34
S. Sakamoto
conduct research whaling, as recognised by Article VIII of ICRW itself. On the
other hand, the ICJ upheld the research versus commercial whaling dichotomy, and
ruled that research whaling—due to its exclusion from Article VIII(1)—violated
Schedule (10)(e) on the commercial whaling Moratorium. However, the soundness
of this point is uncertain, primarily because, as Judge Owada stated in his dissenting
opinion, “Even if JARPA II contained some defects as a programme for purposes of
scientific research, that fact in itself would not turn these activities into activities for
commercial whaling.”
57
In any event, after the Judgment, Mr. Koji Tsuruoka, the Agent of Japan, stated,
“Japan is disappointed and regrets that the Court ruled that JARPA II by Japan did not
fall within Article VIII, paragraph 1, of the ICRW. However, Japan will abide by the
Judgment of the Court as a State that places a great importance on the international
legal order and the rule of law as a basis of the international community.”
58
2.5.2 Resuming of Commercial Whaling
On 26 December 2018, the Chief Cabinet Secretary, Mr. Suga announced that,
Japan decided, towards commercial whaling to be resumed in July 2019 after a 30-year
absence, to withdraw from the ICRW, in line with Japan’s basic policy of promoting sustainable use of aquatic living resources base on scientific evidence. The IWC has a dual mandate
under the ICRW, that is, conservation of whale stocks and orderly development of the whaling
industry. Although scientific evidence has confirmed that certain whale species/stocks of
whales are abundant, those member States that focus exclusively on the protection of whales,
refused to agree to take any tangible step towards reaching a common position that would
ensure the sustainable management of whale resources. 59
Furthermore, at the sixty-seventh meeting of the IWC in September 2018,
according to Mr. Suga, the orderly development of the whaling industry, which
is clearly mentioned in the ICRW, was not taken into account at all during deliberations, and this suggests that it is no longer possible for States with opposing
views to co-exist within the IWC. Consequently, Japan was left with no option but
withdraw. Anti-whaling IWC member States have remained steadfast in their zero
whaling quota position, regardless of whatever scientific data or legal argumentation is advanced by Japan. Such States seek to impose their ‘no compromise, zero
tolerance’ view on Japan and other States in favour of commercial whaling.
At the same time, Japan’s resumption of commercial whaling is likely to attract
accusations that Japan is failing to meet its obligation under Article 65 of UNCLOS.
Article 65 provides that “States shall co-operate with a view to the conservation
57 Supra note 45, p. 320, paragraph 49.
58 International Court of Justice, Whaling in the Antarctic (Australia v. Japan: New Zealand
Intervening), Remarks by the Agent of Japan, Koji Tsuruoka, March 31, 2014.
59 Statement by Chief Cabinet Secretary, December 26 2018, available at https://japan.kantei.go.jp/
98_abe/decisions/2018/_00008.html (last accessed 30 June 2020).
S. Sakamoto
conduct research whaling, as recognised by Article VIII of ICRW itself. On the
other hand, the ICJ upheld the research versus commercial whaling dichotomy, and
ruled that research whaling—due to its exclusion from Article VIII(1)—violated
Schedule (10)(e) on the commercial whaling Moratorium. However, the soundness
of this point is uncertain, primarily because, as Judge Owada stated in his dissenting
opinion, “Even if JARPA II contained some defects as a programme for purposes of
scientific research, that fact in itself would not turn these activities into activities for
commercial whaling.”
57
In any event, after the Judgment, Mr. Koji Tsuruoka, the Agent of Japan, stated,
“Japan is disappointed and regrets that the Court ruled that JARPA II by Japan did not
fall within Article VIII, paragraph 1, of the ICRW. However, Japan will abide by the
Judgment of the Court as a State that places a great importance on the international
legal order and the rule of law as a basis of the international community.”
58
2.5.2 Resuming of Commercial Whaling
On 26 December 2018, the Chief Cabinet Secretary, Mr. Suga announced that,
Japan decided, towards commercial whaling to be resumed in July 2019 after a 30-year
absence, to withdraw from the ICRW, in line with Japan’s basic policy of promoting sustainable use of aquatic living resources base on scientific evidence. The IWC has a dual mandate
under the ICRW, that is, conservation of whale stocks and orderly development of the whaling
industry. Although scientific evidence has confirmed that certain whale species/stocks of
whales are abundant, those member States that focus exclusively on the protection of whales,
refused to agree to take any tangible step towards reaching a common position that would
ensure the sustainable management of whale resources. 59
Furthermore, at the sixty-seventh meeting of the IWC in September 2018,
according to Mr. Suga, the orderly development of the whaling industry, which
is clearly mentioned in the ICRW, was not taken into account at all during deliberations, and this suggests that it is no longer possible for States with opposing
views to co-exist within the IWC. Consequently, Japan was left with no option but
withdraw. Anti-whaling IWC member States have remained steadfast in their zero
whaling quota position, regardless of whatever scientific data or legal argumentation is advanced by Japan. Such States seek to impose their ‘no compromise, zero
tolerance’ view on Japan and other States in favour of commercial whaling.
At the same time, Japan’s resumption of commercial whaling is likely to attract
accusations that Japan is failing to meet its obligation under Article 65 of UNCLOS.
Article 65 provides that “States shall co-operate with a view to the conservation
57 Supra note 45, p. 320, paragraph 49.
58 International Court of Justice, Whaling in the Antarctic (Australia v. Japan: New Zealand
Intervening), Remarks by the Agent of Japan, Koji Tsuruoka, March 31, 2014.
59 Statement by Chief Cabinet Secretary, December 26 2018, available at https://japan.kantei.go.jp/
98_abe/decisions/2018/_00008.html (last accessed 30 June 2020).