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Legal options for govt to save the whales

Legal options for govt to save the whales

AS JAPANESE whaling fleets embark on a tour of the Southern Ocean Sanctuary, the International Fund for Animal Welfare (IFAW) has commissioned legal advice to identify potential actions against…

AS JAPANESE whaling fleets embark on a tour of the Southern Ocean Sanctuary, the International Fund for Animal Welfare (IFAW) has commissioned legal advice to identify potential actions against them.

In an effort to identify legal options for the Australian Government to stop the “scientific” whaling program by the Japanese Government, the IFAW commissioned Professor Donald Rothwell, Challis Professor of International Law at the University of Sydney, to produce a legal opinion recommending the most effective measures available. The findings have now been released to the IFAW.

“Over the years there has been over 40 resolutions agreed by the International Whaling Commission, which is the global body that oversees whale issues. Those 40 resolutions have condemned Japanese scientific whaling and Japan has ignored all of them,” said Marine Campaigns Officer at IFAW, Darren Kindleysides.

“Our feeling is that diplomacy has been tried and it’s just not working. So that is really why we think now the time is right to take stronger, legal measures to stop this scientific whaling,” Kindleysides told Lawyers Weekly.

There are compelling arguments that Japan is in breach of its international legal obligations, Rothwell found. He recommended Australia commence proceedings again Japan in the International Tribunal for the Law of the Sea (ITLOS). Australia should immediately request that the ITLOS issue provisional measures to stop the Second Phase of Japanese Whale Research Program under Special Permit in the Antarctic, also known as JARPA II.

JARPA II involves the hunting of up to 935 minke whales each year, which is more than double the number in previous years. A loophole in the International Convention for the Regulation of Whaling has allowed unlimited numbers of whales to be killed for scientific research as opposed to hunting for meat. The program will also enable the hunting of fin whales, the second largest animal on earth, and will introduce the hunting of humpback whales.

Having already departed on its “scientific” whaling expedition, the Japanese boats will now be commencing whaling after three week’s travel to the Antarctic. The hunting and killing will take place over the coming months, and will be complete towards the end of March, said Kindleysides.

Concerned that the Japanese whaling research programs have become commercial whaling “masquerading as science”, IFAW said that up to 1,035 whales will be killed under JARPA II each year. Over the last 50 years, other nations have made catches totalling about 2,100 whales between them.

On this scale, said Kindleysides, the whaling is “nothing more than commercial whaling in disguise”. “The scientific community has come together saying you don’t need to kill a whale to study it. Japan has killed many whales over the years and there has been science conducted on them. But there is no justification for this year’s new program in which more than double the whales will be killed. This is commercial scale, it is not scientific,” he said.

Recently, JARPA II was discussed at the annual International Whaling Commission meeting in which it was decided that “the Government of Japan withdraw its JARPA II proposal or to revise it so that any information needed to meet the stated objectives of the proposal is obtained using non-lethal methods”.

But having give the Australian Government the legal options to consider, IFAW’s Kindleysides said “the Australian Government is still considering the options that were outlined in the legal opinion. But they haven’t committed to take any legal action”.

While it has been one of the leading governments opposing this “so-called scientific whaling”, the Australian Government has so far only used diplomatic channels and approaches.

The products from the scientific research get sold in fish markets in Japan. This is allowed by the International Convention, said Kindleysides, “so Japan is not breaking any rules”. “But there is an incentive to undertake this so-called scientific research if you can sell the product,” he said.

“Professor Scott Baker at the University of Auckland has done some DNA studies on samples of meats from the fish markets and has found that protected species and species that weren’t part of scientific research have been sold in those markets. So, to some extent, the scientific meat has been used as a smoke screen for selling illegal meat and meat from endangered species of whales.

“It does get eaten and some gets given away. There is a program every year in which the Government of Japan provides whale meat to schools in Japan. It is part of a program promoting the consumption of whale meat. It would be wrong to conclude that the Japanese people necessarily support whaling, but there is an attempt to build the new generational culture eating whale meat,” he said.

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Legal options for govt to save the whales
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