International Convention For The Regulation Of Whaling Research Articles

Yasunaga et al. (2022) meets the ethics code of Marine Mammal Science, and the journal's decision to publish the paper is correct

Yasunaga et al. (2022) meets the ethics code of <i>Marine Mammal Science</i>, and the journal's decision to publish the paper is correct

Regulating Exceptions for Research and Exploratory Fishing in Southern Ocean Marine Protected Areas: A Comparative Analysis on Balancing Conservation and Commercial Use

This article examines the concepts of “research fishing” and “directed fishing” under the Ross Sea region Marine Protected Area (RSrMPA) with specific regard to MPAs as a conservation tool, drawing comparisons with related concepts contained in two other agreements, namely, the 1946 International Convention for the Regulation of Whaling (ICRW) and the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement). It first reviews the negotiation processes of the RSrMPA, focusing on debates between so called “fishing states” and “conservation states,” as well as the political compromise that led to the establishment of the RSrMPA. Second, it takes a detailed look at the regulation of “research fishing” and “directed fishing,” which may be conducted in the RSrMPA and the three zones into which it is divided. Third, it analyzes how “scientific research activities” and “exploratory fishing” are regulated in the CAOF Agreement. Thereafter, this article examines the role of the concept of whaling “for purposes of scientific research” under the ICRW. It concludes with an assessment of differences and similarities between the analyzed regulatory instruments, which identifies recommended lessons for the design of Conservation and Management Measures establishing MPAs that both reflect the precautionary approach and strike a balance between conservation and utilization.

Ethical and Legal Considerations for Scientists Collaborating with Whalers: A Case Study of International Research Using the Outcome of Contemporary Whaling by Iceland

This article explores some ethical and legal issues regarding international research conducted on whales killed by Iceland since it resumed whaling in 2003. In total, 35 peer-reviewed publications and 11 conference presentations were identified, wherein international research directly or indirectly relied on contemporary whaling for samples or data. The authors of these publications were affiliated with 56 institutions from 13 countries. Parallels are drawn between this research and the offshoring of biomedical research that exploited weaker regulations elsewhere. Ethical assessments were rarely included in the reviewed papers, and none of them addresses the issue of compatibility with the International Convention for the Regulation of Whaling (ICRW) or with the laws and ethical standards within the countries where the researchers are based. Diplomatic efforts to uphold international treaties to protect whales may be undermined by research using the outcome of whaling. Government grants were used by research institutions in four ICRW member countries (Spain, Sweden, the United Kingdom, and the United States) where the governments had formally objected to Iceland’s reservation against the ICRW whaling moratorium. Researchers and their institutions may become tacitly complicit in contemporary commercial and alleged scientific whaling, when these activities may not be consistent with the ethical standards or laws within their own countries. Greater transparency is needed among academic institutions, government agencies, nongovernmental organizations, funding bodies, journals, and professional societies regarding legal and ethical issues when data or samples from such whaling operations are used. Ethical frameworks need to be developed analogous to those used in international biomedical research and other disciplines.

Legal Opinion Concerning Japan’s Duty to Cooperate with the International Whaling Commission with Respect to Any Resumption of Commercial Whaling

Japan has formally indicated its intent to withdraw from the International Convention for the Regulation of Whaling (ICRW) and the International Whaling Commission (IWC) and signaled its intent to resume commercial whaling for minke, sei, and Bryde’s whales within its territorial seas and exclusive economic zones. Even if Japan withdraws from the ICRW and IWC, however, Japan is still bound by customary international law and other treaty law, including the UN Convention on the Law of the Sea (UNCLOS), to which it is a party. Both customary international law and UNCLOS impose on States a duty to cooperate. Customary international law also includes a duty to conduct a transboundary environmental impact assessment (EIA) prior to conducting any activity that may adversely affect the territory of another State or areas beyond national jurisdiction. Thus, if Japan resumes commercial whaling after withdrawing from the ICRW, it would still be bound by the duty to cooperate and, because it intends to allow hunting of whales shared with other States, it would be required to prepare a transboundary EIA. The International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and other international tribunals have all declared that the duty to cooperate, whether as customary international law or as a fundamental principle of UNCLOS, requires States to give “due regard” to the rights of other States, as well as exchange information and consult regarding activities that engage those rights. In particular, UNCLOS requires Japan to cooperate through the IWC because UNCLOS requires Parties to cooperate through the “appropriate international organizations.” The IWC is the “appropriate international organization” regardless of whether Japan whales in its exclusive economic zone or the high seas and regardless of the presence of any other organization because the IWC has a global mandate to conserve, manage, and study whales and it has actively embraced that mandate, including with respect to the stocks that Japan intends to hunt. To fulfill its UNCLOS duty to cooperate, Japan must participate meaningfully in meetings of the IWC and the IWC Scientific Committee, submit data on whales struck and lost as well as whales caught as bycatch, and implement the Revised Management Procedure (RMP) because the RMP represents the scientifically-vetted method for calculating sustainable catch limits. Moreover, to ensure its whaling is sustainable, Japan must prohibit whaling, at least until significant data gaps are filled in relation to the stocks that Japan intends to hunt. IWC members that are also UNCLOS Parties may vindicate their rights using the binding and compulsory dispute settlement provisions of UNCLOS.

Stopping overexploitation of living resources on the high seas

This paper reviews the provisions and efforts to implement the 1946 International Convention for the Regulation of Whaling (ICRW) and the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). It illustrates progress and continuing challenges to stopping the overexploitation of living resources in high seas areas beyond national jurisdictions. Progress includes recognition that living organisms interact with each other and the environment in complex ways and that single-species management to attain maximum sustainable yield (MSY) fails to account for these interactions. Continuing challenges include data limitations that allow differing views concerning the adequacy and interpretation of the available data, and decision-making that allows a minority of the decision-makers to block adoption of regulatory measures that the majority believe necessary to meet the intent and provisions of the regulatory agreements. The provisions and continuing challenges to meeting the objectives of these two conventions should be considered in the formulation of future international high seas regulatory agreements such as the regime to govern fisheries in the central Artic Ocean as envisioned in the 16 year ban on commercial fishing there agreed in October 2018 by Canada, Denmark (for Greenland), Iceland, Russia, Norway, the United States, the European Union, Japan, China, and South Korea.

Japanese Small Type Coastal Whaling

2016 marks the 70th anniversary of the International Convention for the Regulation of Whaling (ICRW) as well as the 30th anniversary of the International Whaling Commission’s (IWC) moratorium on commercial whaling. It also marks three decades of effort by Japan to overturn this ban. Its strategy to circumvent the moratorium by issuing permits to kill protected whales for scientific research is famous—even the subject of a 2014 lawsuit at the International Court of Justice. Less well known is Japan’s strategy to overturn the ban by persuading the Commission to authorise a category of commercial whaling known as Small Type Coastal Whaling (STCW) that is conducted on minke and other small whales in Japanese waters but has never been regulated, or even formally recognised, by the IWC. For three decades Japan has sought STCW catch limits for four communities which it claims are still suffering distress as a result of the moratorium. While the Commission has rejected each proposal, mainly citing concerns that the commercial nature and purpose of STCW violates the moratorium, Japan has persisted, exhibiting great flexibility in its approach. Its tactics changed significantly in 2014; it no longer denied (or defended) the commerciality of the hunt, but argued that it is irrelevant since it sought only a small exemption to the moratorium which would remain intact for all other populations. This is a perspective on Japan’s evolving STCW strategy and the risk that lifting, or modifying, the moratorium would pose to the conservation of whales.

O Estatuto Jurídico das Baleias: capacidades, direitos e cultura

http://dx.doi.org/10.5007/2177-7055.2016v37n72p19Baleias, apesar de estarem entre os seres mais majestosos, misteriosos, poderosos e inteligentes do nosso planeta, são profundamente ameaçadas. O direito internacional já há algum tempo tenta protegê-las da extinção. Este trabalho aborda o estatuto jurídico das baleias e argumenta que elas devem ser consideradas criaturas com direitos e não simplesmente commodities. Atualmente, o direito internacional não reconhece as baleias como criaturas com direitos. Organizações internacionais, particularmente a Comissão Baleeira Internacional (CIB) e seu documento de fundação, a Convenção Internacional para a Regulação da Atividade Baleeira (CIRB), estão centradas na questão da caça excessiva e permitiram exceções a padrões habituais, baseados tanto nas supostas necessidades de pesquisa científica (no caso do Japão) como na reivindicação de práticas culturais (no caso dos grupos indígenas do Ártico).

ICJ Halts Antarctic Whaling – Japan Starts Again

AbstractThe International Court of Justice (ICJ) judgment inWhaling in the Antarctic, a dispute brought by Australia against Japan, found that Japan had violated the International Convention for the Regulation of Whaling (ICRW) moratoria on all commercial whaling and the use of factory ships to process whales, and also the prohibition on whaling in the Southern Ocean Sanctuary. In the course of analyzing whether special permits issued by Japan qualified for the scientific whaling exemption under Article VIII ICRW, the Court benefited from a more robust scientific fact-finding process than at times in the past. The judgment emphasized the mutual obligations of this multilateral agreement by taking the view that the provisions of the ICRW’s scientific whaling exemptions are neither self-judging nor subject to a ‘margin of appreciation’ in favour of a state party claiming the exemption. The case was driven by conflicting attitudes towards commercial whaling, and also towards global common spaces. The ICJ’s decision and Japan’s response indicate the limits of the ICRW in resolving those differences.

SOVEREIGNTY, SCIENCE, AND CETACEANS: THE WHALING IN THE ANTARCTIC CASE

THE issue of whaling has been the subject of considerable controversy in recent years, as the international community remains divided as to how the world's marine resources should be managed: some states prioritise conservation, while others favour sustainable exploitation. Against this background, Australia initiated proceedings against Japan before the International Court of Justice (ICJ) in May 2010, claiming that Japan's continuing whaling activities, carried out under the guise of scientific research, were in breach of its various obligations under the International Convention for the Regulation of Whaling (ICRW). New Zealand later intervened in the proceedings, exercising its right under Article 63 of the ICJ Statute, and oral pleadings involving the three states were held in June and July 2013. On 31 March 2014, the ICJ delivered its judgment in Whaling in the Antarctic (Australia v Japan, New Zealand Intervening), finding that Japan had violated three provisions of the ICRW – the moratorium on commercial whaling, the ban on factory ships, and the prohibition on whaling in the Southern Ocean Sanctuary – by authorising the killing of certain whale species as part of its JARPA II research programme. The decision has largely been welcomed, especially by environmental activists, for offering a measure of protection to endangered marine life, but the judgment carries broader significance for its treatment of a number of points of international law, including the standard of review exercised by international courts, the role of scientific reasoning in international dispute settlement, and the interpretation of treaties.

Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) (I.C.J.)

On March 31, 2014, the International Court of Justice (ICJ) issued its judgment in the case of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) (Whaling Decision). In what is perhaps its most important environmental decision to date, the ICJ ordered Japan to halt its whaling program in the Southern Ocean, finding the program lacked scientific merit and breached requirements of the International Convention for the Regulation of Whaling (ICRW).

On the Life and Death of Wildlife Treaties

The great conundrum at the heart of the 1946 whaling regime1The key institutions of the regime are the International Convention for the Regulation of Whaling (ICRW) [161 U.N.T.S, 72, signed 2 Decem...

The IWC moratorium on commercial whaling was not a value judgment and was not intended as a permanent prohibition

A review of the International Whaling Commission’s institutional discourse related to the “moratorium” as reflected in the Commission’s documents together with a literal reading of Schedule paragraph 10(e) of the International Convention for the Regulation of Whaling (ICRW) shows that the moratorium does not include language which permanently prohibits commercial whaling, does not include any expression which demonizes whaling, does not label the killing for commercial purposes as criminal as opposed to catching for indigenous purposes, and does not reflect any value judgments about whales and whaling. Rather, this paper shows that with only few exceptions these documents together with the language of paragraph 10(e) clearly demonstrate that the moratorium was intended as a temporary conservation and management measure related to uncertainties of scientific information. Notwithstanding this, anti-whaling NGOs have mischaracterized the moratorium as a permanent prohibition or ban on commercial whaling. This mischaracterization was a major factor in the failure of the “Future of IWC” process which was aimed at getting compromises from both pro-whaling and anti-whaling members to resolve the bipolar, conflictive and dysfunctional nature of the organization. Finally, it is concluded that the moratorium as a permanent prohibition would be inconsistent with the purpose of the ICRW and that science related to the management of whales and international law, in this case the literal interpretation and implementation of the Schedule paragraph 10(e), provide the only possible means to resolve the controversy concerning whaling.

Japan's Research Whaling Is Not Unlawful and Does Not Violate CITES Trade Rules

This article is a critique of two reports of “independent legal experts” sponsored by the International Fund for Animal Welfare (IFAW); the “Paris Panel” and the “London Panel.” The article shows that the Paris Panel's conclusion that Japan's research whaling in the Antarctic is unlawful and an abuse of rights under the International Convention for the Regulation of Whaling (ICRW) is based on misuse of evidence and failure to properly interpret Article VIII of the Convention and the legal status of recommendatory non-binding resolutions. It also shows that the London Panel's conclusion that the import of humpback whales from Japan's research program in the Antarctic and sei whales from its research program in the North Pacific are a violation of trade rules under the Convention on International Trade in Endangered Species of Wild Fauna and Flora is based on incorrect interpretation of that Convention's trade rules. It is concluded that the two independent legal experts panel reports are, from a legal perspective, seriously flawed, rendering their conclusions invalid and relegating the reports to the status of IFAW propaganda.

Commercial Whaling by Another Name. The Illegality of Japan's Scientific Whaling: Response to Dan Goodman

If Goodman 3 were correct that Japan's whaling is fully consistent with the International Convention for the Regulation of Whaling (ICRW), then what would be the point of the Convention and the Int...

Japan's ‘Research Whaling’ in the Antarctic Southern Ocean and the North Pacific Ocean in the Face of the Endangered Species Convention (CITES)

Over the past 20 years, Japanese whalers have taken more than 10,000 whales from the Antarctic Southern Ocean and the north Pacific Ocean for ‘scientific purposes’, under a controversial exemption clause in the International Convention for the Regulation of Whaling (ICRW). After analyzing the relationship of the ICRW regime with other applicable multilateral agreements, this article concludes that Japan's current pelagic ‘research whaling’ programmes are not only a growing embarrassment for the country's meritorious ongoing research in both polar regions; they are also in open breach of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). In light of different options for international legal action, the author recommends the initiation of ‘compliance procedures’– potentially leading to a collective trade embargo – in accordance with CITES Conference Resolution 14.3 (2007).

The Legal Cetacean: A Select Bibliography on Whales and International Whaling

Whales have captivated the human imagination for millennia. Indeed, evidence of the first whale hunting dates back to at least 6,000 B.C. These incredible cetaceans have been a source of human food, fuel and tools, and have inspired art, myth and literature around the globe. Legal issues affecting whales are varied and far reaching. Only since the mid 20th century, with the establishment of the International Whaling Commission (IWC) under the terms of the International Convention for the Regulation of Whaling (ICRW) have whales benefited from any type of conservation effort.

Modernisation of the International Convention for the Regulation of Whaling

Abstract Modernisation of the International Convention for the Regulation of Whaling (ICRW) has long been proposed by some contracting states and outsiders as a way of resolving the “Whaling Dispute” within the International Whaling Commission (IWC); however, both sides of the debate have traditionally been unconvinced that they would gain enough benefit to make the process worthwhile. Since the collapse of the negotiations on the Revised Management Scheme, the pro-whalers within the IWC have pursued an agenda of “Normalisation” of the IWC in an attempt to resume sustainable commercial whaling under what they believe is the true intent and wording of the ICRW. An attractive alternative to normalisation, particularly to many anti-whalers, is the rewriting of the Convention itself to incorporate many of the elements of more modern conventions, and to remove the clauses in the ICRW which have allowed pro-whaling members of the IWC to carry out whaling operations despite the disapproval of the majority.

Whales, Sustainability and International Environmental Governance

The international governance structures in place with respect to whales are dominated by the International Whaling Commission (IWC). However, the IWC's constitutive document, the 1946 International Convention for the Regulation of Whaling (ICRW), lacks many critical elements of good governance which have evolved since the conclusion of the convention. Since the signing of the ICRW, there have been significant and far‐reaching developments in the ways and means by which sustainable development and environmental policy is formulated and implemented. Sustainability principles have expanded well beyond limited conservation objectives to include, in particular, the precautionary and ecosystem approaches. International governance has also evolved to require efficient and participation‐based decision‐making processes, including integrated management and sustainability, efficient and participation‐based decision‐making processes, international cooperation between States and coordination between international agencies, transparency, and dispute‐resolution and compliance mechanisms. These are all elemental aspects of modern environmental governance. Necessary reforms to the ICRW are substantial, and in light of the unanimity required, it is likely that only a new convention will achieve the necessary changes. A governance framework for whales must enable and encourage participants and stakeholders to cooperate in a spirit of global partnership. The goal should be to conserve, protect and restore the health and integrity of the global whale populations as part of the overall goal of the sustainability of the oceans and seas implementing the ecosystem and precautionary approaches. It must integrate with other elements of international governance to that wider goal.

The International Whaling Commission and the Future of Cetaceans in a Changing World

The annual meetings of the International Whaling Commission (IWC) are the most notorious and least decorous battlegrounds in international environmental law. Indeed, as The Economist recently asserted, they have the status of predictable events where the gap between the killers and the savers of whales never narrows. 1 Neither the Fifty-Third Meeting (IWC53), which took place in London from 23–27 July 2001, nor the Fifty-Fourth Meeting (IWC54), which took place in Shimonoseki, Japan from 20–24 May 2002, did anything to dispel this notion. Both meetings were redolent with the vituperation that has characterized the meetings of the parties to the International Convention for the Regulation of Whaling (ICRW) 2 over the past 15 years. As one non-government organization observer noted at IWC53, ‘this is the heart of darkness’. 3

Memorandum of opinion on the legality of the designation of the southern ocean sanctuary by the IWC

The 1994 decision of the International Whaling Commission (IWC) to designate the Southern Ocean Sanctuary is examined in light of the requirement for such action under Articles I and V of the International Convention for the Regulation of Whaling (ICRW). Article V requires that changes in the Schedule to the Convention shall be necessary for carrying out the objectives and purposes of the ICRW and that the change be based upon scientific finding. It is concluded that the sanctuary is not necessary for carrying out the objectives and purposes found in the preamble to the ICRW. It is also concluded, for several reasons, that the decision was not based on scientific findings. No such findings were ever made by the IWC Scientific Committee. The proposal for the sanctuary and the decision to establish it were not consistent with the Commission's own guidelines. The conclusion is that the Commission's decision is unlawful under the ICRW and ultra vires.