Australian Judge Bars Humane Society Pursuit of Japanese Whalers

SYDNEY, Australia, May 27, 2005 (ENS) - An Australian federal court judge today refused permission for Humane Society International to bring legal action against a Japanese company believed to kill minke whales in the Australian Whale Sanctuary adjacent to Antarctica.

Justice James Allsop cited concerns raised by federal Attorney-General Phillip Ruddock that to enforce Australian law against the Japanese company would likely give rise to an international disagreement with Japan.

Justice Allsop refused Humane Society International (HSI) permission to proceed against the Japanese whaling company, Kyodo Senpaku Kaisha Ltd, despite finding the evidence presented by HSI supported the conclusion that the company has contravened Australian law by whaling in the Australian Whale Sanctuary.

“Today’s judgement is especially devastating now the Japanese government has revealed it will allow the company to double the number of minke whales it kills in Antarctica and to start hunting humpback and fin whales," said HSI Director Michael Kennedy.

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A Japanese harpoon hits a whale. The Japanese say their whaling is "scientific" not commercial. (Photo courtesy Votier/WDCS)
"Australians have been in uproar over this and will share HSI’s frustration with today’s decision,” Kennedy said. The organization intends to appeal Justice Allsop's ruling.

In opposing HSI’s case, the Australian government, led by Prime Minister John Howard, has expressed a preference for dealing with Japanese whaling in the Australian Whalel Sanctuary through diplomatic channels.

Attorney-General Philip Ruddock said, “The government’s view, that it was not appropriate to pursue this matter through the Australian courts, has been upheld by today’s decision. The best way to resolve such matters is through bilateral representations and multilateral fora including the International Whaling Commission (IWC),” Ruddock said.

“As a matter of international law, Australia has only limited jurisdiction to prevent whaling activity in the waters off Antarctica," Ruddock said. "It has been international practice for parties to the Antarctic Treaty to regulate the activities of their own nationals in Antarctica and its adjacent waters since the Treaty came into force on June 26, 1961."

“The government continues, however, to make known its strong opposition to the killing of whales," the attorney-general said. “We are working vigorously within the IWC for a permanent global ban on commercial whaling and an end to so-called scientific whaling."

Last week the Prime Minister John Howard wrote to Japanese Prime Minister Junichiro Koizumi asking him to stop the whale hunt.

"There is clear evidence of the extent of public interest in the continued health and welfare of whales and considerable public concern could be expected, not only in Australia, but across the globe, were whaling to increase," Howard wrote.

The Japanese government appears to be unresponsive to Howard's letter. A Fisheries Agency official who had not seen the letter told reporters that Japan would not change its whaling plans in response to international pressure.

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(From left) Australian Minister for Foreign Affairs Alexander Downer, Parliamentary Secretary for Trade De-Anne Kelly, Minister for Trade Mark Vaile, Japanese Ambassador Kenzo Oshima with a model of the Australian pavilion at World Expo 2005 now taking place at Aichi Prefecture, Japan. (Photo courtesy Ministry of Foreign Affairs)
In addition to the Federal Court case, HSI is urging the Australian Government to being its own proceedings against the Japanese government at the International Court of Justice, on the grounds that Japan is abusing the loophole in the international whaling convention for lethal research to get around the ban on commercial whaling.

“If HSI is ultimately unable to bring the Japanese whalers to account in the Australian Federal Court, we hope the Australian government will be prepared to bring them to account in the international courts,” said HSI’s Wildlife and Habitat Program Manager Nicola Beynon.

But Australia prefers to maintain good diplomatic relations with Japan, an important trading partner. Japan is Australia’s largest export destination, and Australia is negotiating for a free trade deal with Tokyo at this time.

In Japan whale meat is served at sushi bars and gourmet restaurants, and the government maintains that whale consumption is part of the Japanese heritage.

The country gave up commercial whaling in 1986 as the International Whaling Commission's (IWC) ban took effect, but since 1987 has used the "scientific" whaling provisions of the IWC regulations to take some 880 minke whales from the North and South Pacific Ocean each year.

After the research is conducted on whale carcasses, the whale meat is sold to consumers in Japan under the IWC provision that the carcasses be utilized, not discarded.

Japan last expanded its whale hunt in 2002, adding sei, sperm whales and Bryde's whales to its take list, and arousing an international controversy.

Japanese Fisheries Agency official Takatori Nagatomo declined to reveal the exact details of the latest Japanese proposal to take humpback and fin whales.

Tokyo will submit its expanded whaling plans at the IWC annual meeting in June in Ulsan, South Korea. Nagatomo said that under IWC rules, such proposals could not be publicly unveiled until they are placed before the IWC.

Australia is lobbying for international support to reject the proposal at the IWC meeting. Australia’s embassy in Tokyo is organizing a joint protest by anti-whaling nations against Japan.

Scientific committee meetings in advance of the annual IWC meeting will begin on Monday and continue through June 18. The full International Whaling Commission, now up to 60 members, meets June 20 to 24.

The IWC will consider a Revised Management Scheme (RMS) that sets forth conditions that would apply if the current ban on commercial whaling is lifted as Japan and other pro-whaling nations such as Norway and Iceland would like.

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Fin whales, Balaenoptera physalus, are considered threatened in Australian waters. (Photo courtesy NOAA)
Whale conservation groups have released two separate reports in advance of the IWC meeting detailing reasons why the commercial whaling ban should be kept in place.

In a report detailing the historical abuses of whaling regulations and the current efforts of the IWC to manage pro-whaling countries, the Humane Society International, ProWildlife, and the Whale and Dolphin Conservation Society (WDCS) warn that the Commission is "on track to repeat the blunders of its past, ultimately spelling disaster for whales."

"The RMS – A Question of Confidence," released earlier this week, provides a review of how pro-whaling countries have defied IWC regulations. It focuses on the Revised Management Scheme (RMS) that, if adopted, "would actually do less to protect whales than other fishery treaties already in place to manage hunting of species far less vulnerable to cheating and over-exploitation than whales," the groups say.

Japan is threatening to leave the IWC if the Revised Management Scheme is not adopted at next month’s annual meeting.

“The pressure from whaling nations to enact the RMS is forcing the other IWC members to accept such unworkable and unreasonable compromises that the scheme is unenforceable,” said Kitty Block, director of treaty law, oceans and wildlife protection for the Humane Society International.

The report details the inadequacies of the RMS, including its inability to stop abuses of scientific whaling or reduce the numbers of whales killed. It also has no binding dispute resolution or compliance mechanism and, therefore, cannot enforce regulations. Additionally, it would allow countries to quit and simply rejoin with reservations and legally hunt whales outside of any RMS scheme.

“Humane Society International hopes this report will help convince the IWC to seriously consider the consequences of this fundamentally flawed plan and resist the pressure to adopt it,” Block said.

In London, the Environmental Investigation Agency (EIA) released a briefing paper on May 19 that urges IWC member countries to take decisive action at next month's meeting in Korea to protect whales, dolphins and porpoises from environmental threats, such as climate change, commercial fisheries and chemical pollution.

"Oceans Under Siege" highlights the destructive impact of human activities on the marine environment and the implications for the world's whales, dolphins and porpoises.

vaquita

The world's smallest cetacean, the vaquita, Phocoena sinus, is found only in the northwest Gulf of California. Listed as critically endanagered by the IUCN, it is caught in gillnets by fishermen seeking other species. (Photo © C. Faesi/Proyecto Vaquita)
Clare Perry, EIA's Cetacean Campaign Manager said, "Since all cetaceans and their natural habitats have been protected in EU waters for the last 25 years, EU countries are perfectly placed to actively lead the IWC to promote the conservation of cetaceans on a global level."

"While many countries will be arguing for the ban on commercial whaling to be lifted at this year's IWC meeting and for the adoption of the RMS, those member countries truly committed to cetacean conservation will recognize that the greatest challenge facing us is the protection of the whales' own environment, and that any lifting of the whaling ban is premature," Perry said.

Global climate change may present the greatest threat to cetaceans, but still the single greatest current cause of cetacean mortality is fisheries bycatch. More than 300,000 cetaceans are killed every year and several species, such as the vaquita, are threatened with extinction, the EIA reports.

Many cetaceans also carry high levels of dangerous chemical pollutants which have been linked with a range of health problems, including reproductive failure and cancer.

The EIA is urging European Union countries to ensure the ban on commercial whaling is maintained, and to commit substantial financial and human resources to developing a long-term conservation initiative through the IWC's recently established Conservation Committee.

View the IWC Revised Management Scheme at: http://www.iwcoffice.org/conservation/rms.htm

"The RMS – A Question of Confidence," can be viewed at: www.hsus.org.

Find "Oceans Under Siege" at: http://www.salvonet.com/eia/cgi/news/news.cgi?a=245&t=template.htm