SYDNEY, (Jun. 3, 2010) IPS/GIN – A deep rift continues between pro
and anti-whaling members of the International Whaling Commission
(IWC) as Australia lodged legal action Tuesday in the International
Court of Justice (ICJ) against Japanese ’scientific’ whaling,
calling for a permanent end to all whaling in the Southern Ocean,
an established whale sanctuary and a critical feeding ground for
the mighty mammals.
In separate statements issued earlier this week to the media, Japan
has expressed its disappointment over Australia’s move while two
of the anti-whaling countries, the United States and New Zealand,
said a diplomatic channel would have been a better option than
hoping for a favorable litigation outcome to save the whales.
But as the countdown begins to the IWC’s 62nd annual meeting, the
Australian government has reiterated in a statement that it remains
“resolutely opposed to commercial whaling and unilateral
’scientific’ whaling, and strongly supports the global moratorium
on commercial whaling.”
The IWC meeting in Agadir, Morocco from June 21 to 25 will tackle
a controversial compromise proposal that would allow countries to
resume commercial whaling provided they abide by strict quotas that
will be reduced over the next 10 years.
Despite the 1986 global moratorium on commercial whaling, about
1,600 whales are killed annually, according to the IWC. Since the
moratorium, over 33,000 whales have been killed under Article VIII
of the 1946 International Convention for the Regulation of Whaling
(ICRW), which allows any contracting government to grant “any of
its nationals a special permit authorizing that national to kill,
take and treat whales for purposes of scientific research.”
Australia claims that Japan has abused its right to scientific
research whaling under Article VIII of the ICRW. In 2008-09 Japan
killed 1,004 whales, including 681 in the Southern Ocean, in the
name of ’scientific’ whaling, based on data from the IWC.
In his statement to the media, Foreign Minister Stephen Smith said
“that the action we have taken is the best action to advance our
policy objective, which is to see Japan cease whaling in the
Southern Ocean.”
“Australia also asserts Japan has breached its international
obligations under the 1973 Convention on International Trade on
Endangered Species of Wild Fauna and Flora by hunting whale species
listed as endangered,” Donald Anton, a senior lecturer in
international environmental law at the Australian National
University, told. IPS.
“Australia has probably lodged the application now because it
appears that a compromise might be reached on the resumption of
whaling in exchange for greatly reduced catches,” said Anton.
He added that Australia also invoked Article 3 of the1992
Convention on Biological Diversity “in claiming that Japanese
whaling is causing harm beyond national jurisdiction in the
Southern Ocean.”
Australia’s whaling case against Japan is likely to proceed in two
phases, said Anton. First, Australia will probably request an
injunction that will restrain Japan from all scientific and other
whaling activities until the case is decided or the health and size
of the whale stocks are established to the satisfaction of the
court.
“Australia will push towards getting an injunction for the 2010-11
whaling season in the Southern Ocean,” he said.
The second or the merit phase will determine whether Japan has
breached its international obligations, as asserted by Australia,
said Anton. This could take anywhere between three and 10 years,
“so it will be a long process before the case is resolved in toto.”
Anton expects Japan to contest the case by citing Article VIII,
which allows states to issue special permits for scientific
research whaling on the conditions each state “thinks fit,” he
stressed. “This very wide discretion makes the argument about an
abuse of rights difficult.”
Once the case is resolved, the international community will have
a definitive legal view about the interpretation and application
of the ICRW. That is, at what level does scientific research
whaling become a pretext for commercial whaling, which has been the
crux of dissension between pro and anti- whaling countries?
Politically, whaling has been an eyesore in the broader
Australia-Japan bilateral relations. In a recent survey by the
Sydney-based Lowy Institute for International Policy, Australians
gave the government a mere 4 out of 10 on its policy on Japanese
whaling.
This being an election year, Australian Prime Minister Kevin Rudd
has come under pressure to honor a 2007 election pledge to ban
whaling in the Southern Ocean Whaling Sanctuary, a
50-million-square-kilometre area surrounding the continent of
Antarctica, where the IWC has banned all types of commercial
whaling.
“The move by the Australian government to finally initiate legal
action comes three years and 2000 slaughtered whales too late.
Australia should seek an injunction to prevent any whale kill until
the judgment is made,” Bob Green, leader of Australian Greens
Party, which has seen a record high surge in support in recent
weeks as voters turn away from the two main political parties, told
IPS.
Some environmental groups in Australia said the government should
not rely on litigation alone to save whales, but must remain
focused on negotiating a deal for phasing out whaling.
Whaling should be phased out within three years, said Greenpeace
Australia’s Whaling Campaigner, Reece Turner.
“As the litigation may take many years to conclude, we want
Australia to ensure that the deal in Agadir doesn’t include the
controversial proposal that would allow commercial whaling at a
reduced quota over the next decade. This would only legitimize
whaling in the Southern Ocean Whaling Sanctuary and undermine the
legal case,” he said.
In a statement released earlier this week, the World Wildlife Fund,
an international organization promoting conservation of wildlife
and endangered species, has called on the IWC members to ensure any
deal must also prohibit international trade in whale products.
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