The Humane Society International brought an action against Japanese whalers in Australia’s Federal Court for breaking the law by killing whales in Australia’s southern whale sanctuary.
On January 15, Justice James Allsop ruled that the Japanese whaling fleet controlled by Kyodo Senpaku Kaisha Ltd has broken Australian law in particular by contravening the Environment Protection and Biodiversity Act 1999, and issued an injunction against continued whaling. **
Australia has jurisdiction in the exclusive economic zone attached to the Antarctic territories, but the Judge noted that Japan does not recognise Australia’s Antarctic claim.
In fact most countries do not recognise the Australian Antarctic claim so there is no practical way for the order to be enforced.
A spokesman for the Fisheries Agency of Japan, Mr Hideki Moronuki, told the ABC he is not in a position to comment on the ruling because Australia’s claim to Antarctic waters is not recognised by the international community. He says the case is a domestic matter for Australia.
Graham Young has suggested that,
“If there is no way that the order can be enforced, why waste money seeking it in the first place? Australia will not take action against the Japanese under this order because that would be an act of war, not under Australian law, but according to the law of most other countries in the world. It has a lot of things in common with the Iraq war in that respect. But in refusing to take action against the Japanese it will weaken our ability to take action against anyone else in those waters for any other environmental abuses.”
The blog post, dated January 15 is aptly entitled ‘Whaling Illusion Stripped Bare’.
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** Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3
1. THE COURT DECLARES that the respondent has killed, injured, taken and interfered with Antarctic minke whales (Balaenoptera bonaerensis) and fin whales (Balaenoptera physalus) and injured, taken and interfered with humpback whales (Megaptera novaeangliae) in the Australian Whale Sanctuary in contravention of sections 229, 229A, 229B and 229C of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), (the “Act”), and has treated and possessed such whales killed or taken in the Australian Whale Sanctuary in contravention of sections 229D and 230 of the Act, without permission or authorisation under sections 231, 232 or 238 of the Act.
2. THE COURT ORDERS that the respondent be restrained from killing, injuring, taking or interfering with any Antarctic minke whale (Balaenoptera bonaerensis), fin whale (Balaenoptera physalus) or humpback whale (Megaptera novaeangliae) in the Australian Whale Sanctuary, or treating or possessing any such whale killed or taken in the Australian Whale Sanctuary, unless permitted or authorised under sections 231, 232 or 238 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Read more here http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/3.html
Jennifer Marohasy BSc PhD is a critical thinker with expertise in the scientific method.
There are two factors, either of which make a workable law.
1. Those affected are largely willing to comply (ie which side of the road on which to drive)
or:
2. The law can be enforced.
Absence of both of these factors brings that law into disrepute.
In the above case, both are absent. Unwisely revealing Australia’s legal impotence for all to see, will have long term consequences.
>Unwisely revealing Australia’s legal impotence for all to see, will have long term consequences.
This is not new and not limited to whaling. We pursued an ‘illegal’ Patagonian toothfish boat in the Southern Ocean and tried to prosecute and failed. What has happened since could well be seen as a consequence of that, but what happens now will be very interetsing indeed.
According to media reports the former Howard Liberal Government opposed the injunction in the Federal court, and that the new Rudd Government supported the case.
The Prime Minister has announced that it is his government’s aim to end commercial whaling. As the international convention for the regulation of whaling (http://www.iwcoffice.org/_documents/commission/convention.pdf ) is to prevent over-fishing, regulate the whaling industry and to safeguard for future generations the “great natural resources represented by the whale stocks” does this mean Australia is to withdraw from this convention.
The convention also recognizes the widespread economic and nutritional benefit of a sustainable industry throughout the world.
Clearly the Australian government is not seeking to support either sustainable fishing of the whale species that are now abundant nor scientific research to ensure sustainability; it is seeking a complete prohibition on commercial whaling regardless of its sustainability or its social and economic benefits.
Cinders,
The issue is not as black and white as you are making out. See for example the previous post on South Korea – illegal whaling, low stocks and disregard for science.
Uncharacteristically critical remarks coming out of Japan at the moment:
http://www.ft.com/cms/s/0/0b430054-c569-11dc-811a-0000779fd2ac.html
Japanese officials said last night they could not understand the attitude of either the anti-whaling activists or the Australian government, which they said had fanned the controversy.
“It’s clearly out of control, particularly on the Australian side. The amount of emotion is absolutely unbelievable,” said a foreign ministry official. Under those circumstances, he said it was unlikely that Yasuo Fukuda, Japan’s prime minister, would find it useful or necessary to talk to Mr Rudd.
The ruling by the Federal court relates to the taking of whales by the Japanese for scientific study as provided under the Convention and IWC, it does not relate to illiegal commercial catches as reported in Korea. The Federal court itself distanced itself from the international convention and confined itself to its own jurisdiction.
Clealry the only justification for both the IWC and the current action by the Japanes is legal and sustainable harvesting of abundant species of whales for food.
This raises the question does one nation or many nations have the right to stop another from the sustainable harvest of natural resources that is carried out in accordance with international law and conventions signed between nations.
Cinders wrote:
>The convention also recognizes the widespread economic and nutritional benefit of a sustainable industry throughout the world.
Clearly the Australian government is not seeking to support either sustainable fishing of the whale species that are now abundant nor scientific research to ensure sustainability; it is seeking a complete prohibition on commercial whaling regardless of its sustainability or its social and economic benefits.
Cinders also wrote:
>The ruling by the Federal court relates to the taking of whales by the Japanese for scientific study as provided under the Convention and IWC, it does not relate to illiegal commercial catches as reported in Korea.
No kidding. Your 09:50 comment ended on a broad note, as has your 03:30 comment. To try and understand the issue, I suggest you do some reading of both sides of the debate, which is multi-layered and not as simple as ‘for or against killing whales for food in the Southern Ocean’. One thing conservationists remind whaling nations of is that the ‘great’ whale stocks were brought to collapse courtesy of commercial whaling (multiple countries involved) mismanagement. Failure to ignore the slow or non-recovery of some stocks, such as some South Pacific humpback whales, or J stock minke whales (hence my reference to Korea) tends to reinforce any skepticism that whaling nations have learnt nothing from past deeds.
>This raises the question does one nation or many nations have the right to stop another from the sustainable harvest of natural resources that is carried out in accordance with international law and conventions signed between nations.
International courts of law have been looking into this:
http://www.smh.com.au/news/opinion/dispute-threatens-antarctica-claim/2008/01/16/1200419882499.html
Which “International courts of law” have been looking into what?
cinders > I’ll quote you a little from the UN’s VCLT (Law of Treaties), as it seems as if it would probably appeal:
Article 31 – General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Given how lightly we declared illegal war on Iraq over vague, unproven claims then this one is a cinch. War I say (and it’s good for the economy).
http://www.nzherald.co.nz/topic/story.cfm?c_id=272&objectid=10488638