Excerpt from Australian Attorney-General Mark Dreyfus’ opening speech in this second round of oral argument before the International Court Of Justice in the matter of Whaling In The Antarctic (Australia V Japan: New Zealand Intervening):
1. Mr President, Members of the Court, our legal dispute with Japan is a disagreement between friends. The International Court of Justice is the best place to resolve such differences between friends. As noted by the Australian Agent Mr Campbell at the commencement of the case, the decision of the Court will mark a step forward in what is a close bilateral relationship.
2. That said, Australia and Japan have made their arguments in a forthright way during the last two weeks. The arguments made by Australia have been based on sound legal reasoning with supporting evidence submitted to the Court. Counsel for Japan, by contrast, have made many baseless allegations of no relevance to the dispute before the Court. In what I can only assume is an attempt to deflect attention away from the true nature of the unlawful JARPA II program, Professor Akhavan asserted that this case “is about an emotional anti-whaling moral crusade that in the name of “zero tolerance”, tolerates Sea Shepherd’s violent extremism, the politicization of science, [and] the collapse of the IWC”. As well as being a statement completely devoid of legal argument, this is untrue and offensive to Australia. That this was the character of the Japanese response to Australia’s legal argument speaks volumes for the weakness of the Japanese case. I wish to set the record straight on a number of these matters.
3. First, it is wholly untrue, and ridiculous, to suggest that Australia has “outsourced Antarctic maritime enforcement to Sea Shepherd”. The fact of the matter is that Australia has called for all vessels in the Southern Ocean, including those of Japan and Sea Shepherd, to comply with international law in their actions. The fact that Sea Shepherd vessels visit Australian ports or may be registered in Australia is not indicative of Australian Government support. It simply reflects the rights available under Australian domestic law to any person or organisation. As stated by Professor Crawford, Australia fully complies with its international obligations arising out of events in the Southern Ocean, including search and rescue.Australia does take seriously respect for international law, which is why we have brought our dispute with Japan for determination by this Court.
4. I would also like to address squarely Japan’s accusation that Australia brings this case in the spirit of cultural imperialism. That is simply not true. Professor Akhavan has told you “that the days of civilizing missions and moral crusades are over”.
5. This case is not about civilising missions or whether Australian Government or Australian public like or dislike the consumption of whale meat. Nor is this case about Australia’s strongly-held policy position of opposing commercial whaling. This case is about the failure of one country to comply with its international legal obligations not to conduct commercial whaling, an obligation which that country accepted voluntarily but then immediately began to subvert. Specifically, this case is about Japan’s failure to abide by its clear obligations under the Convention not to conduct any form of commercial whaling and, I will repeat again, the unlawful misuse of the scientific exception under Article VIII of the Convention as a means of continuing its commercial whaling activities. Australia will not be dissuaded from pursuing what it regards as a clear breach of international law by unfounded and untrue statements that it is seeking to impose Australian culture on Japan.
6. Japan’s allegations also extend to asserting that Australia colluded with New Zealand in the bringing of this case. While Australia and New Zealand are both located in the southern hemisphere and have a similar interest in stopping Japan’s illegal whaling in the Southern Ocean, New Zealand has made a decision to exercise its legal right as a sovereign nation, and as a Contracting Government to the Convention, to intervene in this case and give its views on the interpretation of the Convention. The observations of New Zealand are not identical to Australia’s but they do complement Australia’s position and lead to the same conclusion – that Article VIII is not self-judging and that it is a matter for this Court to determine objectively whether JARPA II is a program for the purpose of scientific research pursuant to Article VIII. This was confirmed yesterday in New Zealand’s oral observations on its intervention. Intervening in this case in order to put its views before the Court was a proper process for New Zealand to follow.
7. In stark contrast to this approach, Japan on no less than six occasions has quoted from a statement expressing the view of a State that has chosen not to intervene in these proceedings and thus be bound by the Court’s interpretation of Article VIII That statement, so convenient for Japan as it is in both timing and content, has no legal significance whatsoever. It is a self-serving statement issued the week before oral arguments in the case began, by a State which shares a close policy position with that of Japan in relation to whaling.
8. Before moving to the substance – which I will do next – I need to address one matter which has no substance to it at all. That is what might seem at first glance to be an extensive and unfounded derogatory attack upon Australia by Professor Pellet in Japan’s closing speech last Thursday. In reality it is an attack on the integrity of any country or person who opposes Japan’s unlawful whaling practices. An example is the innumerable references to the alleged persecution of the minority by the majority of nations in the forum of the International Whaling Commission. The fact of the matter is that all votes on key matters have been in accordance with the democratic processes of the Convention. The positions taken on those votes have been those of sovereign governments. Yet Professor Pellet portrays those countries voting against Japan’s preferred position, as puppets of Australia. He does not identify those countries nor does he provide any evidence to support his unfounded allegations imputing bad faith on their part. Let me give an example of the countries Professor Pellet puts into this category. The draft Resolution introduced by Australia on JARPA II at the 57th Annual meeting of the Commission in 2005 was co-sponsored by: Argentina, Austria, Belgium, Brazil, Czech Republic, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, New Zealand, Mexico, Monaco, Portugal, San Marino, Slovak Republic, South Africa, Spain, Sweden, Switzerland, the United Kingdom and the USA. Does Japan really believe that all those countries were puppets of Australia acting in bad faith? Having personally interacted with many of those countries on important matters, including climate change, I don’t think so.
9. Professor Pellet also unjustly impugns the integrity of scientists opposing Japan’s program in a similar manner. As described in the evidence of Dr Gales, many scientists are successfully exploring non-lethal techniques which, in contrast to JARPA II, have been applauded by the Scientific Committee. The Court saw a photograph on the screen last week of the Australian expert Dr Gales attaching a satellite tag to a minke whale. This activity, which took place in the Southern Ocean earlier this year, formed part of the broader Southern Ocean Research Partnership. This is a regional whale research partnership which uses modern, non-lethal, scientific methods to provide the information necessary to conserve and manage whales. Australia was also a key participant in the Southern Ocean Whale and Ecosystem Research program, another non-lethal program overseen by the Scientific Committee involving sighting surveys which was an important source for current estimation of Antarctic baleen whale numbers.
10. Of course, Professor Pellet has adopted the old tactic that the best form of defence is offence – in both senses of the meaning of that word. The tone, content and extent of these attacks on the integrity of those opposed to JARPA II and similar programs is a transparent attempt to mask the lack of legal and scientific substance in Japan’s own case.
11. I will now move to the substance of Australia’s arguments in the second round and identify the key points of Australia’s case.
12. First, there is no doubt that the Court has jurisdiction in this case. Neither the words nor the intent of the reservation contained in paragraph (b) of Australia’s declaration made under Article 36(2) of the Statute of the Court can be interpreted in the way asserted by Japan. As Australia demonstrated in its first round, and will show again, the reservation only operates in relation to disputes between Australia and another country with a maritime claim that overlaps with that of Australia – that is, a situation of delimitation. Australia has no delimitation with Japan and hence the paragraph (b) reservation can have no operation.
13. Secondly, the letter and spirit of the preamble of the Convention, as well as the practice of the IWC and the evolution of general international law confirm that the object and purpose of the Convention is conservation and recovery of whale stocks. Australia accepts that the orderly development of the whaling industry is referred to in the preamble of the Convention. But conservation is an end in itself within the regime of the Convention, and not merely a means to promote orderly development of the whaling industry. The conservation and recovery of whales is a common interest of “all the nations of the world”, to use the words of the preamble to the Convention. The nations which are parties to the Convention have a particular interest in ensuring its integrity, implementation and effectiveness. The strengthening of the conservation objective of the Convention is also evidenced by the continuing shift in the IWC’s focus to non-consumptive uses of whales, such as whale-watching as noted in Australia’s Memorial. In a display of Japan’s usual uncooperative approach within the IWC, Japan issues an annual statement at each IWC meeting refusing to participate in discussions on whale-watching.
14. Thirdly, the JARPA II program is not being conducted “for purposes of scientific research” as required by Article VIII of the Convention. This has become particularly clear in the light of the expert evidence received by the Court – and no more so than in the thoroughly pre-emptive manner of the transition from JARPA to JARPA II that evidenced a number of fatal flaws in Japan’s argument. This commencement of JARPA II before completion of the review of JARPA smacks of avoidance of proper scrutiny. Yet Japan has the temerity to criticise the reputation of 63 scientists whose proper regard to the ethics of science precluded their participation in such a flawed process. Japan also has the temerity to rely upon the outcomes of that flawed process. There has been simply no justification that it was scientifically necessary for Japan to embark upon phase II of their program, in lieu of making use of the data already obtained from the 18 years of the original JARPA program, itself flawed as Japan’s own expert accepted nor is there any credible justification in that transition for adding in JARPA II two extra species – that is, fin and humpback whales – to the original JARPA catch of minke whales. Any purported rationale for the humpback and fin element of the program evaporated following the evidence of its own expert, Professor Lars Walløe. No scientific justification was given for doubling the take of minke whales. Similarly, on the subject of Japan’s flawed sample sizes, the variance between the take authorised by the permit and the actual take has no scientific justification. In answer to a question from this Court Japan has admitted that it has not considered, in the context of JARPA II, whether non-lethal methods were available in order to take this into account in setting sample sizes. Finally, Japan’s purported plan for a grand ecosystem model is an illusion and bears no relation to what Japan is actually doing.
15. Japan has failed to dent in any way the credibility of the standard criteria identified by Professor Mangel, which are reflected both in general scientific practice and in the Guidelines for review of special permits adopted by the IWC Scientific Committee. Japan has been unable to produce any alternative criteria in which to cloak JARPA II with even a vestige of scientific credibility. The equation referred to by Professor Boyle, which he acknowledged he did not understand, was an effort to resolve one of the most hotly contested issues in this case, the credibility of the basis for choosing to kill up to 935 minke whales rather than 300, 8 or none. Japan’s misrepresentations before this Court as to the extent of endorsement of the program by the IWC Scientific Committee will also bear further discussion in this second round.
16. Japan spent a great deal of time last week attributing to Australia propositions or arguments which Australia did not make and then refuting those arguments. To take just two examples of this straw man argumentation, Australia has never suggested that this Court should substitute itself for the Scientific Committee, or that the Convention is one for the elimination of whaling.
17. This brings me to my fourth point – the question of the correct interpretation of Article VIII. Japan in effect says that it can do what it likes under Article VIII, provided it has not been shown to be acting in bad faith. But the core question is one of treaty interpretation, under well established principles of international law. Australia rejects Japan’s minimalist interpretation of the substantive provisions of the Convention other than Article VIII, and Japan’s exaggeration of the scope and purpose of Article VIII. More generally, Japan’s interpretation conflicts with basic principles of treaty interpretation, in particular the principle of effectiveness. Japan reduces what was intended to be a substantial discipline that should be respected in the grant of special permits under Article VIII to a rubber stamp designed to authorise continued commercial whaling.
18. The fifth key point is the application of Article VIII, and what Australia says is the proper standard of review to the facts of this case. Consistently with what I have just said, Australia does not ask this Court to determine Japanese policy with regard to all whaling for the future. It simply asks you to hold that Japan’s continuing program of special permit whaling is commercial, and not for scientific purposes within the meaning of Article VIII. It is commercial whaling pure and simple.
19. The sixth key argument of Australia in this second round is that of good faith and abuse of right. Japan has failed to act in good faith in the issuing of permit after permit, year after year, without giving any attention to details such as how many whales should be caught or turning its mind to resolutions which have been adopted by the IWC itself. Also, notwithstanding its statement to the contrary, Japan has failed to comply with its obligation under paragraph 30 of the Schedule to provide the IWC with proposed special permits before they are issued. Furthermore, the evidence presented to the Court demonstrates unequivocally that the purposes for which Japan is granting permits allegedly pursuant to Article VIII are inconsistent with those for which the provision was intended and amount to an abuse of right.
20. These six key points to be explained in more detail by Australia’s Counsel in the course of this second round will establish, without a doubt, Japan’s failure to abide by international law in the conduct of its whaling program in the Southern Ocean.
21. I thank the Court for its attention and would ask you, Mr President, to give the floor to Mr Burmester who will deal with the jurisdiction of the Court.
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