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International Legal Overview on Japanese Whale Hunting Activities

International Legal Overview on Japanese Whale Hunting Activities

By Daffarel Abdillah, Thariq Rafif Wardhana, and Tarissa​​ Zahra Hidayanti (Member of EDD)​​ / May 2021

 

International Legal Overview on Japanese Whale Hunting Activities

Whale hunting has been a human activity for thousands of years. Whale hunting or whaling, is ​​ the hunting of whales for food and oil. Whaling was once conducted around the world by seafaring nations in pursuit of the giant animals that seemed as limitless as the oceans in which they swam. However, since​​ the mid-20th century, when whale populations began to drop catastrophically, whaling has been conducted on a very limited scale. It is now the subject of great scrutiny, both by formal regulatory bodies and by nongovernmental organizations.1​​ Norway was one of the first nations to hunt whales, dating back over 4000 years.2​​ The Japanese started hunting whales with a hand harpoon centuries later, in the 12th century.​​ Whales became a marine commodity used by Japanese citizens shortly after that. Japanese people use anything from meat to bones to fat layers to oil. To date, a total of 38,539 large whales have been confirmed to have been killed by several nations in 1986, including Japan, Norway, and Iceland.3

This is a concern since, because whales have a slow reproductive cycle, large-scale hunting will result in extinction. Whales, in particular, play an important role in reducing carbon emissions and are an important part of marine ecosystems. A great whale will accumulate an average of 33 tons of carbon over its lifespan before its carcasses fall to the ocean floor. This is far more than a tree, which can only consume up to 48 pounds of CO2 per year.4​​ Furthermore, whale dung is a phytoplankton food source that consumes 4x the total carbon consumed by the Amazon forest each year and provides 85 percent of the oxygen we breathe.5​​ Therefore, whale conservation in the form of halting hunting is critical, as whales play an important role in environmental protection.

However, after Japan signed a moratorium on stopping hunting in 1986,​​ Japan has once again allowed whaling for commercial purposes. In fact, after signing the moratorium, Japan had never stopped hunting whales. For years, they hunt the whales up to the Antarctic under the guise of​​ scientific research.​​ In 2013, Australia took Japan to the International Court of Justice (ICJ) to question the legality of its Antarctic whaling program, and in 2014, the ICJ found that the whaling was "not for the purposes of scientific research" and ordered Japan to end its Antarctic whaling program immediately. Japan fulfilled the order but reintroduced the program in 2015 with slightly different research objectives. Nevertheless, the program was specifically designed to achieve a commercial goal, and in 2017, Japanese lawmakers and Fisheries Agency officials publicly admitted that scientific whaling is Japan's way of ensuring a return to commercial whaling in the future. The International Whaling Commission (IWC) rejected Japan's request to resume commercial whaling in 2018, and Japan declared its intention to leave the IWC in December of that year. Japan formally left the IWC on June 30, 2019, and commercial whaling resumed the next day.​​ 

 

Japanese Government argues that whale hunting is a part of their national identity and a culture that has lasted for a long time. They also stated their whale hunting activities are sustainable and won't be a threat to the whales population, even though they have yet to prove it.6​​ This runs​​ counter to the United Nations Convention Law of The Sea (UNCLOS), which Japan has ratified and states that countries that have ratified must conserve marine mammals and adhere to IWC guidelines. Furthermore, of the 383 whale hunting quotas released by Japan, one out of three hunted species, the Sei Whale, is an endangered whale. This whaling cannot be justified unless there is a pressing need for it.​​ 

 

In accordance with international law, legal protection for all whale species has been sought since 1948,​​ when the International Whaling Commission (IWC) was established, an organization whose objective is to conserve whale numbers and organize a safe whale hunting industry. The International Whaling Commission (IWC) was established in 1946 as a follow-up to the International Convention for the Regulation of Whaling (ICRW), which was drafted by 15 governments in 1946.7​​ Several whale species had been overexploited to the point of extinction at the time, and the international​​ community saw it as imperative to save them from extinction.

​​ 

The IWC's policy to conserve whales for the first 20 years did not prevent industrial whaling. For the first 20 years, IWC focuses on the whaling industry business aspect8, then the whale population keeps depleting. As a result, a meeting was called in 1982 to explore a moratorium on commercial whaling. In the end, 25 countries voted in favor of banning commercial whaling, while 7 nations voted against it and 5 nations​​ abstained. Therefore, whaling for commercial purposes was outlawed in 1986.

 

The existence of this moratorium prevents whale hunting from being commercialized, even though it is not absolute. Indigenous interests (Indigenous Whaling) and scientific interests (Scientific Whaling / Special Permit Whaling) are exempt from the whaling ban.9​​ The legality of whaling for scientific purposes is stated in Article VIII (1) of the ICRW which states:

“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 or purposes of scientific research subject to such restrictions as to the number and 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."

Apart from the moratorium on commercial whale killing, UNCLOS also contains provisions for whale protection under international legal instruments. UNCLOS authorizes fishing in international waters, which is consistent with the idea of res communis. However, UNCLOS also establishes restrictions for marine mammals, as indicated in Articles 65 and 120, which states:

Article 65

“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."

Article 120​​ 

“Article 65 also applies to the conservation and management of marine mammals​​ in the high seas.”

In short, Article 65, which is part of the Chapter on the Exclusive Economic Zone, specifies that governments shall collaborate to conserve marine mammals, particularly cetaceans, through international organizations. The rules of Article​​ 65 also apply on the high seas, according to Article 120. As a result of this agreement, whales belonging to the cetacean order are implicitly protected.

Following that, international legal protection to the whales also can be found in Convention on International Trade in Endangered Species of Wild Fauna and Flora​​ (CITES), which includes most of the whales in Appendix 1 such as Minke Whale, Sei Whale, and Sperm Whale, Humpback Whale, etc. indicating that the species must be preserved and not hunted. Furthermore, Japan accepted the pact, putting them under obligation to protect the whale species listed in Appendix 1.

Nevertheless, despite all of the protections in place to preserve whales,​​ Japan’s decision to keep slaughtering whales raises attention in the global community.​​ As previously said, Japan did it for the purpose of scientific research. Whaling for scientific purposes is permitted under IWRC regulations. The regulation, as stated in​​ Article VIII, states that:

"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 or purposes of scientific research subject to such restrictions as to the number and 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."

There is no further explanation of the meaning of "scientific research" in the article, leaving the interpretation of the term open to interpretation. In terms of scientific research, the international world has frequently condemned Japanese whale hunting for this purpose. The Japanese Whale Study Program Under Special Permit in the Antarctic (JARPA), for example, sells whale meat after it has been utilized for research.10​​ JARPA is carried out twice, namely JARPA I and JARPA II.

During the process, this study was criticized for using lethal methods that harm marine​​ ecosystems and reduce whale populations to the point where they can be labeled as endangered.11​​ IWC recommends that the JARPA II program be halted until the research results from JARPA I have been reviewed. Japan, on the other hand, disregarded the warning​​ and proceeded to hunt whales for "scientific research". Australia and New Zealand then sued because they believed Japan had broken its international commitments under the ICRW's provisions.

Whale hunting that violates international law on the basis of "scientific research" exposes Japan as a hypocrite because it consistently violates the ratified international law rules. The long history of Japan's relationship with the Pope, which incorporates the country's culture, is the explanation. Whale hunting is done to fill nutritional demands and to follow the Japanese people's beliefs. Because Buddhism, the majority religion at the time, prohibited its followers from consuming land animals so that Japanese people turned to marine animals to supplement their nutrition. This tradition persisted for hundreds of years until the 19th century, specifically during World War 2, when whale numbers were extremely popular among Japanese people.​​ From the late 1940s to the mid-1960s whale was the single biggest source of meat​​ in Japan.12

It answers why Japan is now back hunting whales. The country has been whaling for hundreds of years and the government insists eating whales is an important part of Japan's food culture.​​ Taiji, a western town in the Higashimuro District, was a famous town known for whaling but gained notoriety​​ for also hunting dolphins. The town still has a whaling ship that is taking part in today's hunt.13 ​​​​ Since whale hunting has been a culture in Japan, especially in the Taiji region, it is hard for Japan to comply with the whale hunting moratorium without sustainable quotas.​​ Responding to the matter in 2018 Japan tried to convince the IWC to allow the whale hunt under sustainable quotas, but it failed. With the rejection of the Japanese request, Japan left the IWC in July 2019.

Seeing this incident, The IWC has failed to provide a middle ground that would have made it easier for both parties.​​ Japan has agreed to comply with the moratorium but asked for relief in the form​​ of licensing for whaling but under the quota limitation seeing Japan has a custom culture regarding whaling, and the request was rejected without consideration causing Japan to leave the IWC. In case if IWC provides a special license for Japan whaling under sustainable quota, it will not harm both parties as well as other parties, considering whale hunting in Japan's request is given a quota limitation.

Concerning the legality of Japan's whaling action, Since Japan has left the IWC, Japan has no obligation​​ to comply with the following rule and it does bring into question whether or not Japan would be consistent with the convention." By leaving the IWC, this means Japan will no longer hunt whales in the Antarctic, as it did under its earlier research program. Even though Japan has withdrawn from the International Whaling Commission (IWC), the legal opinion commissioned by the Australian Marine Conservation Society (AMCS) and the International Fund for Animal Welfare (IFAW) outlines how the country still has a​​ raft of obligations under international law.14​​ Darren Kindleysides, chief executive of AMCS, said: "Japan​​ has run away from the International Whaling Commission but its whaling can't escape the reach of international law". Also, Since Japan's whaling takes place in international waters, the CITES (the Convention on Trade in Endangered Species) Standing Committee ruled that Japan had violated trade restrictions for this endangered species. ​​ Japan has until Feb. 1st, 2019, to fix their violation and report back to CITES. ​​ Reports in Japanese media claim Japan's government will make changes to their whaling plans​​ to comply with the CITES decision, likely reducing or eliminating hunts for sei whales while continuing the slaughter of other whales.15

 

The scientific excuse Japan uses for whale hunting also has not been proved yet. Which implies that Japan has​​ violated Article 65 and Article 120 stated in UNCLOS.​​ Japan has faced a variety of problems, including the country's cultural requirements of whale hunting,​​ international law, and conventions that prohibit whale hunting, as well as a dramatized global point of view of whale​​ hunting. For now, Japan is still violating several regulations that have been set by the global community regarding whale hunting and there is still an obligation Japan needs to fulfill for Japanese society culture that must be addressed. Japan has to resolve its duty without violating the laws quickly, considering the whale population will become extinct over time.

Indeed, whaling in Japan​​ is a culture and a national identity. And according to the ICRW indigenous interests (Indigenous Whaling) and scientific interests (Scientific Whaling / Special Permit Whaling) are both excluded from the whaling moratorium. Japan, on the other hand, could​​ not use this as an excuse to continue whaling. Although whaling has developed a culture over thousands of years, it is actually done for commercial purposes.

 

In conclusion, Japan ideally should stop hunting whales. If Japan insists on whaling, they should​​ implement very tight whaling quotas. since there is no longer a pressing need for whale meat, and demand has fallen drastically.16 ​​​​ Aside from that, Japan has also joined the CITES agreement regarding whale species that must be protected and not hunted in Appendix 1. So Japan should have committed to protecting the​​ whale species mentioned in Appendix 1. However, in fact Japan has violated the agreements. The issue of commercial whaling in Japan has even been addressed before the International Court of Justice. On the basis of scientific research, they also lied about whaling. Until it was uncovered that Japan was still commercially hunting whales. Of course, this is unjustifiable.

 

Furthermore, despite the fact that Japan has quit the IWC, it should have been allowed to ignore the IWC's rules. However, some sources claim that Japan still has obligations of international law. Also, because Japan's whaling occurs in international waters, the CITES Standing Committee ruled that Japan had broken trade limits for this endangered species. Given that the whale population would go extinct over time, Japan must rapidly address its responsibilities without violating the law.

 

 

 

 

 

 

DAFTAR PUSTAKA

 

HUKUM INTERNASIONAL

 

Convention on International Trade in Endangered Species of Wild Fauna and Flora​​ (CITES)

International Convention for the Regulation of Whaling (ICRW)

 

United Nations Convention Law of The Sea (UNCLOS)

 

 

JURNAL​​ 

 

Basu, Samarpita and Katherine R.M. Mackey.​​ 2018. Phytoplankton as Key Mediators of the Biological Carbon Pump: Their Responses to a Changing Climate​​ Sustainability​​ Journal​​ 10(3): 1-18.

 

Putri, Rizza, et al. 2016. IMPLIKASI PUTUSAN ICJ BERKAITAN DENGAN SENGKETA ANTARA JEPANG DAN AUSTRALIA MENGENAI PERBURUAN PAUS ILEGAL DI WILAYAH ANTARTIKA (STUDI TERHADAP PUTUSAN ICJ NO. 226 TAHUN 2014).​​ Diponegoro Law Journal​​ 5(3) : 1-15.

 

Setyonugroho, Olivia, et al. 2019. Indigenous Whaling Tradition in the Faroe Islands under International Law.​​ UDAYANA JOURNAL​​ OF LAW AND CULTURE​​ 3(2): 184-203.

 

SKRIPSI

 

Ariani, Dwi Arum. 2013. TANGGUNG JAWAB NEGARA TERHADAP TINDAKAN PERBURUAN IKAN PAUS SECARA ILEGAL BERDASARKAN PERSPEKTF INTERNATIONAL CONVENTION FOR REGULATION OF WHALING (ICRW).​​ Skripsi. Program Sarjana Universitas Brawijaya. Malang.​​ 

 

ARTIKEL

 

 

Australian Marine Conservation Society, 2019. Japan’s commercial whale hunting risks international legal action.https://www.marineconservation.org.au/japans-commercial-whale-hunting-risks-international-legal-action-says-new-legal-opinion/. 18 May 2021 (14.02).

 

BBC. 2019. Japan whaling: Why commercial hunts have resumed despite outcry.​​ https://www.bbc.com/news/world-asia-48592682. 15 May (11.20).

 

BBC. 2019. What is whaling and why's it controversial?.​​ https://www.bbc.co.uk/newsround/46715160. 19 May 2021 (09.30).

 

Carrington, Damian. 2018. Japan killed 50 whales in Antarctic protected area, data shows.​​ https://www.theguardian.com/environment/2018/sep/04/japan-killed-50-whales-in-antarctic-protected-area-data-shows. 16 May 2021 (16.10).

 

Marrero, Meghan, and Stuart Thornton. 2011. Big Fish : A Brief History of Whaling.​​ https://www.nationalgeographic.org/article/big-fish-history-whaling/. 16 May 2021 (15.25).

 

Menendez, Elisa. 2019. Why is whaling so important to Japan?.https://metro.co.uk/2019/07/01/whaling-important-japan-10095488/. 15​​ May 2021(12.10).

 

Michigan State University. Detailed Discussion: The Global Protection of Whales.​​ https://www.animallaw.info/article/detailed-discussion-global-protection-whales. 17 May (13.00).

 

Nikkei Asia, ​​ 2019. Japan has yet to prove commercial whaling is sustainable.​​ https://asia.nikkei.com/Opinion/The-Nikkei-View/Japan-has-yet-to-prove-commercial-whaling-is-sustainable. 16 May 2021 (17.30).

 

Nippon, 2019. Whale Meat No Longer a Major Protein Source in Japan.​​ https://www.nippon.com/en/features/h00361/. 22 May 2021 (16.45).

 

Pramantari, Aldira, et al. 2015. Tinjauan Hukum Internasional Terhadap Penangkapan Ikan Paus di Laut Bebas (Studi Kasus : Putusan Mahkamah Internasional dalam Kasus Whaling in the Antarctic Australia v. Japan; New Zealand, tahun 2014).​​ http://lib.ui.ac.id/naskahringkas/2019-07/S60403-Aldhira%20Pramantari. 19 May 2021 (22.00)

 

Palmer, Mark. 2018. CITES Rules Japan Whaling Violates International Law.​​ http://savedolphins.eii.org/news/entry/cites-rules-japan-whaling-violates-international-law. 15 May 2021 (08.15).

 

Randow, Jana. 2019. One Whale Is Worth Thousands of Trees in Climate Fight, New Report Says.​​ https://time.com/5733954/climate-change-whale-trees/. 16 May 2021 (16.30).

 

Universitas Pelita Harapan.​​ http://repository.uph.edu/716/4/Chapter1.pdf. 20 May 2021 (20.00).

 

WWF.https://wwf.panda.org/discover/knowledge_hub/endangered_species/cetaceans/cetaceans/iwc/iwc_successes_failures/?. 17 May 2021 (14.10).

 

 

 

 

 

 

 

 

1

​​ Gordon Jackson. 2007. Whaling Human Predation.​​ https://www.britannica.com/topic/whaling. 17 May 2021 (13.43)

2

Meghan E. Marrero and Stuart Thornton. 2011. Big Fish: A Brief History of Whaling.​​ https://www.nationalgeographic.org/article/big-fish-history-whaling/. 16 May 2021 (15.25).

3

Damian Carrington, 2018. Japan killed 50 whales in Antarctic protected areas, data shows.​​ https://www.theguardian.com/environment/2018/sep/04/japan-killed-50-whales-in-antarctic-protected-area-data-shows. 16 May 2021​​ (16.10).

4

​​ Jana Randow, 2019. One Whale Is Worth Thousands of Trees in Climate Fight, New Report Says.​​ https://time.com/5733954/climate-change-whale-trees/. 16 May 2021 (16.30).

6

Nikkei Asia, ​​ 2019. Japan has yet to prove commercial whaling is sustainable.​​ https://asia.nikkei.com/Opinion/The-Nikkei-View/Japan-has-yet-to-prove-commercial-whaling-is-sustainable. 16 May 2021 (17.30).

7

Michigan State University. Detailed Discussion: The Global Protection of Whales.​​ https://www.animallaw.info/article/detailed-discussion-global-protection-whales. 17 May (13.00).

9

​​ Olivia Martha Setyonugroho, et al. 2019. Indigenous Whaling Tradition in the Faroe Islands under International Law.​​ UDAYANA JOURNAL OF LAW AND CULTURE​​ 3(2): 184-203.

 

10

BBC, 2019. What is whaling and why's it controversial?.​​ https://www.bbc.co.uk/newsround/46715160. 19 May 2021 (09.30).

11

Rizza Oktavia Tunggal Putri, et al. 2016. IMPLIKASI PUTUSAN ICJ BERKAITAN DENGAN SENGKETA ANTARA JEPANG DAN AUSTRALIA MENGENAI PERBURUAN PAUS ILEGAL DI WILAYAH​​ ANTARTIKA (STUDI TERHADAP PUTUSAN ICJ NO. 226 TAHUN 2014).​​ Diponegoro Law Journal​​ 5(3) : 1-15.

12

BBC, 2019. Japan whaling: Why commercial hunts have resumed despite the outcry.​​ https://www.bbc.com/news/world-asia-48592682. 15 May (11.20).

13

Elisa Menendez, 2019. Why is whaling so important to Japan?.https://metro.co.uk/2019/07/01/whaling-important-japan-10095488/. 15​​ May 2021 (12.10).

14

Australian Marine Conservation Society, 2019. Japan’s commercial whale hunting risks international legal action.https://www.marineconservation.org.au/japans-commercial-whale-hunting-risks-international-legal-action-says-new-legal-opinion/. 18 May 2021 (14.02).

15

​​ Mark J Palmer, 2018. CITES Rules Japan Whaling Violates International Law.​​ http://savedolphins.eii.org/news/entry/cites-rules-japan-whaling-violates-international-law. 15 May 2021 (08.15).

 

16

​​ Nippon, 2019. Whale Meat No Longer a Major Protein Source in Japan.​​ https://www.nippon.com/en/features/h00361/. 22 May 2021 (16.45).