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Japan, Australia and the International Court of Justice

Whaling Contradictions

by BINOY KAMPMARK

It has been a long and drawn out affair. For years, Australian environmental activists and political figures have had the Japanese whaling program in their sights.  Every year, between 500 to 1000 whales are slain under a permit program ostensibly authorised by the International Whaling Convention.  The IWC has been a strange creature. It regulates whale hunting, yet has effectively tried stifling commercial hunting by limiting the catch levels to zero since 1986.

Whaling countries, for that reason, have tiptoed around the commercial restrictions by embracing scientific and aboriginal subsistence arguments.  Japan’s own response seemed cunning enough, legitimising the faulty scientific premise by creating the Institute of Cetacean Research in the 1990s.  Boats engaged in whale hunting are required to seek permits through the Institute.

Japan’s whaling program is certainly a brutal one, though it is hardly any more spectacular than killing programs mounted by states against species deemed unworthy to live unmolested.  It is murky, disingenuous and shrouded in scientific obfuscation.  Australia’s challenge in the International Court of Justice was made on that premise.

Hearings before the ICJ began last year, featuring Australia as the anti-whaling torch bearer. Japan was certainly short of allies on the subject, though it can count, among other whaling states, Norway, Russia, Iceland, the Greenland territories under Danish control, and the Faroe Islands.  The effort was by no means bipartisan.  The Rudd Government attempted to push things along in 2010, though then opposition leader Tony Abbott[1] wasn’t sure.  After all, Japan was, and remains, Australia’s largest trading partner.

The judgment itself of March 31[2] is not as revolutionary as plaudits suggest, but it does take a withering aim against the scientific basis of the program. The court found that scientific permits granted by Japan for its whaling program did not constitute scientific research within the rules of the IWC, namely Article VIII.  After deciding it had jurisdiction, the court found by 12 votes to 4 that permits issued under its JARPA II program did not fall within the scope of the IWC convention.  While state signatories did have scope to specify conditions under which hunting might be refused or granted, the assessment of “purposes of scientific research cannot depend simply on that State’s perception.”

The Court found problems in JARPA II, given its overlap with its predecessor program, a situation that cast doubt over calls “for a significant increase in the minke whale sample size and the lethal sampling of two additional species.”  Its design was shown to be “unreasonable” in terms of its stated research objectives.  Revocation of current permits and restraint on the grant of future permits was ordered.

Responses to the ruling proved gushing.  “This is the end of so-called ‘scientific whaling’, surely,” suggested former Labor environment minister Peter Garrett.[3]  Shadow Attorney-General Mark Dreyfus saw ripples in the decision.  “This decision… can’t but have some effect on whaling in other parts of the world. It will add pressure on… those small number of countries who continue to engage in whaling.” This may be wishful thinking, given the current practices of states that are, so far, beyond the reach of legal challenge.  Norway remains defiantly commercial in its whaling ventures.  Then come other catalysts such as pollution and ship strikes which, if left unaddressed, will make whaling restrictions minor inhibitors.

The position taken by Australian authorities and activist groups towards animal species varies. Whales have had the good fortune of being favoured.  In them lies a conflation of various cultural and romanticised notions that has deemed their continued existence necessary. Philip Hoare explains that association between Australia and whales as “cut and dried.”  For Australians, “there’s a real and emotional attachment to these southern leviathans.”  Since 1983’s moratorium on the hunting of great whales, Australia, argues Hoare, has benefited.

Such views reveal the contradictions that sentimentality induces.  Over the years of stormy debate about whether Japan’s scientific whaling program was legal or not, cultural contexts have emerged and been resubmerged.  The Japanese line is articulated by Masayuki Komatsu and Shingeko Misaki in Whales and the Japanese (2003) – the anti-whaling campaign, according to the authors, is a cultural-ethnic slur on acceptable practices, targeting Japanese hunting and food habits.

In his submission before the bench, Japan’s counsel, Payam Akhavan, argued that, “Australia has politicised science in order to impose Australian values on Japan in disregard for international law.”  As former Science Director of the Alaska Fisheries Science Centre, and former IWC commissioner William Aron explained in Science, (Jan 12, 2001), “It is cultural repugnance of some to the operations of others and has been described by an Irish delegate at the IWC as ‘cultural imperialism’.”

Denmark cited a similar view in 2008 in its response to the agreement by European environment ministers to support the maintenance of the moratorium on whaling.  “For 20 years,” explained the country’s IWC commissioner Ole Samsing, “Denmark has held the same position in support of these other parts of the kingdom [including Greenland].”[4]

Some Australian commentators agree, with John Passant[5] seeing the actions on the part of such groups as Paul Watson’s Sea Shepherd’s as disruptive to broader ideas of indigenous consumption and living.  Passant also smells imperial politics at play, using whale protection as a form of de facto claims to Antarctica by Canberra’s territorial aspirations.  “Diplomacy,” he suggests, “is imperialism without guns.” Whales become suitable political props, the ideal cover.  Dreyfus[6] disagrees, claiming that there was no “civilising mission” being conducted against Japan.  That old shibboleth called “legal obligations” was what mattered.

Another snag in the narrative is that Japan’s desire for whaling only began, even if it may not be culturally based, with the actions of Western powers[7] who occupied the country after the Second World War. Much of this was deemed a matter of necessity to feed a post-war population, a situation which led to the conversion of decommissioned vessels for whaling purposes.  Such a view is only partly accurate.  Japan had been whale hunting for centuries.  But the mass commercialisation of whale killing began with Western states.

Consistency in environmental policy has also been found wanting.  Whale rhetoric is certainly more aggressive in its favour than shark rhetoric.  The culling of sharks in Western Australia demonstrates one such problem.  One species is more readily disposable than the other.  Leviathan mammals pass muster under sentimentalised dispensation; cold blooded sharks, with their challenges to tribal human recreation and reaction, do not.

As Queensland Liberal National MP Andrew Laming[8] has suggested, such culling practices must be questioned.  He suggests, optimistically, that there is a “shift towards understanding and appreciating the right of the shark to live in its own waters, and that when we enter those waters we are effectively entering their territory.”  The contradictory battles over environmental politics and the sea will continue to rage. Some species will be spared; others may well be destroyed.  The oceans of the world may well be, speculates Hoare, the last great battleground.[9]

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Notes.

[1] http://www.smh.com.au/national/abbott-rejects-whaling-legal-bid-20100111-m2oe.html

[2] http://www.icj-cij.org/docket/files/148/18162.pdf

[3] http://www.smh.com.au/federal-politics/political-news/international-court-of-justice-upholds-australias-bid-to-ban-japanese-whaling-in-antarctica-20140331-35ude.html

[4] http://euobserver.com/social/26290

[5] http://www.smh.com.au/federal-politics/political-opinion/stopping-whaling-is-cultural-imperialism-20100112-m43w.html

[6] http://www.smh.com.au/federal-politics/political-news/international-court-of-justice-upholds-australias-bid-to-ban-japanese-whaling-in-antarctica-20140331-35ude.html

[7] http://www.theguardian.com/commentisfree/2014/mar/31/japan-hunt-whales-court-ban

[8] http://www.abc.net.au/news/2014-03-06/lnp-mp-uncomfortable-with-shark-cull-policy/5301886

[9] http://www.theguardian.com/commentisfree/2014/mar/31/japan-hunt-whales-court-ban