Dr Sophia Kopela
The Japanese Prime Minister caused some concern on Monday last week when he told Parliament that he aimed ‘for the resumption of commercial whaling by conducting whaling research in order to obtain scientific data indispensable for the management of whale resources’. This comes less than three months after the International Court of Justice (ICJ) delivered its Judgment in the long-running dispute concerning Japan’s whaling activities in the Antarctic. In this case brought before the ICJ by Australia against Japan, the World Court found that the Japanese whale research programme in the Antarctic (known as JARPA II) was in breach of Japan’s obligations in international law, and ordered Japan to revoke the relevant permits and to refrain from the granting of further permits in pursuance of this programme (see my previous blog).
Scientific whaling is one of the two exceptions to the moratorium on commercial whaling adopted by the International Whaling Commission (IWC) in 1982 (the other exception being indigenous whaling). The ICJ clearly found that JARPA II was not for scientific purposes, and was thus in breach of Japan’s obligations not to engage in commercial whaling. Following the rather vague and politically-oriented comments by Shinzo Abe, it remains to be seen how the Japanese government will respond to the ICJ judgment and to international pressure related to commercial whaling.
Following the judgment of the ICJ, Japan announced the cancellation of JARPA II in the 2014/5 season. In the annual meeting of the Scientific Committee of the IWC in May, Japan announced its plans to initiate a new research programme in the Antarctic starting in the season 2015/16. The programme is to be reviewed by the Scientific Committee at its 2015 Annual Meeting.
The issue of lethal scientific research continues to divide the state parties to the IWC. A number of states have continuously raised their concerns and their opposition to this practice stressing the existence and effectiveness of non-lethal scientific research methods. The ICJ found that lethal scientific research may be justified in certain cases where non-lethal research cannot achieve certain scientific objectives. It however stressed that lethal scientific research needs to be clearly and explicitly justified in terms of the research objectives it purports to achieve especially when compared to non-lethal methods that can attain the same objectives.
These issues need to be borne in mind by Japan in the redesigning of any research whaling programme, and by other states interested in engaging in lethal scientific research. Interestingly enough, South Korea announced in 2012 in the IWC Annual Meeting its intention to conduct scientific research to gather biological and ecological data on minke whales off the Korean coast. The response to this announcement in the Scientific Committee was mixed, and most states expressed their concerns especially related to the potential impact on the minke stocks in the North Pacific. Under international pressure, South Korea decided to abandon its plans.
A further issue concerns Japan’s continuing research programme in the western North Pacific (known as JARPN II). This programme was not an issue under examination by the ICJ. However, following the ICJ Judgment, Japan announced that it had voluntarily reviewed and revised the programme especially related to its sample sizes during the 2014 season. This programme was discussed by the Scientific Committee of the IWC in May and it was recommended – in line with the reasoning of the ICJ judgment – that JARPN II should develop a more comprehensive document for review explaining sample sizes and justifying the utility of lethal versus non-lethal methods with respect to achieving its research objectives (See Report of the Scientific Committee, 2014, para. 17.3). Japan needs to ensure that any scientific research programme takes into consideration the analytical framework and standard of review adopted by the ICJ.
With respect to commercial whaling, Japan has tried for a number of years to reverse the moratorium on commercial whaling in the IWC. Resumption of commercial whaling has divided the IWC. Following the adoption of the moratorium, the Scientific Committee undertook a comprehensive review of the status of whale stocks, and developed a method for the calculation of sustainable catch limits for commercial whaling (Revised Management Procedure). This was intended to be part of the Revised Management Scheme (RMS) which would incorporate both scientific and non-scientific factors especially related to enforcement and inspection measures. Agreement could not be reached with respect to a number of important issues, such as effective inspection, catch verification, costs, whaling under special permit, whale sanctuaries and others (for an overview on the discussions in the IWC, see here and here). Due to the inability of states to reach an agreement on the RMS as a ‘package’ and the fundamental differences of views on whaling, the IWC has reached an impasse. Concerns have been raised regarding the future of the IWC, but various attempts for a compromise have failed.
In the IWC’s Meeting in 2012, Japan submitted a proposal for an exception to the moratorium for minke whales for Japanese small-type whaling vessels justified on socio-economic, cultural and traditional needs. This was rejected by the IWC with many countries raising their concerns regarding the conservation status of this stock and the impact of the resumption of commercial whaling. In the fore-mentioned meeting, Japan stated that it was under domestic pressure to ‘fundamentally review its approach to the IWC’, and clarified that it was considering its options especially withdrawing from the International Convention for the Regulation of Whaling (and possibly establishing a different international organisation) with the view to resuming commercial whaling. Japan can indeed withdraw from the ICRW and engage in commercial whaling outside this international agreement, or possibly rejoin it with a reservation on the moratorium (as Iceland did) – though it is unclear whether the latter would be accepted by the parties to the ICRW.
Japan should also consider the political impacts of such action. Following the adoption of the moratorium in 1982, Japan filed a formal objection which would have allowed it to continue commercial whaling while remaining a party to the ICRW (as Norway did – for a list of commercial catches since the establishment of the moratorium see). Political pressure, especially in the form of elimination of fishing licences in the US Exclusive Economic Zone, forced Japan to withdraw its objection in 1986. Should Japan decide to unilaterally resume commercial whaling, it may face similar challenges, and it is doubtful whether such action would be in its best interests.
Dr Sophia Kopela is a lecturer in law at Lancaster University Law School. Her specialisation lies in international law of the sea, international environmental law and public international law. She has contributed articles and papers in international journals and conferences. She is the author of Dependent archipelagos in the law of the sea (Martinus Nijhoff/Brill, 2013)
You can find out more about Sophia’s research at http://www.lancaster.ac.uk/fass/law/profiles/sophia-kopela