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As Japan launches its new whaling programme, is the fleet sailing into new legal jeopardy?

Seemingly driven by spurious nationalistic pride and despite their failure to gain the support of the International Whaling Commission (IWC) and, in contempt of the International Court of Justice (ICJ), Japan’s Antarctic whaling fleet is leaving its homeport today, December 1st.

But the fleet may not simply be sailing into the choppy waters of the Southern Ocean Sanctuary in search of 333 minke whales (an increase on the number it has actually killed in the last few years), but it may also be sailing into a legal minefield.

In a recent attempt to circumvent the ICJ and the IWC, Japan announced in October 2015 that it would withdraw from the jurisdiction of the United Nations highest court, the ICJ, with respect to issues of ‘living resources of the sea’. In so doing Japan committed itself to seeking to use the dispute settlement provisions of the United Nations Law of the Sea (UNCLoS). However, Japan’s whalers, in their contempt for the rule of law, may have walked itself into a legal trap if its own making.

Article 118 of UNCLoS details its requirements on the “Cooperation of States in the conservation and management of living resources“. It lays out that,“States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas.”

Since the landmark 2014 ICJ ruling that declared the hunts illegal, the IWC has been absorbing the ICJ’s guidance into its own internal procedures to enable it to evaluate new so-called ‘scientific whaling’ proposals. The IWC is seeking to ensure that it is the arbitrator of the ‘merits or otherwise’ of any future scientific whaling proposal and not simply the whaling states. However, this very necessary legal procedure has not yet been completed but Japan has unilaterally sought to disregard the IWC and the international community by launching its fleet today.

In rejecting the IWC current good faith discussions on how to adopt the ICJ ruling, member states would be fully within their rights to use the UNCLoS provisions to challenge Japan that its whaling is illegal on the grounds that Japan has actively failed to ‘cooperate’ in the ‘conservation and management for living resources’.

In hoping that the world would be distracted by the global discussions on climate change and their Christmas shopping, the arrogance of Japan’s whalers may well harvest the full weight of the world’s anger at their continued intransigence

Furthermore, the fact that Japan’s vested interests are dictating foreign policy rather than following rational political analysis in their choice to flout the rule of law, is threatening Japan’s legal position in any future potential disputes. Indeed, why should any regional nation engaged in any current, or future, dispute with Japan, not simply cite Japan’s abdication of the rule of law.

Even the United States, concerned at others’ regional hegemonic ambitions may not be willing to see such a precedent being created for the sake of the nationalism of a few Japanese civil servants. “WDC Is calling on all the conservation-led countries to not let this affront to international law go ‘unchallenged’. They must use all political and legal means to bring Japan back into the fold of international law and end their whaling once and for all”, said Chris Butler-Stroud, CEO WDC.

WDC believes the proposal to be flawed on a number of grounds.

1. The proposal is unscientific

Since the ICJ ruling Japan has issued itself a new permit under Article VIII of the International Convention for the Regulation of Whaling (ICRW). The new permit, called NEWREP-A, (New Scientific Whale Research Program in the Antarctic Ocean)focuses on minke whales and aims to kill 333 of this species annually over a 12-year programme scheduled to run 2015-2027. 

In 2015, specially convened expert panels, meeting in Tokyo and the Scientific Committee of the IWC have both said that Japan’s proposal does not make a scientific case for the killing of whales for research. Despite this scientific critique, Japan is ploughing on with its proposal

2. More whales will die

Whilst, at first sight, this new proposal seems to contemplate considerably fewer whales than the 850 (+/- 10%) minke whales targeted under JARPA II, the fact is that in recent years Japan hasn’t caught more than 300 minke whales per year, so the quota envisaged in NEWREP would actually mean an increase in minke whales killed!

In addition, the programme seeks to further expand Japan’s already massive whaling territory in Antarctic waters and will overlap with the Southern Ocean Whale Sanctuary, an area covering 50 million square kilometres where commercial whaling was banned by the International Whaling Commission (IWC) in 1994.

3. Its whaling may well be illegal. Japan has chosen to repudiate the jurisdiction of the IWC and ICJ

In 2014, the IWC passed a resolution that sought to bring ‘scientific whaling’ under the control of the IWC.

The resolution noted that taking into account the [ICJ] Court’s expectation that, ‘in the evaluation of the possibility of granting any future permits under Article VIII paragraph 1, account will be taken of the reasoning and conclusions contained in the judgment’ [paragraph 246 of judgment], that with respect to any future permits being issued by any IWC member state, that,

a)     ‘the Scientific Committee has reviewed the research programme to enable it to provide advice to the Commission in accordance with the instructions above; and,

b)     the Commission has considered the report of the Scientific Committee and assessed whether the proponent of the special permit programme has acted in accordance with the review process described above; 

c)     the Commission has, in accordance with Article VI, made such recommendations on the merits or otherwise of the special permit programme as it sees fit’

Thus, the IWC Member States have agreed to a process by which the Commission would decide on the merits of any such future ‘scientific whaling’ proposal.

Whilst the IWC has asked its Scientific Committee to begin reviewing its internal procedures for evaluating future permits, the countries of the IWC have yet to formally receive the Scientific Committee’s recommendations and decide how it will proceed to create a procedure to evaluate the ‘merits or otherwise of the special permit programme’.

By issuing NEWREP-A, the Japanese government has thus ignored the voice of science and has acted directly in opposition to those IWC process by which it had agreed its whaling should be regulated.

By default, Japan has also chosen to ignore the judgment and the authority of the International Court of Justice. Whilst Japan has chosen to now opt out of the ICJ’s jurisdiction with regard to whaling, it is still bound by the 2014 judgement and cannot seek to unshackle its responsibilities with a flick of the pen.

In October 2015 Japan withdrew from the jurisdiction of the ICJ on issues of ‘living resources of the sea.  In its statement Japan says the court’s jurisdiction “does not apply to … any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea”.’

In a Japanese Ministry of Fisheries website statement, Japan appears to be arguing that any future dispute should be dealt with through the UNCLOS mediation and dispute settlement process. Japan states “it is more appropriate, as long as there is no special agreement, to apply dispute settlement procedure under the UNCLOS that establishes provisions regarding living resources of the sea as well as the involvement of experts from the scientific or technical perspective when an international dispute arises with respect to research on, or conservation, management or exploitation of, living resources of the sea.”

Part XV of UNCLOS deals with the settlement of disputes concerning the interpretation or application of the Convention. When parties are unable to settle a dispute by negotiation, conciliation or other peaceful means, the Convention provides for compulsory dispute settlement. Article 287 sets out a choice of compulsory dispute settlement procedures, (i) International Tribunal for the Law of the Sea (ITLOS); (ii) the International Court of Justice (ICJ); (c) an Annex VII arbitral tribunal or (d) an Annex VIII special arbitral tribunal for specific categories of disputes. However, parties have to agree to the actual method of arbitration, and if they do not, results in an Annex VII arbitral tribunal which consists of five members and is free to determine its own procedure, unless the parties agree otherwise. Japan may have thought that Annex VII arbitration thus offers greater flexibility than dispute settlement bodies with fixed rules of procedure such as the ICJ.

However, Japan, in its contempt for the IWC and ICJ, may have walked itself into a trap if its own making.

Article 118 of UNCLoS details its position on the “Cooperation of States in the conservation and management of living resources“

It lays out that,

“States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas…”

In rejecting the IWC current good faith discussions on how to adopt the ICJ ruling, member states would be fully within their rights to challenge Japan within UNCLoS that its whaling is illegal on the grounds that Japan has failed to ‘cooperate’ in the ‘conservation and management for living resources’.

[<a href=”//” target=”_blank”>View the story “Japan’s whaling on trial” on Storify</a>]