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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

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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 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
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