Japan's whaling - the end is nigh

| 24th April 2014
The Yushin Maru crosses the bow of  The Bob Barker at an unsafe distance. Photo: Simon Ager / Sea Shepherd Australia.
The Yushin Maru crosses the bow of The Bob Barker at an unsafe distance. Photo: Simon Ager / Sea Shepherd Australia.
Following the ruling by the International Court of Justice that Japan's whaling in the Antarctic is illegal, Elizabeth Claire Alberts examines the legal, financial and practical challenges of a continued whaling program - with some help from Sea Shepherd's Captain Paul Watson.
We now have proof that Japan is the law-breaker, and that Sea Shepherd has not only been upholding Australian federal law, but also international law.

When the International Court of Justice ruled that Japan's "scientific" whaling program was unlawful, and ordered the Institute of Cetacean Research to immediately cease operation, conservationists celebrated this landmark victory.

Less than two weeks after the ruling, however, Japan filed court papers indicating their intentions to recommence whaling in 2015-2016 season with a newly designed scientific program.

Captain Paul Watson, founder of Sea Shepherd Conservation Society, the anti-poaching organisation that has defended whales in the Southern Ocean since 2005, said he wasn't surprised by Japan's announcement.

"I actually predicted at the time of the verdict that Japan would do exactly that. They're incredibly stubborn."

Legal hoops to jump through

The judgment of the International Court of Justice specifically refers to Japan's JARPA II Antarctic whaling program, but not to Japan's North-Pacific whale hunt or any other whaling program. Japan's foreign ministry agreed to abide by the verdict.

But Article VIII of the International Convention for the Regulation of Whaling remains in place, allowing governments to issue special permits to "kill, take and treat whales for purposes of scientific research."

Therefore, Japan may have the ability to apply for a new whaling permit in the Southern Ocean, and elude the restraints of the international court ruling.

Having said this, Donald Rothwell, Professor of International Law at Australian National University, says that Japan will need to jump through a number of legal hoops to obtain a new permit, and this process may not be as straightforward as it seems.

The world will be watching

"Japan will need to make clear, first of all, to the International Whaling Commission, its intention to undertake a whaling program that complies with the decision of the International Court", Rothwell explains.

"They would also need to present the program for review and analysis by the scientific communities. Then they will need to go through the technical process of actually issuing the permits, consistent with the parameters of the court's judgment, and any other relevant matters."

Rothwell also believes that a higher level of scrutiny will be attached to any future whaling permits that Japan attempts to issue. "Japan will be very much aware that the world is watching in terms of how they undertake these processes."

The next meeting of the International Whaling Commission will take place in September 2014, but any country applying for a scientific whaling permit needs to provide six months notice. For this reason, Japan probably won't return to the Southern Ocean for the 2014-2015 season.

We now have proof that Japan is the law-breaker, and that Sea Shepherd has not only been upholding Australian federal law, but also international law.

The injunction that doesn't make sense

In December 2012, the Japanese whalers successfully won an injunction against Sea Shepherd in the United States. Sea Shepherd is an international organization, so this court order did not prevent the Sea Shepherd fleet from returning to the Southern Ocean.

But it did inhibit Sea Shepherd United States from financing the Antarctic anti-whaling campaign. Since the injunction went into effect, Sea Shepherd Australia has taken over the whale defence operations in the Southern Ocean.

Even though Sea Shepherd Australia is now in charge, Japanese lawyers appeared in a Seattle courtroom on April 16, 2014 to try and obtain a permanent injunction against Sea Shepherd United States. As Watson points out, this legal move doesn't make any sense:

"Sea Shepherd US is not involved in the Southern Ocean campaign,so there's no point in getting this injunction." The court case currently remains in limbo, and a trial date has yet to be set.

The threat of injunctions

The Japanese government has also expressed interest in acquiring injunctions against Sea Shepherd Australia and other branches of Sea Shepherd through the US court, but Sea Shepherd Australia Director Jeff Hansen says that he doesn't see how this is possible:

"How can a US court have jurisdiction over a non-US organisation operating in non-US international waters?"

Japan's action of filing these court documents also contradicts their agreement to comply with the ruling of the International Court of Justice. As Watson observes,

"It's quite interesting that the foreign ministry would say that they'll abide by the verdict, at the same time that they're submitting papers in a US court saying they intend to go back whaling. It's like one department isn't talking to the other."

Watson theorises that Japan is using the £19 million dollars of tsunami relief money granted to Institute of Cetacean Research by the Japanese government in 2011 to pay for these ongoing legal costs.

The Japanese whaling fleet is on its last legs

In addition to these legal challenges, the Japanese whaling fleet desperately needs to be repaired or replaced, and may not be able to endure another journey to the Southern Ocean.

According to Watson, the Nisshin Maru - the 8,145-tonne factory ship of the Japanese fleet - will cost up to 100 million to replace. "They've been doing repairs on it for years at enormous costs", Watson explains. "They put $23 million into it two years ago."

Watson also maintains that the harpoon ships and other vessels in the whaling fleet need to be updated, which will further increase costs.

"If this were a private enterprise, it would have gone bankrupt a long time ago. The only reason it continues to exist is by massive government subsidies."

Whale meat consumption is declining

To make matters worse for Japan, whale meat consumption has rapidly declined. According to a CBC news report, the amount of stockpiled whale meat has doubled over the past ten years, with more than 2,300 minke whales worth of meat sitting in freezers.

In 2012, Japan tried to sell their whale meat in 13 public auctions, but three-quarters of it remained unsold.

"Only about one to two percent of the population eats whale meat", Watson says, "and that's usually the older people who became habituated to it after World War II, when General Douglas MacArthur sent the whaling fleets down to the Southern Ocean for a cheap source of protein."

Rakuten, Japan's largest online retailer of whale meat, announced that they will stop selling whale and dolphin meat after the International Court of Justice ordered Japan to halt their Southern Ocean whaling program, which will cause whale meat sales to plummet even further.

Why keep whaling?

Based on the numerous legal and financial challenges, it doesn't seem logical for the Institute of Cetacean Research to continue a whaling program in the Southern Ocean. So why does Japan want to keep whaling?

Watson believes their decision has little to do with the demand for whale meat, but more to do with level of patronage in the Institute of Cetacean Research: "The board of directors is made up of retired politicians. They have very high-paying jobs, so they keep the pressure on."

Watson also speculates that Japan may want to maintain their whaling program to keep an "economic foot in the door" in the Antarctic.

"Japan has future plans for resources in Antarctica. And going down there may give them rights, since they have no treaty for rights."

If the oceans die, we die

Japan may find it difficult to financially sustain their whale hunts, but the marine environment cannot ecologically afford to lose any more whales.

Whales play a crucial important role in the world's oceans, stabilising the marine food chain, and storing and sequestering large amounts of carbon dioxide. They are also responsible for fertilising the oceans with their poo, recycling nutrients from the depths to surface waters - and so stimulating plankton growth and sustaining marine food chains.

Without whales, ocean health will diminish, threatening our own survival as a species. The ocean regulates our climate, and provides up to 80% of the oxygen we breathe.

"We just can't live on a planet with a dead ocean", Watson says. "If the oceans die, we die. That is the main message."

Sea Shepherd stronger than ever

If Japan does return to the Southern ocean for the 2015-2016 whaling season, Sea Shepherd will return as well. "They're giving Sea Shepherd Australia the advantage of time to repair its vessels, upgrade its fleet, and be well prepared", Watson says.

Sea Shepherd usually spends about $3 million for each Southern Ocean campaign, but if they don't go to Antarctica in 2014-2015, the conservation group can use the money to purchase another long-range vessel.

Hansen also points out that Sea Shepherd will be able to return to the Southern Ocean morally vindicated:

"Japan's accusations about us being law-breakers has been overturned in the highest courtWe now have proof that Japan is the law-breaker, and that Sea Shepherd has not only been upholding Australian federal law, but also international law."

An unsustainable burden

One thing for sure, Japan's whaling program is looking increasingly unsustainable, under attack as it is from all sides - adverse legal judgments, declining markets, a deteriorating fleet, increasing costs - and ever more determined global opposition.

It's not going to come to an end right away. But it can't be very long before Japan's rulers recognise whaling as a huge moral, financial, political and reputational burden - and one they no longer want, or need, to carry.



Elizabeth Claire Alberts is a freelance writer and environmental journalist based in Sydney, Australia. To learn more about her, visit www.elizabethclairealberts.com.




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