kitagawa senior thesis

7/29/2019 Kitagawa Senior Thesis

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Japanese Whaling and International Law

KITAGAWA, Mami

091465

March, 2009


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A Thesis presented to the Faculty of

the International Christian University

for the Baccalaureate Degree

by

KITAGAWA, Mami

091465

March, 2009

Approved by ________________________

Professor SCHOENBAUM, Thomas J.

Thesis Advisor


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TABLE OF CONTENTS

Introduction:General feature of the whaling issue 1

Chapter One: Background of Whaling disputes 4

1. Science of Whales

2. International Understanding of Whales

3. The History of Whales in the World

4. The History of Whaling in Japan

Chapter Two: Japanese Whaling and International Law 14

1. International Laws Concerning Whales

2. The International Convention for the Regulation of Whaling

3. Convention on International Trade in Endangered Species of Wild Fauna and Flora

Chapter Three: Japanese Whaling Policy and Three Scenarios of Future Whaling33

1. Japanese Whaling Policy

2. Three Scenarios of Future Whaling

Conclusion43

Chronology of Whaling 45

Annex

Bibliography47

Japanese Abstract50


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ACKOWLEDGMETS

I wish to thanks those individuals, whose support and encouragement contributed to the

fulfillment of this report.

I wish to thank Professor Schoenbaum Tomas for being the advisor of this senior thesis,

and gave me comments and opinions.

I wish to thank Professor Komatsu Masayuki for giving me opinions and resources, and

introducing me to the Institute of Cetacean Research.

I thank the Institute of Cetacean Research especially Mr. Iino Yasuo for giving me a lot of

data and technical opinions.

I thank my friends Courtney, Lilla, Koichi, Maria, Elise for giving me opinions and

comments.


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INTRODUCTION

General Features of the Whaling Issue

Although it is only a minor issue to most people in the world, whaling is one of the most

controversial topics among international environmental issues. The main debate of the

whaling issue is whether or notwe humans should keep exploiting whales. Some peopleadvocate the complete prohibition of whaling, based on the argument that whales are

endangered marine animals. Among whale advocates, are nations such as the United States

andAustralia, and NGOs such asGreenpeace. In the other side of the issue, countries likeJapan and Norway favor hunting them, mainly as a food source. They claim that

commercial whaling is a necessity that could be fairly and legally regulated. Mostcynically, these countries are often portrayed as environmentallycruel by protectionists,although their actions are not violating any international law. The means for the regulation

of whaling have been disputed for two decades, but the opposing sides have not reached an

agreement.

This paper will focus on the legal analysis and the Japanese policy of whaling. Since the

whaling issue should be an unfamiliar topic to a lot of readers, the first chapter will present

the basic facts about whales, from scientific to historical aspects. In the second chapter,

international law and international organizations concerning the management of whaling

will be analyzed. It is important to understand how Japan interprets the international laws

and justifies its activities, with methodssuch as the scientific research of whaling. In thethird chapter, this paper will take a look at the Japanese whaling policy and propose

management scenarios which may end the stagnation at the discussion table. Officialstatements of the Japanese government and the legal framework of the domestic fishery


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industry will be the main sources for the analysis of the Japanese policy. Becauseinternational conferences have never come up with an absolute decision for the means of

whaling management, possible whaling policies will be formulated in order to enable

Japanese government to participate conferences more actively.

Chapter one aims at the understanding of whales and theirhistory with human beings.People generally have an ambiguous image of whales. A lot of people misunderstand that

all whales are in danger of extinction. Next, the range of the International Whaling

Committee's (IWC)jurisdiction over whales will be defined.It is also important to present

an overview of the history of their exploitation to construct their past. The explanation will

be divided into two parts: the whaling history of the world and of Japan. Basic background

knowledge will clarify this complicated issue of whaling.

Chapter two will focus on the legal structure of the whaling issue and the response of

the Japanese government. First, it will address most international laws related to whales

and whaling, and then introduce the structure of the International Convention for the

Regulation of Whaling (the ICRW) and the IWC which arethe main international law-makingorganizations for this issue. Then, it will analyze the nature of controversialspecial permits which enables countries to conduct scientific research and the aboriginal

subsistence whaling under the current moratorium of the commercial whaling. Finally,

chapter two will introduce the Convention on International Trade in Endangered Species of

Wild Fauna and Flora (the CITES).1 From a personal point of view, the effectiveness of

these international laws seems to be the key to solving the issue.

Chapter three will analyze the current Japanese policy of whaling and present three

future scenarios for resolution of the whaling issue. Japan persists to protect the whaling

1 Convention on International Trade in Endangered Species of Wild Fauna and Flora, [hereafterCITES]

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industry, but its purpose and system is controversial and ambiguous. Although it is obvious

that the Japanese government holds a long term policy of supporting the whale industry,

whale cuisines popularity has decreased in modern Japan, and the whale meat industry is

also in decline. Hence, the Japanese government is left with the dilemma that entails the

decline of the consumption of whale meat and the governmental policy of its supply. (See

Figure 1)2To clarify the Japanese whaling policy, this chapter will address people,structures and the legal system of the whaling industry. Possible solutions for the IWC and

the Japanese whaling will be addressedby providing three scenarios: (1) continuing thecurrent moratorium scheme; (2)declaring a complete ban on commercial whaling; and (3)Permitting limited commercial whaling. Japan needs to be prepared for all these

conditions, in a way that it willboth gain profits and contribute to the internationalcommunity.

Although whaling is not as major aninternational environmental issue as globalwarming and pollution, it surely illustratesthe character and the role of international law,since it is a typical environmental issue concerning the management of living resources.

This essay aims at the understanding the challenges of the whaling issue so that it can

contribute to the creation of a practical management scheme. In addition, analyzing and

solving the challenges of Japanese whaling policyregarding its legal structure will notonly result inpossible solutions of the whaling issue, but also contribute to otherenvironmental issues, given that they often have similarmanagement problems incommon. The construction of a successful management scheme forthe whaling issuecould be a leading example for problems inother environmental fields.

2 Figure 1: Annual meat consumption by Japanese, copied from Asahi shinbun, April 2008

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CHAPTER ONE

Background of Whaling Disputes

Learning about whales is important for the discussion of whaling, since it is the first

step to know what exactly we are discussing. The general lack of understanding and

knowledge surrounding the topic makes the dispute complicated. Each kind of whale has a

different habitat and history. In this chapter, there are two main aspects to be covered,

namely scientific and historical. The scientific viewpoint will cover the biological data and

the explanation of the range of the jurisdiction of the IWC. The historical viewpoint will

cover world whaling history and, more specifically, Japanese whaling history. After

completing this chapter, the reader will have attained a basic knowledge of the whales as

well as the historical background of the dispute.

Science of whales

Under the cetacean order, there are 86 species of whales, including dolphins and

porpoises. The order is divided into two suborders, which distinguishes baleen whales and

tooth whales. Whales with the baleen in their mouths are under the suborder Mysticeti, or

baleen whales. Baleen whales swallow their food with the sea water and strain food

through the baleen. Those with teeth are under suborder Odontoceti, which includes

toothed whales, dolphins and porpoises. The IWC Scientific Committee recognizes 14

species of baleen whales and 72 species of toothed whales.

3

(See Picture 1)

4

Researchers have been conducted separate investigations on each kind of whale since

they all have different habitat, populations, and the eating habits. Most importantly, some

whales are seriously in danger of extinction, while others are still thriving. The ecology of

3 As of November 2008. The International Whaling Commission, http://www.iwcoffice.org/index.htm4 Picture 1: whales in the world. The picture was edited by the author from the attached picture of

whales in Komatsu, Masayuki.Kujira sono Rekishi to Kagaku. Tokyo: Gomashobou, 2003, with the

permission of Komatsu. The number of the species of whales is different of recognition by the IWC ,

but this is due to the recent reclassifications. Recent achievements in genetic research added newspecies.


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whales is more intricate than ordinary people think, rendering the common protest of

save the whale5 rather meaningless in its generalized, species-unspecified form. The

IWC categorizes 13 species as great whales, while the rest are called small whales. The

chart of Nomenclature of Whales annexed to the Final Act shows 13 great whales; Blue

whale, Fin whale, Sei whale, Humpback whale, Minke whale(Common minke whale,

Atlantic minke whale, Dwarf mink whale), Bryde's whale, Sperm whale, Gray whale,

Pygmy right whale, Right whale, Bowhead whale, Southern bottlenose whale, and

Northern bottlenose whale. 6 As can be seen from Picture 1, those great species are the

bigger whales listed on the upper part. It can be said that many of those whales need

special attention for the conservation, since they have been in danger of extinction after the

overfishing period. Whalers used to hunt bigger whales, especially ones which are easier to

be caught and then moved to smaller ones as the larger whales' population fell. A brief

explanation of the key species of great whales will be given bellow;

The Blue whale is the biggest mammal on the earth, with a length as long as 30 meters. It

belongs to the baleen whale group, and is one of the most endangered species. In other

words, it was the prime target of whaling7 during the modern whaling era because of its

size. The current population in the Northern Hemisphere is approximately 2000, and there

are less than 1000 in the Southern Hemisphere8.

The Right whale belongs to the baleen whale group, which grows up to 18 meters. The

origin of the name came from whalers calling them "right whales" because they were the

right ones to be easily hunted, as they move slowly, float when killed, and often swim near

5 Save the whale movement started in the US in 1970s. Whales were perceived as victims of industrial

developments.Komatsu, Masayuki. The History and Science of Whales. (Tokyo: The Japan Times),

2004.6 The number of great whales has increased due to the reclassification. The the chart of Nomenclature of

Whales annexed to the Final Act lists 13 species, but the names in the parentheses are newly added

species. Great species are relatively bigger species. Those species are on the top part of picture 1;

whales in the world7 Komatsu, Masayuki. The History and Science of Whales (Tokyo: The Japan Times, 2004).8 Ogino Michiru,Kujirano shitai ha kaku kataru (Tokyo: Koudansha, 2005), 16.

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the shore.

The Sperm whale is the largest toothed whale with its length about 15 to 18 meters.9

Sperm whales are usually found in schools. In its large head there is spermaceti, or milky

waxy subsistence. Spermaceti helps the whale to dive by adjusting its buoyancy. When a

sperm whale dives, cold water flows around spermaceti, and solidifies it. The increase of

the density around the head makes it heavier in the water that allows the Sperm whale to

swim downwards into the ocean with greater ease. People first thought that the milky

subsistence was sperm, which gave the whale his current name.

The Minke whale is the smallest baleen whale, with its length about 8 meters. Japan is

conducting its scientific research10 mainly on this species and it recognizes that the

population level is high enough to be deemed abundant.11 It has recently been proved that

the species actually consists of two species, which are the Common minke whale and

Antarctic minke whale.12 The result of Japanese scientific research further classify them

into two species and two suborders, which are Antarctic minke whale, North Atlantic

common minke whale, North Pacific common minke whale, and Dwarf minke whale.(See

Picture 2)13

International Understanding of Whales

The range of the IWC's jurisdiction over whales has not been agreed upon among states.

They discuss whether the IWC's jurisdiction is only on great whales or the jurisdiction

should be applied to all species of whales. This misunderstanding has occurred because the

ICRW did not sufficiently define the term whales. The preamble of the ICRW states;

9 The length is of male Sperm whales.10 The detail of scientific research will be explained in the next chapter.11 IWC1991;1992;199612

This is recognized by IWC.13 Picture 2; Analysis of Minke whales, copied from JARPA second edition. Institute of Cetacean

Research

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... CONSIDERING that the history of whaling has seen over-fishing of one area after

another and of one species of whale after another to such a degree that it is essential to

protect all species of whales from further over-fishing. 14 [Emphasis added]

It seems that the IWC's jurisdiction covers all species, or 86 species if applied to the

current number, from reading the preamble. Thus, those who oppose whaling claim that the

IWC has the authority to protect every species in the cetacean order. On the other hand, it

can be also read that the IWC's jurisdiction only applies to the 13 great whales because

they are listed on the chart of Nomenclature of Whales annexed to the Final Act. Thus,

those who want to keep hunting some species of whales claim that the IWC does not have

the legal competence to regulate catches15 of small cetaceans, and thereby additionally

claim that the management should be set separately. Currently, the IWC seems to be

avoiding this debate and it does not set regulations for small cetacean management.16

However, the IWC promotes the cooperation between the coastal and range states to

conserve and manage these species and addresses matters of the conservation of small

cetacean species at its annual meetings.17

Whale studies have two main parts: a mastery of biological facts, as well as the reaching

of an international understanding. Due to the recent technological developments, we know

much more about whale biology. However, there are still many things that we do not

understand about whales, and the international understanding is far from being reached.

Thus, discussions of whaling require constantly updated data and information.

14 International Convention for the Regulation of Whaling, Washington, 2nd December, 1946, Emphasis

added on all species of whales

15 See the International Whaling Commission http://www.iwcoffice.org/index.htm16 Ibid.17 Ibid.

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The History of Whaling in the World

When explaining the history of a marine species which has been consumed by human

beings, we must first start with a description of the exploitation process. In general, the

graphs of the amount of fisheries catch shapes convex. The top of the curve of the course

represents the maximum amount of the catch, followed by a period of over exploitation

(See Figure 3).18 The graph of the fishery catch amount created by Daniel Pauly is divided

into five statuses: under-developed, developing, fully exploited, overexploited, and

crashed.

According to Pauly's definition, the catch amount is low in the first stage, because the

industry has not yet been developed. In the second stage, the industry is developed with

new technologies and equipments, thus the amount of catch increases. In the third stage,

the amount of the catch reaches the maximum, and the decline of the stock starts. In the

fourth stage, overfishing is conducted while the stock keeps decreasing. In the fifth stage,

the industry collapses and the amount of the stock remains low.

Actually, Pauly's definition of fishery depletion has many useful academic applications.

For example, the graph of worldwide catches of whales results in a similar shape to his

model (See Figure 2).19 Thus, the history of whaling in the world can be also divided into

five stages for the explanation. (See Chronology of whaling)

The first stage of whaling in the world begins in the prehistoric era in the Bering Sea.

According to pictures in caves, only small whales were hunted at that time. Then, in the

eleventh century, the Basque tribe, a European tribe located around France and Spain,

started commercial hunts of Right whales in the Bay of Biscay. They were catching whales

18 Figure 3; Time series of the composition of global marine fisheries catch according to the status ofthe stocks making up that catch, 1950. This graph was inserted in Daniel Pauly, The Sea Around Us

Project: Documenting and Communication Global Fisheries Impacts on Marine Ecosystems,

AMBIO: a journal of the Human Environment34(4): 2007. It is a generalized trend of fishery stocks

which includes predictive data.19

Figure 2; Worldwide catches of whales by species, 1909-84, cited from Joe Roman, Whale. (London:Reaktion Books, 2004), 143. cf. The decline in catches in the early 1940s was the result of World

War II(ibid, 143).

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mainly for the production of whale oil. Since the scale of commercial hunting was

relatively small due to the underdevelopment of the technology at the time, it can be said

that the industry was not large enough to threaten the population of whales.

In the second stage, the amount of hunting increased as technology developed. In the

seventeenth century, whalers began to use bigger ships and hunted in bigger areas. In 1712,

American commercial whaling started in search of Sperm whales. In 1868, the Norwegian

invented explosive harpoon cannons. The hunting area was still limited to the coastal sea

during the second stage.

The third stage takes place in the early twentieth century, marked by the highest catch

numbers and the sharp decline of the population of whales. Spurred on by technological

advances as well as the ever-depleting whale population in the coastal area, whalers

launched more and more ships into the Antarctic to hunt whales. A lot of countries

including England, France, Germany and the United States conducted whaling in the

Antarctic to provide the whale oil. In response to the need of a regulation and the concern

of draining resources, regional agreements and conventions for the conservation of whales

began to be taken into consideration.

In the fourth stage, starting around 1930s, a lot of whaling nations began to be

concerned with the decrease of the whale stocks. For example, the United States stopped

whaling in 1940. After several meetings and conventions, the International Convention for

the Regulation of Whaling (the ICRW) was agreed in 1946, and the International Whaling

Commission (the IWC) was organized under the convention. At this moment, however,

countries were still seeking to manage whale stocks, rather than focusing on the

conservation of the species. This can be surmised from the utilization of the Blue Whale

Unit (BWU), or the regulation system the IWC used since its foundation until 1959. The

BWU was based on the amount of the whale oil gleanable from various species of whales:

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1 BWU is equivalent to one Blue whale, two Fin whales, or two and half Humpback

whales. Member states could hunt any whales until they reach 16,000 total BWU in the

world. In fact, the BWU system was not designed to protect of the whale stock so much as

prevent the saturation of the whale market.20 Thus, whaling countries raced for hunting,

which led to a further decline of the population of those whales on the contrary to the

initial intention. Thus in this stage, it can be said that countries lacked a serious

consideration for the risks of extinction.

The fifth stage, which continues to the present day, began in 1982, when the

moratorium of the commercial whaling was implemented due to strong anti-whaling

opinions. The IWC decided the temporary ban of hunting great whales for commercial

purposes.21 The goal of the ICRW has also changed from the management of whale stocks

to the protection of whales.22 A lot of people in the world, including environmental NGOs,

began to consider whales as endangered species. In fact, there have been 'save the whale'

movement in many countries to this day. In 1994, Antarctic Sanctuary was adopted to ban

the hunting of whales in the Antarctic regardless of the condition of the stock. Japan

objects to this decision only in the specific case of the Antarctic minke whale. 23

The sad history of whaling can largely be traced to the development of technology and

the lack of the scientific knowledge. Human beings, through organizations like the IWC,

are now accounting responsibility for and working towards rehabilitating the condition of

whales world-wide.

20 Komatsu, Masayuki. Yokuwakaru Kujira ronsou. (Tokyo: Seizando, 2006).21 Moratorium of the commercial whaling is defined on the Schedule to the ICRW 10.(e)(d)22 The detail of the norm change will be discussed in Chapter two.

23 The Antarctic Sanctuary does not have effect now since the moratorium of commercial whaling alreadyprohibits hunt in Antarctic. Thus, Antarctic Sanctuary is a preventive method in case of the end of themoratorium.

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The History of Whaling in Japan

Currently, the Japanese government seems to be emphasizing the historical and cultural

perspectives of Japanese whaling. The Institute of Cetacean Research24, which is the main

government-supported domestic organization of the research of whales, states that whaling

is a traditional culture.25 Some scholars agree that Japan has deep cultural ties with whales

and whaling.26 The relationships between the animal and the Japanese are not limited to

whaling, but also includes whales as tools for fisheries, as religious objects, and whale

watching in recent years. It is part of the Japanese claim that Japan uses whales without

wasting any parts. Historically, the Japanese eat the flesh, use the oil for soap and lamps,

the bones for fertilizer, and the baleen for fans (See Picture 3)27.

The whale industry in Japan has also gone through five stages of overfishing.28 The first

stage dates back to the Neolithic prehistory. Whale and dolphin bones were found from the

Jomon period(B.C.10.000~B.C. 4) in several places in Japan. Since they did not have

methods to hunt whales, they simply got small species and dolphins that had become

beached.29 This way of catching whale is called passive whaling 30compared to the active

whaling as later conducted. Thus, the whaling in this period was conducted in limited

areas. Then, whaling with harpoons started around the sixteenth century, followed by the

start of net whaling. Kujira-gumi, or special whaling units, were formed in Taiji area in

Wakayama prefecture, around 1606 to hunt whales more efficiently. It can be said that

Kujira-gumi represents the beginning of the whaling as an industry. At this time, whale

24 The Institute of Cetacean Research locates in Tokyo, since1941. It is entrusted to conduct ScientificResearch by the Japanese government. Visit http://www.icrwhale.org/

25 The Institute of Cetacean Research,Kujira to Nihonjin.26 Joe Roman, Whale (London: Reaktion Books, 2004).27 Picture 3; Utilization of Every Part without Waste. Copied from Komatsu, Masayuki. The History and

Science of Whales. (Tokyo: The Japan Times, 2004).28 The time period of each stage does not match completely with stages of the history of whaling in the

world.29 Komatsu, Masayuki. The History and Science of Whales. (Tokyo: The Japan Times), 2004.30 Ibid.

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products were expensive and they were not for the common consumption. Thus, hunting as

well as consumption were still limited in this stage.

In the second stage, starting around Edo period(1600~1867), local people began to eat

whale meat. In 1897, Norwegian harpoon cannon was introduced as a new whaling

method, and the Japanese whaling industry began to use the method two years after.

Whaling became a bigger industry after introducing harpoon cannons.

In the third stage, in early twentieth centuries, the amount of catch of whales has

dramatically increased in Japan. In 1934, Japan began using factory ship for whaling in the

Antarctic Ocean. Japan was also involved in the race for fish using the BWU. Not only for

the domestic consumption, but also Japan started to sell whale oil to other countries to

amass foreign currency. Although the World War II prevented Japan from conducting

whaling for a while, the hunger in the post-war period re-stimulated the whaling industry. 31

At this moment, whale meat became one of the daily foods in Japan. Whaling industry

became enlarged, and the whaling has become one of the important national policies.

In the fourth stage, Japan joined the IWC. Because the third stage was longer than the

one in the history of the whaling in the world, there are not many events to be recounted in

the third stage of the history of the whaling in Japan.

In the fifth stage, the Japanese whaling industry faced its most critical phase, due to the

moratorium of commercial whaling. Japan accepted the moratorium despite its objection

for few years because of the political pressures by other countries, especially by the United

States. However, in 1987, Japan started to conduct scientific research with the factory ship

Nisshin Maru No. 3 in the Antarctic.32 The scientific research is still being conducted today,

while by-products of the research are provided for the commercial sale in Japan. Some

older Japanese people still buy the whale meat to remember the familiar taste of the post

31 See Graph 3; Annual meat consumption by Japanese. Done by Asahi Shinbun. 22nd April, 2008.32 The detail of the scientific research will be explained in the next chapter.

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war period.

It is clear that Japan has a long history of whaling. The country has been whaling from

ancient times and the industry became bigger than other meat industry during the post

World War II era. Due to the world wide moratorium, Japan stopped commercial whaling,

but is currently seeking the way to continue whaling by committing itself in the IWC.

In conclusion, an understanding of the science and the history of whales and whaling

helps to analyze the controversy surrounding whaling in a neutral and logical fashion. A

management mechanism, which will be discussed in this report, needs to respond to all

these analysis.

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CHAPTER TWO


International environmental law is usually created to take certain measures in response

to global environmental phenomena. Thus, inadequate understanding of the phenomena

leads to an ineffective international environmental law. Since the international

environmental laws related to whales and whaling are relatively old among international

environmental laws, their mechanisms often does not match with the current scientific

data, ethic, and understandings. Thus, jurisdiction is often interpreted in many ways that

justify, or at least do not condemn, current circumstances.

This chapter will first introduce the history of international laws related to whaling and

demonstrate the ways that norms of whale conservation have changed. The reader will

understand how the international stream has shifted from the utilization to the complete

protection of whales. Secondly, the chapter will take a closer look at the International

Convention for the Regulation of the Whaling, which is the main international law for the

whale conservation issues. The mechanism of the International Whaling Commission, an

offshoot of the Convention, will be addressed in this section. It will also be addressed how

Japan interpret the ICRW and conduct whaling under the IWC scheme. Lastly, an analysis

of the Convention on International Trade in Endangered Species of Wild Fauna and Flora,

which controls imports and exports of endangered species including whales, will be

presented. Japanese reaction to this Convention is addressed as well. This chapter aims at

the understanding of the present international legal structure regarding whaling and the

Japanese correspondence to it.

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International Environmental Laws Concerning Whaling

When the population of certain species of whale started to be dramatically decreased in

the twentieth century, the international community started to regulate the industry. In 1931,

the Geneva Convention for the Regulation of Whaling was signed. Komatsu points out that

the purpose of this convention was to control the production of the whale oil and the

management of the whale stock in the Antarctic.33 The convention prohibited the taking or

killing of Right whales by all nations starting from 1935. In 1937, the International

Agreement for the Regulation of Whaling was signed in London. This agreement was

settled among nine nations including Norway and England. Then, the International

Convention for the Regulation of Whaling was signed in Washington in 1946, with the

establishment of the IWC three years later. However, the amount of whales caught still

remained high, because of an incomplete management scheme. They used the Blue Whale

Unit but it did not contribute well to the conservation. In other words, these conventions

were not effective in preventing the decline of whale populations during this period.

In 1970s, a paradigm change of the regulation of whaling took place. The 1972 United

Nations Conference on the Human Environment34 brought the fist conversion to a new era

of whaling legislation, as Maurice Strong made an impressive speech for the urgent

demand of saving whales. Consequently, the conference made the recommendation 33 for

the ten years moratorium of commercial whaling to the IWC;

It is recommended that Governments agree to strengthen the International Whaling

Commission, to increase international research efforts, and as a matter of urgency to

call for an international agreement, under the auspices of the International Whaling

33

Komatsu, Masayuki. Geirui-tou no Kokusaisuisanshigen no Jizokutekiriyou ni Muketa Nihon noKokusaisenryaku to Tenbou. (Ph.D. diss., University of Tokyo 2004). 6

34 The United Nations Conference on the Human Environment, 1972, Stockholm.

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Commission and involving all Governments concerned, for a 10-year moratorium

on commercial whaling.35 [Emphasis added]

However, the recommendation of the 1972 United Nations Conference on the Human

Environment does not carry any legal obligation. At the same time, the resolution of the

moratoriumwas rejected in the IWC meeting because of the lack of the scientific ground

for the moratorium. In 1973, the Convention on International Trade in Endangered Species

of Wild Fauna and Flora (the CITES) was signed to regulate the illegal trade of endangered

species across international boundaries. Most species of whales were put on the list, and

the recognition of whales as endangered spices began to spread internationally.

United Nations Convention on the Law of the Sea (the UNCLOS) was signed in

December 1982.36 It is commonly regarded as the constitution of oceans and a

comprehensive compilation of almost all previously existing conventional and customary

rules and norms concerning the oceans as well as human activities therein. 37 The linkage

between the UNCLOS and the IWC is the Article 65, which states:

Nothing in this Part restricts the right of a coastal State or the competence of an

international organization, as appropriate, to prohibit, limit or regulate the

exploitation of marine mammals more strictly than provided for in this Part. States

shall cooperate with a view to the conservation of marine mammals and in the

case of cetaceans shall in particular work through the appropriate international

organizations for their conservation, management and study.38[Emphasis added]

35 Recommendations for action at the international level. 1972 United Nations Conference on the HumanEnvironment. http://www.unep.org/Documents.multilingual/Default.asp?

DocumentID=97&ArticleID=1506&l=en

36 United Nations Convention on the Law of the Sea(hereafter UNCLOS), entered into force in

November 1994. 157 states are parties to the treaty(as of November 2008).37 Zou Keyuan,Law of the Sea in East Asia: Issues and prospects(New York: Routledge, 2005). 1

38 The UNCLOS, too see the full text of the convention, visithttp://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm

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The provision has as its key elements the goal of conservation of marine mammals and

cooperation to achieve that conservation.39 In addition, this article implies that even non-

member states of the IWC are implored to work with the IWC, if it is a party of the

UNCLOS and if it recognizes the IWC as one of the appropriate international

organizations.40 The recognition of the appropriate international organization is leaved

to member states.

The 1992 United Nations Conference on Environment and Development (UNCED) in

Rio de Janeiro was a mile stone which dramatically changed the international way of

thinking about preservation and management of ecological resources, from individual

resource to the whole eco-system. The conference created the Rio Declaration, which aims

at establishing a new and equitable global partnership through the creation of new levels

of cooperation among States.41 Most importantly, Rio Declaration principle 15 addresses

the precautionary approach;

In order to protect the environment, the precautionary approach shall be widely

applied by States according to their capabilities. Where there are threats of serious

or irreversible damage, lack of full scientific certainty shall not be used as a reason

for postponing cost-effective measures to prevent environmental degradation.42

The precautionary approach means that where serious effects on the environment are

concerned, the taking of certain preventative measures should not be denied by the lack of

scientific evidence.43 It is widely agreed that the core of the (precautionary) principle is

best reflected in Principle 15 of the Rio Declaration of 199244.

39 Ted L. McDorman, Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention,

Ocean Development and International Law,29(1998) : 17940 The UNCLOS article 6541 Rio Declaration. http://www.unep.org/Documents.multilingual/Default.asp?

DocumentID=78&ArticleID=116342 Rio Declaration.43 Shimada, Yukio., and Hayashi, Moritaka, ed.Kaiyouhou tekisutobukku (Tokyo:Yushindokobunsha,

2005).44 Simon Marr, The Precautionary Approach in the Law of the Sea: Modern Decision Making in

International Law( Netherlands: Kluwer Law International, 2003), 7

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The history of the construction of the legal system created the double standard of the

whale management norm: resource management and the conservation of the endangered

species. On the one hand, whales are regarded as economic resources, which can therefore

exploited. For example, Japan regards whales as fishery resources and thus the whale meat

is sold in the domestic market. Ministry of Foreign Affairs of Japan states on its website

that Japan is currently contributing to and trying to convince the IWC to reopen properly

managed sustainable whaling.45 This position is legally authorized because the purpose of

the ICRW itself is also identified that it is to provide for the proper conservation of whale

stocks and thus make possible the orderly development of the whaling industry.46 On the

other hand, anti-whaling nations regard whale as endangered species. For example,

Australia pursue(s) an end to commercial whaling throughout the world.47 It claims that

commercial whaling is not required to meet essential human needs, even with modern

improvements, whale killing methods continue to involve an unacceptable level of cruelty,

and people world-wide are increasingly recognizing, and benefiting from whale

protection.48

By reflecting the existence of these two conflicting ideas, the IWC seems to be taking

the precautionary approach(principle). 49 Although the concept of the precautionary

approach was formulated after the moratorium of the commercial whaling, the continuance

of the moratorium and the highly preventive decisions of the IWC seems to be indirectly

applying the precautionary approach. 50 Since the risk of the further decrease of the

45 Ministry of Foreign Affairs of Japan, http://www.mofa.go.jp/mofaj/gaiko/whale/iwc.html46 International Whaling Commission, http://www.iwcoffice.org/index.htm47 Australia's whale protection policy. Australian Government, Department of the Environment, Water,

Heritage and the Arts. http://www.environment.gov.au/coasts/species/cetaceans/whale-

protection/policy.html48 Ibid.49 Simon Marr, The Precautionary Approach in the Law of the Sea: Modern Decision Making in

International Law( Netherlands: Kluwer Law International, 2003), 17. cf. Scholars distinguish the

difference between precautionary approach and precautionary principle. But this paper will not cover

the point because it is a subtle difference and it is not directly related to the author's argument.50 See also; Simon Marr, The Precautionary Approach in the Law of the Sea: Modern Decision Making

in International Law( Netherlands: Kluwer Law International, 2003), 148-151

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population of whales in case of the resumption of commercial whaling is difficult to

measure, it is understandable that the IWC is taking measures very carefully. However, the

precautionary approach tends to conflict with the ICRW principle, because the ICRW

prioritizes scientific ground, a point will be further discussed in the next section.

The International Convention for the Regulation of Whaling

The inclination toward the protection of whales from overfishing started in 1930s,

when whaling countries, concerned with the sharp decrease of several species of whales,

held meetings for the regulation of whaling. Consequently, the International Convention

for the Regulation of Whaling(ICRW) was set up as the legal measure for the management

of whales. The ICRW was signed in Washington, on December 2, 1946. Then, the ICRW

was introduced on November 10, 1948.51 This was a representative incident in the history

of environmental law, since the environmental movement was emerging simultaneously.

Thus, the convention was one of the first step to recognize the need for global cooperation

and to incorporate the interests of future generations, and increasingly providing for more

specific obligations on the part of the nation-states.52 The purpose of the Convention is to

provide for the proper conservation of whale stocks and thus make possible the orderly

development of the whaling industry.53 As discussed in the last section, the ICRW has

two norms. One the one hand, it is a convention to protect whales, but on the other hand, it

has the economic responsibility of promising the development of the whaling industry.

These seemingly contradicting principles prevent both the convention from completely

forbidding whaling, and administering commercial whaling for fear of renewed

overfishing. This paradox makes the procedure of the IWC difficult.

51

As for 2008 December, Forty-two states ratified the convention.52 P.K Rao International Environmental Law and Economics (USA: Blacklwell, 2002).53 The ICRW preamble.

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The International Whaling Commission (IWC) was set up under the ICRW three years

after the convention. Currently, there are 81 member nations54, and the number of the

member states is still increasing(See Figure 4)55. The IWC aims to keep under review and

revise as necessary the measures laid down in the Schedule to the Convention which

govern the conduct of whaling throughout the world.56 To achieve this aim, the IWC

comprises four main committees; Scientific, Technical, Finance and Administration, and

the Conservation Committee. There are also Commission sub-committees which deal with

aboriginal subsistence whaling, Infractions (breaking of regulations) and other ad hoc

working groups. (See Figure 5) 57

IWC's jobs are; the complete protection of certain species; designate specified areas

as whale sanctuaries; set limits on the numbers and sizes of whales which may be taken;

prescribe open and closed seasons and areas for whaling; and prohibit the capture of

suckling calves and female whales accompanied by calves.58 Meeting is held annually.

Most recently, the 2008 meeting was held in Santiago, Chile. It was the sixtieth annual

meeting but it ended with little progress regarding procedure. Despite the miniscule

progress, the 2008 meeting was noteworthy, in the sense that it allowed NGOs to address

the plenary session. Cento de Conservacion Cetacea, the High North Alliance, WWF, the

Womens Forum for Fish, Greenpeace and Concepesca were given opportunities to make

speeches. This shows that IWC is becoming more manifold, showing that international

organization is not only for nations, but also for NGOs.

Some scholars argue the reliability of the IWC's voting system. The IWC is an

incomplete international organization compare to other international organizations such as

54 As of December 200855 Figure 4; Changes in IWC membership, copied from Whales and Whaling,The Institute of Cetacean

Research, 200656 The IWC. http://www.iwcoffice.org/index.htm57

Picture 4; IWC Organization, copied from Whales and Whaling,The Institute of Cetacean Research,2006

58 The IWC.

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the United Nations. The IWC has only 79 member states where as the UN has 192

countries.59 It could be argued that the international decision is made by 79 countries, with

which each country has one vote. In addition, when a country wants more votes on a

decision, it can invite more countries to the commission. Thus it can be said that the

decision of the IWC is unfair and unstable. In the case of the IWC, simple majority system

might not be the best method for several countries because those countries are the

important stake holders and others are not getting profit from whaling itself. 60However,

when whales are regarded as the common property, any state has right to be involved.

Thus, it is controversial how to manage the voting system.

As noted in the world in the first chapter, the moratorium on commercial whaling is

traced back to the 1972 United Nations Conference on the Human Environment. The

majority in the conference voted in support for the proposal of the moratorium.(T)he

Unites States and others supporting the moratorium did so in the belief that it appeared to

be the only way to reverse clear management by the IWC.61 This analysis is

understandable, because the IWC had not confirmed its management system at that time;

the IWC was using Blue Whale Unit for the regulation, and it led to a further decrease of

whales. However, the IWC rejected the resolution of the moratorium at the annual meeting

right after the 1972 United Nations Conference on the Human Environment, for such a

drastic measure had no scientific justification.62

The moratorium of the commercial whaling was eventually implemented ten years after

in 1982. The schedule to the ICRW. 10. (d), (e) states the detail of the moratorium:

59 As for December 2009.60 i.e. some inland countries are also the member of IWC.

61 William Aron, William Burke, Milton M. R. Freeman, The Whaling issue,Marine Policy 24 (2000):180.

62 Ibid, 180.

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(d) Notwithstanding the other provisions of paragraph 10 there shall be a

moratorium on the taking, killing or treating of whales, except minke whales, by

factory ships or whale catchers attached to factory ships. This moratorium applies to

sperm whales, killer whales and baleen whales, except minke whales.

(e) Notwithstanding the other provisions of paragraph 10, catch limits for the

killing for commercial purposes of whales from all stocks for the 1986 coastal and

the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be

kept under review, based upon the best scientific advice, and by 1990 at the latest

the Commission will undertake a comprehensive assessment of the effects of this

decision on whale stocks and consider modification of this provision and the

establishment of other catch limits.

[Emphasis added]

The IWC lists several factors which lead to the moratorium. Some of the factors are;

difficulties in agreeing what catch limits to set for non-protected species and differing

attitudes to the acceptability of whaling. 63 Thus, the moratorium was set to adjust these

differences and to create the best management procedure. The definition of moratorium

is a temporary stopping of an activity, especially by official agreement64, thus the

moratorium of whaling was also meant to end in certain period. The wording of the

moratorium decision implied that with improvement scientific knowledge in the future, it

might be possible to set catch limits other than zero for certain stocks.65In fact, the ICRW.

10. (e) states that they will consider alternative catch limits by 1990, which can be

interpreted as the end of the moratorium. However, since will undertake and

63 The IWC, http://www.iwcoffice.org/index.htm64 Oxford Advanced Learner's Dictionary, 200065 IWC, http://www.iwcoffice.org/index.htm

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will...consider mandate action at an unspecified time, and many countries have not

agreed with the alternative catch limit, the moratorium still continues today.66

Before implementing the moratorium, however, the New Management

Procedure(NMP)67 was utilized by the IWC as a management measure, which essentially

banned whaling of all stocks that had been over-exploited, while permitting limited

commercial catches of abundant stocks at levels that would not constitute a biological

threat to those populations.68 Thus, the implementation of the moratorium of the

commercial whaling was not as necessary as stated in 1972, because the procedure of the

IWC was already improved by the NMP. A number of abundant whale stock data implies

that the 1982 moratorium lacks scientific grounding, and that it was not necessary.

Although commercial whaling is prohibited under the moratorium, there are still means

to legally hunt whales under the IWC scheme. First, non-member states of the IWC such as

Canada can conduct commercial whaling. Second, member-states of the IWC can conduct

commercial whaling by reserving the moratorium decision. For example, Iceland set a

reservation to Paragraph 10 (e) of the Convention's schedule when it rejoined the IWC, and

it resumed commercial whaling in 2006. Thirdly, countries can commit whaling by

adopting special permits.

Some countries and areas are legally whaling through two kinds of special permits

addressed on the ICRW: Scientific permit and aboriginal subsistence whaling. But the

understanding of legal whaling differ among countries. Although scientific research is

legal, a lot of countries are oppose to the permission especially in regards to the lethal

66 As of December 2008.

67 New Management Procedure(NMP) was proposed by Australia and adopted by the IWC in 1974, tookeffect in the 1975-1976 whaling season.

68 Ibid, 180.

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methods. At the same time, the range of aboriginal subsistence whaling is controversial.

Some countries are even opposed to the application of the special permits.

Scientific permit allows countries and area conducting scientific research. A major

area of discussion in recent years has been the issuing of permits by member states for the

killing of whales for scientific purposes.69 Scientific research and killing whales in the

process are issued in Article 8 of the ICRW, which states :

1. Notwithstanding anything contained in this Convention any Contracting

Government may grant to any of its nationals a special permit authorizing that

national to kill, take and treat whales for purposes of scientific research subject to

such restrictions as to number and subject to such other conditions as the

Contracting Government thinks fit, and the killing, taking, and treating of whales in

accordance with the provisions of this Article shall be exempt from the operation of

this Convention. Each Contracting Government shall report at once to the

Commission all such authorizations which it has granted. Each Contracting

Government may at any time revoke any such special permit which it has granted.

2. Any whales taken under these special permits shall so far as practicable be

processedand the proceeds shall be dealt with in accordance with directions issued

by the Government by which the permit was granted.

3. Each Contracting Government shall transmit to such body as may be designated by

the Commission, in so far as practicable, and at intervals of not more than one year,

scientific information available to that Government with respect to whales and

whaling, including the results of research conducted pursuant to paragraph 1 of this

Article and to Article IV.

69 The IWC, http://www.iwcoffice.org/index.htm

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4. Recognizing that continuous collection and analysis of biological data in connection

with the operations of factory ships and land stations are indispensable to sound and

constructive management of the whale fisheries, the Contracting Governments will

take all practicable measures to obtain such data.

[Emphasis added]

Most importantly, Article 8.(1)notes that the special permit is the exception of the

convention which enables nations to kill whales for scientific research, and it requires the

report to the IWC. Article 8.(2) states that the whales taken for the scientific research

should be processed. This indicates that those whales can be utilized as food and

products in the market. Article 8 enables Japan to conduct scientific research in two

areas;Japan's Whale Research Program under Special Permit in the Antarctic(the

JARPAII)70 and Japan's Whale Research in the Western North Pacific( the JARPN II)71.

Research area of the JARPA II is in Antarctic, specifically in Area III, IV, V, VI of the six

areas established by the IWC.(See Picture 5) 72 There are four objectives of the JARPA II;

(1) Monitoring of the Antarctic ecosystem, (2) Modeling competition among whale

species and developing future management objectives, (3) Elucidation of temporal and

spatial changes in stock structure, (4) Improving the management procedure for the

Antarctic minke whale stocks. 73 The JARPA II focuses on three species of whales;

Antarctic minke whale, what is the subject. Most recently, the JARPA II 2007/2008 caught

551 Antarctic minke whales. 74

70 After the moratorium was introduced in 1982, Japan first started the Scientific research in the

Antarctic(JARPA) in 1987. JARPA lasted until 2004, and was replaced by JARPA II from 2005.71 JARPN was first introduced in 1994-1999, later replaced by JARPN II starting from 2000.72 Picture 5: JARPA research area, copied from Whales and Whaling,(The Institute of Cetacean

Research: 2006 ). 573 Whales and Whaling,(The Institute of Cetacean Research: 2006 ). 574 Institute of Cetacean Research. Report on the JARPA II 2007/2008

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The JARPN II takes place in the North Pacific, especially in the Sub-areas 7, 8 and 9 of

the thirteen Sub-areas established by the IWC Science Committee.(See Picture 6)75 Three

objectives of the JARPN II are; (1) Feeding ecology and ecosystem studies, (2)

Monitoring environmental pollutants in cetaceans and the marine eco-system, (3)

Elucidation of stock structure.76The JARPN aims at Minke whale, Bryde's whale, Sei

whale, and Sperm whale. Most recently in 2008, JARPN II hunted 59 Minke whales, 100

Sei whales, 50 Bryde's whales, and 2 sperm whales.77

Scientific research in Japan is conducted mainly by the Institute of Cetacean Research,

under the supervision of Ministry of Agriculture,Forestry and Fisheries. The institution is

authorized not only to conduct the research but also to sell whale meat as the by-product of

the scientific research. For example, it decided to sell 1888.4 tons of whale meat including

Minke whale, Bryde's whale, Sei whale, and Sperm whale, which are from the scientific

research conducted in 2008, to the public sectors and the market.78 ( See Figure 5)79

A lot of member states of IWC and NGOs, such Australia and Greenpeace, are opposed

to killing whales for scientific research. They especially pose questions on the scientific

research conducted by Japan, and claim that scientific data can be collected without killing

the whales. In addition, They also think that Japan is using scientific research as an excuse

to their killing whales. For example, Greenpeace, an environmental NGO, claims that the

Japanese scientific research is a poorly-disguised commercial operation.80

Simultaneously, Countries such as the United States and Australia are posing political

pressures over the issue. Thus, although scientific permit is a legal way to conduct

75 Picture 6: JARPN II research area, copied from Whales and Whaling,(The Institute of Cetacean

Research: 2006 ). 576 Whales and Whaling,The Institute of Cetacean Research, 2006, 777 Institute of Cetacean Research. 22 October, 2008. Report on the 2008 JARPN II78

the Institute of Cetacean Research, http://www.icrwhale.org/index.htm79 Figure 5; By-products of scientific research. Copied from Institute of Cetacean Research. 200880 Greenpeace International, http://www.greenpeace.org/international/

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scientific research, which at the same time allow killing of whales, Japan is facing

difficulties persuading opposing countries and NGOs that the research is necessary.

Aboriginal subsistence whaling is the other special permit which allows killing of

whales, and its procedure is also controversial. Several areas are given permits under the

recognition that there is evidence of the cultural and subsistence needs of their people81

Thus the purposes of this permit are; to ensure risks of extinction not seriously increased

(highest priority), enable harvests in perpetuity appropriate to cultural and nutritional

requirements; and to maintain stocks at highest net recruitment level and if below that

ensure they move towards it.82 Currently, aboriginal substantial whaling is permitted in

areas including Greenland in Denmark, Siberia in the Russian Federation, Bequia in St

Vincent and The Grenadines, and Alaska in USA.

The legal principles and catch limits of aboriginal subsistence whaling are addressed on

ICRW Schedule, Section. III, Paragraph 13:

1. For stocks at or above MSY level, aboriginal subsistence catches shall be permit-

ted so long as total removals do not exceed 90 per cent of MSY.83

2. For stocks below the MSY level but above a certain minimum level, aboriginal sub-

sistence catches shall be permitted so long as they are set at levels which will allow

whale stocks to move to the MSY level.1

3. The above provisions will be kept under review, based upon the best scientific ad-

vice, and by 1990 at the latest the Commission will undertake a comprehensive as-

81

the IWC, http://www.iwcoffice.org/index.htm82 the IWC.83 MSY is the abbreviation of Maximum Sustainable Yield.

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sessment of the effects of these provisions on whale stocks and consider modifica-

tion.

4. For aboriginal whaling conducted under subparagraphs (b)(1), (b)(2), and (b)(3) of

this paragraph, it is forbidden to strike, take or kill calves or any whale accompan-

ied by a calf. For aboriginal whaling conducted under subparagraphs (b)(4) of this

paragraph, it is forbidden to strike, take or kill suckling calves or female whales ac-

companied by calves.

5. All aboriginal whaling shall be conducted under national legislation that accords

with this paragraph.

Japan is skeptical about the aboriginal subsistence permit. Japan raises two points to

explain this argument; (1) The definition of the aboriginal is not well established and

there is a concern of the segregation for the application of the permit, (2)whether

aboriginal or not is not the big problem when it comes to the resource management of

whales because the resource management should be conducted in accordance with the

scientific evidence in principle.84 Catalinac and Chan partially support this opinion and

state that the definition of aboriginal subsistence whaling is vague and unclear.85 In fact,

Japan has also applied for the aboriginal substantial permits for several areas since 1988,

but has been rejected by the IWC. Catalinac and Chan argue that it is problematic to

declare that the commercial element in Japanese coastal whaling overrides consideration of

any cultural element.86

84 Fishery Agency, Center of the Sustainable Use of Marine resources, cf. translated by the author.85

Catalinac, Amy., and Chan, Gerald. Japan, the West, and the whaling issue. Japan Forum17(2005): p133-p163

86 Catalinac, Amy., and Chan, Gerald. 2005: p133-p163

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Convention on International Trade in Endangered Species of Wild Fauna and Flora

(CITES)

The Convention on International Trade in Endangered Species of Wild Fauna and Flora

(CITES) is also an important element of the regulation of whaling in terms of the

international whale meat trade. It restricts trades of several species of whales, which are

regarded as endangered species in the Convention. This section will introduce the character

of the CITES especially its relation to the management of whales, and the Japanese policy

related to the convention.

The origin of the CITES lies in a 1963 resolution of the General Assembly of the

international Union for Conservation of Nature and Natural Resources(IUCN), which is

now the World Conservation Union. The text of the Convention was agreed at a meeting of

representatives of 80 countries in Washington DC, United States. It was adopted on 3

March 1973, and entered in force on 1 July 1975 CITES. The aim of the Convention is to

ensure that international trade in specimens of wild animals and plants does not threaten

their survival.87 Thus, the convention focuses on the protection of endangered and near-

endangered wild animals and plants, which are recognized as endangered species in the

appendices of the convention. Currently there are 172 Parties of the convention.

Endangered animals are divided into three groups in the Convention, and they are listed

in three separate appendices. Appendix I includes species threatened with extinction.

Engagements related to Appendix I are written in Article III. The species on this list

receive the highest protection. Thus, trade is highly limited, and is allowed only in

exceptional circumstances. Right whale, Humpback whale, Dolphins, Grey whale, River

dolphins, Pygmy right whale, Porpoises, Sperm whale, Beaked whales, and Bottle nosed

whales are listed in Appendix I.87 the CITES.

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Appendix II includes species not necessarily threatened with extinction, but in which

trade must be controlled in order to avoid utilization incompatible with their survival.

Engagements related to Appendix I are written in Article IV. All whales except for those

listed on Appendix I are placed in Appendix II.

Appendix III contains species that are protected in at least one country, which has asked

other CITES Parties for assistance in controlling the trade. No whales are included in

Appendix III.

Concerning whale issues, the interrelation of the ICRW and the CITES is crucial for the

effective management. The CITES implies the cooperation with the IWC as it promises

that the secretariat of the convention consults intergovernmental bodies. Article 15.2(b) of

the CITES states as follow;

For marine species, the Secretariat shall, upon receiving the text of the proposed

amendment, immediately communicate it to the Parties.It shall also consult inter-

governmental bodies having a function in relation to those species especially with

a view to obtaining scientific data these bodies may be able to provide and to

ensuring co-ordination with any conservation measures enforced by such bodies.

The Secretariat shall communicate the views expressed and data provided by these

bodies and its own findings and recommendations to the Parties as soon as

possible. [Emphasis added]

Thus, if the amendment is related to whales, the secretariat of the CITES would consult

with the IWC, which is the main inter-governmental body of whales. They would also

trust scientific data of which IWC provides. This relation is clearly stated in the eleventh

meeting of the Conference of the Parties of the CITES in Gigiri (Kenya) in April 2000.

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88They had a talk on the conservation of cetaceans and trade in cetacean specimens and the

relationship with the IWC. In the resolution, it is stated;

NOTING that, in accordance with the recommendations of the special working

session of the Conference of the Parties (Geneva, 1977), the Secretariat has

requested and obtained observer status, and adviser status for trade matters, at

meetings of the International Whaling Commission (IWC) and at meetings of the

Scientific Committee of the IWC. 89

The resolution also made several recommendations regard to illegal trade in whale

meat. DNA identification for whale meat on the market is also mentioned in the resolution,

which is expected to be an efficient prevention measure.

Japan ratified the CITES in 1980 but it set nine reservations. The reservation was

reduced to 12 species including several kinds of whales as of December 2008. For the

reason of the reservation of 8 species of whales, Ministry of Foreign Affairs of Japan

explains that these species were listed on appendix I without scientific evidence, and that

there are objectively enough stock for the sustainable use. In other words, Japan claims the

importance of the measure taken in accordance with the idea of sustainable use based on

the scientific data, for the protection of the wild animals and plants.90 Japan reserves the

obligation for 8 species of whales listed in the appendix I, including Fin whale, Sei whale,

Sperm whale, Common Minke whale, Southern Minke Whale, Bryde's whale, Baird's

beaked whale, and Irrawaddy Dolphin, and 4 other species listed in the appendix II. These

reservations are taken in accordance with the Article 23 (2), (3) of CITES;

88

Conf. 11.4 (Rev. CoP12) * http://www.cites.org/eng/res/11/11-04.shtml89 Eleventh meeting of the Conference of the Parties of the CITES in Gigiri90 Ministry of Foreign Affairs of Japan, http://www.mofa.go.jp/mofaj/gaiko/whale/iwc.html

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2. Any State may, on depositing its instrument of ratification, acceptance, approval

or accession, enter aspecific reservation with regard to:

(a) any species included in Appendix I, II or III; or

(b) any parts or derivatives specified in relation to a species included in

Appendix III.

3. Until a Party withdraws its reservation entered under the provisions of this Article,

it shall be treated as a State not a Party to the present Convention with respect to

trade in the particular species or parts or derivatives specified in such reservation.

[Emphasis added]

By setting a reservation, the country is not bind to the agreement in regards to the

particular species. Whales seems to be the most important exception of the CITES for

Japan. Thus, Japan will not accept the regulation of the CITES for the trade of those

whales as long as the circumstance remains the same.

In conclusion, the history of the international law concerning whaling and their variable

interpretation leads to disagreements of the procedure of the protection of whales. In the

discussion, the ICRW and the CITES are the most important international law. Moratorium

and special permits are one of the major discussion issue of the ICRW, and scientific

permit is very important for the Japanese whaling under the moratorium. The CITES is

also a key convention of the whaling issue especially for the trading of whaling. Although

Japan has ratified the convention, it has a different rule when it comes to whales. It is

preferable that Japan will bring cooperative suggestions to the IWC to solve problems

mentioned in this chapter.

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CHAPTER THREE

Japanese Whaling Policy and Three Scenarios of Future Whaling

Japanese Whaling Policy

Japan seems never to give up their hope of continuing whaling, despite strong political

pressure from anti-whaling opinions around the world. Japanese whaling has been seen as

a bad model by many anti-whaling countries and NGOs. Japan is portrayed as an

economic animal and environmental outlaw, with its traditional custom being painted as

barbaric, uncivilized and archaic, something that is out of tune with an environmentally

sensitive world.91 A lot of scholars question why the Japanese government persists on

continuing whaling. Japan is one of the leading countries which demonstrating the need to

protect the environment in general. It has developed ecological technologies such as hybrid

vehicles and renewable energies, and is playing a major role in achieving international

agreement on climate change. However, when it comes to the whaling issue, Japan seems

to be taking a different path from other countries. Thus, there must be a strong reason for

Japan to support whaling. This chapter will examine the ground of the Japanese position in

favor of whaling.

Iino and Goodman state it is a matter of principles92 as the answer to the reason of the

persistent Japanese policy of whaling. The Ministry of Agriculture, Forestry and Fisheries

of Japan announced four principles for supporting whaling: (1) sustainable use of marine

living resources, (2) the principle of science-based management of resources, (3) ensuring

food supply and (4) respecting traditional cultures.93 Catalinac and Chan interpret these

91 Catalinac, Amy., and Chan, Gerald. Japan, the West, and the whaling issue. Japan Forum

17(2005): p134-13592 Iino, Yasuo and Goodman, Dan. Japan's Position in the International Whaling Commission, The Future

of Cetaceans in a Changing World. ed. Burns,William. C.G. and Gillespie, Alexander. (NY:

Transnational Publishers, 2003) 3-32.93

See more detail at the website ofCenter of the Sustainable Use of Marine Resources, Whaling Sectionof Japan( under the Ministry of Agriculture, Forestry, and Fisheries)http://www.jfa.maff.go.jp/whale/indexjp.htm

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principles, and state that the Japanese government considers the moratorium and anti-

whaling majority within the IWC to pose a threat to those principles.94 Iino and Goodman

recognize that the second principle of scientific-findings-based management is the most

important principle.95 The Japanese focus on the scientific ground implies two things. First,

it justifies scientific research which Japan conducts. Japan wants to emphasize that it is

providing the scientific data to the Science Committee of the IWC through the scientific

research. Second, by stressing the fact that the ICRW promises that its decision shall be

based on scientific findings,96 Japan is counterattacking the precautionary approach. Thus,

from the principles which Japan states, it can be concluded that Japan will be persistent

with whaling in the future.

Policy actors of whaling in Japan consist of government actors and non-government

actors. On the government side, the Ministry of Foreign Affairs (MoFA) and the Ministry

of Agriculture, Forestry, and Fisheries (MAFF) are mainly involved with the issue. While

MoFA is involved through few matters such as making statements of its whaling policy,

MAFF manages most of the matters. Since whaling is regarded as a fishery activity, MAFF

controls the licensing, monitoring, and taking of cetaceans in Japanese waters or by

Japanese vessels for commercial or research purposes.97

On the non-governmental side, the most important actor is the Institute of the Cetacean

Research. 98 It is entrusted with the scientific research by the Japanese government. The

institute is also responsible for the management of a whale meat restaurant called Yushin in

Asakusa.(See Picture 7,8)99 Japan takes the position that the managing and monitoring of

94 Catalinac, Amy., and Chan, Gerald. Japan, the West, and the whaling issue. Japan Forum

17(2005): p14995 Iino, Yasuo and Goodman, 2003. p896 Article 5 of the ICRW.97 Wong, Anny. The roots of Japan's International Environmental Policies.New York: Garland Publishing,

Inc, 2001 p11598 The Institute of Cetacean Research, Tokyo.99 Picture 7,8 ; Whale meat restaurant Yushin, picture was taken by the author in September 2008.

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domestic distribution and marketing of whale products are national responsibility.100

The Japanese government is spending 5 hundred million yen to subsidize the Institute of

Cetacean Research. Thus, this organization seems to be operating to promote whaling by

Japanese government's incentives.

Osumi provides a picture of the structure of the Japanese activity toward the resumption

of commercial whaling. (See Picture 9)101 In the picture, the scientific research is likened to

the whale on the carrier; Kyodo Senpaku (which provides the ship and the sailors) and the

Institute of Cetacean Research are likened to wheels of the carrier; Japan Whaling

Association is likened to the axle which connects the wheels; The government is

navigating the carrier; the citizens get behind the carrier, in order for the resumption of

commercial whaling which comes after the upward slope.102 Thus, this picture represents

most actors in the whaling industry.

In addition to the international laws which regulate whaling, Japanese domestic laws

also play a role in regulating all whaling activities conducted in Japan. Since all fisheries

including whaling are governed under the Fishery Law 103, the analysis of the whaling-

related part of the Fishery Law covers most Japanese whaling activity. The Fishery Law

sets the basic systems related to the fishery productions, and its purpose is to utilize the

water synthetically by operating organizations for the regulation of fishery, which mainly

consists fishermen and fishery-related people, and to develop the capacity of fishery, and to

implement the democratization of the fishery.104 Under the Fishery Law, the term

Fishery is defined as the business of taking or cultivation of marine animals and

plants. 105 Thus, as can be seen from the article, whaling is regarded as a fishery activity.

100 Ministry of Agriculture, Forestry and Fisheries.101 Picture 9; A poster of the whaling industry. Copied from Osumi 2008.102 Osumi, Seiji. Kujira wo otte hanseiki-Shinhogeijidai heno teigen-.Pursued Kujira for Half a

Century-A proposal to the new whaling era. Tokyo: Seizando, 2007, p147103 Fishery Law, Entered into force on 15 December 1949. Articles has been translated by the author of

this report.104 The Fishery law, Article 1105 Ibid. Article 2

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Whaling is specifically recognized as a Designated Fishery which is defined in Article 52.

A more specific definition is given in the Government ordinance for setting the Designated

Fishery of Fishery Law, Article 52, and whaling is divided into three categories; Large-type

whaling, Small-type whaling, and Factory-ship whaling. Commercial whaling through

Large-type whaling and Factory-ship whaling are completely banned under the

moratorium, while Small-type whaling is still conducted with the exception of Minke

whale.

Small-type whaling in the coastal area aims at Baird's beaked whales and pilot whales,

and it is admitted by Ministry of Agriculture, Forestry and Fisheries. In addition, the

Dolphin fishery is also conducted in the coastal area, aiming at Dall's porpoise, Pilot

whales, and Bottlenose dolphins, and it is admitted by the governors of the prefectures.

Those coastal whaling are usually conducted by small communities such as coastal towns

and villages.

Scientific research of whales can be also legally justified under Japanese domestic law.

Article 1 of the Enforcement rule of Fishery Law106 allows examination and research of

whales, which is the exception of the adaptation of regulations written in the Article 65 (1)

of the Fishery Law. Thus, Japan justifies both coastal whaling and scientific research by its

own legal structure.

On the contrary to its firm principles, actors and the legal structure, the Japanese vision

of whaling is highly mysterious. The policy seems to be ambiguous, inconsistent and

unstable. Hence Japan is not persuasive domestically nor internationally, especially within

the IWC. Its indecisive policy will further delay its vision for future whaling.

First, Japanese policy on whaling lacks transparency. Although a lot of scholars and

106 Gyogyo-hou Shikou Kisoku. MAFF Ordinance No.16 (1950) related to Enforcement Rule of

Fishery Law

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media assume that Japan wants to lift the moratorium and restart commercial whaling, the

Japanese government makes no official statements about the desire to resume whaling. For

example, the Ministry of Agriculture, Forestry and Fisheries states that the operation of the

IWC is deviating from the intention of the ICRW, thus normalization is necessary and that

Japan is in a position of staying within the IWC for the conclusive decision of the whaling

issue. 107 Japan does not proclaim what measures the IWC should take nor does it show a

clear explanation of what normalization means. According to Isii and Okubo analysis,

what Japanese call normalization means negotiation should only continue on the basis of

firm compliance with the ICRW's exact wordings, and it is another form of discourse

reflecting Japan's 'ICRW-ism' justifying negotiation positions with the original wording of

the ICRW established in 1946 and dismissing the notion of progressive development to

deal with the changing circumstances which ICRW cannot account for.108In practice,

Japan does make proposals for normalization and require catch limits to certain species

of whales within the meeting of the IWC. However, very few people would open the

document of Annual meeting of the IWC, so in reality, Japan lacks accountability to

anyone outside the IWC. Thus, although Japan might have strategies within the IWC, its

policy is too vague to outsiders.

Secondly, Japan's legal structure and policy seem to be contradicting each other. The

Fishery Law, the main law to regulate whaling, is so old that the legal structure is not

adoptable neither to sustainable use of the resource nor to precautionary approach, which

are becoming more common internationally. Japan is addressing the sustainable use of the

whales on one hand but keeping the old non-sustainable legal system of fishery on the

other hand. In addition, Japanese scientific research lacks consideration for international

107 Whaling Section of Japan, Ministry of Agriculture, Forestry and Fisheries.

http://www.jfa.maff.go.jp/whale/indexjp.htm108 Atsushi Ishii, Ayako Okubo.An Alternative Explanation of Japan's Whaling Diplomacy in the Post-

Moratorium Era ( Routlege 2007) 7.

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circumstances. Its lethal measure for the research is especially criticized both by anti-

whaling nations and by the IWC because Japan does not seem like making enough effort

to search for the non-lethal measures.109 Thus, the lack of the consistency of the legal

structure, policy, and the scientific research becomes a trigger to the collision with anti-

whaling countries in the IWC.

Thirdly, ambiguousness and inconsistency has lead to a decline of the support of

whaling. Both international and domestic criticisms of whaling are changing people's

minds from pro-whaling to anti-whaling. The high price of whale meat and the concern of

the chemical accumulation in the meat refrain people from buying that the Japanese

domestic demand for whale meat is low. The Japanese government is not taking an active

role in the IWC. All these factors are making the Japanese policy appear unstable. Hence,

the picture Osumi has provided(Picture 9) well describes the actors of scientific research

whaling in Japan, but the described mechanism seems to be falling apart; the government

lacks leading power, non-government actors are in short of resources, and in reality the

citizens are not fully supporting whaling.

In conclusion, Japan is not making enough effort to prepare for the negotiation in the

IWC. Its policy is rather clandestine. If Japan continues to take the same policy stance, the

whaling industry will collapse. Since it is already very unlikely to see a big whale meat

market in the future, Japan should create more constructive policy for whaling. The, next

section will provide three scenarios of future whaling to solve challenges Japan is facing.

Three Scenarios of Future Whaling

With the two thoroughly different attitudes of pro-whaling and anti-whaling within the

IWC, a conclusive decision has yet to be made. Four countries, including the United States,

United Kingdom, Australia, and New Zealand have already announced that they are109 There is no clear statement by Japan to seek for the possibility of the non-lethal methods.

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opposed to the commercial whaling under any conditions. 110 On the other hand, Japan

wants to continue whaling and is seeking ways to persuade other countries. Whether Japan

will conduct whaling in the future or not depends on the decision by the IWC. Thus this

section will discuss three possible scenarios the IWC could suggest. The IWC is likely to;

(1) continue the moratorium,(2) conduct absolute protection of whaling, or (3) restart

commercial whaling under a new management structure.

Firstly, the moratorium of commercial whaling is not likely to be lifted in the near

future, thus Japan should gain more credibility of their current activity. It is obvious that

Japan will continue scientific research under the moratorium. However, international

political pressures and NGO movement seems to make Japanese scientific research

difficult, and the lack of domestic support is becoming obvious. Japan needs to actively

show that the scientific research contributes to the IWC and the progress of international

science. Japan should also hold meetings and discussions with anti-whaling nations,

NGOs, and its citizens for further understanding of its policy. Furthermore, Komatsu

proposes conducting Synthetic Antarctic environmental Research111 instead of the current

scientific research which only investigates whales. He addresses that in addition to the

scientific research of whaling, the research in the Antarctic should also include overall

environmental research which contributes to multiple issues including global warming.112

The reform of the Fishery Law is also desirable to manifest sustainable use of overall

marine resources including whales. Japan needs to take such active approaches to continue

whaling under moratorium.

Secondly, since the international movement of anti-whaling is so strong that the

possibility of a complete ban of commercial whaling cannot be ignored. Japan has been

110 Whaling Section of Japan, Ministry of Agriculture, Forestry and Fisheries.http://www.jfa.maff.go.jp/whale/indexjp.htm

111

Komatsu, Sougou Nanpyouyou Kankyou Chousa,112 Komatsu Masayuki. Sougou Nanpyouyou Kankyou Chosa wo Jisshi seyo. (Synthetic Antarctic

environmental Research should be conducted. )

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implying the withdrawal from the IWC; however, the Japanese government has not left the

IWC, although it is quarantined within the organization. This is because Japan does not

want to lose two things: legal opportunity to persuade international community of the need

of regulated commercial whaling, and the reputation as a country which is under the

international regime. Firstly, Japan can still conduct whaling under scientific permit, and

the IWC is the only place to negotiate future whaling regime. For example, when Iceland

withdrew from the IWC in 1993, Japan persuaded Iceland to rejoin, in order not to loose

votes for commercial whaling. 113 Japan has also been encouraging for non-member states

to join the IWC. Thus, Japan is not likely to release the official chance to support the

resumption of commercial whaling. Secondly, Japan is afraid of gaining a bad international

reputation by withdrawing from the IWC. It might have learnt from League of Nations that

the withdrawal from an international organization is not a solution. Japanese whaling

policy may be informed partly by the desire to be seen as a legitimate and responsible

member of the international community114 Thus, although the Japanese government has

implied withdrawal from the IWC in the past, in rea