[*PG323]JAPANESE WHALING IN THE PACIFIC OCEAN: DEFIANCE OF INTERNATIONAL WHALING NORMS IN THE NAME OF SCIENTIFIC RESEARCH, CULTURE, AND TRADITION
Abstract: Japanese whaling practices have always sparked controversy among the international community. Japans recent defiance of international environmental norms, however, risks a full-scale trade war led by U.S. demands to reform Japans whaling practices or suffer trade sanctions. Although the species endangered status may support sanctioning measures under international law, the United States must exercise caution in imposing restraints on international trade in light of its commitments under international trade agreements. The future of Japanese whaling remains unclear, but the international condemnation and call for restrictions is well-founded on international whaling and environmental norms.
Japanese whaling in the northern Pacific Ocean has sparked significant international protest, with the potential to become a full-scale trade war if Japan refuses to reexamine and reform its whaling practices.1 The international community and conservationists allege that Japan is egregiously violating conventional environmental and whaling norms.2 Japan, on the other hand, defends its whaling practices as complying with the regulations promulgated by the International Whaling Commission (IWC), the primary body charged with policing international whaling practices.3
[*PG324] In September, 2000,4 the United States attempted to pressure Japan into ceasing its illegal whaling by restricting Japanese fishing rights within the U.S. exclusive economic zone (EEZ).5 More importantly, the United States even has contemplated, although not yet imposed, trade sanctions as a more potent measure to stop Japanese whaling.6 In addition to disputing the illegality of its actions, the Japanese government also argues that U.S. trade sanctions would not comport with the requirements of the World Trade Organization (WTO).7
This Note discusses the legality of the Japanese whaling industry, the reasons for concern within the international community, and possible resolutions under international law. Part I provides a background on Japanese whaling activities and the relevant international regulations on whaling. In addition, this section discusses the history of the IWC and its authority under international law. Finally, this section analyzes the U.S. authority to impose trade sanctions and discusses conservationists allegations that Japans continued whaling research is actually a pretext for the commercial sale of whale meat on the Japanese markets.8
Part II examines the legality of the Japanese action under the IWC regulations and accepted international norms. This section also addresses the legality and likely success of the U.S. imposition of trade sanctions upon Japan, and Japans purported defense in the WTO. Part III suggests that trade sanctions may be warranted in light of Japans refusal to cooperate with international demands and environmental norms.9 However, this section also analyzes Japans efforts at reconciliation with the United States and the establishment of the IWC workshop that may rescue Japan from sanctions, at least in the short term. Additionally, this section argues that conservationists concerns are well founded, and that the unclear status of the species [*PG325]existence lends support for strict safeguards to ward against possible extinction. Finally, this Note concludes that Japans defiance of international pressures, environmental concerns, and its exploitation of a loophole in the IWCs regulations warrants the imposition of trade sanctions and possible international liability under existing international conservation agreements.
Since 1994, Japan has conducted a research whaling program in the northern Pacific Ocean.10 This program is conducted in blatant defiance of objections of the international community, animal rights advocates, and environmentalists worldwide who claim that Japans purported whale research is nothing more than a pretext for the illicit commercial use of whale products on Japanese markets.11 Putting it plainly, former Commerce Secretary Norman Mineta said, Japan is killing whales in the name of scientific research to satisfy a demand for whale meat in a few high-end restaurants and gourmet boutiques.12 When Japan announced the continuation and expansion of its controversial whaling program in 2000, and its intention to increase its annual kill of certain species of whales in May, 2000, international outrage ensued.13 UK Fisheries Minister Elliot Morley described the Japanese announcement as a blatant act of defiance of international opinion, deserving widespread international condemnation.14 Additionally, the IWC alleged violations of international whaling norms, because of an international ban on commercial whaling, arguing further that Japans alleged research purposes are an exploitative and disingenuous reading of the IWC regulations to accomplish Japans commercial objectives.15 In defiance of IWC resolutions and the pleas of other countries such as the United States and the United Kingdom, Japan has targeted primarily minke whales.16 With the expansion of its research program, Japan extended [*PG326]its targeted whale species to the sperm and brydes whales, mammals that are deemed endangered and protected under U.S. law.17
In 2000, the United States threatened trade sanctions under the Clinton administration,18 but Japan avoided their imposition in January, 2001 after Mineta met with Agriculture, Forestry and Fisheries Minister Yoshio Yatsu.19 The two agreed to establish an IWC workshop to study the effects of Japans whaling.20 While sanctions were not imposed at that time, the United States indicated the possibility that it would reconsider sanctions if Japan continued its whaling next year; thus the imposition of trade sanctions against Japan remains a possibility.21 Instead of imposing sanctions at that time, the United States prohibited the continuation of Japanese fishing operations within portions of U.S. waters in September, 2000.22 It is uncertain whether the economic impact of this prohibition is sufficient to force Japan to conform its whaling industry.23
When George W. Bush assumed the U.S. presidency in 2001, his administration reiterated the nations support for the international communitys call on Japan to cease its lethal research program.24 A bipartisan group of U.S. lawmakers also submitted a resolution calling on President Bush to take action against Japanese whaling, recommending bilateral negotiations and sanctions.25 Although the United States has continued to express its opposition to Japans whaling practices, it has not imposed trade sanctions and Japan has continued its scientific whaling program.26
For centuries leading up to the early 1900s, whales were considered a free resource, a gift from nature, available to anyone who [*PG327]would hunt and kill them.27 During the first thirty years of the twentieth century, industrial whale hunting became a major commercial industry that, over time, caused the depletion of many species.28 In the early twentieth century, prior to concerns of extinction, the whale hunting and fishing industries realized the need for regulation to maintain sizable numbers of whales for continued profitable whaling.29 In 1927, at the Whaling Committee of the International Council for the Exploration of the Sea, whaling countries discussed restricting expansion and instituting a licensing system.30 The International Bureau of Whaling Statistics was thereafter established in 1930.31 After further negotiations, the Convention for the Regulation of Whaling was concluded in 1931 under the League of Nations and, for the first time, set forth whaling regulations covering all seas, including territorial waters normally within the jurisdiction of the coastal state.32 This Convention went beyond mere commercial regulation in order to afford some measure of conservation for whales worldwide.33 The taking of a limited number of species, such as immature whales, female whales accompanied by calves, and right whales, was prohibited altogether by the Convention.34 However, despite the prohibitions, the 1931 Convention did little to actually reduce and effectively regulate the overexploitation of whales, and by 1938, the extermination of entire species of whale became a predominant concern.35
Following World War II, most whaling nations recognized the need for a new international convention for the protection and conservation of whales because of the apparent decline in many whale [*PG328]populations.36 As a result, in 1946, the International Convention for the Regulation of Whaling (Whaling Convention) was signed and entered into force in 1948.37 Today, over forty states have joined the Whaling Convention.38 Recognizing that it was essential to protect all species of whales from further over-fishing, the Whaling Conventions stated purpose was to ensure proper and effective conservation and development of whale stocks . . . .39 The new international agreement superseded all previous whaling agreements.40
The Whaling Convention established the IWC, which is composed of one member from each party state.41 The IWCs purpose is to study and investigate whaling practices and to disseminate information worldwide concerning methods of maintaining and increasing the populations of whale stocks.42 Since its founding, the IWC has evolved from an organization whose primary purpose was to facilitate commercial whaling into an organization focused more on conservation and protection of whales.43
In 1986, in response to the realization that the existing regulation scheme was not preserving the whale population, the IWC issued a moratorium on commercial whaling, following what it deemed decades of over-exploitation which had driven several whale species to the edge of extinction.44 Subsequently, the IWC issued numerous resolutions criticizing the Japanese scientific whaling program and [*PG329]pleaded with Japan to stop the practice.45 The IWC contends that less harmful methods of obtaining the scientific research are possible and should be studied before Japan continues its whaling.46 Nonetheless, Japan ignored these requests and continued its whaling program.47
Article VIII of the Whaling Convention permits countries to engage in whaling for the purposes of scientific research.48 It is this provision that conservationists claim Japan has exploited in purporting to cease its commercial whaling, while continuing to kill and allegedly research whales.49 Critics question whether the scientific research is a mere pretext for commercial whaling.50 The IWC contends that the Japanese research explanations are not sufficient, and that its reasons are not critically important to justify the killing of whales for research purposes.51 Moreover, the Japanese government sells the meat of whales killed for research purposes for food once the scientists have completed their work.52 This allegation is confirmed by DNA analyses that have found whale meat from these researched whales on sale in Japanese markets.53 Tests of 574 samples from Japanese restaurants showed that a high proportion of the whale meat being consumed came from a highly endangered subspecies of minke whales.54
Although scientific permits for research whaling granted by a party state do not explicitly require IWC approval,55 as the leading [*PG330]international authority on whaling regulation, the IWC has passed numerous resolutions criticizing Japans scientific whaling.56 In a 1998 resolution, the IWC strongly urged the Japanese government to refrain from issuing scientific permits, and highlighted the concerns of many in the international scientific community over the continuation of lethal whale research programs.57
The primary purpose of Japans whaling program, Japan maintains, is to examine the impact of whales on the fisheries resources of the north Pacific, where whales compete for the same fish that feed humans.58 Japans justification for the expansion of its north Pacific program is to [s]urvey prey species and numbers consumed by whales in detail, and to further contribute to the study of ocean ecosystems.59 Specifically, Japans research objective is to obtain estimates of various biological parameters, especially of age-specific natural mortality.60
Japan further argues that non-lethal tests and photography are not feasible research methods for these purposes.61 Moreover, Japan defends its practices by stating that the small take of sperm and brydes whales will have only a negligible impact on the allegedly abundant stocks of whales for research purposes.62 Furthermore, Japan justifies its commercial sale of previously researched whales by the requirement of the Whaling Convention that the byproducts of the research be processed to ensure that resources are not wasted.63 In this regard, Japan argues that its research is not a mere pretext for commercial use, but rather specifically supported by the Whaling Convention.64
The U.S. imposition of trade sanctions in these circumstances may be authorized by the Pelly Amendment to the Fishermans Protective Act of 196765 or the Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act.66 The Pelly Amendment is one of the U.S. governments primary tools to encourage other countries to comply with the Whaling Conventions conservation policies.67 The Amendment permits the U.S. president to direct the Secretary of the Treasury to impose sanctions if the U.S. Secretary of Commerce determines that foreign fishing practices diminish the effectiveness of an international fishery convention, in this case, the Whaling Convention.68 However, the Amendment limits the U.S. sanctioning ability such that it cannot conflict with U.S. obligations under existing international trade agreements, such as U.S. obligations to the WTO.69 Arguably, the United States is restricted from imposing trade sanctions if such imposition will conflict with its obligations under the WTO.70 Moreover, the presidents ability to impose sanctions is discretionary, and although such a measure has been threatened often, the United States never has imposed sanctions on the offending nations.71
Similarly, the Packwood-Magnuson Amendment provides for an automatic reduction of at least 50% of a countrys allocation of fish that it can harvest in the U.S. EEZ, if the U.S. Secretary of Commerce certifies that a country is engaging in whaling practices that diminish the effectiveness of the Whaling Convention.72 In addition to customary international law concerning the EEZ discussed below, the immediate denial of Japanese fishing rights, may, therefore, be permitted [*PG332]by the Packwood-Magnuson Amendment to the extent Japans allocation of fish is in U.S. waters.73
Japan has indicated that it will pursue a claim against the United States in the WTO if the United States imposes trade sanctions.74 The WTO prohibits trade restrictions on a production process if the actual products being shipped into the country are not in violation of local health standards.75 The U.S. imposition of such trade sanctions would do exactly this, allowing the WTO to prohibit such action, which may then provide some leverage for Japan in the whaling debate.76 Since whales are not the byproduct kills of some other commercial catch, and no whale products are shipped into the United States directly, trade sanctions may be necessarily limited.77 The only option from this constrained view of U.S. trade power is to test a range of Japanese imports, such as certain perfumes, to ensure no trace amounts of whale oil are present (thus avoiding the limitation on production processes).78 Experts disagree on whether such testing will have a definite economic impact upon Japanese practices, at what is likely to be a high financial and administrative burden.79 Additionally, should the U.S. testing be deemed harassment of lawful commercial trade, the United States may face liability in the WTO on separate grounds.80
A victory for Japan in the WTO is not entirely clear.81 The General Agreement on Tariffs and Trade (GATT) contains certain exceptions for species conservation, thereby warranting some U.S. restric[*PG333]tions.82 For example, Article XX provides that nothing in GATT shall be interpreted to prevent measures necessary to protect human, animal or plant life or health.83 If the U.S. restrictions are deemed a necessary conservation measure, Japan may have little grounds upon which to challenge the U.S. action.84
A decision by the WTO and the principle governing trade and the environment of the Rio Declaration on Environment and Development, however, indicated that the unilateral imposition of trade sanctions is only permissible if it is a last resort after exhausting all efforts at international cooperation.85 In the Shrimp-Turtle case, the U.S. prohibited the importation of shrimp and shrimp products from India, Malaysia, Pakistan, and Thailand because those countries fishing methodologies were deemed harmful to species of sea turtles who were listed as endangered under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).86 The United States invoked the authority of U.S. law to use its economic power to influence other nations environmental conduct.87 The states that suffered as a result of the U.S. sanctions sought relief in the Dispute Settlement Body of the WTO.88
The WTO panel concluded that in light of precedent and Principle 12 of the Rio Declaration, that there is an emphasized need for international cooperation and for avoiding unilateral measures.89 Since the U.S. applied measures without any serious attempt to reach, beforehand, a negotiated solution, the WTO deemed the actions inappropriate.90 Although it noted that recourse to unilateral measures were not altogether excluded, the WTO panel noted that general international law and international environmental law clearly favor the use of negotiated instruments rather than unilateral measures when addressing global environmental problems.91 Accordingly, success in the WTO would largely depend on the extent to which the [*PG334]U.S. has attempted and failed to reach a resolution of this matter through international negotiations. The United States has neither been successful in the Tuna-Dolphin case nor the Shrimp-Turtle case in applying trade sanctions to protect marine species pursuant to GATT Article XX, failing to satisfy the chapeau in both cases.92
Japan also may claim that the U.S. sanctions and IWC restrictions constitute cultural imperialism, because many Japanese have grown up eating whale meat as part of their culture.93 The Japanese Whaling Association claims that the modern ban on commercial whaling thus strips Japan of an important part of its culture and tradition, since whale meat traditionally has been a prized delicacy for special occasions.94 However, any threat to Japans sovereignty in this regard is arguably outweighed, conservationists maintain, by the growing international consensus of a genuine threat to whale populations.95
As an immediate measure, the United States has denied Japan certain fishing rights within the EEZ of the Pacific Ocean.96 This area typically extends from three to two hundred nautical miles from the baseline of the U.S. coast.97 Normally, the designation of an area as the EEZ yields sovereign rights to the coastal state for the management of natural resources and other natural activities.98 Customary international law confers upon the coastal state limited jurisdiction over the protection and preservation of the marine environment.99 Rights of other countries to participate in fishing in a states EEZ are subject to the coastal states regulation.100
The United States exercised its coastal state authority in an attempt to impose economic pressure on Japan without the questionable legal authority of trade sanctions.101 By prohibiting the Japanese [*PG335]from fishing in these waters, and thereby protecting marine life within the EEZ, the United States subjects Japan to international liability for a violation of these restrictions.102 Nonetheless, critics allege that this economic restriction only serves as a minimal deterrent against Japanese whaling practices.103
The Humane Society and other marine life advocates have focused on the Japanese whaling industry as violative of international law and a threat to whale populations worldwide.104 In 2000, the Humane Society formally requested then-Secretary of the Interior Bruce Babbitt to certify that Japan was undermining the CITES Conventions objective to protect endangered species.105 Although Babbitt made such certifications, immediate sanctions were not imposed under the Pelly Amendment, presumably because of the concessions discussed above, namely the agreement to an IWC workshop to examine Japanese whaling and its temporary cutback of whale hunting.106
The Humane Society highlighted the inherent risk in hunting a species that is either endangered or whose endangered status is unknown.107 While the sperm whales status is listed as endangered,108 as is the brydes whale,109 studies indicate that the population numbers of sperm whale seem stable.110 Nonetheless, the Humane Society maintains that because of the numerous assumptions necessarily accompanying an estimate of whale populations, there is an inherent risk that these estimates may not be entirely accurate, and thus any [*PG336]hunting should proceed with caution.111 This cautionary note is supported by the fact that when whaling nations were not concerned with conservation, and whale counts were not as prevalent or accurate, continued whale hunting pushed several species to the edge of extinction.112
The Pelly Amendment authorizes the imposition of trade sanctions where countries act to diminish the effectiveness of an international fishery convention.113 Regardless of a species status as endangered under the CITES Agreement or international law, therefore, U.S. law permits sanctions against Japan if the sperm and brydes whale are being killed primarily for commercial use, contrary to the Whaling Convention moratorium.114 U.S. law also permits the denial of fishing rights the U.S. EEZ when a particular nation undermines an international conservation agreement.115 It is unclear how effective this measure will be in deterring future Japanese whaling; although some say the application of the Packwood-Magnuson Amendment, coupled with the mere threat of sanctions under the Pelly Amendment, has been successful in the past in forcing compliance with the Whaling Convention.116 Fully imposed trade sanctions on Japan, if permissible under WTO scrutiny, likely would supply enough economic pressure on the country to cease its whaling.117 It is unclear to what extent sanctions would be imposed, and the Bush administration has not yet indicated how far it will go to apply pressure to Japan.
Furthermore, success in the WTO for either Japan or the United States is uncertain.118 As previously discussed, although the production-process distinction weighs in Japans favor and the United States [*PG337]is normally unable to restrict trade on products whose production processes do not violate domestic law, the United States may successfully rely on the exceptions in the WTO Agreement for species conservation.119 However, the disputed nature of these species endangerment may prove difficult for the United States in the WTO, and the United States has not always enjoyed success on environmental matters in the WTO, presumably because of the sanctions limiting effect on free trade and the established preference for international cooperation over unilateral measures.120
Some party states, including Japan and Norway, have questioned the IWCs authority under international law because of its inability to enforce the regulations and resolutions it puts forth.121 These states also claim that the Whaling Convention does not prohibit the harvesting of healthy whale populations, but rather promotes the sustainable harvesting of whale stocks.122 While it is unlikely Japan and Norway would repudiate their membership in the IWC, their objections signal a likelihood that they will continue to push for reform and test the outer bounds of whaling regulations.123 Additionally, Japan continues to facilitate the membership in the IWC of pro-whaling nations that will vote in accordance with Japan.124 The Humane Society alleges that Japan and Norway are attempting to force the IWC to de-evolve back into a 19th Century view of the relationship between man and whale: one based on lethal exploitation with no thought to the future.125
Moreover, the Japanese Whaling Association (JWA), among others, contends that the IWC has lost its legitimacy as an international regulatory body since it strayed from its fundamental objective of regulating the orderly development of the industry.126 Instead, the JWA suggests that the IWC has allowed itself to be taken over by anti-[*PG338]whaling groups such as Greenpeace who recruited into the IWC many countries that did not have any involvement in whaling.127 Consequently, the JWA contends that the blatant disregard of the Whaling Convention objectives not only violates the Whaling Convention, but also the Vienna Convention on the Law of Treaties.128
Additionally, these critics of the IWC contend that the IWCs regulations imposed upon whaling cultures are not based upon a need to protect whales from extinction.129 Instead, they argue that the restrictions are the result of a convenient political determination by the non-whaling states that lead the IWC, who fear no political retribution (and expect only political gain) by the states citizens since whaling is not a part of their culture.130 Anti-whaling nations, in other words, have found a politically favorable topic and can push for conservation measures without the cost falling back on the electorate. These critics further maintain that commercial whaling can be maintained on a sustainable basis, and the whaling ban thus conflicts with the rights of human beings to practice their culture.131
As an alternative to the outright ban on commercial whaling, some propose a quota system that would permit the hunting of those whales that can be harvested sustainably.132 Despite the fact that the IWCs initial attempts to regulate commercial whaling failed to prevent endangerment and extinction, this proposal implausibly suggests that the IWC would be capable of regulating rigid quota systems for whaling nations.
Pro-whaling nations advocate the adoption of a Revised Management Scheme (RMS).133 The RMS would provide rules, likely similar to the sustainable quotas discussed above, whereby nations could conduct commercial whaling.134 The Humane Society maintains that the RMS uses unreliable statistical assumptions and that its inherent [*PG339]inaccuracies for sustainable development would render the program ineffective in achieving meaningful conservation.135
Certainly, Japans refusal to conform to any of the IWCs resolutions demonstrates the Whaling Commissions inability to effectively enforce its whaling regulations.136 In the IWCs favor, fishing regulations are presumably difficult to enforce by any organization. It is inherently difficult to patrol all parts of the high seas, and scrutiny at fishing docks for illicit fishing practices may not always be wholly effective. Furthermore, as is demonstrated by tremendous restrictions on the ability to impose meaningful sanctions, illegal fishing practices may be difficult to deter, especially if such practices yield commercial success with little consequence.
Nonetheless, Japans refusal to comply with IWC regulations is a breach of its obligations under the Whaling Convention and the IWC has failed to successfully enforce any deterrent against or punishment of Japan.137 The Whaling Convention specifically established the IWC as the authority for the regulation of whaling practices.138 If the United States is precluded from imposing trade sanctions, Japans breach or bad faith exploitation of this agreement may warrant liability under international law. Similarly, Japans hunting of endangered whales under the CITES agreement also may constitute a breach of an international agreement if such whaling is in fact commercial in nature. The United States, or any other party to the CITES agreement, then may have a cause of action against Japan.139
The risk in hunting species whose endangered status is uncertain or even unknown causes great concern over Japans practices because the risk of whale extinction and corresponding threat to the ecosystem.140 Japan has attempted to alleviate international environmental concerns through an agreement with the United States to request that [*PG340]the IWC set up a workshop ascertaining the effects of its research whaling on whale populations.141 This concession mitigated the possibility of trade sanctions, at least temporarily, although the United States has not ruled them out.142 While Japan refused to cease its whaling program entirely, it did agree to temporarily reduce its catch by limiting its research targets to the sperm whale only.143
Should the IWCs authority for the regulation of whaling continue to prove as ineffective as it has thus far and should negotiation efforts continue to fail, the United States should be justified in imposing trade sanctions to effect a change in Japanese whaling practices. Trade sanctions are permissible under U.S. law and may be supported by both international law and the parties to the Whaling Convention.144 Additionally, a case may be made for the applicability of the exceptions for species conservation under the WTO.145 However, up to this point, the chapeau of Article XX has been the pivotal issue.
Moreover, the overriding environmental concerns for preservation of a potentially endangered species support firm measures by the United States.146 Other countries, such as the United Kingdom and New Zealand, also believe strong action is necessary.147 The only possible mitigating factors for severe action at this time are Japans willingness to continue negotiations for an amicable resolution and the states agreement for an IWC workshop to study whaling.148 However, although Japan has cut back on its whaling, it has not ceased its whal[*PG341]ing research in the interim period, despite the continued international outrage.149
Japan claims that its research is for scientific purposes, yet it ignores the non-lethal methods of obtaining the same research information.150 This disregard supports critics charges of fabrication of a scientific purpose to cover for illicit commercial activity.151 Despite the unknown number of sperm and brydes whales left, the CITES convention deems the mammals endangered, and therefore it is incumbent upon Japan to comply with the emerging international consensus regarding preservation of the worlds ecosystem.152 Although the minke whale is not considered endangered, its populations have been depleted significantly by whaling in the north Pacific.153 Moreover, the experiences with commercial whaling prompting the establishment of the IWC and the IWCs subsequent inability to maintain sustainable whale stocks without restrictions on commercial whaling endorses the view that commercial whaling on a sustainable basis is an implausible goal. These experiences and Japans general environmental obligations under international law, coupled with Japans explicit promises under existing international agreements, supports halting Japans current whaling practices.
Japanese whaling practices have caused an international controversy due to alleged violations of international whaling regulations. Those alleged violations may give rise to a full-scale trade war, should Japan refuse reform of its lethal whaling. In light of the species potential endangered status and in light of international legal authority, the United States may be justified in imposing trade sanctions on Japan if it continues to defy international demands. For the time being, Japans moderate concessions have delayed the imposition of sanctions, and thus the future of Japanese whaling practices remains unclear.