WHEN THERE'S A WHALE THERE'S A WAY: AN ANALYSIS OF JAPAN'S DECISION TO WITHDRAW FROM THE INTERNATIONAL WHALING COMMISSION AND THE POTENTIAL IMPLICATIONS FOR WHALE POPULATIONS AND THE INTERNATIONAL COMMUNITY.

• Author: Devanney, Shelby

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1. Introduction

   Japan, a country deeply rooted in the practice of whaling, announced its withdrawal from the International Whaling Commission (IWC) on December 26, 2018. (1) This departure has resulted in Japan returning to the practice of commercial whaling on July 1, 2019, which has been restricted by the IWC since 1985. (2) Japan will begin hunting whales for commercial purposes [*296] within their own waters. (3) This has numerous potential negative implications not only for the current whale and dolphin populations, but also for the vitality of the IWC. 4

   This note will delve into the importance of whaling in the Japanese culture, particularly in the post-World War II time period. (5) Part II will discuss the implementation of the IWC, the reasoning for its creation, as well as

   Japan's role within the commission. (6) Part III will elaborate on whaling practices today, and [*297] the loopholes Japan found within the IWC to continue its whaling practices. (7) Part IV will delve into Japan's withdrawal from the IWC and the resulting negative reactions of the commission and other environmental entities. (8) Lastly, Part V will conclude by assessing the potential implications for Japan, the surrounding whale and dolphin populations, and the IWC. (9)

2. History

   1. Whaling in Japan's Culture

      A practice dating back thousands of years, whaling has deep roots in Japanese culture. (10) Not yet industrialized, early [*298] whaling comprised five stages, which Fukumoto Kuozo, a Japanese Marxist politician assigned. (11) The first and earliest stage involved fishermen using bows and arrows and nets to hunt already wounded or dead whales, which was considered a type of passive whaling. (12) The second stage of whaling known for the fisherman's use of the harpoon - marked the introduction to active whaling. (13) The third stage commenced at the end of the seventeenth century and involved the combined use of nets and harpoons. (14) The fourth stage, titled the "Norwegian Method," began when whalers realized the net method was not efficient

      [*299] enough to compete with other countries' whaling industries. (15) The last and most current stage is known as Modern Whaling and is the type of whaling most are familiar with in present day. (16)

      Whaling has not only been a significant piece of the Japanese culture and tradition, but also a necessary practice for Japan's poorest to avoid starvation. (17) After the destruction brought by World War II, Japan's poorer population was on the brink of starvation due to the lack of available domestic food sources. (18) While Japan had been whaling for sustenance for centuries, [*300] whale meat consumption peaked in 1962 at 223,000 tons per year. (19) Despite whale meat consumption being much less today, many individuals consider it an essential piece of Japanese culture and consume it for nostalgic purposes. (20)

   2. International Conservation Efforts

      Modern commercial whaling in Japan marks its place in history, by protecting its people and also by causing mass devastation to the whale population. (21) According to a study on grey [*301] whales, prior to the inset of increased commercial whaling in the mid 1800s, the grey whale population was between 23,000 and 35,000. (22) After commercial whaling hit its peak in Japan, this whale group reached a population low of 4,000. (23) As a way to mitigate the damage caused to the whale populations from unsustainable international whaling practices, the International Whaling Commission (IWC) was established. (24) With 88 member governments, the IWC's integral Schedule sets out the rules that the participating countries should follow in order to promote conservation. 25

      Along with the IWC, the Convention on International Trade in Endangered Species of Wildlife and Fauna (CITES) and the United Nations Convention of the Law of the Sea (UNCLOS) were signed into effect to facilitate conservation efforts of wildlife, including whale species. (26) CITES is a voluntary international

      [*302] agreement that provides a binding framework for its members to protect wildlife during international trade processes. (27) The endangered Sei whales that Japan has historically hunted for commercial and research whaling purposes are covered under CITES. (28) UNCLOS was ratified after hundreds of years of abusing the world's oceans due to the "Freedom of the Seas" view point. (29) In 1982, the "Third United Nation's

      [*303] Conference on the Law of the Sea" created the regulations that are still in place today that are used to protect our oceans' resources from over exertion. (30)

      Japan had many objections to the regulations within the schedule, especially the moratorium which paused commercial whaling internationally in order to promote healing of damaged and endangered whale populations. (31) Japan has fought for the [*304] restructuring of the IWC to allow commercial whaling because the moratorium was supposed to be temporary and is currently protecting thriving populations. (32) While Japan's attempts to lift the moratorium have failed, Japan and other pro-whaling countries have found ways to circumvent the pause on commercial whaling to continue their practices by using the IWC's scientific whaling exemption. (33) Despite the

      IWC's efforts to restrict the loophole, Japan ignored these attempts and continued to hunt thousands of whales each year under this exemption in the IWC treaty. (34)

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3. Facts

   1. Japan's Scientific Whaling Deemed Illegal

      Due to the negative perception of Japan's scientific research program in the Southern Ocean and the sentiment that this tactic was for Japan's own economic gain, Australia sought legal action against Japan in order to halt the exploitation of the loophole. (35) Australia brought the case in front of the International Court of Justice claiming a violation of international law. (36) The Court held that Japan's whaling practices in the Southern Ocean in Antarctica violated the IWC's criteria for research permits because the number of whales killed by Japan's whalers was much too high to constitute solely research purposes. (37) As a result of this finding, the Court ordered Japan to:

      (a) refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII;

      (b) cease with immediate effect the implementation of JARPA II; and

      [*306] (c) revoke any authorization, permit or license that allows the implementation of JARPA II. (38)

      This ruling, however, did not stop Japan from continuing their scientific whaling practices in 2015 under a new program name, Newrep-A, and once again circumventing any sort of sanction from an international governing body. (39)

   2. Ability to Sanction for Illegal Whaling Practices

      Sanctioning illegal whaling practices cannot be accomplished solely by the IWC and instead requires the cooperation of other conservation based governing bodies. (40) When paired with CITES, however, a convention with clear sanctioning power to its broad member base, illegal whaling practices can be penalized by means of trade sanctions. (41) In addition to the assistance [*307] of CITES, UNCLOS offers a "Cooperation Clause" in

      Article 65 which requires member states to cooperate with the "appropriate international organizations for their [cetacean] conservation...." (42) This cooperation requirement is paired with a separate dispute resolution section, which states that when there is a disagreement regarding the application of the articles of UNCLOS and a settlement cannot be reached, it will be sent to the court with jurisdiction to come to a binding decision. (43)

   3. Japan Withdraws from the IWC

      After decades of pushback, Japan announced its withdrawal from the IWC. (44) On December 26, 2018, Japan stated that it [*308] would no longer be a member of the IWC and would begin commercial whaling in its own domestic waters. (45) While Japan's withdrawal from the IWC revoked its research whaling privileges in the Antarctic, it now allows Japan to whale within its Exclusive Economic Zone (EEZ) based on the Law of the Sea Convention. (46) Following its withdrawal, Japan killed two Minke whales on July 1, 2019, and set a quota of 227 whales to be hunted in its pioneering season by way of commercial whaling. (47)

      After notice of Japan's withdrawal from the IWC, the majority of reactions from the international community have been [*309] negative. (48) Some fear the resumption of whaling in Japanese waters will disengage over thirty years of conservation efforts. (49) Minke whales, Bryde's whales, and Sei whales, all of which were protected under the IWC due to decreased populations at heightened periods of commercial whaling, are now at risk. (50) Despite this international pushback, the people of Japan remain [*310] supportive of the practice of commercial whaling, and keeping their history and tradition intact. (51)

   4. The Facts Behind Modern-Day Whaling

      Despite the IWC's attempt to not allow commercial whaling by the moratorium in place, hundreds of whales are still hunted each year for economic purposes. (52) Japan is a major actor in this process; however, it is joined by the whaling practices of Norway and Iceland. (53) More than 1,000 whales are hunted for commercial purposes each year by Japan, Norway, and Iceland, despite the moratorium in place by the IWC. (54) Now, with Japan not being bound by the moratorium in place by the IWC, it is debated how species will be impacted by Japan's commercial whaling practices not disguised as research. (55)

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4. Analysis

   1. The Effect of Japan's Withdrawal on Whale Populations

      Despite the turmoil that Japan's decision has brought to international conservation efforts, many researchers believe that Japan's halt on its research whaling practices will help restore whale populations. (56) Japan has been a major issue in the sustainability of whale populations in the Antarctic, as...