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Why is Australia v Japan such a special case?

The history of contentious cases at the International Court of Justice (ICJ) is long, dating back to 1947. The ICJ was founded just a few years earlier in 1945 and is the principle judicial organ of the United Nations. A contentious case is one in which there is a legal dispute between countries (as opposed to a request for advisory legal opinions).

The ICJ isn’t just the ‘highest court in the land’, but in fact, the highest court in the world, where governments can seek a ruling on issues that are of national significance or that transcend national boundaries.

Looking back over the history of the ICJ there are very few contentious cases that relate specifically to disputes over  living ‘resources’ or to an individual group of animals, such as whales. There have been cases on nuclear testing, oil platforms, territorial disputes (including disputes over the Antarctic). There have also been many cases about the use of force and other human rights issues, including individual asylum. There have been some fisheries disputes – which are similar to Australia versus Japan in that they relate to another species – but these disputes are about fisheries jurisdiction.  However, there is a fundamental difference between these fisheries cases and the Australian case. The fisheries cases approach the issue on the basis of resource partitioning or jurisdiction. 

Australia is not at the ICJ to argue for a resource that they believe is theirs to use. The Australian government argues that the self-issued special permits for whaling in the Southern Ocean is an abuse of rights by Japan under the treaty that governs whaling, to which both countries are parties. They argue further, that Japan is failing to act in good faith, for example, by failing to comply with the resolutions passed by the International Whaling Commission (IWC) expressing deep concern about the Japanese scientific whaling programme.

So, Australia is arguing a point of principle on the interpretation of the treaty. Australia’s point is quite simple: Japanese Scientific Whaling in the Antarctic is not science in the modern sense and Article VIII of the treaty was never intended to be used in the manner in which Japan is now abusing it, as a means of cloaking commercial whaling activities.

The question is then: who gets to decide what constitutes science? An issue on which the entire case hinges. Australia argued strongly last week, bringing expert witnesses to present their perspectives (an unusual event at the ICJ), that what Japan is doing in the Southern Ocean is collecting data, but that this is not hypothesis-driven science and that the necessary science can be done using non-lethal methods. 

There are examples in science of data gathering exercises. The argument often cited is that ‘we don’t know what the questions are until we’ve seen the data’. In some cases this may be true, but it is not sound modern scientific practice and is certainly not acceptable when it comes to any data gathering exercise which involves killing another animal species. There is another element to consider: how ethical is it to kill another species for the purpose of a non-hypothesis driven science project? (irrespective of any political motivations behind the science).

Some may argue that Australia does have a resource interest in this case through their whale watching industry – particularly in relation to the ever present threat from Japan of including humpback whales in their Southern Ocean hunt. But in reality, at their present numbers and with the present species being killed in the JARPA II hunt (minke and fin whales), it isn’t principally any threat to the Australian whale watch industry that is motivating the Australian government to bring this case.

So what’s the motivation for Australia? Local public pressure, requesting that the government intervene. And why the public pressure if the whales aren’t seen as a resource that could be under threat from scientific whaling or the longer-term threat of commercial whaling?

One answer might be that there is a strong sense among many Australians of having a ‘responsibility to protect’ these whales – whether or not they migrate to the Australian coast. There is also general indignation that scientific whaling is a sham; an expensive, ostentatious sham that is costing the lives of hundreds of whales every year.

Undoubtedly, whales have a special place in the Australian psyche and no doubt Japan will infer this week that Australia has brought this case to the ICJ to win favour with voters back home. However, Australia’s position is long-standing and bipartisan. Both ends of the political spectrum within Australia are pushing for the same goal, so there are no particular votes to be won on this issue. The question then might be, why is scientific whaling so important to the Australian public?

Is it possible that the motivations for this case are utterly unique? That this represents a debate about not just what constitutes science in the modern era, but also represents outreach from a human population towards some other large, long-lived mammals, recognising that they deserve protection and that their lives cannot be tallied up on a chart for blue sky data gathering.

I saw a good friend write that after Australia presented its case last week, the evidence against Japan is so damning that ‘the anti-whaling landscape has changed forever’. Perhaps this case represents something even more profound for the landscape of broader wildlife issues, with a government prepared to represent other species’ interests at the international level. Would Australia have gone to the ICJ with a similar case on unjustified experimentation on single celled organisms, or even on a group of insects? It seems unlikely. The fact that whales are sentient mammals has significant bearing on this action from Australia and this I believe this is what makes this case utterly unique within the history of the ICJ.

This week Japan will make its oral arguments to the court. Stay tuned.