the future of scientific whaling in the antarctic

50 Pages·2017·0.85 MB·English

THE FUTURE OF SCIENTIFIC
WHALING IN THE ANTARCTIC
Analysis of the responses of the International Whaling Commission and Japan to the ICJ
judgment on whaling

By
Iris van Gerwen

Thesis submitted to Tilburg University in partial fulfilment of the requirements for the degree of
Bachelor of Arts: Liberal Arts and Sciences, Major Law in Europe

July 2017
Thesis Supervisor: prof. C.J. Bastmeijer

1
Abstract

Over the years, whaling has been looked at from different viewpoints and today, this is still the case. Some
countries consider whales to be natural marine resources; others believe them to be inherited from past
generations and that it is our duty to protect them for the future. In this thesis, the aftermath of the 2014
“Whaling in the Antarctic” judgment of the International Court of Justice (ICJ) will be discussed. The
thesis aims to find the answer to the following main research question: “What have been the responses to
the “Whaling in the Antarctic, Australia v Japan (New Zealand intervening)” case in respect to (scientific)
whaling, both from the International Whaling Commission (IWC) and from Japan with regards to its other
scientific research programmes?”. Making use of the ICJ Judgment of the case, IWC documents, and other
academic sources this question will be discussed, using JARPA II and NEWREP-A, the two latest
Japanese scientific whaling programmes, as examples. The conclusion is that within the system of the
International Convention for the Regulation of Whaling, not much has changed in the years following the
landmark “Whaling in the Antarctic” case. In contrast, Japan has taken the judgment into account by Japan
when developing NEWREP-A. Although the lack of clarity in the wording of the International Convention
for the Regulation of Whaling is unlikely to be amended anytime soon, it is expected that in practice the
ICJ judgment will guide the development of possible future research programmes for scientific whaling.

Keywords: International Convention for the Regulation of Whaling, IWC, whaling, Japan, Australia,
JARPA II, NEWREP-A, International Court of Justice.

2
Table of contents
Abstract ....................................................................................................................................................... 2
1. Introduction ......................................................................................................................................... 5
1.1. History of the regulation of whaling ............................................................................................ 5
1.2. Central research question ............................................................................................................. 7
1.3. Methodology ................................................................................................................................ 8
1.4. Structure ....................................................................................................................................... 8
2. Scientific whaling according to the ICRW and the ICJ ....................................................................... 9
2.1. The ICRW .................................................................................................................................... 9
2.1.1. Whaling in Antarctica ......................................................................................................... 10
2.1.2. Moratorium on commercial whaling .................................................................................. 11
2.2. Scientific whaling ....................................................................................................................... 13
2.3. Concluding remarks ................................................................................................................... 14
3. The ICJ judgment on JARPA II ........................................................................................................ 14
3.1. What is JARPA II? ..................................................................................................................... 14
3.2. The design of JARPA II ............................................................................................................. 16
3.3. Scientific whaling according to the ICJ ..................................................................................... 16
3.4. Judgment and reasoning from the ICJ ........................................................................................ 17
3.5. Concluding remarks ................................................................................................................... 19
4. Response of the IWC to the ICJ judgment on whaling ..................................................................... 19
4.1. Amendments to the ICRW ......................................................................................................... 20
4.2. Changes to the ICRW Schedule ................................................................................................. 21
4.3. IWC meetings ............................................................................................................................. 24
4.4. IWC statements .......................................................................................................................... 30
4.5. What could have been ................................................................................................................ 32
4.6. Concluding remarks ................................................................................................................... 34
5. Response of Japan to the ICJ judgment on whaling: NEWREP-A ................................................... 34
5.1. What is NEWREP-A? ................................................................................................................ 35
5.2. Incorporating the ICJ judgment.................................................................................................. 36
5.3. NEWREP-A methodology ......................................................................................................... 37
5.4. Scientific Committee review ...................................................................................................... 37
5.5. Similarities and differences with JARPA II ............................................................................... 40
3
5.6. Concluding remarks ................................................................................................................... 41
6. Conclusion ......................................................................................................................................... 42
7. References ......................................................................................................................................... 44
7.1. Academic sources ....................................................................................................................... 44
7.2. Non-academic sources................................................................................................................ 46

4
1. Introduction
For centuries, whales have been considered one of the most magnificent species in the world and it used
to be a true challenge to catch them. In Moby Dick, Herman Melville quotes various scientists from his
era who consider whales to be ferocious, thirsty for the blood of men and dangers of the ocean1 (Melville
1953 p. 163). 2 The process of catching a whale is being described as “(…) face to face they not only eye
its greatest marvels, but, hand to jaw, give battle to them”.3 The advancements in technology changed this.
The shell harpoon, for example, explodes inside the whale and makes the time it takes for the whale to die
much shorter.4 Rather than being a fight between David and Goliath, whales became relatively easy to
catch and made the hunt for whales much safer for the whalers. However, there is a downside to these
developments. Commercial whaling all over the world rendered many whale species threatened with
extinction. Combined with the growing knowledge about the intelligence and emotions of whales, this has
led many countries to come together to regulate whaling.5
1.1. History of the regulation of whaling
In 1931, the Convention for the Regulation of Whaling was established in Geneva.6 This Convention
prohibited the killing of certain categories of whales, and required licenses in order to operate a whaling
mission. A few years later, in 1937, the International Agreement for the Regulation of Whaling was
created. This document was much more detailed than the convention and imposed further regulations
regarding species, seasons in which whaling was allowed, and research guidelines. In this agreement, the
idea of special permits that a Contracting State could issue to allow whaling was developed further. Today,
most regulations have their origins in the 1946 International Convention for the Regulation of Whaling
(ICRW), which has its basis in the 1937 Agreements.7 The 1946 Convention replaced the 1931
Convention and became legally binding in 1948 after the main six signatories ratified the ICRW.8 This
Convention is a general overview of the regulations concerning whaling and has as its main purpose the

1 Herman Melville, Moby Dick (London: Collins, 1953), 163.
2 This copy is a reprint of the original 1851 edition.
3 Melville, Moby Dick, 162.
4 Malgosia Fitzmaurice, Whaling and International Law (Cambridge: Cambridge University Press, 2015), 4.
5 Anthony D’Amato and Sudhir Chopra, “Whales: their emerging right to life,” American Journal of International Law 85
(January 1991): 22.
6 This convention entered into force in January 1935 and then became a legally binding document for the countries that have
ratified this 1931 Convention.
7 International Convention for the Regulation of Whaling, Washington, 2 December 1946, United Nations Treaty Series 161,
no. 2124, https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280150135 (hereinafter referred to as: ICRW).
8 Ibid., 3.
5
“safeguarding of great natural resources for future generations”.9 However, it does not contain any
substantive provisions regarding whale conservation or management of the industry, all these provisions
can be found in the ICRW Schedule.10 This is a document which specifies the rules in more detail and can
be amended by the International Whaling Commission (IWC) during its meetings.11 This makes it
relatively easy to keep up to date with the current situation and to make changes accordingly.
At the time when the ICRW was established, leaders were hesitant to fully ban whaling of all sorts
immediately, hence the rather vague nature of the articles of the Convention. Most states agreed that action
had to be taken to safeguard the practice of whaling for future generations, but did not want to commit
themselves to a ban. The main idea of the Convention was to (temporarily) limit the whaling practices,
with scientific whaling as the only exception.12 Once the stocks would have grown, whaling practices
could be resumed. However, a lack of control over the stocks and inadequate monitoring led to the
introduction of the ban on commercial whaling, also referred to as the Moratorium.13 This came into effect
in the 1985-1986 season and can be found in article 3 of the ICRW Schedule. This was intended to be a
temporary measure but since the sustainable levels to resume whaling have not been reached yet, it is still
in place.14 Because of this, the only types of whaling that are permitted now are whaling for scientific
purposes (article 8 of the Convention and article 5 paragraph 30 of the ICRW Schedule) and Aboriginal
whaling, which has been outlined under article 4 paragraph 13 of the ICRW Schedule. In this thesis,
Aboriginal whaling will not be discussed any further as the wording is very clear and this kind of whaling
is limited to Indigenous people only. Scientific whaling, on the other hand, is much less clear. The criteria
for a research mission to fall under this exception of article 8 are rather limited and these criteria have
been interpreted in different ways as will be made clearer further on in this thesis. Especially the
understanding of “for the purposes of scientific research” has many interpretations depending on the view
a state has on (scientific) whaling.

9 Ibid., 1.
10 International Whaling Commission, “Schedule: last amended October 2016,” International Whaling Commission Archive,
2017, https://archive.iwc.int/pages/view.php?ref=3606&k (accessed 4 March 2017) (hereinafter referred to as: ICRW
Schedule).
11 ICRW, 2.
12 Ibid.
13 Fitzmaurice, Whaling and International Law, 34.
14 Ibid.
6
1.2. Central research question
Against this backdrop, the “Whaling in the Antarctic, Australia v. Japan (New Zealand intervening)”15
case will be discussed. This case concerns JARPA II, the scientific whaling program from the Japanese
government. Australia accused Japan of using this programme as a cover-up for its commercial whaling
practices, which are forbidden by the IWC under the Moratorium on Commercial Whaling.16 In 2014, the
International Court of Justice (ICJ) put forward its judgment on the “Whaling in the Antarctic” case
between Australia and Japan, New Zealand intervening. In the end, the Court ruled that the implementation
of JARPA II was very different from its original design and it did no longer seem to fulfil a scientific
purpose, but rather fuel a commercial hunt for whales, which resulted in the ending of the programme.17
This thesis will look at the aftermath of the ICJ judgment and aims to answer the following question:
“What have been the responses to the “Whaling in the Antarctic, Australia v Japan (New Zealand
intervening)” case in respect of (scientific) whaling, both from the IWC as well as from Japan with regards
to its scientific research programmes?”
The following sub-questions will be discussed:
1. How is scientific whaling regulated and are there any precise criteria outlined in the ICRW?
2. On what exact grounds was JARPA II deemed to be a programme for which the scientific research
exception of article 8 ICRW did not apply?
3. Has the IWC made any changes to the ICRW, the ICRW Schedule, or any other documents it
produces regarding (scientific) whaling as a response to the ICJ judgment on “Australia vs. Japan”?
4. Is Japan taking a different approach in the New Scientific Research Programme in the Antarctic
Ocean (NEWREP-A) with regards to the grounds that were previously considered unscientific?
To discover the answers to the research question and the sub-questions, a deeper look will be taken into
the judgment as issued by the ICJ, as well as into the current regulations by the ICRW and how the Court
interpreted the provisions therein. Other documents that have been created which are not necessarily
legally binding but which discuss the interpretation of scientific whaling and its justification in scientific
research programmes will also receive attention. The exact requirements for (scientific) whaling as put
forward in these documents will be discussed as well as their underlying reasoning. Furthermore, the

15 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014, p. 226 – 300.
16 Fitzmaurice, Whaling and International law, 34.
17 International Court of Justice, Whaling in the Antarctic, 298.
7
publications that Japan put forward as being evidence of the scientific nature of their practices will be
analysed. Because the ICJ judgment was issued in 2014, the scope of this research will be rather small.
The current practices will be put in a historic perspective but there will be a strong focus on contemporary
regulations and interpretations. As this thesis focuses on scientific whaling, there will be no further
mentioning of indigenous whaling as another exception to the ban on commercial whaling (the
Moratorium).
1.3. Methodology
The method of research that will mainly be used in this thesis, is the theoretical approach of desk study.
The documents that are considered vital to the understanding of the research question will be examined.
Examples of this are the following: the ICJ judgment on the “Whaling in the Antarctic” case; the research
design of JARPA II the research design of NEWREP-A; documents of IWC meetings since the
proceedings began; the various amendments to the Schedule of the ICRW since 2014; and the ICRW
itself. The works, articles, and books of academic scholars who have specialized in the subject of whaling
in the Antarctic waters will also be studied. By reading and understanding, a thorough analysis can be
made and conclusions will be drawn.
1.4. Structure
The structure of this thesis will be as follows: first, the ICRW will be considered in more detail (Chapter
2). Its contents, purpose, and history will be briefly discussed in relation to the ban on commercial whaling
and scientific research as an exception to the Convention. The interpretation that the Court provides in the
“Whaling in the Antarctic” case will also be considered. Secondly, the judgment from the ICJ will be
examined and the reasoning the Court gives when judging whether JARPA II is a programme for scientific
research, as well as the arguments that were given in the JARPA II research programme itself regarding
scientific research (Chapter 3). Thirdly, the ICRW and the IWC will be studied again, but this time the
interpretation of scientific whaling that it has carried out since the ICJ began investigating JARPA II will
be examined further to see if any changes have been made to the ICRW, and in particular to the Schedule
attached to the ICRW, since the “Whaling in the Antarctic” case has been decided upon (Chapter 4).
Fourthly, NEWREP-A, another Japanese research programme, will be studied to determine whether the
ICJ judgment has had an impact on the design and implementation of the programme (Chapter 5). As this
programme was created in late 2014, it can be considered the replacement of JARPA II and it will thus be
8
interesting to see if it was influenced by this. Lastly, a concluding analysis will be made and the central
research question will be answered (Chapter 6).
2. Scientific whaling according to the ICRW and the ICJ
In this chapter, the first sub-question will be discussed:
“How is scientific whaling regulated and are there any precise criteria outlined in the ICRW?”.
In order to answer this question, a closer look will be taken at the ICRW and its history. Secondly,
whaling practices in the Southern Ocean and their regulation will be considered. Thirdly, the
Moratorium on commercial whaling, a part of the ICRW that has proven to be influential on the
regulation of scientific whaling will be discussed.
2.1. The ICRW
The 1946 International Convention for the Regulation of Whaling (ICRW) is a relatively short and dense
document. It was created by some of the world’s main whaling powers at the time, e.g. the United
Kingdom and Norway. Nevertheless, they were greatly dependent on smaller whaling states such as
France, the United States, and the Netherlands to ratify the ICRW for it to come into force.18 This has
caused many difficulties in the creation of the Convention, as many countries in the post-war era were
hesitant to give up sovereign powers to the Commission and instead believed that their own governments
could serve them better.19 One of the main problems that arose during the time of the creation of the ICRW
were the contradictory interests; states did not want to regulate the whale stocks but merely took care of
the whaling industry. Nevertheless, as the preamble of the ICRW states, the main reason why this
convention was created was that whale stocks could grow for resources to become available again without
“causing widespread economic and nutritional distress”.20 After intense negotiations, the world’s major
whaling countries ratified the ICRW which led to the Convention’s entering into force and obtaining legal
status.21 Interestingly, Japan was not one of the founding members. During the post-war period, the British
and Americans agreed that food shortage in Japan was sufficient reason to allow Japan to whale in its

18 Kurkpatrick Dorsey, Whales and Nations: Environmental diplomacy on the high seas (Seattle: University of Washington
Press, 2013), 120.
19 Fitzmaurice, Whaling and International Law, 31.
20 ICRW, 1.
21 Fitzmaurice, Whaling and International Law, 32.
9
territorial waters.22 Whales are full of protein and would allow the Japanese people to have enough food.
Because Japan did not own any vessels that were capable of whaling, they did not pose a threat.23 As it
turned out in the decades following this decision, this situation would change and Japan ended up being
one of the world’s main whaling powers at the end of the 20th century.
Besides laying out general rules on whaling, the ICRW also created the International Whaling
Commission (IWC).24 This is the regulatory body of the ICRW and regulates whaling through the ICRW
Schedule which it can amend during its meetings. These amendments may include: protected and
unprotected species; open and closed seasons; and gear restrictions amongst others as is laid out in article
5 of the ICRW.25 Not only does the IWC keep oversight of the ICRW, it also promotes and encourages
scientific research, for instance through the Scientific Committee.26 The IWC has the sole power to issue
regulations about whales and whaling, making it an institution with a very specific goal.
Several scholars have argued that cooperation with other international bodies regulating conventions that
relate to marine life would be beneficial. For instance, the various maritime zones that are laid out in
UNCLOS, the 1986 UN Convention for the Law of the Sea, are very relevant when it comes to whales
and their migration patterns.27 As whales are unaware of any borders or boundaries they may be crossing,
it is vital that the jurisdiction that applies to them is clear.
2.1.1. Whaling in Antarctica
As the founding members of the ICRW disagreed about many aspects of the “new” whaling Convention
they were drawing up, including the role of the Antarctic and how the whales in this region would be
protected, they did not define any clear rules on this. Not all delegates were in favour of this approach.
For instance, the delegate from the United States, Kellogg, was disappointed that “many (…) in the
whaling industry refuse to believe that whaling will have an effect on whaling in the Antarctic”.28 The
lack of desire of states to control the whale stocks to preserve the species was worrying to him as well.
Because whaling in the Antarctic waters is controlled through international cooperation instead of national

22 Dorsey, Whales and Nations: Environmental diplomacy on the high seas, 134.
23 Ibid.
24 ICRW, 1.
25 ICRW, 2.
26 International Whaling Commission, “Scientific Committee,” International Whaling Commission, 2017,
https://iwc.int/scmain (accessed 8 March 2017).
27 Patricia W. Birnie, “Small Cetaceans and the International Whaling Commission,” Georgetown International
Environmental Law Review 10 (1997): 11.
28 Dorsey, Whales and Nations: Environmental diplomacy on the high seas, 124.
10