The legality and legitimacy of Japanese whaling - Part I
[Sorry for the continued silence, but thanks to Geoffrey Wandesforde-Smith for pitching in with this two-part book review!]
At the end of May, the New York Times along with other major news outlets around the world
reported that a new round of scientific whaling by Japan during the austral summer of 2017-18 yielded a catch of 333 minke whales, but that of this number 122 were pregnant females and 114 were considered immature individuals [1]. The news invited and perhaps stoked outrage, which history shows can be a powerful force shaping environmental law and policy.
Japan took the whales pursuant to a scientific research exemption to the moratorium on commercial whaling enacted by the International Whaling Commission (IWC) and effective in 1986 [2]. The first research program under which Japan continued whaling in the Antarctic despite and perhaps in defiance of the moratorium, a program known as JARPA-II, was found in a 2014 decision of the International Court of Justice not to meet the terms of the scientific research exemption allowed under the International Convention for the Regulation of Whaling [3].
Japan then developed a different scientific rationale for taking whales in the Antarctic, known as NEWREP-A. It’s unclear whether the lethal sampling authorized by the permit issued by the Japanese government to pursue NEWREP-A is necessary for Japan to realize what it claims under international law are its legitimate scientific objectives. But if that is not the case then presumably at some point, if it is appropriately challenged, NEWREP-A could be found to be as illegal as JARPA-II [4].
But underlying the persistent questions about whether Japanese whaling in the Antarctic is legal in some narrow sense, based on a close reading of the relevant international law, is a prior and much larger and much more profound question. It asks whether Japan’s Antarctic whaling is a legitimate continuation of what in 2002 the director-general of the Institute of Cetacean Research (ICR), the entity that is the chief proponent and enabler of continued Japanese whaling, told an international conference was “a tradition of whaling which (Japan) has built up over nine thousand years.” Japan, he said, has believed so firmly and for so long in the sustainable use of whales as a food resource that she could never give up such a deeply rooted and integral cultural tradition [5]. This line of argument did not persuade the IWC to grant Japan an aboriginal (subsistence) whaling exemption to the moratorium.
The theory, then, on which Japan rests its case is that more scientific research, undergirded by the lethal taking of whales, is needed to establish the sustainable level of whale harvest that would justify lifting the 1986 moratorium on commercial whaling. Since the rules for whaling under a scientific research exemption from the 1986 IWC moratorium do not allow lethally sampled whales to be wasted, ICR passes the meat left over, once data are collected from dead whales, to an associated company that then tries to sell the meat [6].
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At the end of May, the New York Times along with other major news outlets around the world
reported that a new round of scientific whaling by Japan during the austral summer of 2017-18 yielded a catch of 333 minke whales, but that of this number 122 were pregnant females and 114 were considered immature individuals [1]. The news invited and perhaps stoked outrage, which history shows can be a powerful force shaping environmental law and policy.
Japan took the whales pursuant to a scientific research exemption to the moratorium on commercial whaling enacted by the International Whaling Commission (IWC) and effective in 1986 [2]. The first research program under which Japan continued whaling in the Antarctic despite and perhaps in defiance of the moratorium, a program known as JARPA-II, was found in a 2014 decision of the International Court of Justice not to meet the terms of the scientific research exemption allowed under the International Convention for the Regulation of Whaling [3].Japan then developed a different scientific rationale for taking whales in the Antarctic, known as NEWREP-A. It’s unclear whether the lethal sampling authorized by the permit issued by the Japanese government to pursue NEWREP-A is necessary for Japan to realize what it claims under international law are its legitimate scientific objectives. But if that is not the case then presumably at some point, if it is appropriately challenged, NEWREP-A could be found to be as illegal as JARPA-II [4].
But underlying the persistent questions about whether Japanese whaling in the Antarctic is legal in some narrow sense, based on a close reading of the relevant international law, is a prior and much larger and much more profound question. It asks whether Japan’s Antarctic whaling is a legitimate continuation of what in 2002 the director-general of the Institute of Cetacean Research (ICR), the entity that is the chief proponent and enabler of continued Japanese whaling, told an international conference was “a tradition of whaling which (Japan) has built up over nine thousand years.” Japan, he said, has believed so firmly and for so long in the sustainable use of whales as a food resource that she could never give up such a deeply rooted and integral cultural tradition [5]. This line of argument did not persuade the IWC to grant Japan an aboriginal (subsistence) whaling exemption to the moratorium.
The theory, then, on which Japan rests its case is that more scientific research, undergirded by the lethal taking of whales, is needed to establish the sustainable level of whale harvest that would justify lifting the 1986 moratorium on commercial whaling. Since the rules for whaling under a scientific research exemption from the 1986 IWC moratorium do not allow lethally sampled whales to be wasted, ICR passes the meat left over, once data are collected from dead whales, to an associated company that then tries to sell the meat [6].
If the validity of a sustainable take were ever to be established beyond a reasonable scientific doubt, the theory further holds that Japan would be able to resume commercial whaling in conformity with the 1946 International Convention for the Regulation of Whaling, which entered into force in 1948. Perhaps other countries that have given up whaling since the 1986 moratorium went into effect would do the same, although most observers of the IWC would consider that very unlikely. If Japan’s theory is ever to translate into practice, then much obviously depends not only on the scientific validity of Japan’s NEWREP-A research program but also on the legitimacy of the claim that eating whale meat has become so integral to Japanese identity that its legal prohibition would constitute an unwarranted act of cultural discrimination and deprivation.
So, against this background, what is the real history of whaling in Japan? Is it first and foremost a story about the continuation of a centuries old cultural tradition? And how likely is it that the whaling Japan continues to do in the name of scientific research under IWC rules will validate a long-standing dedication to the sustainable use of whales for food?
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