This blog was written by Héloïse Guichardaz, who is an exchange student from the Université Jean Moulin Lyon 3 in France. Héloïse recently completed the Environmental Law course convened by Dr Jill Robbie.
“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.”
The moratorium introduced by the International Whaling Commission (IWC) in 1982 (quoted above) is the main international regulation at the centre of one of the biggest case regarding whaling: Australia v Japan, argued before the International Court of Justice (ICJ). This case, its lead up and its consequences will be studied in this blog.
The IWC is an international body established by the International Convention for the Regulation of Whaling of 1946 (ICRW). While the moratorium is a major step for action against whaling, immense difficulties remain. The case study of whaling in Japan in recent years will help uncover both the recent surge in popular culture for protection for whales and its effect on policy, as well as the flaws linked to international law and its perceived inefficiency.
Whaling has been practiced by humans since prehistoric times. The earliest depictions of the practice were uncovered in Korea, on a sandstone wall “which may date back to 6000 BC”. The use of new techniques in recent years has led to overexploitation by the whaling industry in order to extract meat. Coupled with the nature of reproduction of whales (usually one calf per mother with a relatively long life expectancy, rendering the perpetuation of the species susceptible even to minor changes in the population), this has led to a sharp decline of the population of whales around the globe.
The history of the anti-whaling movement in popular culture cannot be disentangled from the rise of protection of whales in international law in the 1970s and 1980s, especially when taking into account the concept of environmental values, defined as “what people believe to be important about the environment and thus what should be priorities for environment policies”.
From songs (Songs of the Humpback Whale, recorded and produced by the biologist and environmentalist Roger Payne) to theme parks like Seaworld (opened in 1964), popular culture grew to appreciate dolphins and whales and recognise them as entertaining and intelligent. With entertainment came awareness about the dangers facing those animals: in 1966 in his article “The Last of the Great Whales”, Scott McVay revealed the plight they endured; in 1977, National Geographic aired the documentary “The Great Whales”, depicting images of whales being killed. One major consequence from this shift in the public perception was the foundation and subsequent growth of the Save the Whales movement: from t-shirts and stickers came the creation of current influential NGOs such as Greenpeace (created in 1971) and Sea Shepherd (created in 1977).
As a result, the already existing level of protection of whales contained in the ICRW reached a new height with the introduction of a moratorium (essentially a ban in this context) on commercial whaling by the IWC in 1982. However, it is important to note that the ban on whaling was not absolute: for instance, Article VIII(1) of the 1946 Convention which states that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research” still stands.
Despite these rules, some countries have taken advantages of the existing exceptions. One particular case is that of Japan. The tradition of whaling has existed in this country for centuries: for instance, the Man’yō-shū, an anthology of poems compiled between the late seventh century and the late eighth century refer to whales (under the name “isana”, “brave fish”, used to describe whales). However, it isn’t until the invention of manual harpoons in the late sixteenth century that whaling in Japan began “in earnest”, continuing onto the Edo period (1603-1868). It is therefore not surprising, given its centuries-long attachment to the practice, that Japan initially went against the moratorium by making a “timely objection to the amendment”.
However, following pressure from the United States, Japan withdrew its objection and the moratorium came into effect after the 1986-1987 whaling season. Immediately after, Japan introduced a first program based on scientific research (JARPA), followed by a second (JARPA II) in 2005. Japan sought permits for these programs under Article VIII of the Convention.
However, Australia brought an action in front of the ICJ against Japan, stating that “Japan’s continued pursuit of a large-scale program of whaling … ‘JARPA II’,[is] in breach of obligations assumed by Japan” under the ICRW. Indeed, Australia accused Japan of using the JARPA programs “in order to continue commercial whaling under the “guise” of scientific research”.
The ICJ sided with Australia on the matter (p227). It decided that since JARPA was an ongoing operation, “Japan shall revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and refrain from granting any further permits under Article VIII, paragraph 1, of the Convention”. The Japanese delegation have stated that they would abide by the Court’s judgement.
However, one cannot analyse this decision as a victory without addressing the conundrum of the efficiency and enforcement of international law.
International law is the law made by the States, respecting the principle of State sovereignty: thus, legal coercion coming from an international court cannot come into effect without the State’s consent, rendering the enforcement of judicial ruling extremely difficult. While this concern extends beyond environmental law, such a predicament weakens environmental law rules considerably.
Indeed, the NGO Sea Shepherd has reported Japanese organisations engaging in whaling as early as January 2017, barely three years after the ICJ’s ruling, thus blatantly ignoring the judicial decision.
From this case study, we can conclude the following: while the general public’s influence on whaling has produced policies and court decisions, those results are difficult to enforce, leaving the fate of environmental issues as important as the preservation of whales compromised. As a consequence, numbers show that whales in general are an endangered species. North Atlantic Right Whales, with only about 400 individuals remaining, are considered to be one of the most endangered whales in the world.
~ Héloïse Guichardaz
 International Whaling Commission Schedule, para. 10(e), 1982
 J. Roman, Whale (2006) p24
 ‘Status of whales’, International Whaling Commission
 S. Bell, D. McGillivray, O. W Pedersen, E. Lees, E. Stokes, Environmental Law, 9th Edition, 2017, p44
 S. McVay, ‘The Last of the Great Whales’, Scientific American, vol 215, 1966
 International Convention for the Regulation of Whaling, 1946, Article VIII, para. 1
 Nakazono Shigeo and Yasunaga Hiroshi, Kujira-tori e-monogatari (Picture Tales of Whaling), Fukuoka: Gen-shobō, 2009, 8–20; Kumano Taiji-ura hogei-shi hensan-iinkai, ed., Kumano no Taiji: Kujira ni idomu machi (Taiji, Kumano: Town That Challenges Whales), Tokyo: Heibonsha, 1965, 4–16.
 M. Itoh, Introduction in The Japanese Culture of Mourning Whales, 2018, p2
 ‘Whaling in the Antarctic’, Australia v Japan: New Zealand intervening, ICJ 31st March 2014, para 100
 Ibid., para 1
 Ibid., para 101
 Ibid., para 247
 J. McCurry, ‘Japan told to halt Antarctic whaling by international court’, The Guardian, 31st March 2014
 C. Taïx, ‘La Japon poursuit sa pêche à la baleine en Antarctique’, Le Monde, 18th January 2017
 ‘North Atlantic right-whale, 5-year review: Summary and Evaluation’ National Oceanic and Atmospheric Administration, August 2012