International Law and Treaties

Whaling in the Antarctic
(Australia v. Japan : New Zealand Intervening)
Opening Statement by the Agent of Japan

July 2, 2013

Thank you, Mr. President,

Mr. President, Members of the Court,

1. This is the first time that Japan appears before the Court, the principal judicial organ of the United Nations. I am honoured to be the first ever Agent representing my Government before this august body. Please allow me to be a bit personal before proceeding. My late father, Senjin Tsuruoka, devoted much of his life to international law, serving as a Member of the International Law Commission for 20 years. He would have been terrified to see me standing in front of the Court. I must humbly admit that I may not satisfy all the requirements of an Agent, but I am determined to do my best.

Mr. President, Members of the Court,

2. I cannot but be struck by an irony of history. It was this very subject, whaling, that forced Japan to open itself to the world after 300 years of isolation. Major maritime powers engaged in a massive scale whaling in the 19th century demanded Japan to open up its ports to supply their whalers. And now whaling is testing whether we are indeed a good global citizen, complying with international law, or whether we have manipulated the law to circumvent our international obligations.

3. Although we strongly question the jurisdictional basis for Australia’s claim, if the Court is to rule on the merits of the case, we wish to emphasize that the case concerns the legality of Japan’s activities under international law and not ethical values or the evaluation of good or bad science. The question put to the Court is the interpretation of Article VIII of the International Convention for the Regulation of Whaling (ICRW) regarding special permit whaling.

4. Japan is fully committed to upholding international law and we take Australia’s allegations very seriously. When a sovereign state is accused of breaching international law, the accusation must be supported with convincing legal evidence. Australia failed to prove such an allegation last week. We intend to present our case clearly so that there will be no room to doubt our faithful observation of our international obligations.

Mr. President, Members of the Court,

5. Japan has lived in harmony with nature throughout her long history. Surrounded by sea, Japan would be the last to misuse whales as resources because we know we benefit from the fruits of the sea. Sustainable use of living resources is indeed at the very heart of the Japanese ethos precisely because Japan has scarce resources and has always relied for her survival on what nature can provide. Japan is deeply aware of the duty to pass on to future generations a clean environment and rich biological diversity. Japan regards the environment as one of the important global issues that requires the whole international community to work cooperatively and inclusively. Japan has a long history of participation in wildlife conservation treaties.

6. It was in this spirit that Japan joined the ICRW in 1951. As stated in its preamble, the ICRW is a regime that provides “for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”, which is fully consistent with the Japanese understanding of natural resource utilization.

Mr. President, Members of the Court,

7. We have witnessed substantial development of international environmental law on the management of living resources arising out of serious reflection on the effect of human activities on the unmanaged fishing and hunting on the species. Japan has embraced such development including the conservation and management of all living species. And, it welcomes the tangible progress of implementation of such multilateral management mechanisms.

8. We agree that animal protection, including the prohibition of unnecessary killing and the preservation of biodiversity, is an essentially good cause. The ICRW was established to remedy the whaling practice prevalent before 1946 with a view to ensuring conservation and management based on science.

9. We are conducting the scientific research in a manner such that no harm to stocks will occur in full application of the precautionary approach. Australia’s own expert confirmed last week that the catch of 850 minke whales a year does not endanger this population. Little is known of the ecosystem in the Antarctic Ocean. It is required by the ICRW that management of whales as marine living resources be conducted based on the best scientific advice. It is precisely to supply the Scientific Committee with necessary scientific data that Japan is pursuing research whaling and, combined with other nations’ contribution, conservation and management based on science under the IWC has been making progress.

10. Australia was engaged in commercial whaling until 1979 and used the ICRW to conduct sustainable whaling . In 1979, however, it drastically changed its position, when Prime Minister Malcom Fraser announced a total ban on Australia’s whaling and vowed to work for the prohibition of whaling by other countries saying, “The Government upholds… that Australia should pursue a policy of opposition to whaling and that this policy should be pursued both domestically and internationally through the International Whaling Commission and other organizations”. Australia has the sovereign right to decide its position. But Australia cannot impose its will on other nations nor change the IWC into an organization opposed to whaling. Since 1979, Australia persistently continued its efforts to transform the ICRW and the IWC to a regime of total ban on whaling. As transformation requires entirely rewriting the ICRW, Australia to this day remains unsuccessful.

11. Why does Australia take such a position? Are all cetaceans sacred and endangered? I can understand the emotional background to this position but fail to understand how it can be translated to a legal or scientific position. The basic objective of a multilateral convention is to bring States of widely differing social, economic and political systems with diverse interests to cooperate for agreed global interests under an agreed framework. Inclusiveness in any multilateral regime can only be ensured through encouraging harmony amongst states by concentrating upon agreed, basic principles and objectives. A unilateral attempt at changing the agreed rule seriously disrupts the effective operation of a multilateral convention.

Mr. President, Members of the Court,

12. Throughout the IWC process devoted to agreeing on methods of better management, Australia opposed any whaling and blocked consensus. When anti-whaling member states constituted three quarters of the IWC membership, the moratorium on commercial whaling, as embodied in the Schedule paragraph 10 (e), was adopted. When that three fourths majority could not be maintained, Australia pushed for resolutions reflecting its own policy which required a simple majority for adoption. These resolutions are not binding.

13. Failing to surmount the necessary threshold required to amend the Convention in the direction Australia wished to see, it came to the Court. After many years of hard negotiation, the IWC was at last at the culminating point of the “Future of the IWC” process; that is to say, normalization process undertaken with a view to saving the IWC from complete derailment. Since the increase in the membership in the 1980’s of anti-whaling nations, the IWC suffered from polarization that stood in the way of constructive discussions. The situation could only be put to an end when a compromise was reached. Australia’s intransigence aborted an agreement that was about to be reached. Australia took the lead in opposing the consensus that would have produced the rules acceptable to all member states of the IWC on the management of cetacean resources. Japan finds it disturbing that a State, while refusing to make sincere efforts and or engage in co-operation in the most prominent multilateral framework in this field, brings disagreements to the Court.

14. Another aspect of the case pertains to confining the geographic coverage of Japan’s special permit whaling in the area of Australia’s self-proclaimed Exclusive Economic Zone (EEZ) in the Antarctic Ocean. As amply demonstrated by numerous actions, Australia attempts to exercise its jurisdiction in this area. Japan does not recognize the Australian position on the EEZ in relation to the Antarctic. By limiting the geographic coverage of the case to its claimed area in the Antarctic Ocean and adjacent areas, is Australia attempting to give legitimacy to its self-proclaimed position on the EEZ? Or is Australia trying to avoid putting its Antarctic claim to the test, as it would if it imposed a ban on whaling within its claimed Antarctic EEZ, which it has not done. We have serious doubts about the jurisdiction of the Court in light of Australia’s reservation attached to its acceptance of the jurisdiction of the Court.

15. Japan, for its part, has acted in good faith and has achieved tangible scientific results by presenting its findings to the Scientific Committee. Japan has continued to contribute to the development of new management methods and painstakingly cooperated with a view to ensuring conservation and management of whales. Even when as a sovereign country Japan could have left the ICRW and the IWC to resume commercial whaling outside this regime, Japan chose to work with other members within the given framework.

16. Although the moratorium on commercial whaling was adopted originally on a temporary basis up to 1990, we are faithfully implementing the moratorium despite its practically indefinite extension. Since Australia cannot argue scientific whaling is illegal, it claims Japanese special permit whaling is commercial. The drastic change of the whaling conducted by Japan after its acceptance of the moratorium on commercial whaling will be presented in detail by counsel and will amply demonstrate that such whaling is not commercial, but scientific.

Mr. President, Members of the Court,

17. Let me now address the fundamental question presented to the Court. The difference between Japan and Australia is whether sustainable use of marine resources may be permitted both in light of law and science.

18. Why is Japan engaged in research whaling? Is it because there is a moratorium on commercial whaling and Japan needs to continue commercial whaling in disguise as Australia alleges? Not at all. Japan is conducting a comprehensive scientific research program because Japan wishes to resume commercial whaling based on science in a sustainable manner.

19. The IWC needs scientific advice because Article V of the ICRW requires that regulations “shall be based on scientific findings” and because the language of the moratorium says that “this provision will be kept under review based upon the best scientific advice”. This means that the lifting of the moratorium requires that convincing scientific data be presented to the Scientific Committee of the IWC to demonstrate that safe catch limits can be recommended for the resumption of sustainable commercial whaling. This position is not unique. For example, Norway stated recently, “[c]ontinued gathering of scientific data may also prove to be relevant in the context of the moratorium on commercial whaling…, due to such moratorium essentially being a temporary suspension pending further decisions as to future management.”

20. Why was JARPA started when Japan accepted the moratorium? Because the justification for the moratorium was that data on whale stocks was inadequate to manage commercial whaling properly. In these circumstances it was best to start the research program as soon as possible.

21. Why is JARPA II conducted around the same waters as commercial whaling had been conducted? This is because we know from past experience and current scientific data on whale abundance that this is where whaling could be conducted in a commercially viable way, and unless it is established that whaling is sustainable in those waters, Japan cannot resume commercial whaling in those waters.

22. Should Japan be ashamed of trying to resume commercial whaling? As long as commercial whaling is conducted in a sustainable manner and in accordance with agreements about humane killing, it is a legitimate use of marine living resources. This is precisely what the ICRW is about.

Mr. President, Members of the Court,

23. We know only too well that there are countries that are opposed to whaling as a matter of principle. This makes it even more important that we present to the Scientific Committee evidence that resuming commercial whaling is possible so that the Commission’s decisions can be based on science as required by the Convention. If Japan’s scientific research whaling is terminated, there will be no data for the Scientific Committee that will demonstrate that the resumption of commercial whaling on a sustainable basis is possible, and a lack of data will extend the moratorium for commercial whaling indefinitely. That is why we scrupulously abide by the rules of ICRW. Had there been doubt concerning our observance of the ICRW, we would have jeopardized our most important goal of resuming sustainable commercial whaling.

24. Australia, however, bases its arguments on its policy of absolutely no killing of whales. This is demonstrated by the statement of the Australian Commissioner, stating that “Australia’s view is that we are opposed to any research that involves the killing of whales….” By contrast, Japan is committed to science. We rest our case not on an opinion of one scientist but on the requirements of the ICRW and Annex P, which was agreed by the Scientific Committee of the IWC. The scientific achievements of our special permit whaling are recognized, appreciated and used by the Scientific Committee of the IWC, composed of over 150 experts in whale studies.

25. In spite of the literal interpretation of Article VIII of the Convention “Notwithstanding anything contained in this Convention…”, we are not advocating an “absolute discretion”. Our position is clearly based on efforts to respect the highest precautionary approach. We have fully complied with the procedural requirements. It is scientifically demonstrated that there is no harm to stock of the targeted species under JARPA/JARPA II. Japan has always been present in the negotiations through the IWC, has accepted what was agreed and has faithfully complied with it. It is solely on these solid bases that Japan wishes to resume sustainable whaling based on the best scientific advice as clearly stipulated in the ICRW.

26. In our pleadings to follow my speech, we will deal with both the jurisdictional question as well as the merits. Our Counsel will explain that our special permit whaling for purposes of scientific research is founded in law and based on science, as recognized by the Scientific Committee of the IWC. In doing so, we will explain why Australia’s arguments of last week are without merit and cannot substantiate such a serious allegation as a breach of the international convention.

Remarques conclusives

Monsieur le Président, Mesdames et Messieurs les Juges,

27. Le droit évolue. Mais seulement par voie d’accord entre les États. On ne peut juger de la portée de ce qui a fait l’objet d’un accord – ou non – qu’en recourant aux règles bien établies de l’interprétation des traités. Le Japon a respecté le principe fondamental pacta sunt servanda en respectant en toute bonne foi ce qui était convenu et nous nous présentons aujourd’hui devant vous dans l’espoir que votre arrêt contribuera au renforcement de la stabilité des relations internationales. Il va de soi que si la Cour devait introduire une révolution dans le droit des traités, cela serait lourd de conséquences à long terme pour le droit international. Mais nous sommes convaincus que la Cour, principal organe judiciaire des Nations Unies, fera respecter le principe fondamental du respect de la parole donnée dans les termes où elle l’a été.

28. Il appartient à la Cour de se prononcer sur la licéité des actes des États ; pas sur leur moralité ou leur valeur éthique. Pour certains, les baleines sont des animaux sacrés, comme les vaches le sont pour les Hindous. Les religions et les cultures perçoivent les animaux de manière différente. Nous vivons dans un monde où vivent plus de sept milliards d’êtres humains répartis entre les cinq continents ; et la seule manière de leur permettre de coexister pacifiquement est de respecter leurs différences, et de ne pas imposer les vues de certains aux autres.

29. Après avoir lu et écouté avec attention les arguments de l’Australie, je suis convaincu qu’il s’agit d’une tentative unilatérale de ce pays pour imposer l’interdiction de toute chasse baleinière en se fondant sur ses propres valeurs plutôt que sur une argumentation juridique relative à la chasse scientifique autorisée par le Japon. Certes, dans ce cadre, le Japon capture et tue des baleines. Devons-nous en être honteux ? Même si cela peut être l’avis de certains, cela ne veut pas dire que nous violons le droit international. Si l’on parle en termes de culture, le Japon est fier de son histoire, qui remonte très loin dans le temps, et de sa tradition de proximité avec la nature et de préservation de l’environnement pour les générations à venir. Nous ne critiquons pas les autres cultures. Monsieur le Président, je le dis clairement : s’il fallait établir la supériorité de telle culture sur telleautre, le monde ne pourrait être en paix.

30. Pacta sunt servanda, j’y reviens... Tel est le fondement du droit qui a permis la coexistence entre les nations durant des siècles et il serait fort regrettable d’écarter ce principe de sagesse pour la mauvaise raison que les actes de certains États semblent moralement répréhensibles à d’autres.

31. Monsieur le Président, Mesdames et Messieurs les juges, je vous remercie de votre attention et je vous prie, Monsieur le Président, de bien vouloir appeler à cette barre M. le Professeur Pellet.

Merci beaucoup.