2 Japan and the Law of the Sea: Key Historical …
35
of marine mammals and in the case of cetaceans shall in particular work through
the appropriate international organizations for their conservation, management and
study.” As Professor Ted McDorman rightly points out, Article 65 includes a competency clause relating to marine mammals within EEZ, and a cooperation clause,
which applies to all marine mammals but which specifically mentions cetaceans.
60
In accordance with Article 65 of UNCLOS, can Japan’s resumption of commercial
whaling be said to fulfil its obligation to cooperate with respect to the conservation of marine mammals? Would Japan’s potential participation in IWC’s Science
Committee as observer, meet the obligation to work “through the appropriate international organizations for their conservation”? Further, there may be an issue as
to whether Japan fulfils its obligation of cooperation on the conservation of marine
mammals by just fulfilling its obligation to cooperate for ‘management and study.’ As
UNCLOS provides for compulsory arbitration of disputes concerning its provisions,
the possibility exists that the anti-whaling bloc of countries could instigate proceedings against Japan, claiming that Japan’s commercial whaling violates UNCLOS. In
that case, they may claim that Japan violates not only Article 65 but Article 194(5)
of UNCLOS, which provides that “the measures taken in accordance with this Part
shall include those necessary to protect and preserve rare or fragile ecosystems as
well as the habitat of depleted, threatened or endangered species and other forms of
marine life.”
It may be argued that Japan’s commercial whaling is operated in its territorial
waters and EEZ, and that, therefore, such activity neither harms nor benefits any
other States. However, this argument no longer resonates in international fora. In
the 2014 Whaling in the Antarctic case, resulting in a decision against Japan, the
ICJ recognised Australia’s locus standi by accepting its claim that every State that
is party to UNCLOS has a common interest in adhering to the obligations under
UNCLOS as well as the regime derived thereof. If Japan were sued, it would raise
preliminary objections to the jurisdiction of arbitration by invoking Article 297(3)(a)
of UNCLOS.
61
In July 2019, after its withdrawal came into effect on 30 June 2019, Japan resumed
its whaling within Japan’s territorial sea and its EEZ, and ceased the taking of whales
in the Antarctic Ocean/the Southern Hemisphere. This whaling is conducted in accordance with international law and within the catch limits calculated in accordance
with the method adopted by the IWC in order to avoid negative impact on cetacean
resources. However, there remains the possibility of international adjudication, for
instance, under mandatory arbitration as set out in UNCLOS.
60 McDorman (1998).
61 Article 297(3)(a) provides that “Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except
that the coastal State shall not be obliged to accept the submission of such settlement of any
dispute relating to its sovereign rights with respect to the living resources in EEZ or their exercise,
including its discretionary powers for determining the allowable catch, its harvesting capacity, the
allocation of surpluses to other States and the terms and conditions established in its conservation
and management laws and regulations.”
35
of marine mammals and in the case of cetaceans shall in particular work through
the appropriate international organizations for their conservation, management and
study.” As Professor Ted McDorman rightly points out, Article 65 includes a competency clause relating to marine mammals within EEZ, and a cooperation clause,
which applies to all marine mammals but which specifically mentions cetaceans.
60
In accordance with Article 65 of UNCLOS, can Japan’s resumption of commercial
whaling be said to fulfil its obligation to cooperate with respect to the conservation of marine mammals? Would Japan’s potential participation in IWC’s Science
Committee as observer, meet the obligation to work “through the appropriate international organizations for their conservation”? Further, there may be an issue as
to whether Japan fulfils its obligation of cooperation on the conservation of marine
mammals by just fulfilling its obligation to cooperate for ‘management and study.’ As
UNCLOS provides for compulsory arbitration of disputes concerning its provisions,
the possibility exists that the anti-whaling bloc of countries could instigate proceedings against Japan, claiming that Japan’s commercial whaling violates UNCLOS. In
that case, they may claim that Japan violates not only Article 65 but Article 194(5)
of UNCLOS, which provides that “the measures taken in accordance with this Part
shall include those necessary to protect and preserve rare or fragile ecosystems as
well as the habitat of depleted, threatened or endangered species and other forms of
marine life.”
It may be argued that Japan’s commercial whaling is operated in its territorial
waters and EEZ, and that, therefore, such activity neither harms nor benefits any
other States. However, this argument no longer resonates in international fora. In
the 2014 Whaling in the Antarctic case, resulting in a decision against Japan, the
ICJ recognised Australia’s locus standi by accepting its claim that every State that
is party to UNCLOS has a common interest in adhering to the obligations under
UNCLOS as well as the regime derived thereof. If Japan were sued, it would raise
preliminary objections to the jurisdiction of arbitration by invoking Article 297(3)(a)
of UNCLOS.
61
In July 2019, after its withdrawal came into effect on 30 June 2019, Japan resumed
its whaling within Japan’s territorial sea and its EEZ, and ceased the taking of whales
in the Antarctic Ocean/the Southern Hemisphere. This whaling is conducted in accordance with international law and within the catch limits calculated in accordance
with the method adopted by the IWC in order to avoid negative impact on cetacean
resources. However, there remains the possibility of international adjudication, for
instance, under mandatory arbitration as set out in UNCLOS.
60 McDorman (1998).
61 Article 297(3)(a) provides that “Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except
that the coastal State shall not be obliged to accept the submission of such settlement of any
dispute relating to its sovereign rights with respect to the living resources in EEZ or their exercise,
including its discretionary powers for determining the allowable catch, its harvesting capacity, the
allocation of surpluses to other States and the terms and conditions established in its conservation
and management laws and regulations.”