Pearls and Irritations

Australia and Japan are at loggerheads before the International Court of Justice not because they disagree over whaling but because they disagree and are both members of the International Whaling Commission. What may at first seem a fussy distinction is fundamental and important. It is only because of their mutual commitments under an international convention that the whaling dispute can come before the court in The Hague. In response to Australia’s complaint that it has been acting in bad faith by cloaking ‘commercial whaling under the lab coat of science,’ Japan has cited its continuing membership of the IWC as proof of a good faith commitment to multilateralism and consensus building. The accusation of bad faith is one to which Japan has taken particular exception, not assuaged by assurances from Attorney-General Mark Dreyfus that the ICJ case need not harm bilateral relations. In oral arguments before the court, the Japanese legal team has taken aim at Australian bad faith in the presentation of selective and distorted testimony and comments by Mr Dreyfus that, irrespective of the court’s decision, the government would continue to oppose Japan’s whaling program by, among other things, accommodating the activities of the radical Sea Shepherd group.

 Australian media coverage of the ICJ case has been patchy, at best, given the amount of space and time devoted to the antics of Sea Shepherd. Methodical argument in a court of law is necessarily less accessible to superficial minds. But the to-and-fro in The Hague has been quite as lively by way of sarcasm, rhetorical flourishes and the cut and thrust of cross-examination. Both sides have employed an impressive array of advocates including, on the Japanese side, leading Iranian, Scottish and English barristers.

 But what is the court asked to decide? What is it empowered to decide?

 The ICJ is asked to determine whether Japan is meeting its obligations under the International Convention for the Regulation of Whaling, specifically whether its program of ‘scientific whaling’ meets the requirements set out under Article 8. Japan argues that research data it has obtained through the killing of whales could not be obtained any other way and that it has fully met requirements to notify the IWC and respond to the input of its Scientific Committee. According to Japan, the court is not competent to distinguish good science from bad but must determine simply whether the whaling convention has been followed. While Australia argues that Japan’s research does not fulfill essential criteria for a scientific program – specificity and apparent usefulness, the formulation and testing of hypotheses, and peer review – the narrow scope of the court’s competency and jurisdiction would seem, on the evidence presented, to make a ruling against Japan unlikely. The outcome is expected before the end of the year.

 Australia took a costly, high-risk gamble by bringing the case to the International Court of Justice. If Japan’s ‘scientific whaling’ is endorsed by the court, anti-whaling groups that pay no heed to anything other than direct action will claim vindication. If the Australian government continues to agitate against Japan, having lost the legal argument, it may appear a bad loser whose opposition to whaling lacks logic or scientific basis and rests merely on a presumption of cultural superiority – the very thing Japan alleges. But, on the other side of the ledger, is the modern obligation on nations with shared interests and joined together under an international convention to seek and respect the judgment of their peers. Here is the inestimable value of the exercise.

 Which brings me back to the importance of the two countries’ membership of the IWC. While the commission is not worth much at present, being deeply divided between pro- and anti-whaling factions, the alternative is unilateralism of the Sea Shepherd sort. Australia has a distinguished record of participation in multilateral responses to world problems. Since 1945, so has Japan. A compromise on the whaling issue was within reach at the IWC a few years ago, until zealous prohibitionists gained sway within both Labor and Coalition circles. Unilateralism is not a sound policy for a country like Australia (leave that to the North Koreas of this world). If it does not like the decision coming from The Hague, Australia’s worst course of action would be to leave the IWC or surrender prosecution of the argument to demagogues and free agents. Some Australian media outlets have selectively reported Japan’s comments before the ICJ to suggest it is ready to pull out of the IWC if the decision goes against it. As already pointed out, to the contrary, Japan insists its continued membership is proof of its good faith. It would puncture that argument by leaving, and the same goes for Australia.

Walter Hamilton was formerly Correspondent for the ABC in Japan.

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