This week, Japan announced a research plan for its New Scientific Whale Research Program in the Antarctic Ocean, to replace previous programs.
In March this year, Japan’s previous whaling program, JARPA II, was deemed “not for the purposes of scientific research” by the International Court of Justice. It was therefore illegal under the International Convention for the Regulation of Whaling, a law developed by members of the International Whaling Commission, including Australia and Japan.
The convention and commission are charged with conserving whales and managing the commercial whaling industry.
Compared to previous programs, Japan’s new whaling program is spread across a larger area of the ocean around the Antarctic, but will kill fewer whales. It has been submitted to the commission and its scientific committee. However, Japan doesn’t have to wait for any sort of approval from these bodies.
In response to the announcement, Greens Senator Peter Whish-Wilson has called for the Australian government to back up the court judgment and “pile on diplomatic pressure”.
What did the court say?
The court did not rule, for example, that Japan must “end its research whaling in the Antarctic Ocean” indefinitely, as the ruling of illegality applied only to the JARPA II program. Nor did it ban scientific whaling completely.
The court’s decision was based on interpretation of “for the purposes of” within article VIII of the convention, which allows for lethal scientific whaling.
The phrase was interpreted to mean that a research program’s design and implementation must be reasonable in relation to its stated objectives. No definition of scientific research was given.
So what does this mean for whales and the whaling debate?
What’s in the new program?
The new program is scheduled to start in the 2015/16 southern summer and will span 12 years. In accordance with the judgment, the program will need to be reasonably designed and implemented to achieve these two main objectives:
Improve biological and ecological data on Antarctic minke whales. This will increase the precision of biological and ecological information for the application of the Revised Management Procedure to the Antarctic minke whale.
Investigation of the structure and dynamics of the Antarctic marine ecosystem through building ecosystem models.
Japan will kill whales only if non-lethal methods, such as data-loggers and biopsy sampling, fail to achieve the stated objectives. Should this happen, the annual lethal sample is capped at a dramatically reduced 333 Antarctic minke whales, compared with 850 under JARPA II.
The IUCN has stated that the Antarctic minke whale is “data deficient”, meaning more research needs to be done to determine its population status.
The geographical scope for research is now extended across a wider area of the Southern Ocean (NEWREP-A, Section 3.1), which overlaps with the Whaling Commission’s Whale Sanctuary.
However, because Japan doesn’t formally recognise the sanctuary for minke whales (it does for other whale species), this doesn’t deem the possible lethal sampling “illegal”.
The plan also offers solutions to other criticisms levelled at the JARPA II program by the court, including invitations for the participation of foreign scientists and institutions, especially those involved with the scientific committee.
Is it scientific?
From a legal perspective, the research plan appears fastidiously tailored to address the complete scope of the court’s judgment and to justify its scientific objectives.
The language used is far more legal and Western in style than JARPA II and other reports produced by the Institute for Cetacean Research, which is understandable given the scrutiny the program will attract.
Both sides of the whaling debate have used their own interpretations of scientific research from the judgment in support of their cause. A Science Magazine article suggests using the judgment within the scientific committee as a yardstick for deciding between what is science and what is not.
Japan’s new program has also used the words of the judgment almost verbatim to justify Japan’s research position, objectives and possible use of lethal methods.
Reaction from anti-whaling groups
Anti-whaling countries and organisations have been quick to cast judgement on the plan. Dr Phil Clapham, of the National Ocean and Atmospheric Administration and author of a recent Marine Policy article on whaling, has stated that the new program is “all lipstick on a pig”.
Anti-whaling countries and organisations have few, if any, purely legal avenues to stop this program going ahead.
Australia could take Japan to court again, but as Professor Timothy Stephens states, the current government “is not especially keen to push the whaling question”.
Direct action by environmental activists such as the Sea Shepherd Conservation Society is likely to resume, despite condemnation of the society’s actions in the judgment. In disrupting a legally justified Japanese program, Sea Shepherd may find itself in contravention of various laws of the sea, as well as marine pollution and collision regulations.
Do the rules need to change?
Answers to the debate lie squarely with the Whaling Commission and its Scientific Committee. They must begin discussions on the use of the judgment to dictate boundaries of scientific research and discourse and review the object and purpose of the convention and the commission.
The text of the Whaling Convention can only be changed by consensus. That makes it a stubborn beast that will never fit the expectations of either pro or anti-lethal scientific whaling countries.
In the meantime, Japan is following the judgment using reasonable legal interpretation, while the pledges of environmental activists to disrupt the season are predictable in their vehemence.
However, the solution to the ongoing whaling war does not lie in the interpretation of the judgment, in court, or even at sea. Instead, it almost certainly lies with the Whaling Commission, the IWC Scientific Committee and their founding laws.