The International Court of Justice yesterday ordered Japan to cease whaling in the Southern Ocean Whale Sanctuary with “immediate effect”, determining that their annual Antarctic hunt was not for the “purposes of scientific research”, as Japan claimed.
This is undoubtedly a huge victory for conservationists, who have been fighting whaling for decades. However, while this particular battle is over, the war won’t be won until the legal framework governing the International Whaling Commission is overhauled to reflect the will of the majority of its members.
The landmark case exposed major flaws in the International Whaling Commission’s foundations. The fact remains that for 27 years Japan has been able to operate under a loophole in the 1946 International Convention on the Regulation of Whaling. According to the Australian Government, Japan has killed more than 10,000 whales since the IWC’s moratorium came into effect in 1986.
The ICJ ruling did not close the loophole, but it did rule that Japan’s Antarctic programme did not adhere to the provisions laid out in Article 8, which states:
“A 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.”
The decision rested on whether Japan’s activities in the Southern Ocean were primarily “for purposes” of scientific research. Australia successfully argued that the scientific programme was merely a cloak for Japan’s commercial whaling operations.
The problem lies in the outdated framework in which the IWC operates. Fifteen whaling nations formed the IWC after whale populations collapsed. The organisation was initially set up to conserve whales only to the extent that they could continue to be used by humans.
The convention states its purpose is to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”. Its language enshrines an exploiter/exploited relationship between humans and whales, referring to whale populations as “stock” and “natural resources”.
However, the IWC’s mission and goals have shifted dramatically from those early days. There are now 89 member countries and the commission has confirmed in its own resolutions this shift in focus. For example, in resolution 2003-1 the IWC noted that:
“Through the adoption of more than a hundred conservation-oriented resolutions, as well as through various Schedule amendments, the Commission has evolved into an organisation internationally recognised, among other things, for its meaningful contributions to the conservation of great whales; furthering that conservation work through those Resolutions and Schedule amendments, the Commission has gradually developed an extensive conservation-oriented agenda.”
There are a number of routes Japan could explore from here. The Japanese government could use this case as an opportunity to bow out of supporting a failing business. They could look for ways to continue whaling within the parameters set by this decision and the International Whaling Commission’s (IWC) allowance for lethal scientific research. Or they could withdraw from the IWC altogether. Norway and Iceland currently whale commercially under objection to the global moratorium and the court did not address Japan’s North Pacific whaling programme.
Japan’s chief negotiator Koji Tsuruoka indicated Japan would abide by the decision. “As a state that respects the rule of law … and as a responsible member of the global community, Japan will abide by the decision of the court,” he said.
However, if past form is anything to go by, Japan will continue to doggedly pursue ways to keep their whaling industry alive, even if they leave Antarctica in peace.
Noriyuki Shikata, a spokesman for the Japanese delegation to the ICJ, told the Guardian Tokyo will be closely examining the decision to determine a future course of action.
“We made references to cultural differences and dietary traditions, but this case was about the legality of the programme under the whaling convention … The court ruling referred, for example, to a lack of scientific basis for sample sizes … it wasn’t about cultural differences.”
The ICJ’s decision will likely succeed in putting an end to Japan’s whaling activities in Antarctica, where the IWC has not. The case is one of the most significant wins in the history of the anti-whaling movement, and the world awaits Japan’s next move.