Whilst Australia’s motivation for bringing the case on Japanese Scientific Whaling to the International Court of Justice (ICJ) may be the result of domestic public pressure, the Government of Japan seems to have a more sceptical perspective.
Presenting their oral arguments to the court Japan argued that:
‘Another aspect of the case pertains to confining the geographic coverage of Japan’s special permit whaling in the area of Australia’s self-proclaimed Exclusive Economic Zone (EEZ) in the Antarctic Ocean. As amply demonstrated by numerous actions, Australia attempts to exercise its jurisdiction in this area. Japan does not recognize the Australian position on the EEZ in relation to the Antarctic. By limiting the geographic coverage of the case to its claimed area in the Antarctic Ocean and adjacent areas, is Australia attempting to give legitimacy to its self-proclaimed position on the EEZ? Or is Australia trying to avoid putting its Antarctic claim to the test, as it would if it imposed a ban on whaling within its claimed Antarctic EEZ, which it has not done.’
Distraction tactics by Japan. No doubt there will be many more as the weeks roll on. The issue at stake here is not whether Australia’s claim to Antarctic territorial waters is justified, but whether the Japanese Government killing whales for purported scientific research is defensible within the modern era.
The Japanese Deputy Minister for Foreign Affairs, Mr Tsuruoka, argued that ‘the case concerns the legality of Japan’s activities under international law and not ethical values or the evaluation of good or bad science.’ This is fundamentally where the viewpoints diverge. Australia argued very strongly last week that what Japan is doing in the Southern Ocean does not equate to good – or even defensible – scientific research, particularly since there are now non-lethal research methods that can provide the information required for managing whale populations. Japan will no doubt argue that the letter of the law (the provisions within the treaty) allows them to essentially do what they like (which they have). The question then is one of whether law can and should be informed by contemporary scientific practice and emerging customary norms.
Is it really plausible to take the ethical aspects of this case out of the equation?
Tsuruoka also said: ‘We agree that animal protection, including the prohibition of unnecessary killing and the preservation of biodiversity, is an essentially good cause’. Lip service to a ‘good cause’, yet the data collected from the hundred’s of whales killed in the Antarctic does not constitute good science and meanwhile stockpiles of whale meat continue to grow in Japan. If this doesn’t constitute unnecessary killing, what would?