Killing whales for scientific research purposes is exempt under Article VIII of the 1986 International Whaling Commission (IWC) moratorium that bans commercial whaling. Capitalizing on the Article VIII scientific research exemption, Japan was able to continue lethal whaling by granting parties within its fishing industry special permits for scientific purposes under a program called JARPA II. The permits are issued to the Institute of Cetacean Research (ICR), which then contracts Kyodo Senpaku, a whaling company, to carry out the whaling. Once “scientific research” has been conducted, ICR then releases the whales to Kyodo Senpaku for a sale at a fixed price set by the Japanese Ministry of Fisheries to fish wholesalers. Nevertheless, the scientific research output stemming from JARPA II has been rather underwhelming. Just two peer-reviewed scientific papers have been produced over the last decade. In the same period over six million kilograms of whale meat ended up on the dining tables of upmarket Tokyo restaurants and elementary school lunchrooms.

In a move to protect whale species and dwindling whale stocks, the IWC, in 1994, established the Southern Ocean Whale Sanctuary. This sanctuary, though non-binding, had the purpose of prohibiting all forms of lethal whaling and extended the prohibition to the use of factory ships. Japan, however, has continually objected to both the commercial moratorium on killing whales and to the establishment of the Southern Ocean Sanctuary.

This attitude and practice from Japan has caused great controversy. By 2010, then Australian Prime Minister Kevin Rudd began the process of taking the scientific whaling issue to the International Court of Justice (ICJ), the UN’s highest judicial body to have the matter settled. The Rudd government had lost patience with the tactics from the Japanese whaling industry and fisheries ministry and was under strong political pressure from an angry Australian public who felt that a country some 10,000 kilometres away coming into their “backyard” and killing whales in a Whale Sanctuary was not acceptable. The New Zealand government soon joined in the action as an intervener in the case, describing JARPA II as “pointless and offensive.” The public of New Zealand was also angered by the actions of the Japanese, taking the same view as the Australian public that it was also “our part of the world”.

The “our part of the world” sentiment is uniquely strong within both the New Zealand and Australian public. This is particularly so around the maritime environments of the Southern Ocean and South Pacific. New Zealand famously snubbed both France and the United States during the later part of the Cold War over the nuclear power and weapons issues. Australian public strongly supported their government’s case to the International Tribunal for the Law of the Sea in 1999, which sought to stop Japan’s “experimental fishing program” for Southern Bluefin Tuna, which faced rapid depletion.

Publicly, however, the Obama administration cautioned the legal action in the International Court of Justice (ICJ) as both Japan and Australia were close trade and defence allies with each other and with the United States as well. Nevertheless, Australia felt that a principle was at stake and went ahead anyway. It was the Australian government’s view that as long as the IWC loophole exists to allow for lethal scientific whaling, there is no incentive for Japan to comply, nor is there a mechanism to enforce it. Nevertheless, Australia demands compliance and enforcement of transgressions.

In June of 2013, both sides gathered in The Hague for the landmark case. Submissions from both sides were presented to the court and oral advocacy from interested parties was robustly conducted to the full International Court of Justice bench of 16 international judges. In September of 2013, the judges retired to deliberate and produce their verdict. On March 30, 2014, the international environmental community celebrated the landmark decision of the International Court of Justice, which called on Japan to end the JARPA II scientific whaling program that killed 6,700 Antarctic minke whales over the course of JARPA’s 18-year history.

The ICJ ruled that Japan had abused an exemption to a commercial whaling ban for scientific research purposes. The court also ruled that any state seeking to kill whales for scientific research must demonstrate to the International Whaling Commission why non-lethal methods were not an option.

Reacting to the judgment, the Japanese government stated to the media that it would act “positively” and abide by the ruling of the ICJ. After killing just 250 minke whales in Antarctic waters during the previous season, some 750 whales fewer than its pre-hunt target, the Japanese government called for the cancellation of its 2014-15 Antarctic hunt. Greenpeace and the Sea Shepard anti-whaling activists launched a global social media campaign to bask in the limelight of the Australian victory in the ICJ.

However, one of the first people to pour cold water on the celebrations of the international environmentalists was UN Rapporteur for the World Heritage Convention Professor Al Gillespie, from the University of Waikato School of Law in New Zealand. In interviews with BBC Radio and CNN following the ICJ judgment, Gillespie stated that Japanese “scientific” whaling would continue in another form and that the actual intent of the Japanese Government would be business as usual. Within months, Gillespie was proven right as a Japanese Ministry of Fisheries spokesperson revealed Tokyo’s plan to resume research whaling in the Antarctic for the 2015-16 season. Japan then formally confirmed this new scientific whaling program at the recent September IWC meeting.

On September 18, 2014, Jun Morshita, Japan’s Commissioner to the International Whaling Commission, stated to international media that Japan would abide by its decision to stop the scientific whaling under JARPA II. But the often outspoken Morshita shocked the conservation movement when he confirmed that nevertheless Japan would, from the 2015-2016 Southern Ocean whaling season, continue the practice of scientific research whaling under the rules. Thus JARPA II is gone and is to be replaced by JARPA III. Anti-whaling organizations such as Greenpeace commented that it was obviously a clear breach of good faith and a snub to both the international community and international law. Greenpeace argues that postponement of whaling by Japan over the 2014 to 2015 season is only happening so they can buy the extra time to find a new loophole to cynically exploit the rules and wrap the issue in a blanket of self-legitimacy. In the meantime to abide by the new regulations, Japan would have to submit a plan to the scientific committee of the IWC by the end of the year.

What needs to be remembered is that the ICJ ruling back in March put an end to the fraud of JARPA II. It did not put an end to lethal whaling for scientific purposes. The case presented to the court could not be framed as a total ban on whaling and the court was in no position to go ultra vires and make a judgment otherwise. The March ICJ decision against Japan was in no way able to resolve the fundamental cultural conflict between those who believe whales should not be hunted and those who are willing to restrict hunting as part of a wildlife management program. Those changes will have to be enacted at the International Whaling Commission. With the issue split between the anti-whaling group and the pro-whaling group at the IWC level, any change, which may resolve cultural factors, will be a long time coming. Nevertheless, in the individual summations of some ICJ Judges such as Justice Sir Kenneth Keith, Professor Hilary Charlesworth and Justice Hisashi Owada, were made their views were made crystal clear on what is either acceptable or not acceptable about scientific whaling.

The general consensus amongst maritime conservationists and international lawyers is that Japan will continue to pay only a cursory compliance to the International Whaling Commission resolution as it stands. Any intention to go ahead with a revised scientific whaling program next year basically signals that the country won’t in practice abide by the IWC rules that establish the framework for scientific research into whales. Most of its current energy is first geared to the mechanical and logistical requirements of conducting further Southern Ocean whaling and not attempting to begin the hard yards on making compliance to the scientific research regime even plausible. It will continue to kill first, ship to restaurants and schools all over the country and then deal with the niceties of the paper work later.

At the most recent September IWC meeting, the Japanese complained that they were “ambushed” by a variation to the regime proposed by New Zealand, which would disallow any future permits being issued for any whaling research without proof of tangible scientific necessity and limit on the ability of any country to unilaterally set its own quotas for lethal research whaling in the future. The proposed change by New Zealand was passed by the IWC membership 35 votes for the motion and 20 votes against.

This now makes it very difficult for Japan to come up with a scientific research program that would allow any lethal whaling, which would be acceptable to the IWC. In reply, Japanese representative to the IWC Hideki Moronuki attacked not just the variation but also lashed out against the prior ICJ judgment stating that “New Zealand’s understanding of the ICJ judgment differs from Japan’s. Japan cannot accept the resolution as it now stands.” Moronuki added that, “The court judgment only says that Japan should revoke existing authorization or a permit and not the other special permit activities.”

However, Moronuki misses the point. It is no longer solely about the judgment. It is about taking steps within the IWC to give legal efficacy and clarity to the judgment. Moronuki, obviously dejected by the events within the September meeting, fails to understand that the variation introduced by New Zealand was to clarify the vagueness in the present IWC regime and bridge an amendment to the IWC legal framework. The ICJ was explicit about the requirements of science research to demonstrate why non-lethal methods were not an option. It was a subsequent legal move that flowed on and addressed an outstanding issue and not one in which the Japanese are now trying to infer is a wrong interpretation of the originating ruling. Japan was not able to make a convincing argument to the September IWC meeting and lost. They were out maneuvered, legally harpooned by the New Zealand lawyers and part of their current misery is that they know that the next time anyone takes Japan to the ICJ, which is a foregone conclusion if Japan heads once again down to the South Ocean Sanctuary and starts killing whales as part of a JARPA III, then with the clarity now present in the IWC rulebook any future ICJ hearing on the matter can adjudicate with greater precision. Moreover, Moronuki was also conveniently silent on the ICJ’s criticism that the Japanese scientific research publications were not anywhere proportionate to the number of animals killed.

All of this begs the question to even the most causal observer. Why on earth does the Japan government want to invite the growing international opprobrium against it over whaling? To answer that question one has to look into local Japanese politics. The Japanese whaling industry to survive as a commercial activity has needed to cultivate a pro-whaling lobby within both the Ministry of Agriculture’s Fisheries Agency and with mostly right-wing lawmakers of its Diet. The industry itself is not viable and requires substantial subsidies from the government to survive, even to the point that $29 million dollars was diverted from the post-earthquake and tsunami reconstruction budget allocation and diverted into the whaling industry coffers.

The advocacy group International Fund for Animal Welfare (IFAW) estimates that whaling has cost Japanese taxpayers $378 million since the Southern Ocean moratorium began. Part of that money heads overseas as part of a “vote buying” scheme to gain control of the IWC. In order to get its way within the IWC, Japan has been actively recruiting a number of developing countries to join the IWC and vote in its favour, against the ban on commercial whaling. It has been known to make ODA (overseas development assistance) conditional to this. Around 28 countries including the landlocked African nation of Mali have been recruited by Japan to the whaling commission as a result of Japanese ODA.

Within Japan there are vested interests somewhat similar to an old boys network, which wish to return to full scale commercial whaling. The birth of the modern whaling industry was established in 1987 following the start of the IWC moratorium. Kyodo Senpaku, the company which conducts the whaling operations was established later that year after the dissolution of the previous JARPA I era whaling company Kyodo Hogei. That same year the Institute of Cetacean Research (ICR) was established as a non-profit organisation substantially funded by the Kyodo Senpaku whaling company. Its primary function remains to conduct research into the southern hemisphere minke whale species, to thus create a veil of validity for the return to commercial whaling. All this is a very circular arrangement. Kyodo Senpaku sets up the Institute of Cetacean Research who are funded by an annual allocation from the Fisheries Agency. The ICR in turn solely contracts Kyodo Senpaku to conduct “scientific whaling” on behalf of the Fisheries Agency, whilst handing back the catch to Kyodo Senpaku, which had never left their possession in the first place, so they can then sell the “excess” whale meat to commercial fishery wholesalers. The bias in allocation of funds towards Antarctic minkes is due to the fact that the Fisheries Agency sees the species as a stock ripe for commercial exploitation. ICR leadership roles have traditionally been seen as a well-paid “golden parachute” or Amakudari position for retired Fisheries Agency officials, which all helps for this tight little club to continue.

In the scheme of things, the Japanese whaling industry is just a tiny niche within its much larger fishing industry. However, to survive it has courted political patrons with nationalist tendencies and wrapped the whole issue up in ethnocentric principals. The Japanese whaling industry and officials in the Ministry of Fisheries consider whaling a fundamental part of Japanese culture. They also state that continual moves by Australia, New Zealand, the European Union and other anti-whaling nations, including the United States, are part of what it calls an “alarmist crusade” and “cultural imperialism” against Japan. This ethnocentric view is however incredulous. The anti-whaling countries also strenuously protest Norway and Iceland and their commercial whaling activities. They are not singling out just Japan. The cultural imperialism argument markedly fails on the basis that if Japan were so cultural driven by whaling as a practice – why not only whale in one’s own waters and not be commercial imperialists travelling across hemispheres and whale in an internationally recognized whale sanctuary? At any stage prior to the 20th century did the small fleet of traditional whaling boats travel the 15,000 kilometers to the Southern Ocean to whale, kill it and lug it the 15,000 kilometers home? Clearly not!

The fact that whaling is part of Japanese culture can, indeed, be accepted. There is evidence that whaling has been conducted in and around the Japanese coastline for thousands of years. The village of Taiji has long been well known as a whaling centre in Japan and the birthplace of the amitori method of killing whales that spread to a small number of other whaling villages, such as Ayukawa and Wada, in the 17th century. Furthermore, there is a provision for such cultural whaling within the IWC. Since its inception, the IWC has recognised that indigenous or ‘aboriginal subsistence’ whaling within prescribed limits is perfectly acceptable and not subject to the 1986 moratorium on commercial whaling. ‘Traditional aboriginal subsistence’ whaling continues in a number of local communities in Alaska, Russia, amongst Inuit tribes in Canada, the Caribbean, and on the island of Lembata in Indonesia. In recent years the IWC gave aboriginal communities in Greenland the right to take whales under this clause of the IWC rules. All that Japan would need to do is prove that the aboriginal subsistence’ whaling can meet the legal test of being for “the cultural and subsistence needs of their people.” That is the way forward for Japan, the cultural solution in which the majority of those who have recently opposed the way Japan has gone about whaling over recent decades are likely to support.

Japan could learn from its Asian neighbor and trading rival South Korea, that dropped its plans to resume whaling in its coastal waters amid a storm of international criticism, and will now instead use non-lethal methods to conduct research on the mammals. The Korean government is now in the process of finalizing its plan to study whales through non-lethal techniques, like Australia and New Zealand do. Environmental agencies predict that the provocation of anger that will be generated by the international community will be more intense if a JARPA III program goes ahead compared to the past. Korea realized that it was bad for business and bad for its international reputation. China, who has for a number of years joined the pro-whaling moratorium group, will no doubt seize the opportunity to create a wedge issue it can use in its propaganda war with Japan.

What the anti-whaling majority will not support is Japan continuing under any future JARPA III program in the Southern Ocean. They will not support any lethal whaling activity, which is demonstrably not a traditional cultural activity, but a commercial activity. Their view is that Japan will have to decide whether it believes its own rhetoric about whaling being a cultural. It is clear that Japan needs to move away from its basic position of seeking to resume sustainable commercial whaling to something, which can retain cultural traditions with integrity. The killing of 1,000 whales a year in the name of junk science is a ruse that builds distrust and disrespect within the international community when the Japanese whaling industry is at the same time elevating its cultural whaling dimension as a justification to continue.

Any resumption in scientific whaling late next year is going to have significant diplomatic and international blowback on Japan. It is a miscalculation by the Abe Government in that it will undo so much of the goodwill that other nations have recently had towards Japan, especially since the Great Tohoku Earthquake in 2011. According to a Pew Research Center poll, Japan is considered to be the most respected country within the Asian region by the rest of the international community. China is now second. Loss of that goodwill will be a circumstance that directly undermines Japan’s “Smart Power” meme that it has so carefully cultivated within the international community since China began her rise twenty years ago. The way that the geo-politics are unfolding in the 21st century, it is very clear that Japan needs its global friends more than it needs to support a discredited tiny whaling industry.

Image | Adrian Kenyon