Japan's Whaling Practices and International Law: A Legal Analysis

This report examines the legal implications of Japan's withdrawal from the International Whaling Commission (IWC) in December 2018, which allowed the resumption of commercial whaling. It explores the historical context of whaling, Japan's motivations, and the legal frameworks governing the practice. The report analyzes Japan's obligations under the IWC, the Vienna Convention on the Law of Treaties, and the United Nations Convention on the Law of the Sea (UNCLOS). It discusses the legal implications of the withdrawal, including the applicability of customary international law and the potential impact of the Convention on International Trade in Endangered Species (CITES). The analysis considers relevant treaties, state practices, and the potential for international sanctions, offering a comprehensive overview of the complex legal landscape surrounding Japan's whaling policies and the protection of marine mammals.

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PUBLIC AND PRIVATE INTERNATIONAL LAW
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Introduction
In late December 2018, Japan provided a formal announcement that it would be
withdrawing from the International Whaling Commission (IWC), giving it a free way to
resume commercial whaling by July 2019.1 In announcing the plan, the Government of Japan
criticised the IWC and its member states for their uncompromising anti-whaling stand.
However, to understand these claims, it is important to look into Japan’s withdrawal on what
it implies in terms of legal terms, the implications and obligations after withdrawal. We shall
also be discussing the applicable laws and the background issues to the steps taken by Japan.
Further, we shall examine the legal implications surrounding the decision. A number of
subjects within the International law are controversial on the matter of whaling. Even though
whales have been considered to be a good natural resource for many years like many others,
issues related to its hunting have become ideologically charged in the better part of the 20th
century. Most countries around the world still consider Whale is a Megafauna that need to be
preserved for their own sake, while other countries such as Japan consider these species as
resources that ought to be used sustainably in a way similar to fish.
History of Whaling
Why do countries hunt whales? In the early years of commercial whaling, the main
goals of hunting were to harness the thick layer bladder that insulated the mammal, maintain
its body temperature regardless of the freezing ambient water temperatures. The bladder
comprised of a fibrous fatty material that was full of oil which once exposed to high heat, it
separated from the fibre and produced a golden liquid that was the main staple of the whaling
industry. Whale oil was utilised as a lighting fuel prior to gas and electricity and as a high-
quality lubricant .lastly it was used in the woollen textile industry in the twentieth century.
However, there are products derived from whales in the order of Cetacean. Whaling has
1 International Convention for the Regulation of Whaling Act, No 39 (1982) 50-57

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primarily involved members of the 14 species within mysticete (baleen).Moreover, whaling
has also involved many of the 28 medium and large size odontometers and other
geographically distinct species, which were mostly being hunted for their baleen plates made
of the protein keratin, and some flexible but frayed substance that often hanged like curtains.
The substance was used for filtration for some of the mammals, sieving krill and small fish
and thus it was in great demand as a pre-cursor to plastic and fiberglass.
Post –Judgment Whaling in Japan
On November 18th, 2015, Japan announced its plan to capture 333 minke whales in
the Antarctic. It provided a draft of a new scientific research programme in the Antarctic
Ocean to the IWC board .The program proposed certification of 12 years with a number of
intermediary targets that would be provided by the IWC Scientific Committee. The program
also provided Japan’s corporation with the commission for the conservation of certain species
of marine mammals. However, Japan cancelled hunting from 2014 – 2015 and later resumed
operations in 2016. In late 2015, Japan made a number of modifications on its optional
jurisdictions of the International court of justice excluding disputes relating to marine
mammals from the court's jurisdiction. This resulted in the prevention of all further disputes
concerning whaling from being handles to ICJ.2
Why Japan is so adamant
The reality is that Japan never intended to halt commercial whaling in the first place.
When the IWC passed the moratorium on industrial whaling back in 1982, The Soviet Union
and Japan lodged a formal objection. However, due to political pressure from the US, Japan
withdrew its objection to the moratorium but continued conducting whale hunts under the
2 Convention International Trade in Endangered Species (CITES), Report No 60 (1980) 44 [3.11]

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disguise of scientific research once the moratorium went into effect in 1986.3 Since then,
Japan has been condemned by the international community and which has been considering
implementing stringent measure towards the country. This has been a contentious move by
countries such as New Zealand and Australia challenging the legitimacy of Japan’s scientific
research at the International criminal court.4 In 2014, it was found that the scientific research
program by Japan was not intended for scientific purposes.
Legal implications
The Vienna convention of the law of treaties provides fundamental rules and
regulations under which a state ought to leave a treaty to which is a party to. Moreover, it
provides frameworks of terminating or withdrawing of a party to a treaty in accordance with
the provisions of the Treaties Act (Article 54). Article XI of the ICRW clearly provides the
ability to state parties to withdraw any contracting state may withdraw from a treaty on 30th
June, of any year by giving notice on or prior to 1st January of the same year to the
depository state.5 Upon the receipt of the notice, shall at once communicate it to other
contracting governments. Since Japan had provided a withdrawal notice on 26th December of
2018, it will cease to be bound by the provisions of ICRW by 30th June 2019. As indicated in
the Vienna convention o of the laws governing treaties, the withdrawal by a party to a
multilateral treaty allows the party not to be bound by the treaty (Article 70(1-2)).
Beyond the legal implications, it remains to be seen how the IWC policy will be
implemented by the international community. It is important to note that, the threat of
economic sanctions was used in past cases, to force Japan to accept the moratorium on
whaling. The legal foundations of such threats by the United States still exist. Therefore,
3 Peter Stoett,. "Irreconcilable differences: the international whaling commission and cetacean futures."
(Review of Policy Research 28, no. 6 2011): 631-634.
4 Whaling in the Antarctic, Australia and New Zealand (intervening) v Japan, Judgment, ICJ GL No 148, ICGJ 471
(ICJ 2014), 31st March 2014, International Court of Justice [ICJ] 34-47
5 Sands, Philippe, et al., Principles of international environmental law.(Cambridge University Press, 2012).37-
45.

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should the United States to suspend its trade with Japan, this would trigger other countries to
consider such measures mainly in accordance with laws of the WTO. While Japan’s
withdrawal from the ICW is a move with multiple legal and political implications, it might
not be a permanent situation. For instance, Ecuador and Iceland withdrew from the IWC in
the 1990s, only to reconsider joining the regime in a decade later.6 Negotiations through good
faith , which all relevant state are obliged to undertake ,is the first step towards effective
cooperation . However, the cultural and ideological gap that led to Japan’s withdrawal will
not be easy to solve. In the meantime, we can only hope that the obligations under the United
Nations convention of the law of the sea are considered and affected .This would ensure that
marine mammals are protected from over-exploitation.7
What international rules are still applicable to Japan?
Japan’s withdrawal from the treaty does not affect other applicable regulations of the
international law binding it. It is questionable as to whether Japan would remain obliged to
adhere to the customary International laws equivalent to rules under the ICRW. Nevertheless,
even if the regulations contained in this treaty had reached the customary international status,
Japan is possibly a classic example of a persistent objector. Customary international laws are
formed when a group of states acts in accordance to what they consider right.
Currently, Japan has multiple trade sanctions looming over its head from the
Convention on International trade in endangered species of World Flora and Fauna. In
October 2015, CITES declared scientific research conducted by Japan scientific whaling in
North Pacific as illegal.8 Since Japan conducted whale hunting beyond its territorial waters,
bring the whale products into the country for consumption was considered International trade,
6 Arne Kalland, and Brian Moeran. Japanese Whaling: End of an Era. Routledge, 2010.
7 Myron, Nordquist, ed. United Nations Convention on the law of the sea 1982, Volume VII: (a commentary.
Brill, 2011).37-49
8 Phillip Clapham et al. "Determining spatial and temporal scales for management: lessons from whaling."
(Marine Mammal Science 24, no. 1 2008): 183-201.

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which is restricted under CITES. The CITES regulations provide that Japan had until March
2019 to consider remedial actions to be a building rule. The regulations represent the
necessary conditions for the emergence of customary international law, respective to the
participating countries. In that case, customary international law rules are considered to bind
all the participating countries, except those that have made persistent objections to
them .However, Japan is viewed to have done vis-à-vis the moratorium
The UN convention on the law of the sea, which Japan ratified in in 1996 is still in
effect. In its part, the rules apply in the EEZ of a state and are specified in the provisions
under (Article 65) focusing on protecting marine mammals. However, nothing in the rule
restricts the rights of coastal states or competence of any international organisation to restrict
the exploitation of marine mammals.nation states shall collaborate with the consideration of
protecting marine mammals and in cases concerning cetaceans shall specifically work
through the responsible international organisations for their conversations, study, and
management.
The ICW allows coastal states to consider “optimum utilisation” which is also
applicable under the EEZ. This law means that coastal states must use marine living
resources within the EEZs to their full potential by harnessing as much as possible of the
sustainable materials and grants access to the third state if they feel it would be
sustainable .Nevertheless, even that objection still emphasizes that coastal states have the
obligation of avoiding over-exploitation (Article 61(2)). Therefore, while Japan can hunt
whales in its territorial waters, it ought to manage its stocks on the basis of scientific research,
with conservation measures in place. That being said, Japan is still under the general
obligation to work together with other countries of relevance while dealing with such highly
migratory species (Article 64).9These duties are strongly reinforced in Article 65 of ICW,
9 Elisabeth Druel, and Gjerde Kristina. "Sustaining marine life beyond boundaries: Options for an implementing
agreement for marine biodiversity beyond national jurisdiction under the United Nations Convention on the

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which requires all state of relevance to cooperate through the international organisations in an
effort to conserve marine mammals . Such rules have also been reinforced by the North
Atlantic Marine Mammal Commission (NAMMCO) and potentially other NGOs largely
focusing on the conservation of marine mammal. In either case, Japan’s EEZ cannot resume
Whale hunting on the basis of leaving the ICW but also should consider all the other
applicable rules. Therefore, Japan is still under the obligation of cooperative conservation
with other relevant states through other forums.10
Lastly, hunting and trading in various whales are regulated by the Convention on
International Trade in Endangered Species (CITES), a treaty in which Japan is part of sense
1980. Protected species under the CITES regulations require certification that would approve
inter alia, that the activities if that specimen is not detrimental to the survival of the species
and that the hunts are legal.11 For the listed species, it is prohibited to conduct any
commercial trade, which also applies to species forbidden by the International systems of
permits issued at the national level. Certified permits are also required when protected marine
species are caught in territories beyond the national jurisdiction, as this is considered as
international trade. 12
While Japan is one of the parties to CITES, it has filed reservation with regard to a
majority of whale species, as it is allowed according to the convention under (Article XV).13
Subsequently, Japan is considered as a non-party with respect to these species once it
withdraws from the treaty. However, there a number of exceptions of species that Japan is
Law of the Sea." (Marine Policy 49 2014): 90-97.
10 Dan, Goodman. “The “Future of the IWC”: Why the Initiative to Save the International Whaling Commission
Failed." (Journal of International Wildlife Law & Policy 14, no. 1 2011): 63-74.
11 David Weller, et al. "Movements of Gray whales between the western and eastern North Pacific."
Endangered Species Research 18, no. 3 (2012): 193-199.
12 Elisabeth Druel, and Gjerde Kristina. "Sustaining marine life beyond boundaries: Options for an implementing
agreement for marine biodiversity beyond national jurisdiction under the United Nations Convention on the
Law of the Sea." (Marine Policy 49 2014): 90-97.
13 Ian Hurd. "Almost saving whales: The ambiguity of success at the International Whaling Commission." (Ethics
& International Affairs 26, no. 1 2012): 103-112.

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bound by CITES' rules in their respect. Japan is allowed to catch some of these whales
especially the sea whale on the high seas of North Pacific, under the justification of scientific
research. They have forced the CITES standing committees to review the actions of Japan for
a number of times and has found them in violation of the fundamental requirements that such
catches should not be primarily for commercial purposes.14
Are there norms that could deal with whaling?
Even though Japan intends to limit catching marine mammals in its own territorial
waters, there are mechanisms that would ensure activities conducted by the country do not
undermine the cetacean conservation works to the global community through the IWC. In
addition, although Japan will cease to be subject to the ICW, it has the obligation under the
United Nations conventions of the law of the sea as well as the UNCLOS. Section 65 of the
UNCLOS requires Japan to cooperate through the appropriate international organisations for
the management and protection of certain species of marine mammals.15 However, this
provision is yet to be tested in order to understand whether Japan is required, as a non-party
to the IWC to cooperate with the commission. Japan might consider other paths , such as
cooperating with the North Atlantic Marine Mammal commission or consider setting is own
“appropriate authority.”16
The IWC is a classic example of how various global communities can join hands to
deal with various human-created problems. Notably, the IWC has evolved beyond regulating
direct whaling to addressing other threats that face , and which must be dealt with on a global
level . Global coordination on such issues has significantly increased its importance, and the
Organisation will continue to be the relevant and fundamental organisation to the
14 Paul Cunninghame et al., "From whaling to whale watching: Examining sustainability and cultural rhetoric."
(Journal of Sustainable Tourism 20, no. 1 2012): 143-161.
15 Nong, Hong. UNCLOS and ocean dispute settlement: Law and politics in the South China Sea. (Routledge,
2012).145-147.
16 Robert, Beckman. "The UN Convention on the Law of the Sea and the maritime disputes in the South China
Sea."( American Journal of International Law 107, no. 1 2013): 142-163.

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conservation of marine mammals.17 Japan’s voice will be missing, and most conservationists
hope it will be temporary. If Japan were to withdraw, this would open up a much wider
playing field for IWC to the remaining. Largely the anti-whaling majority .Since the main
challenge to ant-whaling interests has always been “strong determination” the withdrawal of
one or more influential states such as Japan could create a huge potential to reform the IWC18.
There has been growing focus among the Anti-whaling organisations and scientists,
on other environmental threats such as marine pollution, bycatch and most importantly
climate change.19 Such subjects have been key focuses of the Australian proposal for the
future development of the IWC, which has in several times failed to garner enough support
because of Australia’s condemnation of Japan’s scientific permit on whaling. 20As a result ,
the withdrawal of Japan further development and inclusion of more countries into the ICW in
order to ensure the organisation covers large territorial waters with the preference of the anti-
whaling majority .If pro-whaling states such as Japan were to withdraw from the treaty , this
could lead to the establishment of two separate and opposing conventions. One would be
protecting whaling and the other would be regulating their capture.21 If such a convention is
established, it is highly possible that the global opinion would demand compliance with
sustainable targets below the current catch levels.
Conclusion
If no concession will be made before 30 June 2019 so that IWC can go ahead with
the other common goals relating to the protection of whales, then Japan will have its way and
17 Cymie Payne,. Australia v. Japan: ICJ Halts Antarctic Whaling. American Society of International Law (ASIL),
2014.
18 United Nations conventions of the law of the sea (UNCLOS) No 34 (2002) 50-53.:Convention International
Trade in Endangered Species (CITES), (Report No 60 1980) 44 [3.11]
19 Cymie Payne,"ICJ Halts Antarctic Whaling–Japan Starts Again." (Transnational Environmental Law 4, no. 1
2015): 181-194.
20 Donald, Anton. "Dispute Concerning Japan's JARPA II Program of" Scientific Whaling"(Australia v. Japan)."
(2010).46-78.
21 David Weller, et al. "Movements of gray whales between the western and eastern North Pacific."
(Endangered Species Research 18, no. 3 2012): 193-199.

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exploit the natural resources without any control. The disadvantage is that this will also affect
other states, regardless of Japan respecting its territorial waters. It would be better to reach a
resolution with the pro-whaling countries within the IWC treaty, rather than driving them to
leave and carry out their whaling practices beyond the regulations provided by the
commission.22 While the whaling industry cannot be trusted to regulate itself or honestly
assessing the status of potentially exploitable species.23 Whether the outcome, Japan would
have significant implications for its withdrawal from the treaty as it is questionable on how it
would regulate overexploitation.
22 Clapham PJ, Baker CS. Whaling, modern. InEncyclopedia of marine mammals 2018 Jan 1 (pp. 1070-1074).
Academic Press.
23 Andrew Wright, et al. "The international whaling commission—beyond whaling." (Frontiers in Marine
Science 3 2016): 158.

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