Japan's whaling fleet sets sail again, and there's not much that can stop it

Japan’s whaling fleet will leave port today to resume whaling in the Southern Ocean as part of its new scientific program, NEWREP-A.

Under the new program, Japan will kill 333 minke whales each summer. This is down from 850 minke whales, 50 fin whales, and 50 humpback whales under the previous whaling program, JARPA II. Anti-whaling nations and non-government organisations have condemned the decision.

In 2014, the International Court of Justice ruled that JARPA II was not “for the purposes of scientific research” after Australia and New Zealand challenged Japan’s whaling program

The decision was widely-lauded as the end of whaling in the Antarctic. However, since the decision Japan has revised its program and decided to continue whaling in the Southern Ocean.

Japan’s new whaling program

Whaling is regulated under the International Convention for the Regulation of Whaling. Article VIII of the Whaling Convention allows for a country to issue permits to itself to undertake lethal scientific research.

The 2014 court judgment didn’t ban scientific whaling. It simply stated that the scientific whaling program, JARPA II, was not for the purposes of scientific research. This left open the option of a new scientific whaling program.

Following the decision, Japan announced a new scientific whaling proposal: “Proposed Research Plan for New Scientific Whale Research Program in the Antarctic Ocean” or NEWREP-A.

In February, an expert panel of the International Whaling Commission under the convention advised Japan that there was not enough detail in the proposal to justify the program. Japan has now responded that “it does not require any substantial changes to the contents of NEWREP-A”. It is on this platform that their whaling program will proceed.

The response to Japan’s action from those opposed to its program has been, and will remain, strong. Dr Nick Gales, Director of the Australian Antarctic Division, has stated that Japan cannot make any credible claim that their program has any scientific validity. Given the lack of independent scientific support for NEWREP-A, and Japan’s response to the expert findings, there is a resounding feeling in the commentary so far that NEWREP-A is indeed “lipstick on a pig”.

From a research perspective, many have argued and demonstrated (especially as new technologies are developing) that lethal scientific whaling is unnecessary.

Can the whaling program be challenged?

Japan would seem to be setting itself up for further confrontation, however it has taken steps to avoid another legal challenge.

In October this year, the country stated it would not accept the jurisdiction of the International Court of Justice on marine living resources, meaning Japan will no longer consent to further cases about whaling being heard by that court.

In the JARPA II case, the court stated it is expected that Japan will take into consideration the judgment when issuing permits for any future whaling program. But Japan’s strict obligation to follow the ruling is limited to JARPA II.

The court, in its decisive clause, ruled that 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, in pursuance of that programme.

So, even though the court expected that its findings would be taken into account if any new permits for lethal scientific whaling were issued, there is little scope to challenge NEWREP-A because it is not the JARPA II program. And Japan is now exempt from the court’s jurisdiction on these matters.

Other options?

Australian domestic legal action is most likely to be futile. In a recent case in the Australian Federal Court, Japanese whaling company Kyodo was fined A$1 million for breaching an earlier injunction in Australia’s Whale Sanctuary. But Japan does not recognise the Australian Antarctic Territory’s exclusive economic zone, nor its Whale Sanctuary, and therefore does not recognise the jurisdiction of this ruling.

There has still been no decision from the International Whaling Commission to give a clear green light to scientific whaling. Even so, it is unlikely Japan would reverse its decision. The commission is a deeply riven organisation split along pro- and anti-whaling lines, and even though sentiment may be strongly against Japan’s actions, it does not have the explicit power to halt NEWREP-A.

Various groups and political parties have urged the Australian government to make strong diplomatic representations to Japan about the new whaling program. Prime Minister Malcolm Turnbull has stated that:

Our position is standard, that we … strongly encourage Japan to cease its whaling operations in any time, in any season, in any year.

Australian governments have a long history of stable engagement with Japan on this issue, and are unlikely to deviate from this platform by directly intervening in the country’s whaling activities.

The Australian Greens have called for the government to send a patrol vessel south to shadow the whaling fleet and collect evidence of its activities. But without the jurisdiction of the International Court of Justice, it’s unlikely such an effort would be useful in bringing an action against Japan.

Change may also come from Japan itself. With dramatically fewer Japanese eating whale meat, and the expensive and heavily subsidised scientific whaling program already labelled by many as unnecessary and irrelevant in modern times, perhaps internal pressure will put an end to lethal whaling by Japan.

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.