Research claim breached

ALL the overtones of friendship and mutual respect between Australia and Japan, born of their long-established economic trading ties, wavered in a swift retort by Japan’s senior legal counsel just minutes after the shock decision by the International Court of Justice in the Peace Palace at The Hague on Monday.

Japanese agent Koji Tsuruoka, who led his country’s defence, said the decision to immediately ban all Japanese whaling in the Antarctic — brought about by Australia’s lodgement of a complaint in the UN’s top court, was “bitterly disappointing’’ but noted that Japan would abide by the judgment.

“We are a state that places great importance on the inter­national legal order,’’ he insisted.

For a country whose social mores are centred on saving face, Tsuruoka, head lowered, was deeply troubled. No one had quite predicted the scale of the court’s judgment, which found the entire basis of Japan’s kill target of more than 1000 whales a year was unlawful and that the country had contravened the international convention on whaling.

Australia’s very blunt accusation — that Japan had been killing whales “under the cloak of a lab coat of science’’ — was upheld by the court, 12 votes to four. The only countries that supported Japan’s position were Japan, Somalia, Morocco and Egypt.

Tsuruoka’s unease escalated with the first question fired at him by Western reporters huddled along the marbled corridors. He was asked pointedly if Japan would consider leaving the International Whaling Convention, as Norway and Iceland had done, suggesting Japan would carry on its whaling activities regardless of the court order, or whether the country would consider establishing a different whaling program.

Without hesitation Tsuruoka snapped: “Do not put words in my mouth.”

“The decision has just been handed down and it is not a simple issue for any expert to digest,’’ he said.

He was pressed and encouraged to rule out any further whaling activities but declined to answer.

Other members of the Japanese government delegation parroted a similar line, refusing to rule out anything beyond a careful study of the court’s lengthy and extensive ruling. While diplomats say Japan has ruled out withdrawing from the IWC, the country may still consider the possibility of carrying on whaling under a different program.

Japanese Foreign Affairs Ministry spokesman Noriyuki Shikata said the court had made judgments about the legality of the research program, but hadn’t ruled on the 2000-year-old cultural and traditional aspects of whaling for the Japanese people.

Certainly the campaigners who had made their way to the court don’t believe the Japanese will put away their harpoons.

Sea Shepherd’s Pete Bethune, the founder of Earthrace Conservation, hails the court’s decision as a “great day for whales’’, but also has reservations.

“I’m bloody happy to have gone through it all,’’ Bethune says, recalling being mown down by Japanese security vessels in the Antarctic.

Between tears of joy — his five-month imprisonment in Japan for anti-whaling actions was a contributing factor to Australia taking the legal action — Bethune expresses puzzlement as to why Australia had confined its complaint to the Southern Ocean. He says Japan could be free to continue whaling in the North Pacific.

“I have no idea why Australia and New Zealand left the Northern Pacific out of their case,” Bethune says.

“If the research program in Antarctica is illegal, then by definition so is the program in the Northern Pacific; but it will require another court action to make this illegal also.”

Nonetheless, Bethune says the ruling is critically important because Russia and South Korea had been expecting to introduce research whaling programs mirroring those of Japan if the court had sanctioned Japan’s actions. “I am absolutely thrilled,” he says. “Today will go down in history as a great day for whales, for conservation and for justice.

“The verdict makes Japan’s research whaling program, which has killed many thousands of whales in the name of science, illegal.’’

Sea Shepherd’s Netherlands director Geert Vons says the boat will once again be patrolling the Southern Ocean come the next whale season in December.

The highly effective but highly dangerous sabotage efforts of the Sea Shepherd reduced the Japanese total whale kill to 113 last season, one-tenth of its actual target.

At the beginning of the two-hour summary of the judgment, read by the Slovakian chief judge, Peter Tomka, there was a general view that Japan’s position might be strengthened in law.

The court found that Japan was selling its whale meat and products for commercial gain, and to help underwrite the costs of the whaling program, but said such commercialisation was incidental and essentially irrelevant to the argument.

The court ruled it was up to Japan to determine what its scientific research consisted of and said to collect some of the research data “non-lethal methods are not feasible’’.

In other words, killing the whales was legitimate and the whale-meat products could be sold, without recourse, to the Japanese consumer.

At this point those in the courtroom were expecting a Japanese victory and the non-appearance of Australia’s Attorney-General George Brandis appeared to make sense.

But then the judgment started to unravel for Japan.

Tomka spoke about how Japan had failed to consider killing a smaller number of whales or using non-lethal research. He then examined its scientific program, called JARPA I, and its replacement, JARPA II, and their objectives of ecosystems monitoring and multi-species competition. He said the doubling of the minke whale target under JARPA II to 850, and the inclusion of the fin and humpback whales in the kill, did not appear to correlate to the research principles.

“The court notes considerable overlap between the subjects, objectives and methods of the two programs, casting doubt on Japan’s arguments,’’ he said.

He added that the JARPA II sample sizes were not determined by strictly scientific considerations, partly because the scientific analysis of the first program had not been completed before the second program started.

The scale of the number of whales to be killed was also a concern and, significantly, the gap between the target and the actual number killed raised serious questions about the efficiency of the scientific programs.

Tomka also said the scientific output has been scant and mainly limited to data taken from fewer than 10 killed whales.

Yet the number of minke whales killed varied from 853 in 2005, followed by about 450 for several seasons, 170 in 2010 and 103 in 2012.

He also noted that target sample sizes were larger than were reasonable to achieve the scientific outcomes.

“Other aspects cast doubt on its characterisation as a program for purposes of scientific research, such as its open-ended time­frame, its limited scientific output to date and the absence of significant co-operation between the program and other related research projects,’’ he said.

Tomka stressed Japan’s permits involved activities that could be broadly characterised as scientific research, but the evidence didn’t establish that the program’s design and implementation were reasonable in achieving its stated objectives.

“The court therefore concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not for the purposes of scientific research.’’

Cue much jubilation among the Australian and New Zealand legal contingents, former Labor politicians Kevin Rudd and Peter Garrett, who both pushed the four-year legal battle, and conservationists.

But Greenpeace spokesman John Frizell says the trade in whale meat continues largely unchecked. At present there is a freezer ship, the Alma, en route to Japan loaded with frozen whale meat from Iceland.

“The implications for whaling by Norway and Iceland will now come under renewed pressure,” Frizell says.

“This was such a strong result and other countries that continue to whale will have to reconsider their priorities. Community attitudes are changing, and people don’t eat whale any more.’’

Certainly from an Australian perspective the government wants to move on, and distance itsel­f from the court dispute so that Japan and Australia can concentrate on a trade deal, with Tony Abbott and Japanese Prime Minister Shinzo Abe meeting on April 7.