International Court of Justice, The Hague

Commentary by Geert Vons, Director Sea Shepherd Netherlands

The Nisshin Maru in the Southern Ocean Whale Sanctuary
Photo: Barbara Veiga / Sea ShepherdEach year, Japan issues a special permit to their own whaling fleet in order to justify the killing of about 1,000 whales in the Antarctic waters for so-called scientific research purposes. Japan is not conforming to several legal regulations of the International Whaling Commission (IWC), which is a reason Australia wants Japan to stop the so-called scientific JARPA II program.

The first hearing started at the International Court of Justice in The Hague on Wednesday, June 26, 2012 - Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Australia opened the presentation with several strong arguments and facts. I had been warned that attending a court case could be quite boring, but I think I attended the exception to the rule. Australia did a good job outlining essential points in this sensitive dispute about Antarctic whaling.

There were two main points to address: can the Japanese JARPA II program be regarded as conducting scientific research, and are the special permits for the scientific killing of whales issued by the Japan in agreement with IWC regulations. The short answer is no. According to Australia, this doesn’t appear to be the case at all as killing the subject of your study shouldn’t be the first option.

Focus of attention is on Article 8 of the 1946 International Convention on the Regulation of Whaling of the IWC. There are relevant rules to the interpretation of this Article 8, and it is not freestanding to contracting governments to interpret. Based on the principle of good faith, it has been agreed upon by the IWC members that in certain situations it is acceptable to issue a special permit for the scientific killing of a limited number of whales only when otherwise unavoidable. The permit should have a very exceptional character and should only allow the killing of a very small number of whales. Conditions for such a permit are quite clear: an objectively characterized, non self-judging, scientific whaling program with a specified termination date, and consistent with existing conservation policy. There should be well-defined, achievable objects with a testable hypothesis and the gained knowledge should contribute to the conservation of whale stocks and management.

The Japanese JARPA II program does not meet any of the above-mentioned criteria. The Japanese so-called scientific research programs JARPA and JARPA II comprise predetermined methods and scales, and have very general scientific objectives. The IWC’s scientific committee has always been very critical of Japan’s whaling permits. In 2005, just before JARPA II started, 63 scientists of the IWC wanted to evaluate the first Japanese whaling program, before commenting on a proposal of Japan to start their second scientific whaling program (which Japan started right after the first program anyway).

JARPA II is merely a killing program. After 18 years and killing 7,000 whales during the first JARPA program, Japan has doubled the ‘sampling numbers’ for JARPA II without a compelling scientific reason for this increase. The sampling seems to only consist of finding and killing whales. Japan has failed to explain how this collecting of body parts contributes to our knowledge and understanding of the Antarctic ecosystem, on paper being the subject of the research program.

Japan has refused to give due consideration to any IWC requests and suggestions. On several occasions, the IWC has even asked Japan to give specific details and concrete results of the JARPA and JARPA II programs including very minimal criteria (for proper research criteria are a requirement, not an option), relevance of results (do the findings contribute to our knowledge?), reason for lethal methods instead of non-lethal methods (killing of whale is only accepted under very special and limited conditions), etc.

JARPA II is a stand-alone program that isn’t integrated into any other research, neither in Japan nor in any other country. How special is a special permit for the killing of an unacceptable large number of whales, when issued year after year, for an unlimited period of time? The only true limitation seems to be the freezing and storage capacity of edible whale meat of the whaling fleet’s factory vessel the Nisshin Maru.

Japan has never agreed upon periodic independent peer review of the results of the JARPA programs, whereas the submission of scrutiny from the scientific community is a sign of good, uncontroversial and generally accepted science metrics.

The Japanese so-called research has a very arbitrary and unprincipled approach, the killing of whales is prerequisite and there is a complete absence of peer review. The scale of JARPA II is ridiculously high, and Japan is responsible for 95 percent of all scientific killing of whales. Non- lethal techniques do exist but Japan hasn’t even wanted to consider this alternative when it comes to their so-called scientific research. Japan is aware of, and does even make use of non-lethal techniques in other fields, but again, when it comes to whaling…

In the period of commercial whaling prior to the 1986 whaling moratorium, hardly any special permits had been issued for the purpose of scientific whaling. Statistics show the enormous increase of such permits after 1986 by Japan (prior to 1986 there was no need to ask for a special permit as commercial whaling was allowed). Japan voted against the moratorium and it was only under US pressure that Japan accepted - as long as nobody would interfere with other whaling activities. And that’s when so-called scientific whaling started. The exact areas of the killing grounds during the commercial whaling period prior to the moratorium became ‘research areas’ and the killing became ‘collecting samples.’

In the eight seasons of JARPA II, Japan had never informed the IWC and asked for approval of a special permit before Japan had already issued this special permit. Time after time, it appears that Japan doesn’t have the intention to listen to any request or suggestion of the IWC’s scientific committee or any other independent scientist. Japan claims it’s a “difference of opinion” or “it’s none of your business,” and has even accused the IWC of being politically motivated and acting based on the “tyranny of the majority.”

The basis for any treaty is the requirement of the principle of good faith and the obligation and will to cooperate. It seems very clear that Japan has a very special opinion on how to interpret Article 8 of the 1946 International Convention on the Regulation of Whaling of the IWC.

The Antarctic ecosystem is supposed to be the research subject of the JARPA programs. So how does the killing of three whale species of whales as the only research technique help us to understand the Antarctic ecosystem? Why is the killing of three whale species a prerequisite? The targeted whale-killing quotas are never met but that doesn’t seem to matter for the results of the whaling program. Humpback whales are on the target list, but have never been killed. This did not seem to matter either, and that the following year, the same number of humpbacks were also listed on the target list. The number of whaling vessels has been reduced, the whaling seasons have shortened, but this doesn’t seem to have had any consequences on the scientific research program either.

If it doesn’t matter how many samples are collected, what is the reason behind this so-called scientific research after all? Is it the fact that the Nisshin Maru, the Japanese whaling fleet’s factory vessel, can only process whales up to about 18 meters in length, which means that fin whales are excluded from the program? From a scientific point of view, it is absolutely impossible to take the so-called Japanese scientific whaling programs JARPA and JARPA II serious. As outlined above, they simply do not make any sense at all.

It took Sea Shepherd ten years and nine Antarctic campaigns before Japan’s so-called scientific whaling programs JARPA and JARPA II received the world’s full attention in the International Court of Justice in The Hague.

It seems that Japan is convinced that no one has the right to overturn their decisions. Looking forward to the outcome in The Hague.