Human Interaction

Whale Wars Are the Japanese Whaling Illegally?

posted: 05/15/12
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DCL

Animal Planet presents this feature as a conversation with legal scholars. We draw no conclusions, other than that reasonable legal minds differ on these issues.

DR. TIMOTHY STEPHENS: "... the Southern Ocean Whale Sanctuary established, I think, in 1994, which applies in the Southern Ocean waters around Antarctica. And that basically says that you should not have commercial whaling within the sanctuary.

"Now, the thing you've got to remember is that we have a moratorium on commercial whaling in any event, which came into force back in 1986, so you can't whale commercially anywhere in the world's waters.

"Now, Japan is a major whaler in the Southern Ocean Whale Sanctuary. Japan says that's perfectly legal. Why? Because Japan says that it's conducting legitimate lethal scientific research, which is permitted — even in whale sanctuaries — by the International Convention for the Regulation of Whaling.

"Now, [the Madrid Environmental] protocol did a couple of important things. One thing it did is that it bans mining in Antarctica. That was the great achievement of the protocol. But the other thing it does is it sets up very specific, detailed, demanding rules in terms of all governments having to comply with when they have any kind of expedition or activity in Antarctica. And at the moment, Japan is not complying with those rules, particularly because Japan is not telling the international community what steps it is taking to insure that its whaling operations do not cause damage to the Antarctic environment.

"So the federal court of Australia recently made an order finding that Japanese whaling in the Southern Ocean near Australia's Antarctic Territory was unlawful as a matter of Australian law. No question about that. I think even the Japanese would acknowledge that it's unlawful as a matter of Australian law.

"What the Japanese say is that they don't recognize Australian law in the Southern Ocean. The Japanese say Australian law does not apply there because Japan does not recognize Australia's claim in Antarctica. [...] I cannot ever see any Australian government enforcing Australian law against non-nationals, including the Japanese, in Antarctica because of the political stink that that would cause on the Antarctic continent.

"The question about what you can do in Antarctic waters is a critical one. Now, Japan sends a very large whaling fleet to Antarctica each year. We're talking upwards of six, seven, eight vessels, including whale sighter vessels, whale harpoon vessels, factory ships, resupply vessels, refueling vessels. So it's a big operation that's going on down there. And arguably — in fact, I think very strongly arguably — Japan is not complying with its environmental obligations in Antarctica in relation to refueling or any of the other ancillary matters connected with the whaling. So even if you put whaling to one side, right — even if you disregard what Japan's doing with the whaling — all the other stuff that you have to do to maintain a whaling fleet in Antarctica is arguably not compliant with the law.

"Japan's not telling us what the environmental impact of its activities is, not preparing contingency plans, just not communicating with the international community generally, and it's a big concern.

"Japan says that it can do whatever it wants in Antarctic waters in relation to whaling. Why? Because Japan says that [...] it's the whaling convention that applies in Antarctica, not the Antarctic Treaty.

"So this is kind of a big contest, which convention applies: the whaling convention or the Antarctic Treaty? States — as unpalatable as it sounds — states have the right to catch whales on the high seas if consistent with the whaling convention, if it's for scientific research. And if they have that right, then they have a right not to be harassed in so doing."

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