Research Whaling in the "Real World"

Margaret F. Hayes
U.S. Department of State

This year's International Environmental Law Moot Court case, Republic of Vero v. Federation of Ormond, was based B very loosely B on Japan's harvest of whales under Article VIII of the International Convention for the Regulation of Whaling (ICRW). No country has ever litigated a case concerning whaling in an international forum, so this article will not discuss the very interesting jurisdictional issues presented by the Vero/Ormond hypothetical. Instead, it will provide background on the Convention, describe the history of Japanese research whaling, and summarize the reaction of the International Whaling Commission (IWC) and its members to the Japanese harvest.

Article VIII of the ICRW allows any Contracting Government to grant its nationals a special permit authorizing the harvest of whales "for purposes of scientific research," subject to any limits and conditions the issuing authority "thinks fit." Harvests under special permit are exempt from the operation of the ICRW. The Government's only treaty obligation is to report the issuance of special permits to the IWC, and to transmit the results of research conducted under special permit at least once a year. The IWC, however, has adopted a resolution establishing standards for research whaling. Its Scientific Committee reviews research proposals submitted by Contracting Governments.

A number of IWC members conducted research whaling under special permits during the first decades after the 1946 ICRW came into effect. Japan's program, begun in 1987-88, is unique in many respects: the circumstances under which it began, its length, the number of whales killed, and the controversy it has provoked over its scientific merit or lack thereof.

In the early 1980s, when the IWC decided to place a moratorium on commercial whaling, Japan lodged an objection with the IWC to the moratorium provision, paragraph 10(e) of the Schedule of Regulations. Under pressure from the United States and other countries, Japan withdrew its objection with effective dates in 1987 and 1988, and thus became bound by the moratorium. During the same time period, Japan announced a 16-year research program to take minke whales in the Southern Ocean. In 1994 Japan expanded its program to include minke whales in North Pacific waters. Another escalation occurred in 2000, when Japan (the only IWC member currently engaged in lethal research whaling) added Bryde's whales and sperm whales to the North Pacific permit. Claiming consistency with an IWC resolution against wastage of the products of research whaling, Japan sells or otherwise distributes within Japan the meat and blubber from research animals.

In the beginning, Japan justified its research program as necessary to study stock abundance and structure, age composition, and other biological parameters of whale populations. The program also includes a study of the effect on whales of pollutants such as POPs and heavy metals. The program's emphasis has shifted in the last few years to an investigation of predator-prey relationships. The Japanese hypothesis is that fish stocks around the globe are more imperiled by cetacean predation, and less so by rampant overfishing. Researchers are now examining the contents of harvested whales' stomachs and reporting at various international forums the amounts and species of fish found there, claiming that cetaceans may consume three to six times the amount of marine resources harvested for human consumption. This issue is known colloquially as "whales v. fish."

The Moot Court case posited a harvest of 50 humpback whales from a population of 15,500, and two blue whales from a population of 400-1,400. The research whaling occurred within Ormond's territorial sea and exclusive economic zone. In the "real world," Japan is taking 440 minke whales annually in the Southern Ocean, on the high seas. Although New Zealand and Australia assert claims over some of the ocean areas off Antarctica where Japanese research whaling is conducted, Japan (and many other nations) do not recognize those claims. In the 1980s, the IWC Scientific Committee estimated the population of Southern Hemisphere minke whales at 761,000, but that estimate is no longer considered reliable. The Committee, which has concluded that all estimates available since 1990 are "appreciably lower," is currently engaged in a major review of that population's abundance.

The Japanese program in the North Pacific targets 100 minke whales annually from a population of about 25,000, 50 Bryde's whales annually from a population preliminarily estimated at 22,000, and ten sperm whales annually from a population for which there is no abundance estimate. Japanese researchers claim sperm whales are "abundant," but they appear on the U.S. Endangered Species Act list as "endangered." Like humpback and blue whales, the populations targeted by Japanese research whalers are listed on Appendix I of the Convention on International Trade in Endangered Species (CITES), pursuant to a request by the IWC to list these whales as an enforcement back-up to the moratorium on commercial whaling. By prohibiting international trade in whale products, CITES eliminated market incentives for disregarding the moratorium.

The IWC Scientific Committee has not achieved consensus on the merits of the Japanese research programs. It reviews proposed permits under the IWC's guidelines, which include such points as whether the research is essential for rational management and whether the research questions can be answered using non-lethal methods. Because many terms and concepts in these guidelines are subject to interpretation, the Committee is always divided between scientists who defend the necessity of lethal methods to answer management and critical research needs, and those who believe non-lethal research methods are adequate for the management of whale stocks. Thus the Committee has generally neither endorsed nor rejected these proposals.

This scientific division is reflected in the IWC itself, which has routinely adopted, by a comfortable majority vote, resolutions calling upon Japan not to issue special permits for research whaling. Commissioners in the majority question the utility of lethal research results for management of whales, particularly in the Southern Ocean where the IWC has established a Sanctuary where commercial harvest of whales is prohibited. According to this view, any information needed on stock structure can be obtained through non-lethal means. These Commissioners believe the research program maintains consumer demand in Japan, with the goal of perpetuating a commercial activity. Because the North Pacific program was expanded to include species historically taken by pelagic whaling vessels, these members fear it is in reality a feasibility study for the resumption of full-scale pelagic whaling. Only one country (Australia) has raised the abuse-of-right argument that was debated in the Moot Court case.

Japan has never heeded the requests of the IWC to refrain from issuing special permits. Japan and its supporters respond that lethal methods are necessary to obtain certain information that is useful in understanding and managing whale stocks: e.g., age of animals, reproductive history of females, and stomach contents. They reject the point that the existence of the Southern Ocean Sanctuary obviates the need for management data, because they believe the Sanctuary was established without scientific basis. They cite Article VIII's requirement that whales taken under special permit must be processed, and the IWC resolution against wastage of research whales, as justification for the distribution within Japan of meat and blubber from animals taken during research voyages.

To promote its "whales v. fish" agenda, Japan has sought an audience in other international forums that might be more receptive than the IWC has been, as recent IWC resolutions conclude that data gathered on interactions between whales and prey species are not sufficient to justify killing of whales for research purposes. For example, at a Committee on Fisheries meeting at the United Nations Food and Agriculture Organization, and at the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem, Japan pushed hard for report language that would have acknowledged a "whales v. fish" linkage.

At its most recent meeting in 2001, the IWC passed a resolution, co-sponsored by Japan and the United States, agreeing to conduct a workshop on interactions between whales and fish stocks. The workshop will probably take place in June 2002. The Scientific Committee will also host a workshop on methods for whale research, focusing particularly on the relevance and efficacy of tools available for assessing stock structure, population dynamics and cetacean health. The workshop will identify recent advances in both lethal and non-lethal methodologies and technologies, compare lethal and non-lethal techniques and examine the practicability and cost associated with conducting the research using the respective methodologies.

Outside of the IWC, countries have reacted both multilaterally and unilaterally to Japan's research whaling program. Governments have joined in diplomatic interventions at very high levels to request Japan to suspend its research activities, and have made numerous bilateral demarches. They have also used press releases to publicize their opposition to lethal scientific whaling.

Since 1988, the United States has taken action three times against Japan under the Pelly Amendment, which requires the secretary of Commerce to certify to the president a determination that "nationals of a foreign country are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program." Upon certification, the president may direct the secretary of the Treasury to prohibit the import of any products from the offending country, to the extent that such prohibition is sanctioned by the General Agreement on Tariffs and Trade. The president must inform the Congress within 60 days after certification of any action he has decided to take, and must explain a decision not to ban the import of all fish products. As far as the author is aware, no other country has legislation anything like the U.S. Pelly Amendment.

Japan's first certification for research whaling occurred in 1988, after Japan began its research program on minke whales in the Southern Hemisphere. That action was accompanied by another certification, under the Packwood-Magnuson Amendment to the Fishery Conservation and Management Act, 16 U.S.C. 1821(e)(2), under which Japan's allocation of fishing privileges in U.S. waters was eliminated. The second Pelly certification was in 1995, after Japan expanded its research program to the North Pacific. The third was in 2000, for adding Bryde's and sperm whales to the North Pacific program. The president has never chosen to prohibit the import of any Japanese products, but after the 2000 certification certain diplomatic actions were taken against Japan.

So far, however, no "Republic of Vero" has emerged to bring a case against Japan in the International Court of Justice!

Margaret F. Hayes is director of the Office of Oceans Affairs, Department of State. From 1993 until July 2001, she was legal adviser to the U.S. delegation to the International Whaling Commission. Ms. Hayes was one of three final round judges of the 2000 Stetson International Environmental Law Moot Court Competition. She gratefully acknowledges research and other assistance from Violanda Botet of the State Department's Legal Adviser's Office, one three final round judges of the 2001 competition, and from Jean-Pierre Plé of the Office of Oceans Affairs. Any views expressed herein are those of the author and do not necessarily reflect those of the Department of State or of the U.S. Government.