Japan's Whaling Plans Risk Int'l Trade Pushback

Author:Mr Timothy G. Nelson
Profession:Skadden, Arps, Slate, Meagher & Flom (UK) LLP

In late December 2018, Japan announced that it was withdrawing from the International Whaling Commission, and would "resume commercial whaling" from July 2019.1 On its face, the announcement seemed to defy the last half-century's trend of international opinion strongly disfavoring whale hunting. Indeed, the withdrawal from the IWC meant Japan would no longer be bound by the IWC's longstanding moratorium on whaling.

Japan's announcement contained an important caveat, however. According to its spokesman, once it withdraws from the IWC, it will "cease the take of whales in the Antarctic Ocean/the Southern Hemisphere," meaning that its whaling would be limited to its own territorial waters.2 This means that the most controversial activity by Japan's whaling fleet — the hunting of minke and humpback whales in the Southern Ocean — may actually stop. If so, then some credit may be due to the last decade's international litigation efforts.

The IWC Ban on Commercial Whaling

Although there exists today a treaty framework for the protection of whales, it did not originate with an anti-whaling treaty. Rather, in 1946, a number of states entered the International Convention for the Regulation of Whaling, for the stated purpose (among other things) of "establish[ing] a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stock[.]"3

The organization created by this treaty, the IWC, was set up as a governing body. Although some of its goals were environmental (e.g. the "conservation" of whale stock would involve establishing catch quotas to limit hunting of whales), the Whaling Convention had many of the features of an industry regulation agreement.

Before long, however, the IWC faced calls to end whaling altogether — not least because certain whale species were becoming gravely endangered. Meanwhile, and despite the greatly increased capacity and lethality of whaling vessels (which, of course, contributed to the species endangerment), whaling's utility had become questionable. In its heyday, whaling had generated byproducts such as whale oil, which had been used for fuel. Modern fuels had rendered this totally obsolete.

Only in a few places was whale meat used as food, and with one notable exception, these were largely aboriginal communities. Moreover, the postwar years brought a heightened understanding of how intelligent whales are; this introduced a new ethical dimension to the debate (and set it apart from fishing).

In the same period, several countries (including the United States) banned whaling in their own waters.4 Under the auspices of the IWC, however, whaling in international waters continued to be permitted, albeit with reduced quotas as time went on. Only in 1982 was its "industry" function totally eclipsed: The IWC enacted a complete moratorium (or "zero catch" limit) on commercial whaling, effective in 1986.

The "Scientific Research" Exception Leads to Clashes in the Antarctic

The IWC's ban, in its original form, was far from watertight. To begin with, the IWC itself lacked the practical means to enforce its own measures. Furthermore, the drafting of the Whaling Convention meant that states could suspend the zero-catch limit by the simple expedient of objecting.

Japan (a country where whale meat was eaten) initially objected, thus allowing its commercial whaling fleet to operate in international waters. This gap was closed in 1984, when the United States government persuaded Japan to agree to drop all objections to the IWC zero-catch limit and discontinue "commercial whaling" by 1988.5 But the cessation of "commercial" whaling only served to reveal another gap in the regulatory system.

Under Article VIII of the Whaling Convention, states remained free to grant "permits" to their own nationals "for purposes of scientific research," subject only to such conditions as a contracting state may impose (and regardless of the IWC's catch limit). In 1987, the Japanese government, purportedly acting under this exemption, enacted "Japan's Whaling Research Program Under Special Permit in the Antarctic," or JARPA, providing for the continued hunting of whales in the Southern Ocean for "scientific research" purposes.

The Southern Ocean is a key ecosystem for blue, minke, humpback and right whales, to name a few of the affected...

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