THE FUTURE OF SCIENTIFIC WHALING IN THE ANTARCTIC

Transcription

1 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

2 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

3 Table of contents Abstract Introduction History of the regulation of whaling Central research question Methodology Structure Scientific whaling according to the ICRW and the ICJ The ICRW Whaling in Antarctica Moratorium on commercial whaling Scientific whaling Concluding remarks The ICJ judgment on JARPA II What is JARPA II? The design of JARPA II Scientific whaling according to the ICJ Judgment and reasoning from the ICJ Concluding remarks Response of the IWC to the ICJ judgment on whaling Amendments to the ICRW Changes to the ICRW Schedule IWC meetings IWC statements What could have been Concluding remarks Response of Japan to the ICJ judgment on whaling: NEWREP-A What is NEWREP-A? Incorporating the ICJ judgment NEWREP-A methodology Scientific Committee review Similarities and differences with JARPA II

4 5.6. Concluding remarks Conclusion References Academic sources Non-academic sources

5 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 ocean 1 (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 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), This copy is a reprint of the original 1851 edition. 3 Melville, Moby Dick, 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): 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, (hereinafter referred to as: ICRW). 8, 3. 5

6 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 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, International Whaling Commission, Schedule: last amended October 2016, International Whaling Commission Archive, 2017, (accessed 4 March 2017) (hereinafter referred to as: ICRW Schedule). 11 ICRW, Fitzmaurice, Whaling and International Law,

7 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 Fitzmaurice, Whaling and International law, International Court of Justice, Whaling in the Antarctic,

8 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) 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 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

9 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 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), Fitzmaurice, Whaling and International Law, ICRW, Fitzmaurice, Whaling and International Law, 32. 9

10 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 20 th 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 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, ICRW, ICRW, International Whaling Commission, Scientific Committee, International Whaling Commission, 2017, (accessed 8 March 2017). 27 Patricia W. Birnie, Small Cetaceans and the International Whaling Commission, Georgetown International Environmental Law Review 10 (1997): Dorsey, Whales and Nations: Environmental diplomacy on the high seas,

11 governments, it has been difficult to regulate the catch limits in this area. Especially pelagic whaling has been detrimental to the whale stocks around the Antarctic. 29 Pelagic whaling is a method that came up in the mid-19 th century and uses industrial ships that can catch whales and process them on board. This allowed the whalers to kill many more whales than they ever could with the old method of coastal whaling where whales were processed on land and boats thus had to return to the coast much more often. 30 Furthermore, because it was economically more beneficial to hunt whales in international waters where there is no competition rather than to try and save them, the industry was essentially unrestricted before the first convention regarding whaling was drawn up in Nevertheless, pelagic whaling in the Antarctic and the North Pacific were still allowed under the 1946 ICRW and the Convention set catch limits for whales that were hunted during the whaling season in the Antarctic waters until the capture of whales for commercial purposes became an unlawful practice in Still, because the catch limits were not sustainable, action was already taken before the ban in the early eighties. Quota were reduced from 1960s onwards and differences were made between stocks regarding their level of protection. Some whale species were threatened with extinction, yet all whale species were in abundance when catch limits were set. The New Management Procedure changed this in 1974, which made it almost impossible to harvest depleted species. 32 Nevertheless, it was believed more action was needed to protect whale stocks in the Southern Ocean, so in 1994 the IWC declared Antarctic waters to be a whale sanctuary for the next 50 years Moratorium on commercial whaling This was not the first attempt of the IWC to amend the ICRW Schedule in trying to regulate whaling by banning certain aspects. Already in the early 70s, research was conducted to find out how catch restrictions could best be brought in line with the stocks. 34 However, because of growing membership of the IWC and the continual changes in its organisation, it took until 1982 for the global moratorium on commercial whaling to come into place. It officially constituted a zero-catch limit for commercial whaling of all stocks, 29 Sebastian Oberthür, The International Convention for the Regulation of Whaling: from over-exploitation to total prohibition, Yearbook of International Co-operation on Environment and Development 1999 (1998): Fitzmaurice, Whaling and International Law, Oberthür, The International Convention for the Regulation of Whaling: from over-exploitation to total prohibition, A. W. Harris, The Best Scientific Evidence Available: The Whaling Moratorium and Divergent Interpretations of Science, William & Mary Environmental Law & Policy Review 29 (2004):

12 but in practice meant a ban on commercial whaling. 35 Paragraph 10(e) of the ICRW Schedule was amended to allow for the coming into action of the Moratorium. This article states that: Notwithstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits. 36 The other provisions that are referred to in this article are the ban on the taking, killing or treating of whales, except minke whales, by factory ships or whale catchers attached to factory ships 37 which is described in paragraph 10(d) of the ICRW Schedule; and the prohibition on commercial whaling in the Southern Ocean which is described in article 7(b) of the ICRW Schedule. In the whaling season, the Moratorium became effective. Around this time, the balance between the two goals of the ICRW (protecting the whale stocks and allowing the whaling industry to operate) shifted to the countries which were in favour of protecting whale stocks by banning their capture for commercial purposes. Considering that non-whaling countries formed a majority in the IWC at the time, this is not surprising. Many countries had already ended their whaling practices by this time because of the protests that arose within their own borders by citizens who were concerned about declining whale stocks and poor regulation. 38 Some Western countries where whaling was looked down upon by the time of the enactment of the Moratorium such as Australia, the USA, and the Netherlands, have had a 180 change in their view on whales. 39 Whaling had become a barbaric practice and whales had an intrinsic right to live, most likely because of the growing body of knowledge on whales and their intelligence levels. 40 Even though the Moratorium was intended to last for only five years until its review in 1990, it is currently still in place. Interestingly, the ICRW Schedule requires scientific findings to be the base of any changes 35 Fitzmaurice, Whaling and International Law, ICRW Schedule, Fitzmaurice, Whaling and International Law, Gerry Nagtzaam, The making of international environmental treaties: neoliberal and constructivist analyses of normative evolution, (Cheltenham: Edward Elgar Publishing, 2009):

13 to the document, but the Moratorium was not based on science. 41 The IWC has been unsuccessful in creating a science-based system of whale stock management and, even though whaling nations have been lobbying to lift the ban ever since the enactment of the Moratorium, the non-whaling nations have been more successful as they currently make up the majority of the IWC. 42 This makes the chances of the Moratorium of ever being lifted very small Scientific whaling Article 8(1) of the ICRW provides for the only exception to the ban on commercial whaling, namely that of for purposes of scientific research. As put forward in the ICRW: 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 for purposes of scientific research subject to such restrictions as to number and subject 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. 43 In practice, this means that states are allowed to grant permits to kill, take or treat whales for the purpose of scientific research. There are no specific guidelines on when a state can hand out such a permit, this is up to the state. In Japan, whaling for the purpose of scientific research began in 1987, only a year after the Moratorium on commercial whaling came into effect. Many permits were issued and over 400 minke whales were taken per year under JARPA, the first Japanese research programme. 44 However, from day one, many criticized whether this programme was for the scientific purposes it said to pursue, or whether it was a cover-up for the continuation of commercial whaling. 45 This whaling programme also took place in the Southern Ocean Sanctuary in which it became illegal to kill, take or treat whales from 1994 onwards. 46 The Scientific Committee of the IWC also reviewed JARPA and concluded that it was not for scientific 41 Mike Iliff, Normalization of the International Whaling Commission, Marine Policy 32.3 (2008): Fitzmaurice, Whaling and International Law, ICRW, Gillian Triggs, Japanese Scientific Whaling: An Abuse of Right or Optimum Utilisation, Asia Pacific Journal of Environmental Law 5 (2000): ,

14 purposes as the data required for the research could also be obtained with non-lethal means, thus urging the Japanese government to end the programme Concluding remarks There are no guidelines laid out anywhere on the handing-out of such special permits; it is up to the state to draw up rules about this. The lack of legislation on the topic, as well as the vague wording of the article is one of the main reasons for the unclarity in the field of scientific whaling. The answer to the first subquestion is thus that scientific whaling is regulated by article 8 ICRW. However, this article is vague and does not lay out precise guidelines on the handing-out of permits or on the scientific value that a research programme ought to have to qualify for the scientific whaling exception. 3. The ICJ judgment on JARPA II In this chapter, the second research question will be discussed: 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?. In order to find an answer to this question, the JARPA II research programme will be looked at in more detail in this chapter. Firstly, the reasons why the programme came into existence was discussed and what objectives JARPA II intended to achieve. Then, a closer look will be taken at the programme s design and reasoning on scientific whaling. The arguments the ICJ gave in its review of the programme will be discussed as a part of this What is JARPA II? The Whaling in the Antarctic case discusses JARPA II, the second Japanese research programme in the Antarctic. In 2005, the first scientific whaling programme of the Japanese government ended and plans were made for another research expedition with the research plan named Plan for the Second Phase of the Japanese Whale Research Programme under Special Permit in the Antarctic (JARPA II) Monitoring of the Antarctic Ecosystem and Development of New Management Objectives for Whale Resources. 48 For purposes of brevity, this will hereinafter be referred to as the JARPA II Research Plan. This Research 47, International Court of Justice, Whaling in the Antarctic,

15 Plan discusses the key elements of the programme s design such as research objectives, research period and area, research methods, sample sizes, and the expected effect on whale stocks. 49 The main reason why JARPA II has been the topic of so many discussions is because of the contemplated use of lethal sampling on three whale species: minke whales, fin whales, and humpback whales. The objectives that the research programme attempts to achieve are: 1. Monitoring of the Antarctic ecosystem; 2. Modelling competition among whale species and future management objectives; 3. Elucidation of temporal and spatial changes in stock structure; and 4. Improving the management procedure for Antarctic minke whale stocks. 50 In practice, this means that many aspects of the whale populations will be observed. With regards to the first objective, for instance, changes in recruitment, pregnancy rate and age at maturity will be measured to detect changes relating to whale abundance and biological parameters. 51 These facts provide the opportunity to detect changes and take the appropriate measures before it is too late, according to the Japanese government. The second objective concerns possible competition amongst whale species, as Japan would like to test the krill surplus hypothesis which states that the overhunting of certain whale species (e.g. fin and humpback whales) would create a surplus of krill for other predators (e.g. minke whales) and thus create an abundance of the latter species. This hypothesis also puts forward the idea that some of the larger whale species, such as the fin and humpback whales, have been recovering since the 1970s as their numbers have been growing, leading to more competition between them and minke whales for krill. The predicted result of this hypothesis is that minke whale stocks may decrease because of this. 52 The third research objective is to compare current stock structure to historic information on this to investigate shifts in stock boundaries. 53 The fourth and last research objective builds upon the other three in its attempt to find that the information arising from the other objectives, especially the information regarding inter-species relationships, could demonstrate that the determination of a catch quote for minke whales would be too low , , ,

16 3.2. The design of JARPA II In the programme s design, it is explained that both lethal and non-lethal methods will be used to achieve the research objectives. The non-lethal methods include biopsy sampling from the whale species that will be examined as well as satellite tagging and whale sighting surveys. 55 Nevertheless, lethal sampling is described as the main method and indispensable in achieving the first two research objectives on ecosystem monitoring and multi-species competition modelling. 56 Because whales have been captured for these two objectives already, the genetic and biological markers that are needed for the third research objective can easily be obtained according to the JARPA II Research Plan. The sample sizes that the Research Plan claims to be necessary to obtain the right data each season are 50 fin and humpback whales and 850 Antarctic minke whales, with a 10% leeway every year. These will be captured in both high- and low density areas by vessels that follow scientifically determined track lines to obtain a proper distribution of samples and observations. 57 The Research Plan states that the numbers of whales that will be captured each season will not have any adverse consequences on whale stocks as the sample sizes are small enough not to have a negative effect on the populations. 58 Regarding this, Australia argued that JARPA II is merely a cover-up for the commercial whaling practices that Japan can continue this way because there are many non-lethal methods available through which the same data can be obtained. Japan, on the other hand, states that the amounts of whales that are taken, treated, or killed are indispensable for good research. It must be noted, however, that Japan gives no explanation as to why it does not use non-lethal methods more extensively except for a 2007 unpublished paper in which it is stated that lethal whaling would be more practical and cost effective, as the sale of whale meat could cover some of the costs that are made in the research programme. The programme will last for 6 years and be evaluated afterwards. Yet, the JARPA II Research Plan does not explain anywhere why this 6-year period was chosen or how this will help in achieving the objectives Scientific whaling according to the ICJ The interpretation of article 8(1) of the ICRW, and particularly the notion of for purposes of scientific research is one of the main points that was contested in the Whaling in the Antarctic case. In this case, Australia claims that article 8 ought to be interpreted in a restrictive sense: it is only an exception from ,

17 the ICRW. When handing out permits that allow scientific whaling, whale conservation must still be the main objective. Japan, on the other hand, believes that the power to regulate scientific whaling must be seen in light of the freedom to engage in whaling as a sustainable exploitation. 59 The International Court of Justice ruled that both interpretations are acceptable and that even though programmes for scientific research should have the promotion of scientific knowledge as their main intention, they can be used to pursue other goals. These may include: the improvement of conservation and management of whale stocks, the envisagement of programmes which have the improvement of conservation and management of other living marine resources or the ecosystem of which the whale stocks are not their prime goal, and the testing of hypotheses that are not directly related to the management of living marine resources. 60 This point of view is, according to the ICJ, also reflected in the Guidelines which are issued by the IWC as part of their review of scientific research proposals by the Scientific Committee. 61 Nevertheless, the ICJ also argued that the decision on whether a proposed research project is for the purposes of scientific research cannot depend on the perception of that State alone; there must be global consensus about this 62 as well as an objective reasoning. 63 The legal requirements that the Court laid out in the Whaling in the Antarctic case are the following: assessing whether the proposed programme involves scientific research, and/or in the use of lethal methods the programme s design and implementation are reasonable in relation to achieving its stated objectives. 64 The merit or importance of the objectives does not need to be assessed according to the Court, instead they focus on whether something is for the purposes of scientific research Judgment and reasoning from the ICJ Because the implementation of the JARPA II Research Plan differed drastically from its design, this led to much criticism. There is a significant gap between the target sample sizes that the JARPA II Research Plan set out and the actual number of whales that have been taken. During the first two years of the programme the target for humpback whales was zero and for fin whales ten. During the first seven years, 18 fin whales have been killed in total, 10 of which were captured in the first year. 66 No humpback whales have been killed as their capture has been suspended from 2007 onwards. This decision was made in 59 Fitzmaurice, Whaling and International Law, , International Court of Justice, Whaling in the Antarctic, Oberthür, The International Convention for the Regulation of Whaling: from over-exploitation to total prohibition, International Court of Justice, Whaling in the Antarctic, Fitzmaurice, Whaling and International Law, International Court of Justice, Whaling in the Antarctic.,

18 response to a request from the then-chair of the IWC and because of the inability of the vessels that were used to capture larger whale species such as fin whales. Minke whales have been captured in large amounts though their numbers have fluctuated from year to year. In the season, 853 whales were killed, in the following years an average of 450 minke whales was captured per year. In the last few seasons, far fewer whales were killed. In , for instance, only 103 minke whales were taken. 67 The Court states in its conclusion that the sample sizes of JARPA II are not reasonable in relation to achieving the programme s objectives and gives 4 reasons to support this. The first argument the Court gives is that the objectives of JARPA II and JARPA, its predecessor, are very similar and that the JARPA II Research Plan gives no explanation as to why the sample sizes are almost double the size of those in JARPA. Secondly, the actual sample sizes for fin and humpback whales are so small that their sampling will not provide the information that is needed to answer the research objectives. No fin whales have been taken at all and only a few humpback whales were sampled. Thirdly, the JARPA II Research Plan provides no explanation or transparency regarding the setting of the sample sizes. Especially for minke whales, whose sample size is very high compared to the other two species, no clarification is given. 68 Lastly, some of the evidence suggested that the same results could have been achieved with smaller sample sizes and Japan has not given any explanation as to why this did not happen, or why they opted for the higher sample sizes regardless. Some of the researchers who followed the case while it was pending did not understand the importance that the Court attached to the sample sizes. Science is science they say, and the main determinant as to whether research is scientific is the purpose with which it is executed. 69 This the one of the reasons why, at the beginning of the case, the odds were in favour of Japan as experts did not believe that the Court would put such a large emphasis on sample size, as well as on the definition of scientific research. 70 Nevertheless, in the end, the Court concluded that the excessive amount of lethal methods that Japan used for its research could not be considered appropriate for the purposes of scientific research. The original design of JARPA II could be considered scientific, but the actual implementation of the programme differed too much from the design and rendered the plans unscientific. 71 Because of this, the programme had to come to an end. This judgment rendered the case a 67 68, Casey Watkins, Whaling in the Antarctic: Case Analysis and Suggestions for the Future of Antarctic Whaling and Stock Management, New York International Law Review 25, no. 2 (2012): , International Court of Justice, Whaling in the Antarctic,

19 truly remarkable one. The Whaling in the Antarctic case was the first time that an institution, different from the IWC or its sub-committees, reviewed a scientific whaling programme. 72 This makes the outcome of the case highly significant for any possible future environmental cases Concluding remarks The ICJ focused on the interpretation of for the purposes of scientific research in its judgment on the Whaling in the Antarctic case. During the proceedings, Australia claimed that the article ought to be interpreted in a restrictive sense, meaning that it is an exception from the ICRW and conservation must always be the main objective when handing out scientific permits. Japan disagreed with this and argued that article 8 had to be interpreted considering sustainable whaling practices. The main reason for the Court s decision was the excessive use of lethal methods in Japan s research programme. The ICJ argued that the sample size of minke whales that was captured each season was too large in relation to the objectives it was trying to achieve, nor did the JARPA II Research Plan explain why the sample size was so much higher than its equivalent in the previous programme, JARPA. Furthermore, the Court argued that Japan could have used non-lethal methods more often than it did to obtain its results. The Court considered the original design of JARPA II to be for the purposes of scientific research, but the actual implementation was too little in line with the research plan that it became unscientific. Not all species that were going to be researched ended up being taken; the target sample sizes were only achieved in one year of the programme for one of the species and the lethal take of whales was the main method and non-lethal methods were only used on a small scale. These were only some of the facts that led the Court in making its decision and form the answer to the 2 nd sub-question discussed in this section. 4. Response of the IWC to the ICJ judgment on whaling This chapter will address the third sub-question: 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? 72 William de la Mare, Nick Gales, and Marc Mangel, Applying scientific principles in international law on whaling, Science 345, no (5 September 2014):

20 Firstly, the ICRW will be discussed more in detail. The Convention and any amendments that might have been made to it, as well as the likelihood of any changes to be made to article 8 will be covered. Secondly, the ICRW Schedule will be taken a closer look at. As the changeable part of the ICRW, it would be more likely that this instrument could be used for making amendments to the Convention or to clarify the wording in it. Thirdly, the IWC meeting reports will be looked at as to whether the 2014 Whaling in the Antarctic case was discussed, if any possible changes to the scientific whaling exception were proposed, or other significant action was taken regarding scientific whaling. Lastly, the IWC as an institution will be considered. Has the executive board of the IWC or the Scientific Committee made any statements regarding the interpretation that the IWC holds with regards to scientific whaling or does it merely stick to the documents that were drawn up in the past? 4.1. Amendments to the ICRW Because the ICRW is a treaty that has been consolidated since its creation, it is rather difficult to change any of the articles in it. This is especially difficult seeing that there are no provisions allowing for any amendments in the Convention besides consensus of the Member States at a meeting which is a rare thing to happen. 73 As is the case with many treaties, countries that will not benefit directly from signing and ratifying a treaty or that have the desire to set a good example will often not be parties to the agreement or withdraw when a decision has been made with which they do not agree. With regards to the ICRW, many countries have withdrawn from the convention at some point in history only to sign and ratify the convention a few years later again, such as the Netherlands. 74 In some scenarios, restrictions that were imposed on top of the ICRW, for instance through the ICRW Schedule or at the IWC meetings, were circumvented by countries which did not want to comply with these. Japan, for instance, registered its whaling vessels under the flags of states that were not parties to the ICRW to avoid any problems with the IWC without having to withdraw from the Convention. 75 These other countries, including Chile and other Central and Latin American nations, thus became pirate whaling nations. 73 Mike Iliff, Modernisation of the International Convention for the Regulation of Whaling, Marine Policy 32, no. 3 (2008): William C Burns, The International Whaling Commission and Future of Cetaceans: Problems and Prospects, Colorado Journal of International Environmental Law & Policy 8 (1997): Scott Barret, On the theory and diplomacy of environmental treaty-making, Environmental and Resource Economics 11 (1998):

21 Because the ICRW does not have an enforcement mechanism, it is regarded by many as an example of old international law; legislation which was created to last for decades, perhaps even centuries. This makes the ICRW a durable source of information, as it does not delegate power to international organisations, but not to domestic ones either which makes it an impartial treaty on all levels of the executive. 76 It can therefore be said that the likelihood that the fundamental structure of the ICRW will ever be amended is rather low. It would, however, be more likely that clarifications about scientific research or amendments to article 8 were to be put in the Schedule of the ICRW instead of in the actual Convention. This will be discussed in more detail below Changes to the ICRW Schedule As the Schedule is the more flexible part of the ICRW, it is most likely that amendments would be made here based on new findings to protect whales and their stocks in a better manner. Nevertheless, a threequarter majority is required to amend the ICRW Schedule which does make it a rather static document. 77 Over the years, many amendments have been made to the ICRW Schedule, usually during the biennial meetings of the IWC. 78 As article 5 of the ICRW states, all amendments to the ICRW Schedule ought to be based on scientific findings and necessary to carry out the objectives and purposes of the Convention. 79 Regarding the provisions on scientific whaling that have been laid out in the ICRW and are further explained in the ICRW Schedule, article 30 (on scientific permits) states that: A Contracting Government shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them. The proposed permits should specify: (a) objectives of the research; (b) number, sex, size and stock of the animals to be taken; (c) opportunities for participation in the research by scientists of other nations; and (d) possible effect on conservation of stock. Proposed permits shall be reviewed and commented on by the Scientific Committee at Annual Meetings when possible. When permits would be granted prior to the next Annual Meeting, the 76, Mike Iliff, The international whaling regime post 2007, Marine Policy 32, no. 3 (2008): International Whaling Commission, Key Documents, International Whaling Commission, 2017, (accessed 30 March 2017). 79 ICRW, 2. 21

22 Secretary shall send the proposed permits to members of the Scientific Committee by mail for their comment and review. Preliminary results of any research resulting from the permits should be made available at the next Annual Meeting of the Scientific Committee. 80 Even though this article explains in more detail what the requirements for the issuance of permits for scientific whaling are, it does not deal further with what exactly scientific research entails and how it is objectively decided upon by the Scientific Committee. Another questionable aspect of the ICRW Schedule is that the regulations that amend it can be objected by all countries. 81 The objection is only applicable to the Member State that filed the objection to that regulation. In practice, however, the ICRW Schedule is a powerless document as there are no enforcement mechanisms or sanctioning measures that could be taken against Member States that do not comply to a regulation they have not objected to. 82 This lack of enforcement mechanisms in the ICRW Schedule leaves the IWC with no other options than to symbolically sanction Member States for their actions. 83 The United States of America has created its own enforcement mechanisms in the executive branch that will sanction any nation that violates the policies and objectives of the ICRW. 84 The laws regulating this were created in the 1970s by the Pelly Amendment and the Packwood-Magnuson Amendment. 85 The USA has threatened with sanctions on many occasions based on these laws but never actually imposed them. The only major change that has ever been made to the ICRW Schedule was the amendment of paragraph 10(e) by introducing the Moratorium on commercial whaling in Later scientific evidence pointing towards the sustainable harvesting of whales would be a reason to lift the Moratorium, yet this has not happened because of the anti-whaling majority in the IWC. 87 The Southern Ocean Sanctuary, established by amending paragraph 10(d) of the ICRW Schedule, was also based more on political views than on 80 ICRW Schedule, Gene S. Martin, and James W. Brennan, Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments, Denver Journal of International Law & Policy 17 (1988): Sarah Suhre, Misguided Morality: The Repercussions of the International Whaling Commission's Shift from a Policy of Regulation to One of Preservation, Georgetown International Environmental Law Review 12 (1999): Martin and Brennan, Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood- Magnuson Amendments, Suhre, Misguided Morality: The Repercussions of the International Whaling Commission's Shift from a Policy of Regulation to One of Preservation, Iliff, Normalization of the International Whaling Commission,