Japan is opening itself up to potential international legal action when it restarts commercial whale hunting in its own waters in just a few days’ time, according to an international legal opinion commissioned by two leading marine conservation groups.
Even though Japan has withdrawn from the International Whaling Commission (IWC), the legal opinion commissioned by the Australian Marine Conservation Society (AMCS) and the International Fund for Animal Welfare (IFAW) outlines how the country still has a raft of obligations under international law.
Darren Kindleysides, chief executive of AMCS, said: “Japan has run away from the International Whaling Commission but its whaling can’t escape the reach of international law.
“Japanese whalers are about to start commercial whaling for the first time in 30 years. Countries opposed to whaling like Australia must once again stand up and take legal action against Japan.”
Patrick Ramage, director of marine conservation at IFAW, said: “It is tragic that many whales will suffer a cruel and unnecessary death to service a dying industry that damages Japan’s reputation and opens it up to further legal challenges.
“We urge Japan to abandon its whaling not the rule of international law.”
The legal opinion has been provided by international law expert Professor Chris Wold, director of the International Environmental Law Project at the Lewis & Clark Law School, Portland, Oregon.
Professor Wold said: “Several international tribunals and courts – including the International Court of Justice and the International Tribunal for the Law of the Sea – have concluded that countries have a duty to cooperate with and respect the rights of other countries and the United Nations Convention on the Law of the Sea (UNCLOS) expressly extends these duties to the taking of whales in Japanese waters as well as the high seas. Japan has ratified that convention.
“My legal opinion finds that to fulfil these duties Japan must exchange information and consult with other countries and do so through the IWC. If it doesn’t do this, countries would have the legal option to use the dispute settlement rules of UNCLOS to force Japan to comply.”
Japan has indicated it will resume commercial whale hunting on 1 July. One key finding of the opinion centres on unresolved scientific issues relating to the structure and numbers of sei and minke whale populations, which Japan intends to kill, along with Bryde’s whales.
Until Japan can resolve those gaps in knowledge and data, the legal opinion finds that Japan would be failing in its duty to cooperate if it hunts these animals.
Japan must also prepare a transboundary “Environmental Impact Statement” before it starts hunting, “because its commercial whaling has the potential to harm resources shared with other states,” the legal opinion says.
Wold’s legal opinion also says Japan has an obligation to co-operate with other countries and groups, including the IWC, because hunting whales impacts the marine environment of other States.
Japan would still be obliged to co-operate with the IWC by attending meetings and using the IWC’s approved procedure – known as the Revised Management Procedure – to set limits on the whales it can kill, in order to meet sustainability requirements under UNCLOS.
In 2014, Australia led and won a case at the International Court of Justice to stop Japan’s annual hunting of hundreds of whales in the Southern Ocean.
Japan had claimed the hunts were for scientific research and therefore allowable through an IWC clause, but the court disagreed.