The Ambiguity Of “Scientific Purposes” In The Whaling In The Antarctic Case

 https://www.newscientist.com/article/2208394-japans-return-to-commercial-whaling-has-no-economic-or-cultural-case/

Though science and law might seem to be two different fields, there is nevertheless interaction between the two. The Whaling Case is an example of such interaction. The judgement rendered on 31 March 2014 by the International Court of Justice (“the court”) on the Whaling in the Antarctic Case (Australia v Japan; New Zealand intervening) raises the issue of scientific or technical matters in the proceedings before the court. In some instances, therefore, judges must analyse scientific evidence to reach a legal decision. This article is an attempt to understand how the court in the Whaling Case dealt with the science at the heart of the case. Specifically, the article tries to understand the method by which the court addressed the question of what “scientific purposes” could mean with regards to Japanese Whale Research Program under Special Permit in the Antarctic (“JARPA”) II. Under JARPA II, Japan’s purported research objective was to gather scientific data using lethal and non-lethal methods to institute a management regime for the sustainable usage of whale resources. In order to do so, the whales were killed using an explosive harpoon and their stomachs were opened and investigated to measure the quantity and the type of marine animals that they had eaten. Subsequently, the whales were sold and eaten.

Whaling “for the purposes of scientific research” is permitted by Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The term “scientific research” has not been defined in the treaty. The main question before the court in the Whaling Case was whether the whaling activities under JARPA II by Japan were for “scientific research” or for other purposes, specifically commercial whaling. Thus, the court called on experts to help it to answer this question.

Relying on the expert opinion, the court did not find it necessary to provide its own definition of “scientific research”. While rejecting the four criteria for adjudging “scientific research” given by the Australian expert, the court also failed to explain “scientific research” and the grounds for its rejection (see para 74 here). The understanding of the term “scientific research” cannot merely depend on a State’s perception. Thus, the court has missed an opportunity to define “science research” and set a precedent for future cases.

As pointed out in the dissenting opinion by Judge Yusuf (see para 29 here), the court lacked a beginning point, i.e., the definition of “scientific research”. Consequently, the court, in its adoption of the two-step process for reviewing JARPA II, reached a contradictory position. The court stated that it would first review if the programme involves scientific research and if the method of scientific research used helped Japan in achieving the objectives of JARPA II. However, this two-step process led the court to a contradictory position – how can activities which the court found to be “scientific research” be carried out under special permits granted “not for purposes of scientific research”? (also see para 227 here).

While the court concluded that Japan’s hunting of whales was not for “scientific purposes”, it was careful not to go into the question of the actual purpose of Japan’s whale killing. It also did not address whether JARPA II was being utilised for commercial whaling in the guise of “scientific research”. 

On the one hand, it could be argued that the final decision of the court was correct, even if the court had to use convoluted reasoning in finding that the special permits under JARPA II did not fall within the provisions of the Whaling Convention. The court was nonetheless wrong in one facet of its decision. The court should have closed the possible loophole in the law by defining “scientific research”, thereby curbing future litigation on the matter. The implications of such a legal gap might allow countries like Japan with interest in commercial whaling to use “scientific research” dishonestly to mask their interests.

It is disturbing that intelligent and significant marine animals were killed in such a gruesome manner. The conclusion reached by the court pleases those who favour permitting the whales to live freely in their habitat.

High Court of Australia dismisses private prosecution of Aung San Suu Kyi for alleged crimes against humanity

1280px-High_Court_of_Australia_(6769096715)

Source: By Alex Proimos from Sydney, Australia – High Court of Australia, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=25649423

The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.

Background

On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.

On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).

The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.

The HCA judgment Continue reading

Call for Submissions: Melbourne Journal of International Law

The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 18(1). The deadline for submissions is January 31, 2017MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil@unimelb.edu.au. For more information please visit http://law.unimelb.edu.au/mjil/submissions.

ICJ anti-whaling judgment appears to have whetted Japan opponents’ appetites

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

(Cross-posted from Diane Marie Amann)

Australia’s Increasingly Restrictive Policies Block Asylum Seekers From Entry

Australian Prime Minister, Kevin Rudd, recently announced a strict new policy mandating that all asylum seekers arriving by boat would be sent to a refugee-processing center in Papua New Guinea. This policy change has been covered widely in the media, through the New York Times, the BBC, and other news outlets. According to the Australian Prime Minister’s announcement, asylum seekers, by arriving by boat without a valid visa, will forfeit any right to claim asylum in Australia. Rather, if an asylum seeker is determined to have a genuine claim to refugee status, she will be resettled in Papua New Guinea. Australia is, of course, a signatory to the 1951 United Nations Refugee Convention and the 1967 Protocol. While this development is disheartening, it is not shocking given the political arena and the long history of restrictive asylum policies in Australia. Australia’s policies with regards to asylum seekers arriving by sea have long been controversial. In August 2001, Australia turned away a Norwegian vessel in distress carrying over 400 asylum seekers, focusing international attention on the intersection of maritime rescue law and refugee law. For coverage of this incident and in depth coverage on related issues, see Professor Niels W. Frenzen’s Migrants at Sea blog. Amnesty International’s Australia Chapter also provides regular reports and coverage on the treatment of asylum seekers and refugees in Australia.

Australia is, of course, is only one of several countries to turn away asylum seekers arriving by sea. Indeed, the United States also participates in interdiction at sea. In fact, our own Supreme Court explicitly found this practice to be in line with our international obligations even where, in that case, the US was interdicting Haitians and returning them to the country of feared persecution. See Sale v. Haitian Centers Council, 509 U.S. 155 (1993). Whether Australia’s evolving interdiction policy will be judged by its own courts remains to be seen.

Whaling at the ICJ – Oral Proceedings in Australia v Japan

Common Minke Whale Photo By Simon Pierre Barrette Creative Commons ShareAlike License
What had seemed a quixotic effort to stop Japan’s Southern whaling program using international law is looking like a more even fight. In the oral proceedings underway for Australia’s challenge to Japan’s whaling program (JARPA II) at the International Court of Justice, Japan argues that—in a world of more than 7 billion people—cultural differences must be respected and the International Convention on the Regulation of Whaling (ICRW) must be applied with a “margin of appreciation” for Japan’s interpretation of the treaty. (Australia notes that the concept of a margin of appreciation developed in the European Union Courts to allow states to fine-tune EU law according to national culture and social policy, and is not a rule of international law.)

According to Japan, it hunts whales to collect scientific information as permitted by an exception to the global moratorium on “harvesting” whales under the ICRW. Australia argues that JARPA II has no scientific basis or merit, and that Japan conducts it in the manner of a commercial venture, not scientific research; it quotes a statement made in the Japanese Diet vowing to use the scientific exception to continue whaling.

New Zealand, intervening as a party to the ICRW, stresses that the treaty was intended “to replace unilateral whaling with a system of collective regulation,” whether a state’s interest is in using whales or protecting them for their own sake. Japan’s actions, Australia argues, have in effect reduced its treaty obligations to facultative ones and so dissolved the treaty rights of all other treaty members.
Australia has decided not to make claims based on two other conventions, CITES and the Convention on Biodiversity mentioned in its application (for discussion of these, see Don Anton’s ASIL Insight).

The most interesting arguments have discussed the nature of scientific research and its relation to law. Japan argues 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” and that the ICJ has no role in evaluating JARPA II. It has submitted very little by way of scientific evidence to support the validity or productivity of the whaling program.

In contrast, Australia and New Zealand emphasize that the questions before the Court are straightforward and offer the Court a number of criteria to assess whether JARPA II is scientific research. These include the lack of peer review of JARPA II, the arbitrary determination of sample sizes (i.e., the number of whales to be killed each year), and the insistence on lethal methods. The presentation and cross-examination of experts is a highlight of the video; a great change from the criticized approach to experts in the Pulp Mills case. The judges’ numerous questions indicate that they are interested in the scientific arguments, and not deferential to Japan’s claim of right to determine unilaterally whether JARPA II is, in fact, research.

Although killing whales—particularly endangered species such as humpback and fin whales, both of which are included in Japan’s whaling program—is an issue of grave concern to many states and nongovernmental organizations, only New Zealand has intervened and the ICJ has not invited amicus briefs or expert opinion from non-parties.

The jurisdictional issue has received scant attention. It is possible that the Court may, in the end, accept Japan’s argument that it does not have jurisdiction. While that may change the dynamic of the conflict over whaling, there are still many political avenues where it will continue to play out. Although anti-whaling activists have thwarted the whalers in recent years—acknowledged in the Japanese oral argument—Japan’s Institute of Cetacean Research has retaliated with a lawsuit in U.S. court and won a favorable decision in the 9th Circuit.

A decision is expected from the ICJ by the end of the year around the time the next whaling season will begin. The oral proceedings will continue with Japan’s second round of oral argument on 15 July: live and archived webcasts and transcripts are available. It provides an exceptional opportunity to watch many of the great international litigators, including Laurence Boisson de Chazournes, at work.