Download Position on Australia v. Japan Whaling in the Antarctic The first issue

Position on Australia v. Japan Whaling in the Antarctic
The first issue to address is whether this international dispute falls under the jurisdiction of the ICJ.
Seeing that both Australia and Japan are States entitled to appear before the court, both States are
party to the ICRW, CITES, and the Convention on Biological Diversity, and the details of this case fall
under the definition of an international legal dispute, the ICJ can claim jurisdiction. As Japanese scientific
whaling occurs where the Australian Antarctic Territory converges with the Southern Ocean Whale
Sanctuary, Australia is also fully authorized to bring suit against JARPA and JARPA II.
Following analysis of JARPA and JARPA II, it can be concluded that violations of international law do exist
within the parameters of Japan’s scientific whaling research. Paragraph 10(e) of the ICRW Schedule
holds for a “zero catch limit” of whales for commercial purposes for whaling seasons following 1985.
Although Japan’s whaling operations are for scientific research, they are partly funded by Kyodo
Senpaku, a for-profit company that collects, processes, and sells byproducts of whale hunting on behalf
of Japan’s Institute of Cetacean Research. This commercial activity engaged by JARPA and JARPA II does
violate the aforementioned international statute. Japan’s research extends into the Southern Ocean
Sanctuary, where commercial research regarding stock management did not apply, and although the
State has temporarily suspended its use of humpback whales, the State has not suspended its use of fin
whales, so its actions also violate paragraph 7(b) of the ICRW Schedule.
The lethal methods of research undertaken by JARPA and JARPA II, in light of non-lethal alternatives,
also place the programs in violation of the Convention on Biological Diversity, the aim of which was to
develop national strategies for the conservation and sustainable use of biological resources. Such
research as pollutant monitoring, stock structure, and feeding ecology, all part of JARPA research, could
be performed without the implementation of lethal means. The reluctance of the Institute of Cetacean
Research to make use of non-lethal methods, such as biopsy sampling, contradicts the aims of the
aforementioned Convention. However, as JARPA II has suspended its hunting of humpback whales, and
the IUCN conservation status of humpback whales is that of Least Concern, there is no violation on the
part of JARPA in regards to CITES, which only seeks to ensure that international trade of species does
not threaten their survival, and thus the complaint should not be taken into consideration by the ICJ.
In light of the information presented, an order to put an immediate halt to all of the activities of JARPA II
would be excessive and unwarranted. Rather, some solutions that could be enforced upon Japan would
be to end commercial funding of JARPA II by Kyodo Senpaku, permanently prohibit the hunting of
humpback and fin whales in the Southern Ocean Sanctuary, and replace, where possible, lethal modes
of research with non-lethal alternatives. However, it must also be ensured that the State and people of
Japan are not put under an undue burden to effect these changes, that a spirit of compromise prevails
through their design, and that no interest, save that of the whales and their ecosystem, stands to
benefit unfairly from their implementation.
Any implications this case holds for other scientific whaling pursuits are solely that they must refrain
from funding by commercial interest, make use of available non-lethal methods, respect the domains of
Sanctuaries, and consider all threats posed by research methods to the preservation of the species.
Position on LaGrand (Germany v. United States)
The first issue to address is whether the LaGrand brothers, Karl and Walter, were in fact German
nationals. Although the two had been residents of the U.S. since the ages of 4 and 5, respectively, both
were born in Germany and had German citizenship. Furthermore, the two had not been naturalized as
American citizens, and as such retained their German nationality. It therefore follows that Karl and
Walter LaGrand were not American in any legal sense.
The knowledge that the LaGrand brothers were German nationals was known by Arizona officials, whose
failure to alert without delay the two of their rights to obtain access to the German consulate in America
was a direct violation of the last sentence of Article 36(1) (b) of the Vienna Convention. Once the two
were eventually told their rights, they were still prevented from communicating with or gaining legal
representation from the consulate, violating Article 36(1) (a) and (c), respectively. The cause for the
second two violations was the American legal practice of procedural default, which holds that any rights
foregone in a state court cannot be used when a case is appealed to a federal court. The failure of the
U.S. court system to exempt the LaGrand case from procedural default in the interest of Article 36(1)
also caused a violation of Article 36(2). Additionally, violations of Article 36(1) of the Vienna Convention
equate to violations of Art. 10 of the United Nations Declaration on the human rights of individuals who
are not nationals of the country in which they live, of UN General Assembly Resolution 40/144.
However, it is not the case that the German consulate could have provided mitigating evidence that
would have lightened the sentence of the LaGrand brothers. Any mitigation provided by the consulate
would have duplicated evidence already presented in the case, and it is unlikely it would have had much
effect, as there was, according to the judge, enough documentation, both written and oral, within the
mitigating material. Furthermore, Arizona state law mandates that mitigation must be proved to have a
causal relationship with the nature of the crime. As most of the consulate’s evidence would be regarding
the brothers’ early lives in Germany, proof of causation would be virtually nonexistent. Additionally,
Arizona state law forces a balance between evidence of mitigation and evidence of an aggravated crime.
A history of violent behavior, repeatedly knifing an individual during the robbery, and goal of monetary
reward, all strong indicators of aggravated crime, were presented during the case. As such, the German
claim that consulate evidence or assistance could have changed the outcome of the case should not be
taken into consideration by the ICJ.
Because the U.S. has apologized to Germany for its breaches of international law and promised to
prevent the repetitions of similar events, and because the LaGrand brothers were both executed by
Arizona officials, there is little further compensation that the U.S. can offer Germany. International
reparations seek to satisfy the wronged and restore the situation to the conditions that preceded the
dispute, but in the absence of the LaGrand brothers, there can be no such reversion. The American
apology, admission of procedural wrongdoing, and assurance of no repetition also satisfies the German
demands.
Connor Wahrman, International Court of Justice