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The Outro of the Whale Song – Japan’s Withdrawal from the ICRW

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


Kayla died. The 30-year-old killer whale living in captivity at SeaWorld Orlando died in March of this year. Living longer than any captive-born orca in history, her life-span was still cut short by potentially 50 years.[1]


However, the average life-span of a whale must now be considered in light of Japans whaling habits – the practice or industry of hunting and killing whales for their oil, meat, or whalebone.[2] Even when whaling was supposedly banned in 1987, Japan killed between 200 and 1,200 whales each year.[3] The controversial topic of whaling draws in a plethora of issues from ‘biodiversity considerations, to trade, the environment and the interpretations within the context of the law of treaties.’[4] Japans resumption of whaling is therefore an important, disputed issue within the international law sphere.


Today the International Convention for the Regulation of Whaling (ICRW)[5] is the principle international vehicle for the regulation of whaling. It’s aims include ‘the proper conservation of whale stocks’ and ‘the orderly development of the whaling industry’. This must be considered against a historical backdrop, characterised by excessive, unsustainable hunting, in order to fully understand why Japan is withdrawing from both the Convention and the International Whaling Commission.




The Background of Whaling and Legal Protections


Although deemed a fairly contemporary problem, the issues can be viewed as an extension of issues of pre-conventional whaling, beginning as early as 2200 BC[6]. This demonstrates that the complexity of the issues connected to whaling are not novel and such issues are not exclusively confined to the ICRW.[7] Underlying tensions caused by the desire of achieving the utmost financial gain have converted into issues relating to cultural diversity, animal rights and environmental ethics. Another shift is that many states who were actors in the exploitation of whales have changed their policy. For example, the UK has become very anti-whaling state and supports the EU’s general policy regarding whaling, whilst other states like Japan have remained among the main pro-whaling actors, mainly advocating for the right to cultural diversity.


The early period of whaling was distinguished through whaling from land stations. However, along with the development of new technology came the expansion of whaling operations between territorial waters, leading to a need for international agreement or at the least bilateral agreements between whaling States. The first of such agreements came in the form of permits from the British Colonial Office. Ships that were sailing in British territorial waters under British sovereignty required permits. Later, the need for regulation of whaling was highlighted by M. José Suarez who shared his observation - that the modern whaling industry was ‘rapidly exterminating the whale’ - with the League of Nations in 1925.[8] Following this States were prompted to conclude the two pre-Second World War Conventions – the 1931 Geneva Convention[9] and 1937 London Agreement.[10] Both conventions had little success and seem to have done ‘little more than rally the support of nations to the cause of conservation’ and merely ‘started the proverbial ball on its journey.’[11] Such ‘failure’ was largely due to the reluctance of states to adhere to a system of private quota agreements[12] and the limited scope of the Convention in terms of species it protected. Granted, it did, through Article 9, have wide jurisdictional scope over the marine territories to which it applied, extending over both territorial seas of state parties and high seas.


However, as a result of the succinct nature of the 1931 Convention in particular, bilateral agreements were concluded between whaling States. States like Japan and the UK were in favour of such. However, the differences between states proved irreconcilable[13], as states like the Netherlands and Norway vouched to refer the matter to the Economic Committee of the League of Nations and to examine alongside the Permanent Council for the Exploitation of the Sea. Therefore, it was recognised that both the Conventions and bilateral agreements failed to achieve their purpose. However, they did provide a legal framework for the future regulation of whaling which is seen in the modern legal developments.


The ICRW Today


Today, whaling is regulated under the ICRW. The Convention serves as a means towards achieving cooperation aimed at the conservation of whale stocks, referring to such creatures as ‘great natural resources’. It consists of the Convention itself, setting out the general regulatory scheme for the management of whales; a Commission, carefully managing the resources belonging to the whole world, thus contributing to ‘a more peaceful and happy future for mankind’[14]; and a Schedule, dealing with specific issues relating to conservation.


However, the Convention once again proved of little success – stocks were inadequately monitored and depletion continued. As a result, in 1982 the Commission introduced a complete ban on commercial whaling – known as the Moratorium. Intended to be temporary to allow stocks to recover, it is still in effect following all later attempts at finding an acceptable basis for a properly controlled resumption of whaling failing. Nonetheless substantial levels of whaling continue, on the alleged basis of other provisions of the ICRW and to some extent outside the direct purview of the IWC.

However, history repeats itself, and points such as the exception for aboriginal whaling and the authorisation for hunting whales for scientific purposes, still prove problematic in the Convention today. These forms of whaling have acquired special significance because they are excluded from the Moratorium, and hence have provided the possibility for certain nations to continue some whaling. Article VIII (1) of the ICRW, recognising ‘scientific’ whaling is excluded from the operation of the Convention, substantially reproduces the equivalent Article 10 from the 1937 Agreement. Countries such as Japan appear to have taken advantage of such exceptions, despite Japanese whaling researches arguing it is legitimate part of IWC framework.


Another weakness of the ICRW is the basic international enforcement mechanism – Article IX (1) provides that the main responsibility for the enforcement of the provisions of the Convention remains with the Parties to the Convention. This provision does not account for breaches of the Convention committed beyond the limits of national jurisdiction and there is no enforcement in relation to breaches of this Convention by a State in such situations the Commission has no jurisdiction.[15] Therefore, despite the ban, ‘legal’ whaling remains possible. As an international organisation based upon voluntary membership, the Commission has no authority to compel adherence to its policies by non-member states. Countries that have never joined the commission are not bound by its rules and member states who have left are equally free to whale – such as Japan.


In the absence of an internal enforcement mechanism, two forms of ad hoc external enforcement procedures seem to have developed. One is developed by US through introduction of certain statutory amendments (such as the 1971 Pelly Amendment to the Fishermen’s Protective Act of 1967 and 1979 Packwood-Magnuson Amendment), essentially establishing the US as some sort of overarching international body over whaling matters. The United States used these Acts to react against Japanese scientific whaling in 2000. The result of Japanese fisherman harvesting whales resulted in President Clinton not negotiating a new Governing International Fisheries Agreement with Japan.[16] Secondly, the presence of NGOs, like Greenpeace, Humane Society International and Sea Shepard, could provide degree of enforcement and have some influence on the decision making of the IWC.[17]

It is the ‘scientific whaling’ and the issue of a resumption of commercial whaling that underlie the state of conflict that currently exists in relation to Japanese whaling.


Japan’s Withdrawal from the ICRW


Interestingly, Japan did not sign the 1931 Convention despite other governments requesting them to ratify. Rather, they called such action premature, following that the Japanese whaling industry was in its infancy. They declared Japan would need time to further develop its whaling industry before subjecting it to international regulation. The nation did however ratify the ICRW in 1951 despite an active promotion of resuming and increasing Japanese whaling in order to address shortages of food and economic activity there after WW2. This marks a turning point in the ‘infantile industry’.


Despite ratification of the Convention, Japan seemed to take advantage of an exception that allowed whaling for scientific research. Taken to the extremes, boats often were painted with the word research, and displayed signs with statements such as ‘we’re collecting tissue samples’ next to whale carcasses on deck. Such actions, along with the piles of report presented by Japan’s Institute of Cetacean Research, failed to convince many in the international community that Japan’s ‘scientific’ whaling activities were being conducted in good faith. Though the moratorium by IWC entered into force in 1986, there has not been a single year in which Japan has not hunted any whales[18], claiming it was under scientific research. In a recent report, the Environmental Investigation Agency (EIA) and the Animal Welfare Institute said that Japan, Norway and Iceland have killed 38,539 whales since the moratorium took effect, with more than 22,000 killed by Japanese boats.[19]


However, in December 2018, the government of Japan announced the country’s departure from the IWC along with its intention to resume commercial whaling within its own commercial waters and exclusive economic zones, arguing that the IWC has failed to live up to its initial dual mandate in 1946 to find a balance between preserving whale stocks and allowing the ‘orderly development’ of the whaling industry. The Chief Cabinet Secretary, Yoshihide Suga, said ‘we have reached a decision that it is impossible in the IWC to seek the coexistence of states with different views’.


Member States expressed their disappointment with such decision, such as Australia’s government saying it regretted Japan’s resumption of an “outdated and unnecessary practice.” This follows from Australia taking Japan to court to determine the legality of Japan’s scientific whaling program JAPRA II. In 2014 the International Court of Justice ruled in favour of Australia, finding that the Japanese program was but a ‘smokescreen’ to fish for primarily economic reasons.[20] By leaving the International Whaling Commission but continuing to kill whales commercially, Japan now ‘becomes a pirate whaling nation killing these ocean leviathans completely outside the bounds of international law.’[21]

Clare Perry of the EIA said that history has demonstrated the need for global precautionary management of whale populations. By leaving the IWC, Japan rejects multilateralism whilst setting a very bad precedent for conservation, which will likely have very serious negative consequences for the world’s whales.[22] Further, when a nation chooses to support and regulate whaling unilaterally, rather than through established channels for cooperation, the strength and influence of those international channels are weakened. The scope of the Commissions influence is reduced but Japan is confined activity to its own waters. Some institutes, like the Animal Welfare Institute and the Sea Shepard Conservation Society, have expressed optimism that the restriction of Japanese whaling activities to Japanese costal waters would allow some of the more vulnerable whale populations in the North Pacific and Southern Ocean to recover.


Japan's withdrawal removes any international legal obstacles toward the establishment of an openly commercial whaling operation within Japans exclusive economic zone. However, Japan would be obliged to stop whaling if the moratorium had crystallised into customary international law. Only a handful of states out of the near ninety states party to the convention allow whaling within their costal waters, therefore serving as an indicator for the conviction of most states that whaling should be prohibited. However, there is still contrary state practice and opinio juris is difficult to discern.[23]


Another provision associated with whaling is Article 65 United Nations Convention on the Law of the Sea (UNCLOS)[24] which obliges states to cooperate with the appropriate international organisations for the conservation of cetaceans and whaling outside of Japanese waters would fall foul to such. The Convention requires that ratified states ‘work through the appropriate international organisations for the conservation, management and study’ of cetaceans on the high seas. Most UN member states consider the IWC to be the ‘only appropriate international organisation’ for such management. Therefore, Japan (having ratified the convention) has a duty to cooperate with and respect the rights of other countries and the IWC because hunting whales impacts the marine environment of other States. Professor Wold’s legal opinion finds that to fulfil such duties Japan must exchange information and consult with other countries and do so through the IWC. If not done correctly, countries would have the legal option to use the dispute settlement rules of UNCLOS to force Japan to comply.[25]


Therefore, it cannot be said though that the development of IL and international cooperation has been of no consequence to whaling[26] and Japan might have ‘ran away from the International Whaling Commission but its whaling can’t escape the reach of international law.’[27]


Alex Orr (International Law)


SOURCES

[1] Nationalgeographic.com. (2019). Orcas don’t do well in captivity. Here’s why.. [online] Available at: https://www.nationalgeographic.com/animals/2019/03/orcas-captivity-welfare/ [Accessed 1 Dec. 2019].


[2] Lexico Dictionaries | English. (2019). Whaling | Definition of Whaling by Lexico. [online] Available at: https://www.lexico.com/en/definition/whaling [Accessed 1 Dec. 2019].


[3] Iwc.int. (2019). Scientific Permit Whaling. [online] Available at: https://iwc.int/table_permit [Accessed 2 Dec. 2019].


[4] Fitzmaurice, M. (2015). Whaling and International Law. CUP.


[5] 1946 International Convention for the Regulation of Whaling, 161 UNTS 72


[6] Kobayashi L. (2006) Lifting the International Whaling Commission’s Moratorium on Commercial Whaling as the Most Effective Global Regulation of Whaling, Environs 29.


[7] Kurkpatrick D. (2014) Whales and Nations: Environmental Diplomacy on the High Seas. University of Washington Press.


[8] Whaling and International Law N.4


[9] 1931 Convention for the Regulation of Whaling, 155 LNTS 349


[10] 1937 International Agreement for the Regulation of Whaling, 190 LNTS 79


[11] Leonard, L, (1941) Recent Negotiations Toward the International Regulation of Whaling, American Journal of International Law 35, 90


[12] Tønnessen, J. N. and Johnsen, A. O. (1982) The History of Modern Whaling. Canberra: Australian National University Press


[13] Recent Negotiations Toward the International Regulation of Whaling N.11


[14] Whaling and International Law N.4


[15] Freeland, Steven and Drysdale, Julie (2005) Co-operation or Chaos? Article 65 of the United Nations Convention on the Law of the Sea and the Future of the International Whaling Commission, Macquarie Journal of International and Comparative Environmental Law 2, 1


[16] Sean P. Murphy, (2001) US Sanctions Against Japan for Whaling, AJIL 95


[17] Whaling and International Law N.4


[18] Scientific Permit Whaling. N.3


[19] Denyer, S. (2018). Japan to leave International Whaling Commission, resume commercial hunting. [online] The Washington Post. Available at: https://www.washingtonpost.com/world/japan-to-leave-international-whaling-commission-resume-commercial-hunt/2018/12/26/2c32fb20-08c9-11e9-892d-3373d7422f60_story.html? [Accessed 2 Dec. 2019].


[20] Icj-cij.org. (2019). Latest developments | Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) | International Court of Justice. [online] Available at: https://www.icj-cij.org/en/case/148 [Accessed 1 Dec. 2019].


[21] Whaling in the Antarctic. No 20


[22] Whaling in the Antarctic. No 20


[23] Third report on identification of customary international law (2015), International Law Commission


[24] 1982 United Nations Convention on the Law of the Sea (UNCLOS), 1833 UNTS 3


[25] Australian Marine Conservation Society. (2019). Japan’s commercial whale hunting risks international legal action, says new legal opinion - Australian Marine Conservation Society. [online] Available at: https://www.marineconservation.org.au/japans-commercial-whale-hunting-risks-international-legal-action-says-new-legal-opinion/ [Accessed 1 Dec. 2019].


[26] Watkins C, (2012) ‘Whaling in the Antarctic: Case Analysis and Suggestions for the Future of Antarctic Whaling and Stock Management’, New York International Law Review 25


[27] Whaling in the Antarctic. No. 26

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