time of the moratorium and thereafter the dominance of Commission members had
shifted towards a no-whaling agenda, pro-whaling states such as Japan, Norway or
Iceland have so far failed to garner the necessary majority for a Schedule amendment
and lift the moratorium. Although different avenues have been tried, the rift between
pro- and anti-whaling states in the IWC could not be overcome. This prompted
Japan, one of the main financial contributors to the Scientific Committee, to
announce its withdrawal in December 2018.
Although a moratorium on commercial whaling is in place, this does not mean
that the IWC does not grant any whaling at all. As per the whaling convention and it
Schedule, whaling for scientific purposes and Aboriginal Subsistence Whaling are
permitted. The former had been conducted by Iceland and particularly Japan and has
often been labelled as a guise for commercial whaling, as a means to circumvent the
moratorium and thus as a loophole that these states use. The International Court of
Justice ruled, at the application of Australia, in 2014 that the then ongoing Japanese
whaling programme was not for the purposes of scientific research, and ordered
Japan to cease these operations. The ICJ did not rule that scientific whaling in
Antarctic is in contravention of the convention, which prompted Japan to readjust
its Antarctic scientific whaling programme to the criteria set forth in the Judgement.
With Japan’s withdrawal from the IWC it announced that it would cease its Antarctic
whaling programme entirely. Instead, scientific and commercial whaling would from
now on only occur in Japanese waters and in the North Pacific, the latter of which
will be phased out by 2020 as well.
In terms of ASW, even though it is an integral part of the current whaling regime,
it is not a given. The Makah, for instance, had to struggle rather hard to get the
Commission to allocate a small gray whale quota. Also for other aboriginal
communities, a new quota is always a reason to celebrate since the IWC does not
uniformly support the fact that in the twenty-first century some communities are still
dependent on whales.
Indeed, although the United States are a strong supporter of aboriginal whaling, it
has legislation in place that allows for the imposition of trade sanctions on other
states if they violate the effectiveness of the whaling convention or other regimes,
such as CITES, that aim to protect whales. This domestic legislation thus has an
external dimension which is geared to put pressure on states to change their
behaviour. Up to the point of writing in the fall of 2019, no trade sanction has
been imposed on certified states, but it is undeniable that this constitutes a tool to
impose the US view on others that cannot be neglected.
With Japan’s withdrawal, which came into effect on 1 July 2019, the International
Whaling Commission and with it the global whaling regime stands at a crossroads.
Based on article 65 of the UNCLOS, states are required to cooperate in the management and conservation of marine mammals through appropriate organisations. It is
unclear what these ‘appropriate organisations’ in practice are, as we have explored in
Chap. 4. Either way, it remains to be seen whether Japan will initiate the formation of
a new organisation, maybe along with other Asian states, such as China or South
Korea, or introduce matters relating to whaling also into other organisations. Also the
future membership of the IWC is not entirely clear at this point. After all, other
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5 The International Legal Framework for Whales
shifted towards a no-whaling agenda, pro-whaling states such as Japan, Norway or
Iceland have so far failed to garner the necessary majority for a Schedule amendment
and lift the moratorium. Although different avenues have been tried, the rift between
pro- and anti-whaling states in the IWC could not be overcome. This prompted
Japan, one of the main financial contributors to the Scientific Committee, to
announce its withdrawal in December 2018.
Although a moratorium on commercial whaling is in place, this does not mean
that the IWC does not grant any whaling at all. As per the whaling convention and it
Schedule, whaling for scientific purposes and Aboriginal Subsistence Whaling are
permitted. The former had been conducted by Iceland and particularly Japan and has
often been labelled as a guise for commercial whaling, as a means to circumvent the
moratorium and thus as a loophole that these states use. The International Court of
Justice ruled, at the application of Australia, in 2014 that the then ongoing Japanese
whaling programme was not for the purposes of scientific research, and ordered
Japan to cease these operations. The ICJ did not rule that scientific whaling in
Antarctic is in contravention of the convention, which prompted Japan to readjust
its Antarctic scientific whaling programme to the criteria set forth in the Judgement.
With Japan’s withdrawal from the IWC it announced that it would cease its Antarctic
whaling programme entirely. Instead, scientific and commercial whaling would from
now on only occur in Japanese waters and in the North Pacific, the latter of which
will be phased out by 2020 as well.
In terms of ASW, even though it is an integral part of the current whaling regime,
it is not a given. The Makah, for instance, had to struggle rather hard to get the
Commission to allocate a small gray whale quota. Also for other aboriginal
communities, a new quota is always a reason to celebrate since the IWC does not
uniformly support the fact that in the twenty-first century some communities are still
dependent on whales.
Indeed, although the United States are a strong supporter of aboriginal whaling, it
has legislation in place that allows for the imposition of trade sanctions on other
states if they violate the effectiveness of the whaling convention or other regimes,
such as CITES, that aim to protect whales. This domestic legislation thus has an
external dimension which is geared to put pressure on states to change their
behaviour. Up to the point of writing in the fall of 2019, no trade sanction has
been imposed on certified states, but it is undeniable that this constitutes a tool to
impose the US view on others that cannot be neglected.
With Japan’s withdrawal, which came into effect on 1 July 2019, the International
Whaling Commission and with it the global whaling regime stands at a crossroads.
Based on article 65 of the UNCLOS, states are required to cooperate in the management and conservation of marine mammals through appropriate organisations. It is
unclear what these ‘appropriate organisations’ in practice are, as we have explored in
Chap. 4. Either way, it remains to be seen whether Japan will initiate the formation of
a new organisation, maybe along with other Asian states, such as China or South
Korea, or introduce matters relating to whaling also into other organisations. Also the
future membership of the IWC is not entirely clear at this point. After all, other
122
5 The International Legal Framework for Whales