Australia v Japan: Attorney-General Mark Dreyfus

Would you take a friend to court to settle a dispute? Awkward? 

This is what Australia did with Japan, a key friend and ally, in 2014 over Japan's refusal to stop killing whales in the Southern Ocean.

Special guest Mark Dreyfus is Attorney-General of Australia.

Mark represented Australia in the culmination of a 40-year diplomatic stoush between Australia and Japan which went all the way to the International Court of Justice in The Hague.

Case: Whaling in the Antarctic (Australia v. Japan) (2014)

Guest: Mark Dreyfus KC MP

Transcript

James Pattison: This is Case in Point. I'm James Pattison. 

Melissa Castan: I'm Melissa Castan. 

James Pattison: Melissa, how many times have you heard the phrase, Save the whales. 

Melissa Castan: I don't know, countless times. 

James Pattison: I feel like it's sort of often used quite tongue in cheek or potentially sort of poking the fun at yourself. But Save the Whales, this, this was a real, a very real and very, very important environmental campaign worldwide that, that began in the 1970s.

Melissa Castan: Absolutely. I mean, commercial whaling was out of control and some whale species were being hunted to the brink of extinction. So James, something had to be done. This campaign was the start of really a 40 year battle involving a very public diplomatic stoush between Australia and Japan. and ended with a major victory in the International Court of Justice.

James Pattison: Now this is definitely a good news story and we like good news stories here. We do. And that's because I think if two things define our current times it's environmental doom and gloom and bad news as well as cynicism about politics. This story shows that With enough people power, it's possible for all sides of politics to come together and protect our environment.

News Archive: Australia's Attorney General has been appearing in the International Court of Justice in a case against Japan's annual whale hunt in the Southern Ocean. Australia accuses Japan of breaking an international moratorium on commercial whaling, agreed in 1986, but which permits killing for scientific research.

Mark Dreyfus: What the Japanese have been doing in killing more than 10, 000 whales since 1988. It's just commercial whaling dressed up in a lab coat. 

News Archive: It is hiding behind the lab coat of science, the Australian Government lawyer told the court. Supporters want an emphatic judgement.

Melissa Castan: On Case in Point, we only bring you the best of the best to talk about court cases. Today is no exception. 

James Pattison: Mark Dreyfus is Attorney General of Australia, and Mark was deeply involved in today's case. Mark Dreyfus, welcome to Case in Point. It's great to be with you. We thought we might slowly build to perhaps reach enough of an audience, and then, you know, Get enough listeners on board to maybe do an interview with the chief legal officer, but it seems to have happened straight away So we're quite excited to be here.

James Pattison: Now. We are here on location in the Commonwealth Parliamentary Offices And we do have a little bit of construction work going in the background But that that won't slow us down. 

Melissa Castan: Mark, for people not familiar with the issue How dire was the situation in the Southern Ocean and the Antarctic when it came to whaling around this time?

Melissa Castan: And when this campaign kicked off 

Mark Dreyfus: The campaign really kicked off in the 1980s when Australia working through the International Whaling Commission tried to get agreement that Japan should stop killing whales in the Southern Ocean, and in particular in the Southern Ocean Sanctuary, which the international, under the International Whaling Convention, had been declared to be a place in which no killing of whales could occur.

Mark Dreyfus: Those efforts that we made through the International Whaling Commission were unsuccessful. And in May 2010 the then Labor government of which I was a part, commenced proceedings in the International Court of Justice against Japan. 

James Pattison: It was really amazing for me reading through some of the history of the development of international law in this space.

James Pattison: I was I was really blown away by the fact that this International Whaling Commission was set up just after the end of the Second World War, 1946 I believe. Which blew my mind because I wouldn't have thought that there would be such efforts so early on and especially right after the Second World War to do something about whaling.

Mark Dreyfus: I think you've got to look at the history of whaling and I think most people have got a bit of an idea that Certainly right through the 19th century when whale oil in particular was much in demand. This predates really the use of electricity that predates petrol oil. Whale oil was a really hot commodity, so there was whaling activity out of the ports in Chile, Zo out of Australian ports, New Zealand ports right across the world.

Mark Dreyfus: And many whale species were, by the time of the Second World War, almost hunted to extinction. And that's really what the impetus for the International Whaling Convention was. Nations getting together saying, even, even if we might keep whaling, Hunting some whales. We've got to get a grip on this. We need some controls.

Mark Dreyfus: We need an international agreement that's going to regulate the taking of whales. 

James Pattison: In the 1980s, after a lot of pressure worldwide, there was a A ban, a moratorium on commercial whaling. 

Mark Dreyfus: That's right. Worldwide. How, how significant a moment was that? That was a big moment. Not all of the countries in the International Whaling Convention agreed.

Mark Dreyfus: Iceland didn't agree, Norway didn't agree, Japan didn't agree, and they kept killing whales. But all of the other Whaling Convention stopped. And worked hard to try to bring an end, a complete end to the commercial killing of whales. 

James Pattison: And these are three nations with, who have very close cultural connections to the practice of whaling, right?

James Pattison: And wanted to continue. What happened after that ban worldwide? 

Mark Dreyfus: I think, well, let's just talk about the Southern Ocean because that's Australia's interest and Australia's involvement. We have a very strong friendship with Japan. We have close diplomatic relations with Japan. We cooperate with Japan in a whole range of international forums.

Mark Dreyfus: We've got a large trade with Japan. I could go on, but it's a warm friendship between our two countries. Despite that friendship we had a very strong disagreement about whether or not whaling should continue in the Southern Ocean. And we tried for 20 years through discussions with Japan, bilateral discussions, and work in the International Whaling Commission to try and bring Japan's whaling to an end.

James Pattison: And there was one loophole in particular, about a year after the moratorium, that Japan sought to continue whaling 

Mark Dreyfus: under. What was that loophole? That's right, James. There's an exception in the convention which says that scientific Research, the killing of whales for scientific purposes is permitted under the convention.

Mark Dreyfus: And that was Japan's contention, that what they were doing in the killing by 2010 of over 10, 000 whales. Within the Southern Ocean Sanctuary was all for scientific purposes. We didn't agree and that's what the case was about. 

Melissa Castan: So when did you first become involved in the Japan whaling case? 

Mark Dreyfus: I became Attorney General in February 2013.

Mark Dreyfus: And the case by that time, even though I had been cabinet secretary, I'd been the junior climate minister, I didn't have direct responsibility up to that point for the conduct of the case in the International Court of Justice, which our government had started in May 2010 when Peter Garrett was the environment, environment minister.

Mark Dreyfus: And by 2013. At the start of the year, when I became Attorney General, Australia had already filed our written arguments in the court. Japan had filed their written arguments in the court, and the case was scheduled for hearing in the middle of the year oral hearing. And that happened. 

Melissa Castan: It seems a bit unusual today that, that the Attorney General would get involved in actually standing up and arguing a case.

Melissa Castan: It might not have been so unusual in the past. very much. 

Mark Dreyfus: There is an expectation at the International Court of Justice that nations, because it is the court that hears disputes between nations and that's all it does there's an expectation that the law minister of the nations who are participating in the dispute will appear.

Mark Dreyfus: So the Japanese justice minister appeared in the case. Of course leading a strong team of Japanese and some international lawyers, just as I led an extraordinarily strong team of Australian and international lawyers who all played their part in the preparation of our case. And some of them spoke at the oral hearings as well.

Melissa Castan: Can you tell us a bit about some of those lawyers who represented Australia in the case? I 

Mark Dreyfus: certainly can. I'd say it was a formidable legal team. Our agent, because you have an agent in the International Court of Justice, was Bill Campbell, KC. What's an agent? It's a formal title that the court uses for the person who's got the The, the go to person for the case in the, particularly in the preparation of the written submissions and when the court's wanting to contact the country, they go to the agent.

Mark Dreyfus: And our agent was Bill Campbell, KC, then General Counsel in the Office of International Law. The then Solicitor General, Justin Gleeson, SC now at the Sydney Bar the late James Crawford, SC, at that time the Hewell Professor of International Law at Cambridge University and later a judge of the International Court of Justice.

Mark Dreyfus: Philippe Sands, QC, sorry, Casey, now Casey, but then QC from the London Bar, and a Professor of International Law from Geneva by the name of Professor Laurence Boisson de Chazuin. And that was a That's my favourite name of all. It is a wonderful name. It is a wonderful name. It's beautiful. Laurence Boisson de Chazuin.

Mark Dreyfus: It rolls off the tongue. It really does. And she is a noted Professor of International Law. And in particular with expertise in relation to maritime law. So, she was of great assistance in that case. 

Melissa Castan: Can I ask, was there ever a situation where all of you were actually in the same room at the same time sitting around a table going through the papers and deciding the arguments?

Mark Dreyfus: Absolutely. We met in the Hague in the lead up to the case. And certainly more than once I was in the same room with all of our team. And certainly at the hearing. All of us were sitting at the bar table in front of the 16 judges of the International Court of Justice. 

Melissa Castan: Because despite the seriousness of what's being discussed and, and the importance of the issues, that actually sounds like really fun work.

Mark Dreyfus: It was an extraordinary honour and a privilege to stand in a court and say, I appear for Australia. It's not, I've been a barrister for a long time. When I became a barrister in 1987, I would never have imagined. that I would get to speak those words. I appear for Australia. And it was a wonderful experience at a personal level to, to actually appear for Australia, to put arguments to this international court, and to be with such an extraordinary group of Australian and international lawyers who we had assembled for our team.

James Pattison: At this time, public opinion was really, you know, the wind was at your back. How was it? To, to stand up in court feeling that you knew that you were heading up a fight that Australians really, really supported. Can you tell us a little bit about that public opinion at the time? 

Mark Dreyfus: It's the only policy or governmental activity that I have ever worked on which has been supported by 99 percent of Australians. And that, that's an extraordinary thing to be able to say, but we know from polling at the time, that this was almost unanimously supported by everybody in Australia. And it meant that there was a, there was a lot of interest in this. It meant that the media interviews that I did were all, both started and ended.

Mark Dreyfus: I did a lot of morning breakfast TV, which is not all that common for the attorney general. It's still not that common. I occasionally appear on breakfast TV, but I don't often I did a lot of breakfast TV before I went to the Hague. I did breakfast TV from the Hague because all of the TV stations were interested in it.

Mark Dreyfus: Radio stations were interested in this case. The interviews memorably would, would begin with I hope the case is going well and they would end with go well or make sure you win or that sort of expression of, of really positive sentiment from the, the journalists interviewing. It must be. That's very unusual as someone that's been a minister for quite a while in The Gillard government, the second Rudd government, and now the Albanese government.

Mark Dreyfus: I can say to you, you don't often get good wishes from the journalists. 

James Pattison: It would usually be answer the question. 

Mark Dreyfus: More likely it's answer the question. That's right. 

Melissa Castan: All right. Can I steer us back to the legal arguments at this point? Can I ask what were the main legal arguments that Australia presented before the court?

Mark Dreyfus: We had to present an argument that Japan's whaling program in the Southern Ocean violated Japan's obligations under the Whaling Convention and was not justified as a program for the purposes of scientific research. That was what the case was about. Japan put the contrary argument saying that the program was scientific and they sought to support that argument with expert evidence.

Mark Dreyfus: We sought to support our arguments also. 

Melissa Castan: So you really had to dive into the evidence that, to try and establish whether Japan's whaling activities were genuinely scientific in nature or were just harvesting. 

Mark Dreyfus: That's right. 

Melissa Castan: How do you prove that? How do you establish that evidence? 

Mark Dreyfus: By a close analysis of the published papers by Japanese scientists.

Mark Dreyfus: They had a, what we said, was something of a sham program called JAPA 2, which was the name, it's an acronym, but that's the name that the Japanese gave to their so called scientific program. And we had analyses done by Australian scientists including notably Dr. Nick Gales, who at the time was the Chief Scientist at the Australian Antarctic Division.

Mark Dreyfus: and has been, since 2016, Australia's Commissioner to the International Whaling Commission. So he's someone that's spent a life studying whales and particularly in the Southern Ocean. He did a huge amount of work and prepared written papers for the court. On why this was not proper science. So it was a, it raised some very interesting philosophical questions about the nature of science.

Melissa Castan: I'm not sure if you can answer this, but what was Japan using the whale, harvested whales for? 

Mark Dreyfus: Whale meat is eaten in Japan. And you can, the whale meat was being sold. 

James Pattison: Right. Japan's, Japan's argument, like the counter argument was that, You'll find whale mate in fish markets around Japan because the costs of the scientific program are being offset.

James Pattison: This is a way to make back some of the money. What was the argument against that? 

Mark Dreyfus: I don't think that was much of an argument. In fact, I didn't think much of any of Japan's arguments. And neither did the court in the end. But that didn't mean that, as you would expect for a dispute between nations, That had not been able to be resolved in 20 years of negotiations.

Mark Dreyfus: You would expect both countries to put a lot of effort into the arguments, and we did. The sheer 

James Pattison: number of whales killed by Japan's whaling program was quite staggering. Yes. How were you able to prove that it was a disproportionate number of whales? 

Mark Dreyfus: Well, it was actually a very good starting point having put forward supposed scientifically worthwhile outcomes of the research, Japan was still left with a, a problem that in order to study the, the, the nature of, of the contents of stomachs of whales, you don't need to kill 400 a year.

Mark Dreyfus: And that was their problem. They'd killed over 10, 000 whales in the Southern Ocean Sanctuary by the time we commenced the case in 2010. And that's an overwhelmingly large number and extraordinarily difficult to justify on a scientific basis. And ultimately they couldn't. 

James Pattison: It's not often that a very senior cabinet minister is, who's on the world stage and has very sensitive diplomatic relations with, with a lot of different countries, gets up and argues against a country that is a really really key ally and really a key friend.

James Pattison: What was that balancing act like for you personally? 

Mark Dreyfus: We had, Australian and Japan agreed that right throughout this International Court of Justice proceeding that any differences over whaling would not damage the overall bilateral relationship. Australia made a decision to go to the ICJ in the spirit of one close friend seeking to resolve differences with another.

Mark Dreyfus: In a calm and measured way, I can say at a personal level that I had in the preceding two years as the Junior Australian Climate Minister, I was working with Greg Combay as my Senior Minister, but I attended a great many of the United Nations Framework Convention on Climate Change conferences. Which are not just the COP that some of your listeners will be familiar with, which occurs at the end of every year in different locations, there's also negotiations and meetings leading up to the COP every year.

Mark Dreyfus: I'd got to know a number of Japan's, um, negotiators that work in the climate talks and including international lawyers from the Ministry of Foreign Affairs in Japan And much to my surprise and indeed delight because I had worked closely with these Japanese negotiators in the climate talks, a number of them were part of the Japanese team for the whaling case.

Mark Dreyfus: These were people who I regarded as professional colleagues because Australia and Japan have got very similar interests and often take identical positions in the climate talks. So here was I with, on the other side of the bar table Japanese negotiators that I knew and had worked with over the preceding two years.

Mark Dreyfus: It was a really, an interesting feature for me, but it was it represented the spirit in which Australia and Japan conducted this case and it's also a tremendous example of the international rule of law working. 

Melissa Castan: Yeah, I was just about to say, it really is an example of a process and a way for people or parties to constructively disagree quite vehemently on an issue, but still have a very respectful and continuing relationship even after the resolution of that, of the disagreement.

Mark Dreyfus: We said, our foreign minister repeatedly said during the conduct of the case, Australia and Japan are close friends, this is an isolated dispute between close friends. And both of us are countries which respect the international rule of law. Japan's got a tremendous stake and is a party to almost every international agreement.

Mark Dreyfus: As is Australia a party, because there's a middle sized power. We have a stake in the international rule of law. Australia and Japan both said, we're going to the International Court of Justice because we can't resolve our dispute. We will both respect the decision of the court, and that's what happened.

James Pattison: A lot has happened in the last 10 years. This year marks the 10 year anniversary of the ICJ's decision. And a lot has happened. In a decade, the world order has shifted remarkably. Alliances are moving and changing very quickly. Would you have still taken the same path with a friend and ally 10 years later?

Mark Dreyfus: I'd say even more so. Australia has got a real interest in making sure that the international rule of law is maintained, in respecting the international institutions that have been built up since the Second World War, in making sure that all countries respect international agreements, all countries respect decisions of the International Court of Justice.

Mark Dreyfus: We are very invested in the international court of justice. We now have sitting on the court, the third Australian who has been a judge of the international court of justice in Hillary Charlesworth, who as an interesting aside, I can say I appointed to the international court of justice in 2013.

Mark Dreyfus: As a temporary judge of the court because I can also say it's the only time I've ever appeared in a court where I got to appoint one of the judges 

James Pattison: for the purposes of the case. You've mentioned that it was a resounding victory for Australia in 2014. Can you talk us through the ICJ's ruling and what some of the the directions were after as part of that judgment?

Mark Dreyfus: The International Court of Justice decided that it did have jurisdiction. All 16 judges found that the court had jurisdiction and then by 12 votes to 4, the court decided that special permits that had been granted by Japan for killing, taking and treating whales were not for the purposes of scientific research.

Mark Dreyfus: And these were special permits that Japan issued to its own fleet. To their own fleet. The court therefore concluded that Japan had violated. Range of its obligations and the formal order of the court was that Japan revoke any of the permits that it had issued, refrain from granting any further permits.

Mark Dreyfus: The effect of it was to order Japan to stop killing whales in the Southern Ocean Sanctuary and Japan announced that it would comply with the court's order. This is a 

James Pattison: big 

Mark Dreyfus: international cease and desist. 

James Pattison: Yes. Yes. What was Japan's response? 

Mark Dreyfus: Japan said, we will stop this draws a line under our dispute we won't any longer go and kill whales in the Southern Ocean Sanctuary.

Mark Dreyfus: And has that continued? That has continued. Japan has not recommenced whaling regrettably, Japan continues to kill whales in the North Pacific. 

Melissa Castan: I'm really interested in, if you know, what was the reaction in Japan to the outcome of the case? 

Mark Dreyfus: Mixed. I think I mentioned before that we had, had polling done in Australia that showed that overwhelmingly the ending of whaling in the Southern Ocean Sanctuary was supported in Australia.

Mark Dreyfus: In Japan, a majority of Japanese, according to polling that we read at the time, had a supported a continuation of whaling, but a very substantial minority of Japanese citizens in the order of 30 to 40 percent thought that whaling should stop. So it's not overwhelmingly supported in Japan. It's to some extent, and I'm now commenting on Japanese politics, which I should refrain from doing in detail but to some extent whaling has cultural significance in Japan, Japan.

Mark Dreyfus: and it is bound up, to some extent it is bound up with the conservative side of Japanese politics. We could note that the former Prime Minister of Japan, Shinzo Abe, very long serving Prime Minister of Japan, represented the as his constituency, the place where the home port of the Japanese whaling fleet is located, which might give some notion of the significance to the very long serving Prime Minister of Japan, Shinzo Abe.

Mark Dreyfus: Equally, a range of conservative politicians in Japan have spoken very strongly in favor of the continuation of whaling. So, I think the answer is there's mixed views in Japan about the continuation of whaling, unlike in Australia where there were no mixed views. 

James Pattison: Is there not a place for sustainable whaling?

James Pattison: Humpback whales were hunted to the point, I think it was down to 450 left in, in our oceans and it's now thankfully up to around 25, 000. But for, for some of the whales that Japan hunts such as the minke, they do have higher numbers. Is there a place for that sustainable whaling? 

Mark Dreyfus: Australia says not Australia's position in the International Whaling Commission is that all whaling worldwide should be brought to an end that there's no such thing as sustainable whaling we continue to make those efforts, our current Environment Minister, Tanyip Libesec, has spoken recently about the need for all whaling to stop.

Melissa Castan: Mark, can I ask you, what are the implications of this case, and particularly in light of international environmental advocacy, and indeed Australia's role in that? 

Mark Dreyfus: There are implications. The ICJ case is not limited to the regulation of international whaling. It illustrated first Australia's leadership in using international law to achieve important environmental outcomes.

Mark Dreyfus: It's actually a precedent. In assessing states claims that certain measures are justified as part of a scientific program. So even in the International Court of Justice, just as in common law courts in Australia, we set precedents and the High Court's decisions set precedents, so too this decision of the International Court of Justice is a precedent for how you can consider an exception which is actually contained in a multitude of other.

Mark Dreyfus: international agreements that Australia is a party to. So that scientific exception, which Japan sought to rely on, is found in a whole range of other international agreements. So that's important. I think the case was significant because it shows that environmental questions are able to be litigated in the International Court of Justice.

Mark Dreyfus: And Australia is again a party to another significant environmental case, this time it's a case about climate, which the court is presently receiving written arguments in, and will as I recall here late this year. 

James Pattison: I'd like to put this quote to you actually Mark, while we have you. This is a quote from Professor Douglas Guilfoyle who is part of this series talking about Mauritius this UK about the Chagos archipelago.

James Pattison: And he speaks about asymmetric international law disputes. Here's the quote. He says, and he calls it a legal statecraft. He says the aim of skillful legal statecraft isn't necessarily immediate compliance, but to put a thumb on the scale of international politics. While this might seem modest, it involves the use of law to generate real change in the political realities of asymmetric disputes.

James Pattison: Do you think that that applies to a case like this that involves, you know, a larger economic power like Japan with Australia? And how you could, could get the outcome that you really wanted. 

Mark Dreyfus: I think that all cases in the International Court of Justice at one level are international statecraft of a form.

Mark Dreyfus: Sometimes they've, and Australia's participated in, I think we're up to eight cases. At the time of the whaling case, we'd been a party to three. Since then, we've been a party to four more. Including notably the case brought by East Timor against Australia while the court had reserved its judgment on the whaling case, which I was very worried about, flowed from the government which succeeded the Labor government, led by Tony, the government led by Tony Abbott, in which George Brandis was the Attorney General.

Mark Dreyfus: He authorised the conduct of a raid. By ASIO and the Australian Federal Police on the officers of East Timor's lawyer in Canberra, Bernard Kaliri. And documents were seized in that raid. East Timor went to the International Court of Justice to complain that this was a breach of the Vienna Convention dealing with protection and immunity for diplomats that case was running while the court was hearing and, well, they had heard and were considering their judgment on our whaling case.

Mark Dreyfus: I, I was bothered by this because I was sweating on the result. I was in opposition by this stage. I didn't think it was a good thing. that another much smaller country had gone to the International Court of Justice to complain about Australia's failure to comply with international law. Not good, Peter.

Mark Dreyfus: At a time when we were, had said to the court, the same court, Japan has failed to comply with international law. Happily, it did not seem to have affected the result because we were ultimately successful and when we got the judgment on the 31st of March, 2014. Australia's currently in three cases in the International Court of Justice.

Mark Dreyfus: One of them is as an intervener in the case brought by Ukraine against Russia. Another is a case about the right to strike international labor agreements. And the third is the one I mentioned, the climate change advisory opinion that's been sought from the court. 

James Pattison: As we bring this this discussion to a close, Mark, looking back ten years ago, how do you reflect on, on this moment in your career?

Mark Dreyfus: It's a big moment. It's still a big moment. It's the only time in my life I've appeared in the International Court of Justice. Very few Australian lawyers appear in the International Court of Justice. Only three Australian Attorney Generals have appeared. in the International Court of Justice. So yeah, a big moment.

Mark Dreyfus: I'm very proud to have participated in this case. Very pleased that as a government we were able to achieve this result. Sometimes one has luck in politics. It was my luck that I was Attorney General in the right place at the right time. 

Melissa Castan: Well, you've given us an awesome insight into a giant case of law and the international legal process.

Melissa Castan: Mark Dreyfus, thanks very much for speaking to Case in Point. 

Mark Dreyfus: It's been a pleasure. Thank you, Melissa. Thank you, James.

Melissa Castan: James, I love this episode. Where can I find more? 

James Pattison: Well, I never thought you'd ask. If you like this podcast, please consider subscribing or following your podcast app. There's a bunch more episodes. You can also leave us a review. We'd love to hear what you think of the show. Bye bye. 

Melissa Castan: Especially if it's a five star review, we specially like those.

Melissa Castan: I'm right there with you.