a balance. But for some issues, one side is right and the other wrong and we hope the judges will realise this.

The time has come for the debate over the legitimacy of ‘scientific whaling’ to end and for it to be consigned to the dustbin of history. Advocates of ‘scientific whaling’ can join those who think that smoking doesn’t cause cancer, that climate change isn’t happening and that the world is flat.

Even the best legal minds can’t defend the indefensible.

So, as the second week progresses, I’m going to sit back. I’m quite sure that the Japanese delegation is getting increasingly uncomfortable in its seats below as it seeks to defend the indefensible and its ‘scientific whaling’ is exposed to the broad light of day.

--VP

To learn more about our efforts to end commercial whaling, visit our campaign page.

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