Take Japanese Whalers to court over Environmental Law says legal expert

[Annces]

Take whalers to court: legal expert

Cathy Alexander
January 20, 2009

Australia would have a "very strong" case if it took international legal action to try and stop Japanese whaling in Antarctic waters, a legal expert says. And the expert has dug out a new legal avenue which Australia could pursue. Before the 2007 federal election, Labor promised to take Japan to the International Court of Justice (ICJ) to stop whaling. That hasn't happened yet. The government is trying diplomacy first. The Japanese fleet is in Antarctic waters this summer with plans to take about 1,000 whales.

Don Rothwell, a professor of international law at Canberra's Australian National University, said the legal avenue was looking good. "Australia has a very strong, arguable case to present on this matter," Prof Rothwell told AAP. "They could go for it. "There has to be a point in time at which any government has to say we've exhausted our diplomatic options."


Don Rothwell




Prof Rothwell said Australia could take Japan to the ICJ, the United Nations' court, and allege Japan was breaching the Whaling Convention. The Convention says there is to be no commercial whaling in Antarctic waters; a discussion would ensue about whether Japan's whaling was research-based or not.

There is another option. Prof Rothwell and other experts, convened by the International Fund for Animal Welfare, released a report on Tuesday suggesting Australia use the Antarctic Treaty System to crack down on whaling. The treaty, which was set up to oversee the frozen continent, says most activities need environmental approval.

Prof Rothwell said Japan did not get these approvals for its whaling but it might need to. Their ships might not be up to standard, and refuelling at sea and disposing of whale offal could breach environmental standards. Prof Rothwell said insisting on environmental standards be met could make Antarctic whaling so expensive that Japan would abandon it.

A spokeswoman for Environment Minister Peter Garrett said he welcomed the experts' reports and will take a close look at it.

She said legal action was still on the table, but reiterated that diplomacy was being tried first.

"The outcomes of diplomatic initiatives, together with all other relevant considerations, will inform the government's ultimate decision on legal action," she said.

http://news.theage.com.au/breaking-news-national/take-whalers-to-court-legal-expert-20090120-7l6o.html

News story on the subject
http://www.youtube.com/watch?v=TMhYMisv68k

[kristopher]

1. He said the same thing a year ago.

I'm glad you quoted him though, for verifies EVERYTHING I'VE SAID REGARDING THE LEGAL STATUS OF JAPAN'S WHALING and how attempts to enforce the Australian prohibition on Japan whaling based on ownership of the Antarctic would do nothing but settle against Australia the issue of Australia's claim to 'ownership' of Antarctica.

His argument that Japan is "abusing it's authority" is specious and has no basis in the content of the treaty, which gives Japan sole authority to define scientific whaling and how it is to be conducted.


Sydney Morning Herald
Donald Rothwell
17 January 2008

This week's ruling by the Federal Court that Japan's so-called scientific whaling
program in the Southern Ocean violates Australian law is something of a double-
edged sword for the Rudd Government. Coupled with the detention of two Sea
Shepherd activists on a Japanese whaler, these events demonstrate how volatile the
whaling issue has become. If the dispute escalates Australia's Antarctic claim could be
placed in jeopardy - because of the threat that is ultimately posed to the Antarctic
Treaty regime which has successfully governed Antarctica and the Southern Ocean
since 1961.

The Federal Court ruling is helpful in that it upholds the application of Australian law
to offshore Antarctica and sends a clear message to the Japanese that our courts will
act to prohibit whaling in the Australian Whale Sanctuary. However, the Rudd
Government will be well aware that Japan does not recognise Australia's Antarctic
claim and accordingly does not recognise laws prohibiting whaling.

In addition, the Government will have been advised that any attempt to arrest the
Japanese whalers will be viewed not only by Japan but also by many other countries
as a violation of the Antarctic Treaty. This is the principal reason why the
Government needs to act with extreme caution in responding to the Federal Court
decision.

Australia has a significant stake in Antarctica. Australia claims 42 per cent of the
continent but only four other countries recognise that claim. Our claim is given a
certain legitimacy by the Antarctic Treaty which also provides a basis for the
extensive scientific research effort conducted on the continent. The treaty has
successfully immunised Antarctica from conflict for nearly 50 years and Australia has
a great deal to lose if the treaty was to unravel.

This controversy has its foundation in a 1986 global ban on commercial whaling.
Throughout the past decade Japan has been attempting to overturn the moratorium in
the International Whaling Commission but has been unsuccessful. In the face of the
limitations upon commercial whaling, Japan has reverted to so-called "scientific
whaling" which is provided for under Article 8 of the 1946 International Convention
for the Regulation of Whaling. However, while in 1946 the only means of scientific
research may have been via lethal means, whale researchers can now conduct
extensive studies using non-lethal techniques. The interpretation of the Whaling
Convention as to what is legitimate "scientific" research therefore needs to shift with
the times.

Notwithstanding these developments, Japan has, under the JARPA (Joint Aquatic
Resource Permits Application) and now JARPA II research program, gradually
increased the numbers of whales and expanded the species taken such that this season
Japan proposes to take up to 935 minke whales and 50 fin whales. Japan accordingly
at IWC meetings and through its Institute for Cetacean Research regularly asserts its
JARPA II program is perfectly legal. Australia has politically contested this position
for a number of years and now is considering a legal challenge to Japan's
interpretation of the convention. The legal argument is essentially that Japan cannot
not use the loophole of scientific research to, in reality, engage in commercial whaling.
In the face of growing evidence that non-lethal scientific research can be conducted,
Japan's recent increase in the number of whales that it kills has become an abuse of a
legal right to engage in scientific whaling contrary to international law.

The Rudd Government is now in possession of legal advice from the Sydney Panel of
Independent International Legal Experts which outlines options for challenging the
legality of Japan's scientific whaling program. Such a challenge would involve the
enforcement of international and not Australian law, thereby circumventing some of
the issues raised by the Federal Court ruling. Central to the legal argument is that
there are limits to legitimate scientific whaling which Japan's JARPA II program
ignores. Australia could seek to contest the legitimacy of Japan's whaling program in
either the International Court of Justice or the International Tribunal for the Law of
the Sea. That Australia and Japan are currently engaged in free trade negotiations
should not be a barrier to peacefully settling a dispute between friendly nations. The
Government has now commissioned fresh legal advice to further explore these
options which federal cabinet is expected to review in coming weeks.

In addition to the legal options, there are other initiatives on the Government's
whaling agenda. There is a commitment to fully engage in the IWC reform process
and Australia will most likely attend a pivotal meeting in March to consider options.
It has also been announced that a special envoy on whale conservation will be
appointed to convey Australian views on whaling to the Japanese. In the wake of a
recent YouTube video suggesting Australia's position on whaling was racist and
contradictory given the legal culling of dingoes and kangaroos, the whales envoy will
clearly have their work cut out for them.

The Foreign Minister, Stephen Smith, has also called on the environmentalists and the
Japanese to act responsibly and with restraint following the recent clash and it seems
likely, following Smith's intervention, that the Sea Shepherd activists will be released
without charge. But the Government needs to be careful not to take sides and favour
the Sea Shepherd protesters, in light of the fact that Australia joined other nations at
last year's IWC meeting to condemn environmental protesters who endangered life at
sea.

Donald Rothwell is professor of international law at the Australian National
University College of law and chaired the Sydney Panel of Independent International
Legal Experts assessing Japan's scientific whaling program.

http://law.anu.edu.au/cipl/expertopinion.asp