ALL the overtones of friendship and
mutual respect between Australia and Japan, born of their
long-established economic trading ties, wavered in a swift retort by
Japan’s senior legal counsel just minutes after the shock decision by
the International Court of Justice in the Peace Palace at The Hague on
Monday.
Japanese agent Koji Tsuruoka, who led his country’s defence, said
the decision to immediately ban all Japanese whaling in the Antarctic —
brought about by Australia’s lodgement of a complaint in the UN’s top
court, was “bitterly disappointing’’ but noted that Japan would abide by
the judgment.
“We are a state that places great importance on the international legal order,’’ he insisted.
For
a country whose social mores are centred on saving face, Tsuruoka, head
lowered, was deeply troubled. No one had quite predicted the scale of
the court’s judgment, which found the entire basis of Japan’s kill
target of more than 1000 whales a year was unlawful and that the country
had contravened the international convention on whaling.
Australia’s very blunt accusation — that Japan had been killing
whales “under the cloak of a lab coat of science’’ — was upheld by the
court, 12 votes to four. The only countries that supported Japan’s
position were Japan, Somalia, Morocco and Egypt.
Tsuruoka’s unease
escalated with the first question fired at him by Western reporters
huddled along the marbled corridors. He was asked pointedly if Japan
would consider leaving the International Whaling Convention, as Norway
and Iceland had done, suggesting Japan would carry on its whaling
activities regardless of the court order, or whether the country would
consider establishing a different whaling program.
Without hesitation Tsuruoka snapped: “Do not put words in my mouth.”
“The decision has just been handed down and it is not a simple issue for any expert to digest,’’ he said.
He was pressed and encouraged to rule out any further whaling activities but declined to answer.
Other
members of the Japanese government delegation parroted a similar line,
refusing to rule out anything beyond a careful study of the court’s
lengthy and extensive ruling. While diplomats say Japan has ruled out
withdrawing from the IWC, the country may still consider the possibility
of carrying on whaling under a different program.
Japanese
Foreign Affairs Ministry spokesman Noriyuki Shikata said the court had
made judgments about the legality of the research program, but hadn’t
ruled on the 2000-year-old cultural and traditional aspects of whaling
for the Japanese people.
Certainly the campaigners who had made their way to the court don’t believe the Japanese will put away their harpoons.
Sea
Shepherd’s Pete Bethune, the founder of Earthrace Conservation, hails
the court’s decision as a “great day for whales’’, but also has
reservations.
“I’m bloody happy to have gone through it all,’’
Bethune says, recalling being mown down by Japanese security vessels in
the Antarctic.
Between tears of joy — his five-month imprisonment
in Japan for anti-whaling actions was a contributing factor to Australia
taking the legal action — Bethune expresses puzzlement as to why
Australia had confined its complaint to the Southern Ocean. He says
Japan could be free to continue whaling in the North Pacific.
“I have no idea why Australia and New Zealand left the Northern Pacific out of their case,” Bethune says.
“If
the research program in Antarctica is illegal, then by definition so is
the program in the Northern Pacific; but it will require another court
action to make this illegal also.”
Nonetheless, Bethune says the
ruling is critically important because Russia and South Korea had been
expecting to introduce research whaling programs mirroring those of
Japan if the court had sanctioned Japan’s actions. “I am absolutely
thrilled,” he says. “Today will go down in history as a great day for
whales, for conservation and for justice.
“The verdict makes
Japan’s research whaling program, which has killed many thousands of
whales in the name of science, illegal.’’
Sea Shepherd’s
Netherlands director Geert Vons says the boat will once again be
patrolling the Southern Ocean come the next whale season in December.
The
highly effective but highly dangerous sabotage efforts of the Sea
Shepherd reduced the Japanese total whale kill to 113 last season,
one-tenth of its actual target.
At the beginning of the two-hour
summary of the judgment, read by the Slovakian chief judge, Peter Tomka,
there was a general view that Japan’s position might be strengthened in
law.
The court found that Japan was selling its whale meat and
products for commercial gain, and to help underwrite the costs of the
whaling program, but said such commercialisation was incidental and
essentially irrelevant to the argument.
The court ruled it was up
to Japan to determine what its scientific research consisted of and said
to collect some of the research data “non-lethal methods are not
feasible’’.
In other words, killing the whales was legitimate and
the whale-meat products could be sold, without recourse, to the Japanese
consumer.
At this point those in the courtroom were expecting a
Japanese victory and the non-appearance of Australia’s Attorney-General
George Brandis appeared to make sense.
But then the judgment started to unravel for Japan.
Tomka
spoke about how Japan had failed to consider killing a smaller number
of whales or using non-lethal research. He then examined its scientific
program, called JARPA I, and its replacement, JARPA II, and their
objectives of ecosystems monitoring and multi-species competition. He
said the doubling of the minke whale target under JARPA II to 850, and
the inclusion of the fin and humpback whales in the kill, did not appear
to correlate to the research principles.
“The court notes
considerable overlap between the subjects, objectives and methods of the
two programs, casting doubt on Japan’s arguments,’’ he said.
He
added that the JARPA II sample sizes were not determined by strictly
scientific considerations, partly because the scientific analysis of the
first program had not been completed before the second program started.
The
scale of the number of whales to be killed was also a concern and,
significantly, the gap between the target and the actual number killed
raised serious questions about the efficiency of the scientific
programs.
Tomka also said the scientific output has been scant and mainly limited to data taken from fewer than 10 killed whales.
Yet
the number of minke whales killed varied from 853 in 2005, followed by
about 450 for several seasons, 170 in 2010 and 103 in 2012.
He also noted that target sample sizes were larger than were reasonable to achieve the scientific outcomes.
“Other
aspects cast doubt on its characterisation as a program for purposes of
scientific research, such as its open-ended timeframe, its limited
scientific output to date and the absence of significant co-operation
between the program and other related research projects,’’ he said.
Tomka
stressed Japan’s permits involved activities that could be broadly
characterised as scientific research, but the evidence didn’t establish
that the program’s design and implementation were reasonable in
achieving its stated objectives.
“The court therefore concludes
that the special permits granted by Japan for the killing, taking and
treating of whales in connection with JARPA II are not for the purposes
of scientific research.’’
Cue much jubilation among the Australian
and New Zealand legal contingents, former Labor politicians Kevin Rudd
and Peter Garrett, who both pushed the four-year legal battle, and
conservationists.
But Greenpeace spokesman John Frizell says the
trade in whale meat continues largely unchecked. At present there is a
freezer ship, the Alma, en route to Japan loaded with frozen whale meat
from Iceland.
“The implications for whaling by Norway and Iceland will now come under renewed pressure,” Frizell says.
“This
was such a strong result and other countries that continue to whale
will have to reconsider their priorities. Community attitudes are
changing, and people don’t eat whale any more.’’
Certainly from an
Australian perspective the government wants to move on, and distance
itself from the court dispute so that Japan and Australia can
concentrate on a trade deal, with Tony Abbott and Japanese Prime
Minister Shinzo Abe meeting on April 7.
