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The UK QB ruled unanimously (3-0) this fine English morning that the Tory gov’t cannot use the Crown’s prerogative to initiate the UK’s withdrawal from the EU. The decision to withdraw or not – the decision whether to give notice under the applicable EU treaty – is for Parliament to make, not the party in power in Parliament; aka the “gov’t” or the Crown.
 for the reasons we have set out, we hold the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.
R (Miller) v Secretary of State for Exiting the European Union 2016 EWHC 2768 (Admin)
A spokesperson from the Crown – or UK gov’t – or the Tory party, pick your poison, announced, as one might expect, that the decision will be appealed.
A speaker, yesterday, at a lecture I attended, used the line Henry 2 v Henry 8 line to describe the possible results, saying that, of course, the decision wouldn’t be put quite that way. Under that description, the score is now H8 2, H2 1 at the end of the 2nd period. As much as I’d love to be able to claim it, it’s not my concoction.
In a “I’m not sure how it’s related but he’ll eventually grope towards an explanation development”, Donald Trump’s campaign spokestwitter has twittted that the Donald, hisself, blames “this tragic interference by unelected, wig wearing, black dress wearing elites with the will of the true representatives of the pure wool people in the United Kingdom on ‘Crooked Hillary’" and that he and Vladamir Putin remain ready, willing, and able to assist the British people in the protection of their "precious bodily fluids".
In the audio version of the twit, it's possible to hear what sounds like goats an and sheep in the background.
In Scotland, substitute "water of life" for precious bodily fluids, even if it's (shudder) Laphroiag.
Not all of the bizarre cases heard at the Supreme Court of Canada (SCC) are lighthearted or funny like some of the content we’ve covered this week. Some strange cases make us chuckle when they force the highest court in the land to seriously consider the future of margarine, but the strange can also make us uncomfortable to the point where we remain silent on important issues. And when it comes to bestiality and animal cruelty, we cannot stay silent.
Last year the SCC heard the disturbing case of R. v. W (D.L.), which required Canada’s highest court to consider the definition of bestiality for the first time. The case involved a man who was convicted of sexually abusing his two stepdaughters. In addition to being convicted multiple counts of sexual touching, sexual interference and sexual exploitation, the man was found guilty of bestiality after he attempted to have a dog engage in sexual activities with one of the girls. One incident involved inducing a dog to lick peanut butter off one of the girls’ genitals. There was no evidence that the defendant penetrated the animal, though this was clearly an act with a sexual purpose.
The key issue in the case was whether penetration is a necessary element of bestiality. Parliament included bestiality offences in the Criminal Code more than 60 years ago, though the code does not define the elements of the offence. The trial judge found that penetration was not required, though the Court of Appeal for British Columbia (BCCA) disagreed and maintained the common law definition of bestiality. The SCC concurred with the BCCA, finding that the historical precedent clearly establishes sexual penetration as an essential element.
By convicting the defendant of bestiality, the SCC would have to “in effect, create a new crime”. Ultimately, this is Parliament’s role, not the SCC’s.
Peter Sankoff – one of our professors here at the University of Alberta Faculty of Law – represented Animal Justice, the organization that was an intervener in the case. Though he was pleased that the SCC had “acknowledged the rights of animals to be protected from sexual exploitation,” the case demonstrates just how outdated and ineffective animal rights legislation is in Canada. It can’t be denied that the decision “gives animal abusers licence to use animals for their own sexual gratification.” Most Canadians would find this fact horrifying and contrary to the basic values that we hold regarding other sentient beings, and yet, this is the state of Canadian law.
Now that the SCC has thrown the ball to parliament to address this situation, how has parliament responded?
This year, MP Nathaniel Erskine-Smith (Beaches - East York, Liberal) introduced the private member’s Bill C-246, which aimed to reform the Criminal Code’s animal cruelty offences. This Bill would have been the first substantive change to Canada’s animal protection laws in over a century. The Bill addressed a few different issues regarding animal cruelty, including shark finning, and would have expanded the limited scope of bestiality, including the following definition, “bestiality means sexual activity between a person and an animal.” Frustratingly, the Bill was defeated in Parliament earlier this month.
Among the MPs voicing concerns were Blaine Calkins (for Red Deer - Lacombe, Conservative) and David de Burgh Graham (Laurentides - Labelle, Liberal). Calkins stated “We all want good animal welfare standards...I do not mean this maliciously, but I am hoping the overambitious agenda of the bill will be the end of it before it even has an opportunity to get to second reading.” Graham, a self-identified hunter and farmer, was much more critical in his remarks, stating, “I do not believe my family belongs in prison for sustainably feeding ourselves. I do not believe tens of thousands of my constituents should risk prison for feeding their families, either.”
It is a gross overstatement to claim that the Bill would have the effect of preventing hunters from providing for their families. The proposed amendment to the provision on killing animals specifically bars “unnecessary pain, suffering or injury to an animal” and “kill[ing] an animal without lawful conduct”. Many Western countries have enacted similar basic provisions without hindering hunters. The Bill was not overambitious. Rather, it was much weaker legislative response than what Canada requires.
In the words of Peter Sankoff, these statements are essentially “overheated rhetoric” that fail to address a serious problem. As uncomfortable and horrifying as bestiality may be, Canada is failing to properly protect animals and we have to ask ourselves if we as a society value animals enough to act on their behalf. It’s time for Parliament to make real change and not hide behind hyperbole or complacency.
For more information on the future after Bill C-246, check out MP Nathaniel Erskine-Smith’s article. As always, we would love to hear your input in comments!
 2016 SCC 22, 398 D.L.R. (4th) 193.
 Ibid at para 6.
 Ibid at para 1.
 R v W(DL), 2015 BCCA 169, 371 BCAC 51.
 R v W(DL), supra note 1 at para 4.
 Ibid at para 2.
 David Dias, “Bestiality requires penetration: SCC” (09 June 2016), Legal Feeds (blog), online: <http://www.canadianlawyermag.com/legalfeeds/3297/bestiality-requires-penetration-scc.html>
 Canada, Bill C-246. The Modernizing Animal Protections Act, 1st Session, 42nd Parl, 2016, online: <https://www.google.com/url?hl=en&q=https://www.oba.org/Sections/Animal-Law/Articles/2016/August-2016/An-Update-on-Canadian-Animal-Protection-Legislatio&source=gmail&ust=1477094606201000&usg=AFQjCNGSYzRYpbczfRGuim34q9iXbM2irg>
 Supra note 9.
 House of Commons Debates, 42nd Parl, 1st Sess, No. 51 (May 9, 2016) at 3043 (Blaine Calkins).
 Supra at 5242 (David de Burgh Graham).
 Supra note 9.
 Peter Sankoff, “Canada still an animal welfare laggard”, Policy Options (October 13, 2016) online: <http://policyoptions.irpp.org/magazines/october-2016/canada-still-an-animal-welfare-laggard/>
How much do people really know about The British North America Act, 1867 (BNA Act), the founding document and first Constitution of our country? The answer is often “not very much”. We are generally aware that Canada was established in 1867, and may know the name of the document, but we have little to no understanding of what that document contains and how it has and continues to affect our society. Before studying it in law school, I certainly didn't. This project, leading up to and during the 150th anniversary of this historic document, will hopefully change that for some people.
My name is Alexander Brophy. As a second year law student at the University of Alberta I have chosen to enroll in the Law and Social Media class that will be writing this blog. I'm excited to be a part of this because I understand the value of ensuring that people have legal knowledge. My interests skew towards matters of criminal law and civil rights, where it is so important that everyone in our society have as much knowledge as possible. This project will give me good experience writing about the law in an accessible and hopefully engaging way. I look forward to this opportunity to engage with and educate the public.
The BNA Act might seem dry at first, especially compared the more talked about American Constitution. As a document it is primarily concerned with division of powers between the Federal Government and the Provinces, as well as other structural issues such as courts. Most people really don't have much knowledge about how important such structural issues are in their lives. I plan to put my educational background in History to work this year. A lot of my output will be sharing stories with you. The various provisions of the BNA Act have affected many important events in the last 150 years, and continue to have an effect today. Liquor laws (and soon, marijuana laws), obscenity, the FLQ crisis, wartime emergencies, and even something as banal as whether one can believe that margarine is butter have all related in some way to the BNA Act. I hope that readers will come away feeling that they know a bit more about why things in our country are the way they are.
Posted by The BNA Act 1867 on September 06, 2016 at 07:00 AM in Aboriginal Law, Agricultural law, Animal Law, Constitutional Law, Courts & Judiciary, Criminal Law & Procedure, Current Affairs, Education, Environmental Law, Family Law, Free Speech, General Interest, Health Law, History, Human Rights, Internet Law, Judges, Law in General, Law School and Students Issues, Lawyers, Legal History, Politics, Rule of Law, Scholarship | Permalink | Comments (0)
This post was co-written with Camille Labchuk, Director, Animal Justice Canada
Earlier this month, Quebec tabled new animal protection legislation that makes it the first jurisdiction in Canada to recognize that animals are sentient beings with biological needs. Although this fact will seem obvious to anyone who has ever lived with an animal, stating it so boldly marks a major symbolic change for the law.
Still, in order to address the ongoing plight of animal suffering in Canada, symbolism is no longer enough. The biggest barrier to protecting our animals isn’t existing legislation – it's the refusal to get serious about enforcing the animal protection laws we already have. In short, we need a change in mindset for those tasked with investigating and prosecuting these offences, and an infusion of resources to ensure that animals get the protection our laws say they deserve.
Quebec's exciting move forward can be neatly juxtaposed against an unfortunate animal cruelty "anniversary". Exactly one year ago this week, an undercover investigation airing on CTV National News exposed the horrific abuse of cows at a dairy farm in Chilliwack, British Columbia. On top of suffering from painful health ailments like open wounds and other injuries, the cows endured regular physical abuse, with employees using chains and other implements to viciously whip, punch, kick and beat them. Media coverage was intense, and Canadians expressed outrage. There was talk of boycotts and major inquiries, while the farm owners professed contrition. Not surprisingly, the British Columbia SPCA quickly recommended that criminal charges be laid against the responsible parties.
One year later, things have gone eerily quiet. Despite the overwhelming evidence of torture and cruelty captured on film, no charges have been laid. Most alarmingly, we have had no explanation for the delay and the public is left in the dark as to whether anyone will ever be charged. In comparison, Jian Ghomeshi's notorious sexual assault case went from allegations to charges in less than three months, a much more common time frame for criminal offending.
Sadly, the Chilliwack case follows a familiar pattern where the abuse of animals is concerned. All too often, investigations into animal cruelty turn into prolonged affairs, with prosecutions delayed or stopped altogether while a host of prosecutors decide whether charges are actually warranted. Why are prosecutors so reluctant to charge those who abuse animals, especially where this takes place on farms?
Some of the problem likely lies in the evidentiary nature of these cases. Prosecutors are used to having victims who can speak about the harm they endured, which is obviously not a possibility where animals are concerned. But perhaps it has more to do with the way crimes against animals are treated by the law. Animal cruelty offences are the only crimes investigated almost exclusively by a private charity. SPCA investigators operate at arm's length, are terribly under-resourced, and in some jurisdictions must individually convince prosecutors of the merits of a case every time they recommend that charges be laid.
Federal regulations to protect farmed animals don't fare much better. While these are enforced by the federal Canadian Food Inspection Agency (CFIA), the agency's track record indicates that regulatory charges with the potential for punishment are brought as an absolutely last resort. The CFIA's primary objective is food safety, not animal welfare, and at least one recent public example captured CFIA agents on video condoning painful - and quite likely illegal - practices upon animals.
When charges are laid in these types of cases, they are usually brought against employees who commit actual harms, and rarely does a prosecution explore the institutional relationships that may have encouraged the abuse. It's important to keep in mind that the undercover investigator in Chilliwack repeatedly alerted management about problems with the way the animals were being treated, yet nothing was done to stop the abuse. The protection of vulnerable animals cannot be focused solely on punishing animal abusers after the cruelty is inflicted. Rather, the focus must be the employers who permit abuse to flourish, or fail to dedicate enough time to the training needed to avoid it.
Canadian politicians repeatedly emphasize the importance of treating animals humanely but these words are starting to ring hollow. The Chilliwack case and others like it raise serious concern about this country's dedication to protecting animals and its ability to bring charges against animal abusers in a reasonable time. It is absurd to imagine that the vicious abuse seen in Chilliwack should require over a year simply to decide whether charges are warranted, assuming that any ever come out of this horrific incident at all.
It is time to get serious about protecting animals, and the first step must involve taking a long, hard look at the relationship between those charged with investigating and prosecuting crimes of animal abuse.
In this final installment of my assessment of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), I aim to provide a few thoughts on what the future holds for the International Convention for the Regulation of Whaling (ICRW) and the International Whaling Commission (ICW).
The first consideration must be whether or not Japan is going to comply with the decision of the International Court of Justice (ICJ). Japan has indicated that it will and it also does not appear that Japan is going to withdraw from the IWC in light of the decision. Does this mean that whaling in the Antarctic is done? Maybe, maybe not. Since the Whaling Case addresses permit issuance pursuant to JARPA II, the possibility remains that a new scientific research program could be developed and deployed in this region, which once again could be susceptible to challenge. Similarly, Japan’s JARPN II on-going special permit program in the North Pacific may also be scrutinized in light of the Whaling Case and the ICJ’s analysis of what is meant by “for the purposes of scientific research”. The decision may also have implications for the commercial whaling conducted by Iceland and Norway pursuant to objections that these States have lodged at the IWC if Japan seeks to supplement its diminished supply of whale meat (which may not be required given dwindling consumer demand). Alternatively, this development might similarly increase the coastal hunt of small cetaceans (dolphins and porpoises) that is not regulated by the ICRW. Or, it might mean the end of all special permit scientific whaling. It is early days yet and only the passage of time will reveal the ultimate consequences of this decision.
While the Whaling Case does not delve into the political and cultural issues that continue to prevent coherent implementation of the ICRW, it is obvious that future work and considerable compromise is needed to bridge the gap that separates those States that support the use of whales as a resource and those States that prefer preservation. Important questions remain unanswered: Should the moratorium on commercial whaling be lifted to allow for a limited take of those whale species that science suggests can bear such a take (i.e., the minke whale)? How do we account for cultural differences and preferred uses in an appropriate manner? Is it possible to reconcile these positions within the current international framework or should an alternative agreement be sought? How should the global community regulate the take of smaller cetaceans that live close to shore? And, perhaps most importantly, is enough being done to ensure that the other threats—bycatch, ship strikes, climate change, environmental pollution, habitat destruction, and even eco-tourism—are being addressed?
The Whaling Case represents an important piece of the larger marine mammal management puzzle. The puzzle is far from complete and we must continue to work to piece it together.
I will be exploring the issues addressed in today's post in more detail in an upcoming paper so this particular blog is going to be kept a bit shorter than the others.
First, it is important to state the obvious—international environmental law is inextricably connected to scientific and technical developments. One need look no further than climate change to understand just how connected our (changing) understanding of the natural world is to determining the appropriate form/function of the regulatory response. Further, and in addition to using and incorporating scientific knowledge during the development of international law, science and other forms of expertise have also become important aspects of international environmental dispute adjudication. Unfortunately—or fortunately, depending on your perspective—we do not have an “International Environmental Court” to deal with these increasingly technical problems. The ICJ did create a Chamber for Environmental Matters in 1993, but this chamber was effectively ended in 2006 without ever hearing a case.
Lawyers and judges may be expert in statutory interpretation but they are not, generally speaking, also expert in all things scientific or technical. Still, as identified above, it is critical that the appropriate and necessary evidence get before the Court to ensure informed decision-making and adjudication. There are different ways that this goal can be accomplished at the ICJ. The Court can arrange for the preparation of an expert opinion (Article 67 of the ICJ’s Statute), experts can appear as advocates/counsel before the court, an agent appearing on behalf of a party can become versed in the necessary scientific or technical information and present it, or a party can call experts/witnesses as part of its case (Article 65) in accordance with its declared list of intended witnesses/experts (Article 57). In the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), the Court made it apparent that it prefers the latter method because it allows the experts to be cross-examined by the opposing party and to be questioned by the Court. At paragraph 167 of the Pulp Mills judgment the Court stated:
“...those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.”
This is exactly what happened in the Whaling Case. As described in paragraphs 20-21 of the Judgment, Australia called two experts during the public hearings: (1) Professor Marc Mangel (Distinguished Research Professor of mathematical Biology and Director of the Center for Stock Assessment Research, University of California, Santa Cruz); and (2) Nick Gales (Chief Scientist for Australia’s Antarctic Program). Japan also called one expert, Professor Emeritus Lars Wolloe from the University of Oslo and marine mammal advisor to the Government of Norway. Each expert was examined in chief, cross examined, and asked questions from the Court. Additionally, each expert provided a written statement that preceded their testimony.
It is obvious in reading the portion of the judgment that investigates the term “scientific research” (paragraphs 73-86) and the term “for purposes of” (paragraphs 87-97), and more importantly part 3 of the judgment titled “JARPA II in light of Article VIII of the Convention” (paragraphs 98-227), that the Court utilized and worked with the evidence presented by the experts. This decision may very well represent a model for the preferred use of experts in this judicial forum moving forward.
Both Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) and the broader debate surrounding the international governance of whales engage questions surrounding the appropriate application of science in regulatory decision-making. The International Convention for the Regulation of Whaling (ICRW) and its preambular statements that aspire to achieve both conservation and sustainable use, has been interpreted in different ways by States with varied objectives that use science to buttress their position. For example, does a conservation goal justify the shift towards preservation exemplified by the International Whaling Commission since introduction of the commercial moratorium? Conversely, does the perpetuation of the commercial moratorium, which was likely meant to be a temporary measure, frustrate the goal of sustainable use of whale resources if available scientific evidence suggests that some species are abundant enough to sustain an annual take? Moving one step further, should whales be afforded non-human legal person status and protected from any future lethal use (i.e., the right to life)? Is such an argument scientifically justified or is it an attempt to impose one culture’s ethos upon other cultures? These are all questions that inform the current whaling debate; however, today’s post will focus on what exactly the Court had to consider to adjudicate Australia’s claim and what standard of review it employed in reviewing JARPA II in light of the ICRW’s Article VIII “special permit” provision.
In considering the relationship between Article VIII and the object and purpose of the ICRW identified above, the Court noted at paragraph 57 of the Judgment that Australia emphasized conservation and that “Article VIII, paragraph 1, should be interpreted restrictively because it allows the taking of whales, thus providing an exception to the general rules of the Convention which give effect to its object and purpose of conservation”. Alternatively, Japan argued “that the power to authorize the taking of whales for purposes of scientific research should be viewed in the context of the freedom to engage in whaling enjoyed by States under customary international law”. Taking into account both the preamble and other guidance documents produced by the IWC, the Court concluded that such scientific research programmes can pursue the goals of conservation and/or sustainable use, management of other living marine resources or ecosystems, and other hypothesis testing processes. Importantly, it noted at paragraph 61 that the validity of permit issuance pursuant to Article VIII will not simply turn on the issuing State’s subjective belief that said permits are “for the purposes of scientific research”. How then did the Court determine if the permits issued by Japan for JARPA II met this purpose?
The Court establishes a two-part objective test at paragraph 67 of the Judgment for determining whether JARPA II falls within the scope of Article VIII: (1) does the programme involve “scientific research”; and (2) is the “killing, taking and treating whales” done “for purposes of scientific research”. This second step requires objective assessment of the reasonableness of the design and implementation of the programme in light of its stated objectives. In other words, did JARPA II produce scientific research, and if so, can Japan demonstrate that its permitted killing of whales was reasonable in light of JARPA II’s objectives?
Finally, it is worth noting that at paragraph 69 the Court expressly states that it will limit its investigation to JARPA II in light of Article VIII and will not delve into or attempt to solve the many “matters of scientific or whaling policy … aware that members of the international community hold divergent views about the appropriate policy towards whales and whaling”.
I will end today’s post by drawing your attention to the importance of some of these other issues. As hinted at earlier in this post, whaling generally, and commercial whaling specifically, remains one of the most controversial international environmental issues. In addition to continuing to resolve differing opinions and seek compromise on this divisive issue, it is imperative that the international community find a way to achieve meaningfully address other persistent threats and advance holistic whale management. These other threats include: the impact of climate change; bycatch and fishing gear entanglement; ship strikes; the impact of marine pollution; habitat degradation; the impact of noise; and even the consequences of whale watching and ecotourism. This is the task moving forward.
As described in my introduction to jurisdiction of the International Court of Justice (ICJ) in yesterday’s blog titled Nature of the Challenge & the Outcome, Australia based its application to the Court on the basis of each State’s optional declaration of compulsory jurisdiction. Japan asserted in its Counter-Memorial and during oral argument that the ICJ lacked jurisdiction to hear the case based on its interpretation of Australia’s optional declaration. Essentially, States can craft their declarations such that certain types of disputes are excluded from compulsory jurisdiction. And, pursuant to the principle of reciprocity, Japan can use Australia’s reservation to challenge jurisdiction since it only has to answer the claim if Australia has accepted the Court’s jurisdiction over the matter at hand. In short, if this claim came within Australia’s excluded type then Japan could properly assert that the Court is not entitled to adjudicate the dispute. So, what exactly does Australia’s declaration exclude? It reads:
“[A]ny dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.”
This reservation relates to the delimitation of the maritime zones memorialized and/or created in the United Nations Convention on the Law of the Sea, with delimitation referring to the determination of the limits of each zone when there are competing or overlapping claims (i.e., two adjacent or opposite States are geographically close enough that each cannot claim the full extent of various maritime zones without both claiming the same area). Such disputes are often settled through bi-lateral treaties or recourse to international dispute resolution, with the result being division of the contested area. Does this situation qualify? The ICJ decided that it did not, dismissing Japan’s argument.
At this point you might be wondering what maritime zone is potentially engaged since the dispute is occurring in the Southern Ocean around Antarctica. Good question! The treaty system that is in place in the Antarctic prevents novel claims for territorial sovereignty on the continent of Antarctica but remains neutral with respect to its impact upon pre-existing sovereignty claims. Australia made such a sovereignty claim in the 1950s prior to the current treaty system taking effect. Australia has also claimed an exclusive economic zone based on this pre-existing territorial claim. This claim has been hotly contested and opposed.
Japan interpreted Australia’s reservation such that the scientific whaling issue did relate to a disputed area (owing to the fact that Japan does not recognize Australia’s exclusive economic zone claim) that is sufficiently linked to exploitation of the whale resource through JARPA II in or adjacent to this disputed area. In considering this interpretation and coming to its conclusion on jurisdiction, the ICJ noted that the reservation requires a maritime delimitation dispute which simply does not exist in this situation (see paragraphs 38-40 of the Judgment). As such, Japan’s jurisdictional challenge was unsuccessful and the Court proceeded to adjudicate the claim.
Disputes between States can be brought before the International Court of Justice (ICJ)—the dispute resolution organ of the United Nations—in three ways. First, a treaty may expressly provide that disputes between States Parties, being those members of the treaty that have signed and ratified the treaty thereby creating binding legal obligations, shall be submitted to the Court for resolution. Second, States can agree to accpt the ICJ’s jurisdiction for a discrete issue through Special Agreement. Third, and pursuant to Article 36(2) of the ICJ's Statute, States “may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes” relating to: treaty interpretation; questions of international law; whether a fact exists that proves a breach of an international obligation; or the sort of reparation owed due to a breach of an international legal obligation. Sixty-nine States have made an optional declaration.
In the Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Australia utilized the third option and initiated its challenge by written application to the Registrar of the ICJ. This option was available because both Japan (in 2007) and Australia (in 2002) had made the requisite optional declarations accepting compulsory jurisdiction (see more here).
Australia’s Application asserts that the second phase of Japan’s Antarctic research program (JARPA II, as described in yesterday’s blog Setting the Scene) violates key provisions of the regulatory Schedule of the International Convention for the Regulation of Whaling (ICRW). Specifically, that JARPA II, as proposed and implemented, violates the Schedule’s prohibition on killing whales for commercial purposes found in paragraph 10(e) and the prohibition on commercial whaling in the Southern Ocean Sanctuary found in paragraph 7(b) (see paras. 35-36 of Australia’s Application). Australia’s written argument (called a Memorial) also sought relief for an alleged breach of paragraph 10(d) of the Schedule, which prohibits the use of “factory ships or whale catchers attached to factory ships” for killing/treating whales, excepting out the minke whale (see page 276 of Memorial).
At its core, argument and analysis into the allegations set out above would turn on a detailed assessment of Article VIII of the ICRW. Article VIII(1) provides that:
Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted. [emphasis added]
In short, this “special permit” potentially exempts lethal take from operation of the Schedule provisions described above so long as it is “for purposes of scientific research”. The national permits for minke, fin, and humpback whales that I described in yesterday's post were granted by the Japanese government to a not-for-profit research organization called the Institute for Cetacean Research, which further contracted out each annual take.
And the core issue emerges: are the permits issued for JARPA II “for the purposes of scientific research” and consequently exempt from operation of the Schedule? If Article VIII is not satisfied then Japan is exposed for Schedule breaches.
The ICJ ultimately declared that Japan violated the three paragraphs of the Schedule identified above and, owing to JARPA II’s ongoing status as a program, ordered that any existing permit be revoked and that it not be granted any other permits under Article VIII (para. 245 of the Judgment).
Starting tomorrow, I will explore certain key aspects of the decision in more detail.
On 31 March 2014, the International Court of Justice (ICJ) delivered its judgment in the case of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening). The decision comes nearly four years after Australia’s Application to the ICJ in May 2010. This decision is attracting considerable attention from the international community and popular media owing to the fact that whaling is a ‘hot-button’ animal welfare and international environmental law issue that has political, emotional, and cultural dimensions.
Whales have historically been valued as an important natural resource (think oil, meat/blubber, and 'whalebone'). Unfortunately, international regulation of this resource has proved ineffective for some time. After centuries of mismanagement, over-exploitation, and stock collapse resulting in species-switching (whereby industry shifted from species to species following depletion), the international community sought meaningful cooperative regulation through the 1930s and 1940s. After two failed agreements, the international community negotiated the International Convention for the Regulation of Whales (ICRW) in 1946 at an international conference convened by the United States of America. This whaling convention, which entered into force in 1948, currently has 88 Contracting Governments (i.e., States parties). Canada is not party to the ICRW.
The preamble to the ICRW indicates that the Contracting Governments seek to achieve “the proper conservation of whale stocks and thus make possible the orderly development of whaling”. This regime is implemented by the International Whaling Commission (IWC), which is “composed of one member from each Contracting Government” (Article III(1)). The ICRW purports to regulate whaling within all of the waters where whaling occurs (Article I(2)) and as a treaty, its development has been made possible by the creation and amendment of a regulatory Schedule that “forms an integral part” of the Convention. The large so-called ‘great whale’ species—including familiar species such as the blue whale, humpback whale, fin whale, minke whale, gray whale, bowhead whale, and right whale—are regulated by the ICRW/IWC regime pursuant to this Schedule. Importantly, the Schedule can be amended only by a vote of the IWC that carries a three-quarters majority (Article III(2)).
Despite the initial purpose of achieving a sustainable, orderly whaling industry, the Contracting Governments voted in favour of a temporary moratorium on commercial whaling in 1982 and this became effective in the 1986-87 whaling season when zero-catch quotas were set for the regulated species in paragraph 10(e) of the Schedule. This does not mean that all whaling stopped. Norway and Iceland continue to whale commercially by virtue of the fact that they opted out of this Schedule amendment as permitted by Article V(3) of the ICRW. Further, after Japan withdrew its initial objection to the commercial moratorium, it initiated a scientific whaling program called the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA), which began its second phase (JARPA II) in 2005-06. JARPA II witnessed the annual national issuance of permits to take, hunt and kill 850 minke whales (+/- 10%), 50 fin whales, and 50 humpback whales (no humpback whales have been killed owing to political pressure). This has attracted considerable attention owing to the belief held by some nations that this was commercial whaling disguised as science when commercial whaling and specifically commercial whaling within whaling sanctuaries—which the Southern Ocean is—are both prohibited (paragraph 7(b) of the Schedule).
With this background in mind, I plan to deliver an 8-10 part series that investigates important aspects of this whaling case, some of its implications, and its relevance in the Canadian context. I hope you can follow along!
Volokh and Blackman report on a teacher who forced her fourth grade student to pledge allegiance to the flag by grabbing his wrist and putting it over his heart. Oh, the buy was a Jehovah’s Witnesswhose religion doesn’t allow him to worship objects.
Problem is, as both bloggers point out, the law has been settled on this over sixty years ago in one of my favorite cases, West Virginia v. Barnette, in which the US Supreme Court held that the state could not compel kids to do so. Justice Jackson wrote his great (his greatest?) line:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
Sadly, in Canada, the answer is not clear. The proposed Quebec Charter could indeed have forced the boy to engage in the pledge (assuming Quebec comes up with one), and it is not clear under the holding in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, that such forced conduct would be unconstitutional.
From Headnote of the Day:
Where donor was not insolvent when creditor won judgment of $3,000 against him, but, rather, he owned hunting lodge stock and a home in Alaska, donation of large stuffed bear was not in fraud of judgment creditor's rights.
Pardue v. Turnage, 383 So. 2d 804 (La. Ct. App. 1980)