Whales get their day in court

HSI v Kyodo ... Challenging the government to protect Australia's Antarctic whale sanctuary ... Four years of Federal Court argy-bargy to get an injunction against Japanese whalers ... ICJ and the legality of Japan's permits under whaling "research" program ... Stephen Keim and Jordan Sosnowski look at the cases 

Sea Shepherd interrupts Japan's research

JUST before New Year's Eve three whaling vessels departed from the west coast of Japan, bound for the Antarctic.

This marked the beginning of the 2013 whaling season. The whalers look forward to taking a thousand whales, or more by the time the killing season comes to an end in March.

In 2010, Australia filed proceedings against Japan in the International Court of Justice concerning an alleged breach of international obligations in relation to whaling.

New Zealand has also filed a declaration of intervention and that case is reserved.

A United States appeals court for the Ninth Circuit has recently granted an injunction in favour of various Japanese whaling companies to restrain the Sea Shepherd Conservation Society, and its founding director Paul Watson, from coming within 500 yards of the vessels on the open sea.

This decision has caused Watson to resign his position and for former Greens leader Bob Brown to take the helm.

An earlier protracted piece of litigation has challenged Australian governments to face the challenge of treating seriously the legislation that parliament has passed.

So far, the response to the challenge is the commencement of the case in the ICJ.

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd commenced in 2004.

The action sought to restrain Kyodo, a Japanese whaling company, from breaching the Environment Protection and Biodiversity Conservation Act 1999.

The provisions prohibit the taking possession of, killing or injuring a cetacean. It carries hefty penalties.

Humane Society International is a public interest NGO that focuses on driving "national and international marine campaigns against whaling".

Kyodo operates on a special permit under the Japanese Whale Research Program (JARPA and later JARPA II) to engage in the killing of various whale species in the Antarctic.

The special permit was issued under the International Convention for the Regulation of Whaling.

HSI assembled an impressive barrage of evidence from material on the public record.

From 2000 to 2007, Kyodo had killed approximately 3,500 whales.

The evidence revealed that while Kyodo ships did not, themselves, cross into the Australian Whale Sanctuary, the area affected by the EPBC Act prohibitions, a "significant number" of whales were taken from sanctuary waters.

Litigation of high principle can often rise or fall on a matter of procedure.

In HSI v Kyodo, the procedural issue was leave to serve Kyodo in Japan, a place clearly outside the area covered by the Federal Court's jurisdiction.

Allsop: overturned on the leave question

In 2005, the hearing judge, Justice James Allsop, refused to grant leave.

Justice Allsop found it would be contrary to Australia's long term national interests to grant leave.

HH said that allowing Kyodo to be dragged into accounting for their breach of Australian law might upset the diplomatic status quo under the Antarctic Treaty.

He also found that even if the injunction were granted and the declarations given, these actions would be futile due to "the difficulty, if not impossibility, of enforcement of any court order".

In 2006, the Full Court of the Federal Court set aside Allsop's conclusions on the granting of leave to serve the proceedings.

The full court said that the politics of international relations was irrelevant to whether leave should be granted to serve proceedings outside the jurisdiction of the court.

If a matter is justiciable, then political considerations should not be relevant to the decision to grant leave.

The majority pointed to the clear intention of parliament in drafting the EPBC Act in a way that gave it broad application, including by creating a broadly available right to bring an application for injunctive relief.

This indicated that even though whaling is a highly political subject its legality was intended to be justiciable in an Australian court.

Futility, through difficulty in enforcement of the court's order, was also said to be irrelevant.

It was not appropriate for matters going to the discretion of whether or not to grant an injunction to be considered at the stage of an application for leave to serve outside jurisdiction.

Such matters should be considered at the end of the case, based on the merits of the application as it emerges from the evidence.

Eventually, in 2008, HSI's application for an injunction against Kyodo came back before Justice Allsop to be decided.

By this time the issues concerning service on Kyodo outside jurisdiction had, for the most part, been resolved.

The judge was able to consider whether the declarations and injunction should be granted.

HH did use the judgment to provide some explanation for his initial refusal to grant leave.

He also applied the provisions of the EPBC Act to the facts of the case and on the evidence found that the respondents had contravened sections 229 to 230.  

After four years of litigation, an injunction was finally granted to stop the illegal killing of whales by foreign authorised corporations in Australia's whale sanctuary.

HSI v Kyodo is another example of the time and resources required for NGOs to conduct important cases to have governments respect the laws they are charged with implementing.

Not surprisingly, some critics have said that the outcome is a Pyrrhic victory, given the myriad enforcement difficulties.

However, the case has helped raise, among the public in Australia and within the international community, an awareness of the need to prevent whaling. 

It highlighted and called to account government inaction in respect of laws for which it is responsible.

Free Willy and crucify the fish stick While the relief granted has not has a practical effect on the respondent, HSI v Kyodo may be seen as having convinced the Australian government that it must act to defend the Australian Whale Sanctuary.

The ICJ opinion concerning Australia v Japan is currently reserved.

The judgment should provide some clarification as to the legality of the special permits issued under the Japanese Research Program.

This is an important issue, in light of Japan's international law obligations to protect the marine environment. The ICJ case has also maintained an international focus on Japan's whaling practices.

At least in the short term, the ending of Japan's whale slaughter is not going to be an easy battle to win.

The country's newly elected prime minister, Shinzo Abe, comes from a prefecture heavily reliant on whaling. His agricultural minister, responsible for whaling policy, is the former secretary-general of the Parliamentary League for the Promotion of Whaling. 

Those who care about the prevention of whaling need to be looking ahead beyond the ICJ opinion.

Whether it is further litigation, mass mobilisation, or a mixture of approaches, strategies need to be developed for continued pursuit of the objective.

Such strategies need to include pressure on those governments who claim to oppose whaling, as well as on the Japanese government and whaling corporations.

In this respect, at least, HSI v Kyodo has played an important role. 

Stephen Keim and Jordan Sosnowski

Jordan Sosnowski is an Associate Fellow of the Oxford Centre for Animal Ethics. She has a Master of Laws, Juris Doctor, from Monash University and a Bachelor of Arts from the University of Queensland, majoring in the fields of Philosophy and English Literature. Her current academic research focusses on how the animal law movement can be furthered through an international law framework.

Update on Monday, February 18, 2013 by Justinian

The Sydney Morning Herald reported on Saturday (February 16) that the Japanese whaling factory ship Nisshin Maru was found deep inside Australia's Antarctic whale sanctuary. Australia's exclusive economic zone is not recognised by Japan.