A blog post by Sook Brar, Junior Associate.

In 1946, the International Convention for the Regulation of Whaling established the International Whaling Commission (Commission) in order to regulate the whaling industry and to preserve and protect the whale species from exploitation and extinction.[1] In efforts to protect the whale species population, the Commission sets catch limits for commercial whaling for all countries that are members of the Commission.[2] In 1982, the Commission set a commercial whaling moratorium (“Moratorium”) in which they paused all commercial whaling of all whale species and populations which was to take in effect starting in 1986.[3] With the exception of Norway and Iceland, all other members of the Commission are bound by the moratorium.[4] Japan, as a former member of the Commission, had been aggressively trying to resume commercial whaling for decades before withdrawing from the Commission in June of 2019.[5] Up until 2019, Japan had been whaling under the scientific research provision exception with the Commission.[6] This loophole found in the Commission rules allowed Japan to resume whale hunting in Antarctica.[7] In 2014, the UN Court of Justice declared Japan’s Antarctic whaling program illegal.[8] In response, Japan withdrew from the Commission and has since resumed commercial whaling in its territorial waters.[9]

At the time, Japan had been abusing the Commission’s scientific loophole and exploiting the whale population of the Southern Ocean.[10] Despite being reprimanded by the UN, Japan continued to whale claiming exemption from the UN’s jurisdiction.[11] Instead of stopping their illegal practice, Japan renamed the whaling program and continued to deplete the whale population of the Antarctic.[12] Therefore, Japan’s official withdrawal from the Commission was centered around Japan’s hopes to continue commercial whaling without international regulation or influence.[13] Although the withdrawal has allowed Japan to resume its practice of commercial whaling exclusively in its territorial waters, Japan has consistently disregarded such regulations and has since expanded outside of its territory, including whale sanctuaries protected by other nations.

Although the Moratorium effected a worldwide ban prohibiting quotas from being set for commercial whaling of all stocks, several countries abused the objections clause of the ICRW.[14] This clause allowed members of the Commission to file an objection to any Commission decision, essentially immunizing them from the enforcement and effect of the binding decision.[15] In response to the Moratorium, Japan, Norway, Peru, and the Russian Federation (at the time, the Soviet Union) immediately filed objections, which later Peru and Japan withdrew within the first two years of the Moratorium’s passage.[16] Japan, however, creatively exploited a different provision of the ICRW, allowing for scientific research permits.[17]

Although objections could only have been made within the first 90 days of the decision’s enactment, countries that filed objections decades ago have continued commercial whaling, further contributing to the status of the species as endangered. Therefore, retroactive reform today is required in order to prohibit and restrict objecting countries from whaling. Specifically, the Commission should be granted enforcement resources and provisions in order to not only punish member countries from going against the Commission’s efforts, but also to prohibit and deter non-member countries as well.

[1] History and Purpose, International Whaling Commission, https://iwc.int/history-and-purpose

[2] Commercial Whaling, International Whaling Commission, https://iwc.int/commercial

[3] Id.

[4] Id.

[5] Rachel Fobar, Japan will resume commercial whaling. Get the facts., National Geographic (Sept 26, 2021) https://www.nationalgeographic.com/animals/article/japan-considers-leaving-international-whaling-commission

[6] Julia Engelmann, Number of Whales Killing in Japan 2010-2019, https://www.statista.com/statistics/1186214/japan-whaling-number/

[7] Whaling in Japan, Whale and Dolphin Conservation (Sept 26, 2021), https://us.whales.org/our-4-goals/stop-whaling/whaling-in-japan/

[8] Id.

[9] Supra note 6.

[10] Supra note 7.

[11] Id.

[12] Id.

[13] Id.

[14] IWC Governance, Animal Welfare Institute, https://awionline.org/content/governance

[15] Id.

[16] Id.

[17] Id.