Tim Stephens

Earlier this year I was Rapporteur for the Canberra Panel of Independent International Legal and Policy experts which examined the legality of Japanese special permit whaling in the Southern Ocean in light of Japan's obligations as a party to the 1959 Antarctic Treaty and other instruments, including the 1991 Environmental Protocol, which make up the Antarctic Treaty System.

The Chair of the Canberra Panel, Professor Don Rothwell, and I have now co-authored a short piece for a new US journal - the Michigan State University Public Policy Journal - which explores several of the themes considered in the report of the Canberra Panel.

Abstract

In 2009, the 1959 Antarctic Treaty celebrates its fiftieth anniversary. Over its fifty-year existence the Treaty and the Antarctic Treaty System (ATS) built upon it, have promoted freedom of scientific research in Antarctica and the Southern Ocean. Despite the many successes of the Antarctic legal regime, there has been growing disquiet over the conduct by Japan, an Antarctic Treaty party, of its ‘special permit’ whaling program in the Southern Ocean. This program now has a lengthy history stretching back to the late 1980s, and has been undertaken purportedly in reliance on the 1946 International Convention on the Regulation of Whaling, which allows whaling for scientific purposes in limited circumstances. It has also been pursued on the assumption that the global whaling regime takes priority over the disciplines imposed by the regionally-focused Antarctic Treaty System which seeks, among other things, to promote scientific research in Antarctica and to protect the Antarctic ecosystem. The article examines the interaction between the Antarctic and whaling regimes and argues that the main environmental text in the ATS, the 1991 Environmental Protocol, imposes obligations upon Japan to minimise or eliminate the environmental risks of its burgeoning Southern Ocean whaling program.

You can find the full text of the article here.

Today we celebrate the official opening of the new law school building on the main University campus. I was asked to stand on a soap box with a megaphone to rant on whales. Here is what I said.

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Whales “Soap Box”
Opening of the New Law School Building
30 April 2009
Dr Tim Stephens
 
I am standing on a soap box to let rip on a subject close to my heart – how the law can save the mightiest and most intelligent non-human animals on Earth – the great whales.
 
Not so very long ago a soapbox like this one would have contained soap made from whale oil – well probably not really like this one because this is a faux soap box used by fashionable ranters in London’s Hyde Park, and was flown in especially for today. But soap is neither the beginning, nor the end of the cornucopia of products found in the floating supermarkets that we call also call whales.
 
Heathcote Williams in his poem Whale Nation reminds us that whales were the plastics of the 18 and 19th centuries. They spawned the consumer society. Obviously they didn’t do this literally – while whales like to sing we have no evidence that they have taken trips down to the Sony store to pick up the latest Karaoke kit complete with plasma screen, blue-tooth Madonna mikes and voice mixers so you can sound like Cher.
 
Rather they spawned our consumer society in providing an endless array of things to make modern life a breeze: fuel, for streetlamps and lighthouses, candles, springs for watches, umbrellas and toys, even the first springs in the first typewriter, glycerol for lipstick, nitro-glycerine for bombs, brushes and brooms, linoleum, sausage-skins, drum-skins, laces, surgical stiches, tennis racket strings, riding crops, chess pieces, buttons, wax crayons, golf bags, engineering coolants, varnishes, parchments, insecticides, paints, skin-creams, stock-cubes, mah-jong counters, iodine, liver-oil, insulin, gelatine for jelly and glue, gussets, bodices and corsets, fish-bait, cattle meal, dog food and cat food, antifreeze, cooking fat, hair treatments, bath salts, pipes, piano keys, ear-rings, brooches and cuff links, cigarette holders, shoe-horns, car-wax, shoe polish and fishing rods.
 
I suppose the range of uses to which whales have been put by past generations, from cosmetics to musical instruments, surgical implements to sports equipment, typewriters to armaments is something of a compliment to these sea creatures, in a perverse kind of way. In the same way I guess that felling a giant redwood or eucalyptus for fine furniture, or bagging a mighty lion for the taxidermist to work his tricks so the dead beast’s head can feature on a living-room wall, is a weird tribute to nature’s grandeur.
 
But if so then our treatment today of the David Jones of the oceans is a profound insult, because we shop only now in the Food Hall for sperm whale sashimi rather than heading upstairs for make-up from minkes, hair treatments from humpbacks, or bodices from blue whales.
 
The minke whale’s gallon sized testicles are dumped into the sea from factory ships rather than finding their way into cosmetics, as is whale offal which is no longer used for drum skins. The best the whaling nations can now do is to carve off some select whale cuts for fancy restaurants in Oslo, Reykjavik and Tokyo.
 
However tastes here are also changing. A few years ago whale burgers featured in some fast-food restaurants in Japan, but were soon dropped when pimply-faced Japanese school kids showed no interest in the salty red meat. So most dead whales today are on ice – thousands upon thousands of tonnes in deep freezers, mainly in Japan. Their only realistic use today for chunks of whale meat is as Esky coolers for your six pack of Asahi Extra Dry. There are, thankfully, no iPhones clad in whale skin, nor any other twenty first century whale bling. Because the reality is we don’t need to use whales any more.  
 
Nor should we as a matter of principle. In 1982 the International Whaling Commission brought in a moratorium on commercial whaling that has stood to this day, even though it is flouted by a few countries who delight in performing endless autopsies on whales, perhaps inspired by crime series such as CSI, Silent Witness and their ilk that have clearly been a boon for very tired and homeless actors who would otherwise be unemployed.
 
It is often said that whaling is no different from killing other large mammals such as cows or pigs – but is this really a fair comparison? Again to quote Heathcote Williams, whales do not work to eat, they play to eat, that make music to entertain and to communicate, in a songful submarine language with manifold dialects, structures, cadences and rhythms. Like us, whales are very special animals.
 
When did you last hear Buttercup have a sing-song with her mates? Sure some cows use bells to accompany their plaintiff mooing across the valley, but it’s just not the same as the ethereal call of the humpback carrying endlessly through the sea. And as for pigs, well we know they are smart, and frankly fed up with being eaten, hence their latest cunning plan to wipe us from the face of the planet.
 
A further difference, surely, is that Buttercup and Babe can be dispatched from this world and on to the dinner plate with some semblance of humanity (or should that be animality?). There is no way to put Moby Dick down without terrible suffering – harpooned whale seldom dies instantly and can take up to an hour to bleed to death, while flailing helplessly against the pull of the whale line.
 
And whereas there is no danger that farm animals will go the way of the Dodo, the same cannot be said for the great whale species, numbers of which remain perilously low, even though commercial whaling came to an end two decades ago. And whales also face new threats at our hands, especially as we pump carbon into the atmosphere which warms and acidifies the oceans.
 
The practical and ethical arguments against whaling are clear and convincing, and international law has given them teeth. But we must ensure that we don’t take our mammalian friends in the seas for granted, nor forget that they were recently on the brink of extinction. [Heckling from Professor Mark Finlay and Associate Professor Luke Nottage - "kill the whales, we need them for scientific research!!"]. I say harpoon the Professors for research, not the whales!

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I was recently the rapporteur for the Canberra Panel of Independent Legal and Policy Experts asked by the International Fund for Animal Welfare to examine the legality of Japan's Antarctic whaling program from the perspective of the Antarctic Treaty System.

We met in November in Canberra to work through the issues, and earlier this week IFAW publicly released our report.

From IFAW's Press Release of 20 January:

An independent group of Antarctic law and policy experts, convened in Canberra by IFAW (International Fund for Animal Welfare), has released a report detailing options available to the Australian Government to challenge Japan’s whaling program through the Antarctic Treaty System (ATS).
“The report creates a new diplomatic and legal front for the Australian Government to challenge Japan’s Southern Ocean whaling program as being inconsistent with the Antarctic legal regime,” Canberra Panel Chair and Australian National University Professor of International Law, Don Rothwell, said.

Under the ATS any activities in the extremely sensitive Antarctic and Southern Ocean are subject to rigorous environmental impact assessments before they are permitted to proceed. Activities include the construction of new scientific bases, tourism, and scientific research.

Despite their whaling program being one of the biggest maritime operations in the Antarctic every year, the Government of Japan has not met this obligation. Currently the whalers operate with sub-Antarctic standard vessels and undertake extremely dangerous operations such as refueling at sea. The environmental risks associated with Antarctic whaling were clearly highlighted in 2007 by the explosion and subsequent fire onboard the whale factory vessel, the Nisshin Maru, which could have resulted in the spillage of chemicals and hundreds of tonnes of fuel oil.

“Antarctica and the Southern Ocean are governed by one of the most comprehensive environmental legal regimes. Why is Japanese whaling exempt from that regime?” Professor Rothwell said.

“Antarctica has been designated as a natural reserve to protect its unique environment for future generations. Japanese whaling is already a stain on this environment,” IFAW Programs Manager Darren Kindleysides said.

“It is inexplicable and inexcusable that Japan’s whalers be allowed to operate without any accountability. IFAW urges the Australian Government to lodge a strong protest at the next Antarctic Treaty Consultative Mechanism meeting in America in April,” Mr Kindleysides said.

The Canberra Panel report endorses previous Legal Opinions, sought by IFAW, that concluded the Australian government can take Japan to the International Court of Justice or the International Tribunal for the Law of the Sea to challenge the legitimacy of Japan’s ‘scientific’ whaling program.

“The Australian Government has been provided with yet another legal and diplomatic avenue for stopping Japan’s illegal, inhumane and unnecessary whaling program. The Government must take responsibility for upholding international laws, fulfill its election promises and stop Japan’s whaling program once and for all” Mr Kindleysides said.

You can also check out a story on the Canberra Panel Report on the ABC's 7.30 Report.

The Sydney Morning Herald ran a short article today on legal options available to challenge Japan's humpback hunt in the Southern Ocean. There was a brief reference to the Convention on International Trade in Endangered Species (CITES), but not to the real nub of the argument.

CITES is a veritable treaty. Concluded back in 1973, it is one of the first comprehensive multilateral environmental agreements to come into existence.

CITES is there to stop commercial trade in threatened species of plants and animals. It applies to species also covered by other international agreements, such as whales which have their own regime in the form of the International Convention for the Regulation of Whaling which established the International Whaling Commission.

Basically, all of the great whale species are inscribed in Appendix I to CITES, which means that strict limitations on trade apply. Commercial trade is completely out of the question, but moving specimens about for research is okay. The only exceptions will be if governments have entered reservations, which a number of states have done.

Japan has made reservations in relation to a range of whale species but, very significantly, not humpbacks. This means that CITES applies with full force to this species and Japan will be in breach of its CITES obligations if it goes ahead and harvests humpbacks this summer. This is because the convention applies to introduction of species from the high seas in the same way as it applies to cross border trade in animal specimens, and it expressly prohibits taking species from the high seas for commercial purposes.

There has been speculation in the press over the last few days that Japan may back down on its plans to kill humpbacks. It was even reported last night that Japan may never have intended to hunt the whale because the Nisshin Maru factory ship it has sent to the Southern Ocean does not have sufficient refrigeration capacity to take the extra hundres of tonnes of whale meat. It may well be that Japan has been using the proposed humpback hunt as a negotiating tactic to retain its much larger minke hunt.

(me in Crikey today)

At the Bali climate change summit the Rudd government demonstrated that it is streets ahead of the previous government on the global environmental challenge of our time. This week presents another opportunity for leadership in environmental diplomacy, this time on the vexed issue of Japanese whaling in the Southern Ocean near Antarctica.

The government is moving swiftly to begin surveillance of the Japanese whaling fleet, which has been dispatched to kill an unprecedented number of whales this summer. Projected catches for Japan’s "scientific" whaling program are 935 minke whales and, for the first time, 50 fin whales (which are an endangered species) and 50 humpback whales (which are vulnerable).

This is a dramatic escalation of the Japanese whaling program, which is now reaching an intensity not seen since the days of full blown commercial whaling. Although justified by the Japanese as scientific research under a loophole provision of the Whaling Convention, in reality it is commercial whaling conducted against the express advice of the Scientific Committee of the International Whaling Commission. Consider here not only the scale of the program (Japan will kill in one summer more whales for research than it did between 1954 and 1986) but also the lethal "research" methods (despite the existence of proven non-lethal alternatives).

The government’s surveillance efforts will collate evidence that could be used in a international case against Japan. Apparently we will soon learn what Australia’s litigation strategy will be. In this respect it is very welcome news that Prime Minister Rudd and Environment Minister Garrett have dusted off the report of the Sydney Panel of Independent International Legal Experts, which had been hidden in a bottom draw by the former government.

The Sydney Panel Report outlines a suite of legal options for successfully challenging Japan’s whaling program. These include taking a case to the International Court of Justice in The Hague for breaching the Whaling Convention, which allows genuine scientific research but prohibits plainly commercial whaling. Both Australia and Japan have accepted the jurisdiction of the World Court, so there is no impediment to bringing a case immediately.

Japan could also be hauled before the International Tribunal for the Law of the Sea in Hamburg for breaches of the Law of the Sea Convention. One of the advantages of this option is that the Tribunal can issue immediate provisional measures requiring Japan to cease is unlawful whaling activities. Other equally strong options include initiating compliance procedures under the Convention on International Trade in Endangered Species which could lead to a collective trade embargo.

There are many good legal options available to the Rudd government to move things forward on this issue. Although international litigation ought to be a last resort, Japan has simply not responded in good faith to any diplomatic overtures made over many years. On fisheries and whaling matters it continues to make ambit claims for ever increasing catches, against scientific advice and the wishes of the international community. Although international litigation is unlikely to bring a quick fix, and does carry risks, it can lead to positive change as was seen most clearly in the case of French nuclear testing in the South Pacific.

Dr Tim Stephens was Rapporteur for the Sydney Panel of Independent International Legal Experts and co-author of the Sydney Panel’s Report.