Japan's 'research whaling'in the antarctic southern ocean and the north pacific ocean in the face of the endangered species convention (cites)

Review of European Community and International Environmental Law

Volumn 17, Issue 1, 2008, Pages 56-71

  Sand, Peter H ^a  

^a INTERNATIONAL FUND FOR ANIMAL WELFARE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CITES; COMPLIANCE; ENDANGERED SPECIES; INTERNATIONAL LAW; WHALE;

ASIA; EURASIA; FAR EAST; JAPAN; PACIFIC OCEAN; PACIFIC OCEAN (NORTH); SOUTHERN OCEAN;

CETACEA;

EID: 42349113566     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2008.00587.x     Document Type: Article

References (151)

1. While the 'zero catch quota' (suspension of commercial whaling) adopted on 24 July 1982 by a three-quarters majority decision of the International Whaling Commission (IWC) - as an amendment to the ICRW Schedule, para. 10(e), with effect from the 1986-1987 whaling season - really is not a 'moratorium' according to IWC terminology, the term is now commonly used in the media. The text of the amendment can be found in J.G. Lammers et al. (eds), International Environmental Law: Documents (TMC Asser Instituut, 1997), at 179.
2. International Convention for the Regulation of Whaling (Washington DC, 2 December 1946) (ICRW) and Schedule (as amended). The Convention currently has 78 Member States. See generally P. Birnie, 'Whaling Regime', in R. Bernhardt (ed.), 4 Encyclopedia of Public International Law (Elsevier, 2000), 1469.
3. See KRW, ibid., Schedule, para. 7(b) (amendment in force since 6 December 1994). Japan entered an objection/reservation against that amendment of the Schedule with regard to Southern (Antarctic) minke whales (Balaenoptera bonaerensis) taken in the area; see A. Gillespie, 'The Southern Ocean Sanctuary and the Evolution of International Environmental Law', 15:3 International Journal of Marine and Coastal Law (2000), 293. Texts of JARPN-II and JARPA-II in Government of Japan, Research Plan for Cetacean Studies in the Western North Pacific Under Special Permit (IWC Scientific Committee Paper SC/54/O2, 2002); and Plan for the Second Phase of the Japanese Whale Research Program Under Special Permit in the Antarctic, IWC Scientific Committee Paper SC/57/ O1 (2005).
4. The remaining 916 specimens are mainly from 'research whaling' in Japanese coastal waters (see n. 61 below). See IWC, Special Permit Catches Since 1985 (IWC, 20 September 2007), available at , supplemented by data for 2007 (for a detailed list by species, see text at n. 65-66 below). Like Japan, Iceland has also used the exception clause of ICRW, Article VIII to grant special permits for 'scientific whaling' since 2003, albeit with considerably lower catch quota (during the period from 2003 to 2007, a total of 194 specimens to date); see 'News: Iceland Stops Commercial Whale Hunt', 54:10 Marine Pollution Bulletin (2007), 1565; see also n. 68 below.
5. International Agreement for the Regulation of Whaling (Geneva, 8 June 1937), with supplementary protocols (1938-1946); texts in B. Ruester and B. Simma (eds), 7 International Protection of the Environment: Treaties and Related Documents (Oceana, 1976), 3475.
6. See V. Morell, 'Killing Whales for Science?', 316:5824 Science (27 April 2007), 532, at 533.
7. T. Kasuya, 'Japanese Whaling and Other Ceatacean Fisheries', 14:1 Environmental Science and Pollution Research (2007), 39, at 45.
8. S. Lyster, International Wildlife Law (Grotius Publications, 1985), at 30.
9. See nn. 102-118 below.
10. Dr William Evans, cited by S. Misaki, 'Stop Blubbering About Whales', Tokyo Journal (Spring 2007); E. Lapointe, 'United States Proposed Research Wh aling to Japan', IWMC World Conservation Trust: Sustainable E-News (April 2007), at 5; and S.J. Holt, 'Whaling: Will the Phoenix Rise Again?', 54:8 Marine Pollution Bulletin (2007), 1081, at 1082.
11. See T. Kasuya, n. 7 above, at 46-48; cf. S.J. Holt, 'The Tortuous History of "Scientific" Japanese Whaling', 53:3 BioScience (2003), 204-206; and A. Kanehara, 'Japanese Practices Concerning the International Regulation of Whaling', Japanese Annual of International Law No. 46 (2003), 127, at 147, referring to a statement by the Director of Pelagic Fishing, Ocean Fishing Section of the Fisheries Agency (M. Morimoto, currently head of ICR and IWC vice-chairman) to the Environment Committee of the Japanese House of Representatives on 3 June 1994: 'Research whaling is a right recognized under the ICRW, and thus irrespective of the IWC's decision of setting up of the sanctuary Japan may exercise its right of research whaling in the Antarctic Ocean'.
12. After an intervention by Prime Minister Y. Nakasone in 1987, however (taking into account US reactions), the Fisheries Agency reduced its 'scientific' catch quota from 875 to 300; see n. 112 below, and A. Wong, The Roots of Japan's International Environmental Politics (East Asia Publishers, 2001), at 118. On current administrative permit practice, see nn. 85-92 below.
13. G. Donovan, 'Report of the Scientific Committee: Annex Y, Guidelines for the Review of Scientific Permit Proposals', 3 Journal of Cetacean Resource Management (Suppl.) (2001), 371.
14. For criticism, see G. Rose and G. Paleokrassis, 'Compliance with International Environmental Obligations: A Case Study of the International Whaling Commission', in J. Cameron et al. (eds), Improving Compliance with International Environmental Law (Earthscan, 1996), 148, at 157 ('clear loophole'); J.D. Lindemann, 'The Dilemma of the International Whaling Commission: The Loophole Provisions of the Commission vs. the World Conscience', 7:3 Detroit College of Law Journal of International Law and Practice (1998), 491; cf. P. Birnie, 'Comment on the Compliance Control Mechanism within the Framework of the International Whaling Convention', in U. Beyerlin et al. (eds), Ensuring Compliance with Multilateral Environmental Agreements (Nijhoff, 2006), 175, at 182; and S. Altherr, Non-Compliance within the IWC (Pro-Wildlife, 2006), at 17.
15. The most recent resolution, 'JARPA-II' (Resolution 2007-1, 30 May 2007), referring to a total of 31 earlier recommendations and the critical conclusions of an expert meeting in December 2006 evaluating the results of JARPA-I, was adopted in the Commission by 40 votes against 2 (with one abstention), while Japan and 26 other Member States refused to participate in the decision.
16. Statement by T. Nogami, Director of the Fisheries Section, Economic Affairs Bureau of the Ministry of Foreign Affairs, to the Committee on Agriculture, Forestry and Fisheries, 109th Session of the Japanese House of Representatives (No. 2, 29 July 1987), affirming that '[an IWC] recommendation has no binding effect, and does not have any restrictive effect on the right of research whaling'; see A. Kanehara, n. 11 above, at 132. On the recommendatory effect of resolutions under ICRW, Article VI, see W.T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clarendon, 1994), at 297; and G. Rose and S. Crane, 'The Evolution of International Whaling Law', in P. Sands (ed.), Greening International Law (New Press, 1994), 159, at 173.
17. See P. van Heijnsbergen, International Legal Protection of Wild Fauna and Flora (IOS, 1997), at 206 ('not in conformity with the requirements of the IWC on this point'); and A. Proelss, in W. Graf Vitzthum (ed.), Handbuch des Seerechts (Beck, 2006), 246 ('incompatible with the sense and purpose of the IWC'); see also S.L. Ellis, 'Japanese Whaling in the Antarctic: Science or Subterfuge?', 31:2 Oceanus (1988), 68; G. Triggs, 'Japanese Scientific Whaling: An Abuse of Right or Optimum Utilization?', 5:1 Asia Pacific Journal of Environmental Law (2000), 33; H.S. Schiffman, 'Scientific Research Whaling in International Law: Objectives and Objections', 8:2 ILSA Journal of International and Comparative Law (2002), 473; P.J. Clapham et al., 'Whaling as Science', 53:3 BioScience (2003), 210; M.C. Maffei, 'The International Convention for the Regulation of Whaling', 12:3 International Journal of Marine and Coastal Law (1997), 287, at 299 ('abuse of treaty aims'); M. Cogen, Handboek Internationaal Recht, 2nd edn (Mys and Breesch, 1998), at 144 ('Japan's scientifically disguised commercial whaling'); F. Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge University Press, 1999), at 38 (Article VIII 'badly abused'); J.F. Neuray, Droit de l'environnement (Bruylant, 2001), at 490 ('abuse of rights by Japan'); J. Beer-Gabel and V. Lastang, Les commissions de pêche et leur droit: La conservation et la gestion des resources marines vivantes (Bruylant, 2003), at 114 (Japanese 'aberrations'); A. Proelss, Meeresschutz im Voelker- und Europarecht (Duncker and Humblot, 2004), at 185 ('contrary to international law'); A. Kiss and J.P. Beurrier, Droit international de l'environnement, 3rd edn.
18. See nn. 102-118 below.
19. Dr William Evans, cited by S. Misaki, 'Stop Blubbering About Whales', Tokyo Journal (Spring 2007); E. Lapointe, 'United States Proposed Research Whaling to Japan', IWMC World Conservation Trust: Sustainable E-News (April 2007), at 5; and S.J. Holt, 'Whaling: Will th e Phoenix Rise Again?', 54:8 Marine Pollution Bulletin (2007), 1081, at 1082.
20. See T. Kasuya, n. 7 above, at 46-48; cf. S.J. Holt, 'The Tortuous History of "Scientific" Japanese Whaling', 53:3 BioScience (2003), 204-206; and A. Kanehara, 'Japanese Practices Concerning the International Regulation of Whaling', Japanese Annual of International Law No. 46 (2003), 127, at 147, referring to a statement by the Director of Pelagic Fishing, Ocean Fishing Section of the Fisheries Agency (M. Morimoto, currently head of ICR and IWC vice-chairman) to the Environment Committee of the Japanese House of Representatives on 3 June 1994: 'Research whaling is a right recognized under the ICRW, and thus irrespective of the IWC's decision of setting up of the sanctuary Japan may exercise its right of research whaling in the Antarctic Ocean'.
21. After an intervention by Prime Minister Y. Nakasone in 1987, however (taking into account US reactions), the Fisheries Agency reduced its 'scientific' catch quota from 875 to 300; see n. 112 below, and A. Wong, The Roots of Japan's International Environmental Politics (East Asia Publishers, 2001), at 118. On current administrative permit practice, see nn. 85-92 below.
22. G. Donovan, 'Report of the Scientific Committee: Annex Y, Guidelines for the Review of Scientific Permit Proposals', 3 Journal of Cetacean Resource Management (Suppl.) (2001), 371.
23. For criticism, see G. Rose and G. Paleokrassis, 'Compliance with International Environmental Obligations: A Case Study of the International Whaling Commission', in J. Cameron et al. (eds), Improving Compliance with International Environmental Law (Earthscan, 1996), 148, at 157 ('clear loophole'); J.D. Lindemann, 'The Dilemma of the International Whaling Commission: The Loophole Provisions of the Commission vs. the World Conscience', 7:3 Detroit College of Law Journal of International Law and Practice (1998), 491; cf. P. Birnie, 'Comment on the Compliance Control Mechanism within the Framework of the International Whaling Convention', in U. Beyerlin et al. (eds), Ensuring Compliance with Multilateral Environmental Agreements (Nijhoff, 2006), 175, at 182; and S. Altherr, Non-Compliance within the IWC (Pro-Wildlife, 2006), at 17.
24. The most recent resolution, 'JARPA-II' (Resolution 2007-1, 30 May 2007), referring to a total of 31 earlier recommendations and the critical conclusions of an expert meeting in December 2006 evaluating the results of JARPA-I, was adopted in the Commission by 40 votes against 2 (with one abstention), while Japan and 26 other Member States refused to participate in the decision.
25. Statement by T. Nogami, Director of the Fisheries Section, Economic Affairs Bureau of the Ministry of Foreign Affairs, to the Committee on Agriculture, Forestry and Fisheries, 109th Session of the Japanese House of Representatives (No. 2, 29 July 1987), affirming that '[an IWC] recommendation has no binding effect, and does not have any restrictive effect on the right of research whaling'; see A. Kanehara, n. 11 above, at 132. On the recommendatory effect of resolutions under ICRW, Article VI, see W.T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clarendon, 1994), at 297; and G. Rose and S. Crane, 'The Evolution of International Whaling Law', in P. Sands (ed.), Greening International Law (New Press, 1994), 159, at 173.
26. See P. van Heijnsbergen, International Legal Protection of Wild Fauna and Flora (IOS, 1997), at 206 ('not in conformity with the requirements of the IWC on this point'); and A. Proelss, in W. Graf Vitzthum (ed.), Handbuch des Seerechts (Beck, 2006), 246 ('incompatible with the sense and purpose of the IWC'); see also S.L. Ellis, 'Japanese Whaling in the Antarctic: Science or Subterfuge?', 31:2 Oceanus (1988), 68; G. Triggs, 'Japanese Scientific Whaling: An Abuse of Right or Optimum Utilization?', 5:1 Asia Pacific Journal of Environmental Law (2000), 33; H.S. Schiffman, 'Scientific Research Whaling in International Law: Objectives and Objections', 8:2 ILSA Journal of International and Comparative Law (2002), 473; P.J. Clapham et al., 'Whaling as Science', 53:3 BioScience (2003), 210; M.C. Maffei, 'The International Convention for the Regulation of Whaling', 12:3 International Journal of Marine and Coastal Law (1997), 287, at 299 ('abuse of treaty aims'); M. Cogen, Handboek Internationaal Recht, 2nd edn (Mys and Breesch, 1998), at 144 ('Japan's scientifically disguised commercial whaling'); F. Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge University Press, 1999), at 38 (Article VIII 'badly abused'); J.F. Neuray, Droit de l'environnement (Bruylant, 2001), at 490 ('abuse of rights by Japan'); J. Beer-Gabel and V. Lastang, Les commissions de pêche et leur droit: La conservation et la gestion des resources marines vivantes (Bruylant, 2003), at 114 (Japanese 'aberrations'); A. Proelss, Meeresschutz im Voelker- und Europarecht (Duncker and Humblot, 2004), at 185 ('contrary to international law'); A. Kiss and J.P. Beurrier, Droit international de l'environnement, 3rd edn. (Pedone, 2004), at 331 ('open door to abuses'); and L. Boisson de Chazournes et al., Report of the International Panel of Independent Legal Experts on Special Permit ('Scientific') Whaling Under International Law (International Fund for Animal Welfare, 2006).
27. See A. Ishii and A. Okubo, 'An Alternative Explanation of Japan's Whaling Diplomacy in the Post-Moratorium Era', 10:1 Journal of International Wildlife Law and Policy (2007), 55, at 63 and 84 ('Japan's legalism'). Unlike other multilateral agreements, the Convention does not contain provisions for the settlement of disputes over interpretation; see R.B. Bilder, 'The Settlement of Disputes in the Field of International Law of the Environment', 144 Hague Academy of International Law: Collected Courses (1975-I), 141, at 214, who merely lists the Whaling Convention among 'other problem areas'.
28. N. Yagi, 'The Status of Scientific Research Whaling in International Law', 8:2 ILSA Journal of International and Comparative Law (2002), 487; e.g. see E.V.C. Greenberg et al., 'Japan's Whale Research Program and International Law', 32:2 California Western International Law Journal (2002), 151; W. Aron et al., 'Scientists versus Whaling: Science, Advocacy, and Errors of Judgment', 52:12 BioScience (2002), 1137; cf. Burke, n. 16 above, at 297: IWC 'has no effective authority over this activity [whaling for scientific purposes]'.
29. D. Currie, 'Whales, Sustainability and International Environmental Governance', 16:1 RECIEL (2007), 45, at 52 and 53 ('failure of IWC governance mechanisms'); see also B. van Drimmelen, 'The International Mismanagement of Whaling', 10:1 University of California at Los Angeles Pacific Basin Law Journal (1991), 240; and S.J. Holt, 'Is the IWC Finished as an Instrument for the Conservation of Whales and the Regulation of Whaling?', 46:7 Marine Pollution Bulletin (2003), 924.
30. 'Resources of common concern': P. Birnie, 'UNCED and Marine Mammals', Marine Policy 17:6 (1993), 501; see also M.C. Maffei, La protezione internazionale delle specie animali minacciate (CEDAM, 1992), at 362; and the famous formulation by US Secretary of State Dean Acheson at the opening session of the International Whaling Conference in Washington DC on 20 November 1946 (IWC-Doc. 1/11, 1946, at 1), declaring that 'whales... belong to no single nation nor to any group of nations but rather they are the wards of the entire world'.
31. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington DC, 3 March 1973). It currently has 172 Member States.
32. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 23 June 1979). It currently has 103 Member States.
33. The Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (New York, 13 September 1991) currently has 10 Member States; and the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (Monaco,
34. November 1996) currently has 21 Member States.
35. Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 20 May 1980). It currently has 33 Member States.
36. Protocol to the Antarctic Treaty on Environmental Protection (Madrid, 4 October 1991). It currently has 32 Member States.
37. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982). It currently has 154 Member States.
38. Convention on Biological Diversity (Rio de Janeiro, 5 June 1992). It currently has 189 Member States.
39. Including the regional agreements for the Americas (Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (Washington DC, 12 October 1940)); Europe (Convention on the Conservation of European Wildife and Natural Habitats (Bern, 19 September 1979)); East Africa (Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region to the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi, 21 June 1985)); and the Caribbean (Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment for the Wider Caribbean Region (Kingston, 18 January 1990)); see C. de Klemm and C. Shine, International Environmental Law: Biological Diversity (UNITAR Course No. 6, 1998), at 107; and see P.H. Sand, 'Wildlife Protection', in R. Bernhardt, n. 2 above, 1471, at 1473.
40. See W.B. Chambers, Interlinkages and the Effectiveness of Multilateral Environmental Agreements (United Nations University Press, 2007).
41. See R. Wolfrum and N. Matz, Conflicts in International Environmental Law (Springer, 2003); and A. Fischer-Lecano and G. Teubner, Regime-Kollisionen (Suhrkamp, 2006).
42. See O.R. Young, The Institutional Dimensions of Environmental Change: Fit, Interplay, and Scale (MIT Press, 2002), at 111; T. Gehring and S. Oberthuer, 'Interplay: Exploring Institutional Interaction', in O.R. Young et al. (eds), Institutions and Environmental Change: Principal Findings, Applications, and Research Frontiers (MIT Press, 2007), 270.
43. For a critique of Articles 30-60 of the Convention, see R. Wolfrum and N. Matz, n. 31 above, at 158.
44. Such as the Japanese declaration of acceptance of 15 September 1958, in accordance with Article 36/2 of the ICJ Statute, which is stated in subsidiary form; i.e. 'does not apply to disputes which the parties thereto have agreed or shall agree to refer for final and binding decision to arbitration or judicial settlement'. While that would exclude ICJ jurisdiction for UNCLOS, CBD, CITES or the Antarctic agreements, it does not rule out ICJ proceedings for interpretation of the Whaling Convention, which has no dispute settlement clause of its own; see n. 18 above, and generally D.M. Konisky, 'The United Nations Dispute Settlement System and International Environmental Law', 9:1 Journal of Public and International Affairs (1998), 1.
45. Japan was part of the 'Pacific Alliance' of coastal States (also including Canada, Russia, and the USA) which in 1979 were categorically opposed to the listing of marine species in the CMS appendices, and which have continued to boycott the Convention since; see S. Lyster, n. 8 above, at 282, and S. Lyster, 'The Convention on the Conservation of Migratory Species of Wild Animals (the 'Bonn Convention')', 29:4 Natural Resources Journal (1989), 979.
46. See n. 29 above. As to the rather limited suitability of the Antarctic agreements, see nn. 43-44 below.
47. See K.S. Davis, 'International Management of Cetaceans Under the New Law of the Sea Convention', 3:2 Boston University International Law Journal (1985), 477; and P. Birnie, 'Marine Mammals: Exploiting the Ambiguities of Article 65 of the Convention on the Law of the Sea and Related Provisions: Practice under the International Regulation of Whaling', in D. Freestone et al. (eds), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006), 261.
48. As Japan has not accepted the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS), the arbitration procedure of UNCLOS, Annex VII would apply pursuant to Article 287(3).
49. Southern Bluefin Tuna Arbitration of 4 August 2000, 39:6 ILM 1359; see A. Boyle, 'The Southern Bluefin Tuna Arbitration', 50:2 International and Comparative Law Quarterly (2001), 447; see also E.V.C. Greenberg et al., n. 19 above, at 196; T. Stephens, 'The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case', 19:2 International Journal of Marine and Coastal Law (2004), 177; and C.P.R. Romano, 'International Dispute Settlement', in D. Bodansky et al. (eds), Oxford Handbook of International Environmental Law (Oxford University Press, 2007), 1036, at 1047.
50. In this event, a Member State also cannot invoke the 'primacy' of ICRW provisions, as CBD, Article 22(1) does not apply in cases of 'serious damage or threat to biological diversity'.
51. As Japan has not accepted any of the means of dispute settlement listed in Article 27(3), the conciliation procedure of Annex II/Part 2 would apply pursuant to Article 27(4).
52. Antarctic Treaty (Washington, 1 December 1959); see M.C. Maffei, 'The Protection of Whales in Antarctica', in F. Francioni and T. Scovazzi (eds), International Law for Antarctica (Kluwer, 1996), 171; P. Vigni, 'The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area', 4 Max Planck Yearbook of United Nations Law (2000), 481; and N. Krueger, Anwendbarkeit von Umweltschutzvertraegen in der Antarktis (Springer, 2000).
53. R. Wolfrum and N. Matz, n. 31 above, at 58 ('priority to the ICRW'); see also M.C. Maffei, n. 21 above, at 20; and N. Krueger, n. 42 above, at 249.
54. See N. Krueger, ibid., at 243.
55. See A. Flachsmann, Voelkerrechtlicher Schutz gefaehrdeter Tiere und Pflanzen vor uebermaessiger Ausbeutung durch den internationalen Handel: Das Washingtoner Artenschutzabkommen von 1973 (Schulthess, 1977), at 112; R.U. Osterwoldt, International Law and Politics of Conservation - The Case of the Whales: The Endangered Species Convention (CITES), the International Whaling Commission (IWC), and Whale Conservation, M.Phil. thesis (Oxford University, 1982); P. Mofson, 'Protecting Wildlife from Trade: Japan's Involvement in the Convention on International Trade in Endangered Species', 3:1 Journal of Environment and Development (1994), 91; K. Eldridge, 'Whale for Sale? New Developments in the Convention on International Trade in Endangered Species of Wild Fauna and Flora', 24:3 Georgia Journal of International and Comparative Law (1995), 549; and International Fund for Animal Welfare (IFAW), The Taking of Sei and Humpback Whales by Japan: Legal Issues Arising Under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (IFAW, 1 November 2007).
56. In force since 1 July 1975. The currently applicable appendices of the Convention as amended (in force as from 13 September 2007) are published on the website of the CITES Secretariat, see CITES Notification to the Parties No. 2007/028 (29 August 2007); regarding Japan's reservations, see nn. 67-68 below.
57. Amendment adopted by the Conference of the Parties at its second meeting (San José, 30 March 1979).
58. Paradoxically, this view has been expressed both by proponents and by opponents of whaling, for different tactical reasons; see especially A. Gillespie, 'Forum Shopping in International Environmental Law: The IWC, CITES, and the Management of Cetaceans', 33:1 Ocean Development and International Law (2002), 17, at 31 and 39; and A. Gillespie, Whaling Diplomacy: Defining Issues in International Environmental Law (Edward Elgar, 2005), at 318 and 334.
59. A. Gillespie, Whaling Diplomacy, ibid., and at 322 ('IWC as primary organization').
60. Compare IWC Resolution 1999-6 ('Cooperation between the IWC and CITES', 28 May 1999), Appendix 7 to Annual Report of the International Whaling Commission (IWC, 1999), at 54, reaffirmed by IWC Resolution 2007-4 ('CITES', 31 May 2007); and CITES Resolution 11.4 ('Conservation of Cetaceans, Trade in Cetacean Specimens and the Relationship with the International Whaling Commission', 20 April 2000, as revised on 15 November 2002).
61. In that sense (contra Gillespie, n. 48 above), see also E. Franckx, 'Legal and Institutional Implications of Listing Commercially Exploited Aquatic Species in the CITES Appendices', FAO Fisheries Report No. 746 (Food and Agriculture Organization of the United Nations 2004), para. 131.
62. See nn. 30 and 32 above, and generally M. Koskenniemi (ed.), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (Erik Castron Institute, 2007), especially at 17 and 125.
63. On the significance of 'conflict clauses', see R. Wolfrum and N. Matz, n. 31 above, at 122.
64. The Whaling Convention is not expressly mentioned in Article 14(4) but is readily identifiable as one of the agreements 'under the provisions of which protection is afforded to marine species included in Appendix II'.
65. The certification rule in paragraph 14(5) erroneously refers to Articles 3 and 5 of the Convention as well (which only deal with Appendices I and III); this editorial mistake was, however, formally communicated on 19 March 1976 to all contracting and signatory States - including Japan - by the Swiss Federal Department of Foreign Affairs (as depositary of the Convention according to Article 20) through a 'correction protocol' (procs-verbal de rectification), noted by the Conference of the Parties at its first meeting in Resolution 1.5 (Recommendations concerning the Interpretation and Implementation of Certain Provisions of the Convention, 6 November 1976), para. 14(b), and referred to the Secretariat for submission to the next extraordinary meeting, as confirmed by Resolution 4.6 ('Submission of Draft Resolutions and Other Documents for Meetings of the Conference of the Parties', 30 April 1983, as revised 14 October 2004). See the Proceedings of the First Meeting of the Conference of the Parties (CITES, 1976), at 38, 68, 143, 183 and 201; D.S. Favre, International Trade in Endangered Species: A Guide to CITES (Nijhoff, 1989), at 306; J. Berney, 'CITES and International Trade in Whale Products', in G. Pétursdóttir (ed.), Whaling in the North Atlantic: Economic and Political Perspectives (University of Iceland Fisheries Research Institute, 1997), 99, at 104; and W. Wijnstekers, The Evolution of CITES, 8th edn. (CITES, 2005), annotation to Article 14(5); but see Japanese practice to the contrary, n. 88 below.
66. See nn. 67-68 below.
67. Northern minke whales (Balaenoptera acutorostrata) off the coast of west Greenland; the current overall listing of whales on CITES Appendices I and II (n. 46 above) was 'noted with satisfaction' by the IWC in Resolution 1999-6, n. 50 above.
68. On that point, see B. Simma and D. Pulkowski, 'Of Planets and the Universe: Self-Contained Regimes in International Law', 17:3 European Journal of International Law (2006), 483, at 485: 'If the rules and procedures of special systems fail, a fallback on general international law, including resort to countermeasures, is justified'.
69. See n. 22 above; and see generally the commentary by CITES Secretary-General Wijnstekers, n. 55 above; and P.H. Sand, 'Commodity or Taboo? International Regulation of Trade in Endangered Species', in H.O. Bergesen and G. Parmann (eds), Green Globe Yearbook of International Co-operation on Environment and Development (Oxford University Press, 1997), 19. On CITES implementation in Japan, see J.F. Feinerman and K. Fujikura, 'Japan: Consensus-Based Compliance', in E. Brown Weiss and H.K. Jacobson (eds), Engaging Countries: Strengthening Compliance with International Environmental Accords (MIT Press, 2000), 253, at 269.
70. CITES Resolution 14.6 ('Introduction from the Sea', 15 June 2007). Clarification of various Convention terms (authentic interpretation) is among the routine functions of the Conference of the Parties, under a regular agenda item entitled 'Interpretation and Implementation of the Convention'. Whenever the need for clarification of a term arises - i.e. when two or more parties disagree on its interpretation - the Conference convenes an expert group which in the course of one or more workshops prepares an agreed text proposal, which is then re-discussed in plenary and adopted by consensus or a two-thirds majority of the Conference. See the Rules of Procedure of the Conference, referred to in n. 129 below, and generally J. Werksman, 'The Conferences of Parties to Environmental Treaties', in J. Werksman (ed.), Greening International Institutions (Earthscan, 1996), 55, at 60; and G. Ulfstein, 'Treaty Bodies', in D. Bodansky et al. (eds), Oxford Handbook of International Environmental Law (Oxford University Press, 2007), 877, at 884.
71. There have been separate 'research whaling' programmes for coastal whaling since 1994, see n. 4 above. On the organization and cultural tradition of small-scale coastal whaling, see K. Hirata, 'Why Japan Supports Whaling', 8:2/3 Journal of International Wildlife Law and Policy (2005), 129, at 139.
72. Including the IWC Southern Ocean Sanctuary (partly not recognized by Japan), see n. 3 above.
73. See n. 4 above; e.g. see the most recent expedition report by the Institute for Cetacean Research (ICR, n. 72 below) to the ICW Scientific Committee (Doc. SC/59/O5, 2007). CITES Resolution 11.4 (n. 50 above) recommends, in cooperation with IWC, that countries 'inventory all frozen whale parts and derivatives possessed in commercial quantities', and collect and inventory whale skin or meat samples for genetic (DNA) identification, in order to monitor illegal trade.
74. M. Phipps et al., 'A Preliminary Report on DNA Sequence Analysis of Whale Meat and Whale Meat Products Collected in Japan', 17:2 TRAFFIC Bulletin (1998), 91; International Fund for Animal Welfare, Whale for Sale (IFAW, 1998); L. Grohmann et al., 'Whale Meat from Protected Species is Still Sold on Japanese Markets', 86:7 Naturwissenschaften (1999), 350; and A. Ishihara and J. Yoshii, A Survey of the Commercial Trade in Whale Meat Products in Japan (TRAFFIC Japan, 2000), at 9.
75. In 2006, according to ICR, there were 3,436 tonnes of whale meat from JARPA II and 1,898 tonnes from JARPN in storage; see the tables available at the ICR website, found at and (in Japanese). Frozen whale meat can be stored for up to ten years; it may therefore be assumed that a large portion of that meat is still in refrigerated storage, and - given its exclusively 'scientific' origins - is all taxonomically inventoried there; cf. n. 63 above, and IWC Resolution 1997-2 ('Improved Monitoring of Whale Products', 24 October 1997), which urges contracting parties to 'provide information to the IWC about the size of remaining stockpiles and the species of origin remaining in the stockpiles'. Japanese DNA inventories of frozen stockpiles have been criticized, however, as incomplete and unreliable; see S. Altherr et al., Der RMS: Eine Frage des Vertrauens? Manipulationen und Faelschungen im Walfang (Pro Wildlife, 2005), at 10.
76. See IWC, nn. 3 and 4 above; T. Kasuya, n. 7 above, at 46, Table 4; and the critical assessment by N.J. Gales et al., 'A Case for Killing Humpback Whales?', Nature Precedings Doc. 1313 (13 November 2007), available online at . On 21 December 2007, after massive international protests, the Japanese Government declared that it had temporarily suspended the taking of humpback whales, pending further negotiations in the IWC.
77. See the authentic interpretation (n. 60 above) of Articles 23 and Article 15(3) by the Conference of the Parties, in CITES Resolution 4.25 ('Effects of Reservations', 30 April 1983, as revised 15 June 2007); on certification and reporting duties see nn. 85-95 below.
78. All currently applicable reservations (in effect from 13 September 2007) are listed in the CITES, Notification to the Parties (No. 2007/043, 4 December 2007), Annex. The CITES reservation clauses - modelled after ICRW, Article V(3) - are used in practice today primarily by commercial or traditional whaling countries (Iceland, Japan, Norway, Palau, and St. Vincent and the Grenadines). Contrary to earlier apprehensions over potential misuse by other States, most commercially significant reservations on other Appendix I species have since been withdrawn; cf. G.G. Steward, 'Enforcement Problems in the Endangered Species Convention: Reservations Regarding the Reservations', 14:3 Cornell International Law Journal (1981), 424; and P.H. Sand, 'Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment', 8:1 European Journal of International Law (1997), 29, at 40-41.
79. See nn. 85-87 below. Conditions for import permits pursuant to Article 3(3) are verbatim the same.
80. Especially the voluminous literature on years of debate in the IWC Scientific Committee, cf. nn. 17 and 19 above; see also A. Gillespie, 'Whaling Under a Scientific Auspice: The Ethics of Scientific Research Whaling Operations', 3:1 Journal of International Wildlife Law and Policy (2000), 1, and n. 92 below.
81. CITES Resolution 5.10 ('Definition of "Primarily Commercial Purposes"', 3 May 1985), general principle 3, third sentence: 'The
82. See T. Kasuya, 'Japanese Whaling', in W.F. Perrin et al. (eds), Encyclopedia of Marine Mammals (Academic Press, 2000), 655; and K. Hirata, n. 61 above, at 139. See also n. 119 below.
83. See A. Ishii and A. Okubo, n. 18 above, at 73, Table 1; and n. 142 below.
84. On market allocation and price-setting by the ICR Sales Council, see A. Endo and M. Yamao, 'Policies Governing the Distribution of By-Products from Scientific and Small-Scale Coastal Whaling in Japan', 31:2 Marine Policy (2007), 169.
85. The ICR annual reports for the years from 1988 to 2003 (Tokyo, 2004) quoted by A. Ishii and A. Okubo, n. 18 above, contain the most recent published budget figures of the Institute. Since 2001, the ICR has also received - from Japan's Overseas Fishery Cooperation Foundation (chaired by the former Director-General of the JFA) - interest-free public loans of up to 3.6 billion yen annually (about US$34 million), which it now has difficulty repaying: See K. Oyamada, 'Japan's Research Whaling Now Facing Problems at Home', Asahi Shimbun (English edition) of 9 February 2008, at 3.
86. According to ICR statistics (as published in the Japanese Journal for Fisheries Economics, Suisan Keizai Shimbun), that quantity about doubled within intervals of ten years (1987, 1,137 tonnes; 1997, 2,294 tonnes); see IFAW, n. 64 above, at 8, Table 1.
87. The ICR reports that in 2006, a total of 5,334 tonnes from the JARPA und JARPN 'research whaling programmes' were stored in refrigeration facilities; i.e. about four times as much as in 1990; see n. 65 above, and cf. A. Ishihara and J. Yoshii, n. 64 above, table, at 2.
88. Initially registered for a period of five years; see notice in the Asahi Shimbun (11 May 2006), at 11.
89. See Resolution 5.10, n. 71 above, general principle 3, second sentence.
90. On the IWC Scientific Committee's massive criticism regarding the scientific rationale of the entire programme - especially in light of available non-lethal alternatives for part of the research objectives indicated - see P.J. Clapham et al., n. 17 above, and N.J. Gales et al., n. 66 above; see also n. 92 below.
91. CITES, Article 8(1)(b) obligates Member States to take appropriate measures for the confiscation of specimens traded/introduced in violation of the Convention; see C. de Klemm, Guidelines for Legislation to Implement CITES, IUCN Environmental Policy and Law Paper No. 26 (IUCN, 1993), at 62. On the identification of illegal whale meat stockpiles remaining in refrigerated storage in Japan, see n. 65 above.
92. On the Endangered Species Act No. 58 of 2 June 1987, see H. Isozaki, 'Japan's New Law on Endangered Species', 7:2 Boston University International Law Journal (1989), 211. To fill a number of regulatory gaps, the law was subsequently expanded by the 'Act for the Conservation of Endangered Species of Wild Fauna and Flora' of 5 June 1992 (in force 1 April 1993); see Y. Abe and T. Awaji (eds), Kankyø-hø (Environmental Law), 2nd edn. (Yuhikaku, 1998), at 253; H. Isozaki, Kokusai Kankyø-hø (International Environmental Law) (Shinzansha, 2000); and H. Kato, 'Implementation of Multilateral Environmental Agreements in Japan Through Domestic Environmental Legislation', Japanese Annual of International Law No. 43 (2000), 117.
93. As listed in CITES Doc. 24/CoP14 ('National Laws for Implementation of the Convention', 15 March 2007), Annex 2. This ranking is based on an analysis of Japanese legislation undertaken on behalf of the CITES Secretariat in December 1996, following uniform criteria in accordance with CITES Resolution 8.4 ('National Laws for Implementation of the Convention', 13 March 1992, as revised 15 June 2007).
94. See also P. Mofson, n. 45 above, at 96; cf. E.J. McFadden, 'Asian Compliance with CITES: Problems and Prospects', 5:2 Boston University International Law Journal (1987), 311; K. Ishibashi, 'The Effectiveness of Mechanisms for the Monitoring or Compliance Control of Multilateral Environmental Agreements: A Critical Analysis of CITES Implementation' (in Japanese), 15:2 Kagawa Høgaku (1995), 53; and M. Taguchi, International Regimes and Cooperation: An Analysis of the Convention on International Trade in Endangered Species of Wild Fauna and Flora and Japan, University of Oregon thesis (1996).
95. This was communicated to the CITES Secretariat and, through it, to all parties pursuant to Article 9(2). The designated Japanese CITES 'management authority' for all other animals listed is the Trade and Economic Cooperation Bureau in the Ministry of Economy, Trade and Industry (MET); cf. H. Isozaki, n. 82 above, at 131 Tables 2-10.
96. Scientific names: Cetacea, Pinnipedia, Sirenia, Cheloniidae, Dermochelyidae, Pices, Mollusca and Cnidaria. The Japanese 'scientific authority' for all other CITES-listed animals is the Wildlife Division in the Ministry of Environment.
97. CITES Resolution 10.3 ('Designation and Role of the Scientific Authorities', 20 June 1997), recommending (a) that 'all Parties designate Scientific Authorities independent from Management Authorities'; see also n. 128 below.
98. The intention of this terminology obviously was to bring the permit under the exemption clause of CITES, Article 14(5), which however applies exclusively to Appendix II species, hence not to north Pacific sei whales; see nn. 54-55 and 68 above.
99. See Resolution 10.3, n. 87 above, recommending (c) that: 'Management Authorities not issue any export or import permit, or certificate of introduction from the sea, for species listed in the appendices without first obtaining the appropriate Scientific Authority findings or advice'. The important function of the scientific authority in this regard has been described as a 'right of veto' by C. de Klemm, n. 81 above, at 23.
100. See CITES Resolution 4.25, n. 67 above.
101. CITES Resolution 11.17 ('National Reports', 20 April 2000, as revised 14 October 2004); and CITES Notification to the Parties No. 2006/030 ('Guidelines for the Preparation and Submission of CITES Annual Reports', 2 May 2006). Cf. generally A. Kiss, 'Reporting Obligations and Assessment of Reports', in U. Beyerlin et al., n. 14 above, 229; and n. 124 below.
102. This amounted to 0.216 kg in total; including Southern minke whales (Balaenoptera bonaerensis), blue whales (Balaenoptera musculus), humpback whales (Megaptera novaeangliae), Southern right whales (Eubalaena australis), sei whales (Balaenoptera borealis), killer whales (Orcinus orca), sperm whales (Physeter macrocephalus) and Bryde's whales (Balaenoptera edeni). Biopsy extraction for genetic identification is also possible without killing the specimens examined. See P.J. Palsbøll et al., 'Genetic Tagging of Humpback Whales', 388:6644 Nature (1997), 767; T.D. Smith et al., 'An Ocean-Basin-Wide Mark-Recapture Study of the North Atlantic Humpback Whale (Megaptera novaeangliae)', 15:1 Marine Mammal Science (1999), 1; and N.J. Gales et al., 'Japan's Whaling Plan Under Scrutiny', 435:7044 Nature (2005), 883.
103. See J. Caldwell, 'WCMC: The CITES Database', 1:2 CITES/C&M International Magazine (1994), 76; and R. Reeve, Policing International Trade in Endangered Species: The CITES Treaty and Compliance (Earthscan, 2002), at 62. UNEP-WCMC, originally a joint NGO programme by IUCN and WWF, has since June 2000 become part of the United Nations Environment Programme (UNEP).
104. See Resolution 11.4, n. 50 above, third recommendation.
105. The most recent Japanese compliance report (for the year 2005 - although without JFA data) was received by the CITES Secretariat in January 2007.
106. Permanent Court of Arbitration (PCA), Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (PCA, 2001).
107. See O. Schachter, 'International Law in Theory and Practice', 178 Hague Academy of International Law: Collected Courses (1982-V), 9, at 198; K. Sachariew, 'State Responsibility for Multilateral Treaty Violations: Identifying the "Injured State" and Its Legal Status', 35:3 Netherlands International Law Review (1988), 273, at 282, et seq.; and C. Laly-Chevalier, La violation du trait (Bruylant, 2005), at 525.
108. See W. Wijnstekers, n. 55 above, annotation to Article 18.
109. Cf. A.C. Kiss, 'Le réglement des différends dans les conventions multilatérales relatives à la protection de l'environnement', in R.J. Dupuy (ed.), The Settlement of Disputes on the New Natural Resources (Nijhoff, 1983), 119; P.H. Sand, 'New Approaches to Transnational Environmental Disputes', 3:3 International Environmental Affairs (1991), 193; P.N. Bhagwati, 'Environmental Disputes', in P.H. Sand (ed.), The Effectiveness of International Environmental Agreements: A Survey of Existing Legal Instruments (Grotius Publications, 1992), 436; and C.P.R. Romano, n. 39 above, at 1040.
110. See generally L. Boisson de Chazournes, Les contre-mesures dans les relations internationales conomiques (Pedone, 1993); E. Klein, 'Gegenmassnahmen', in W. Fiedler et al. (eds), Gegenmassnahmen: Counter Measures (Mueller, 1998), at 44; K.J. Partsch, 'Retorsion', in R. Bernhardt, n. 2 above, at 232; and cf. J. Crawford, 'The Relationship Between Sanctions and Countermeasures', in V. Gowlland-Debbas (ed.), United Nations Sanctions and International Law (Kluwer Law International, 2001), 57. For a caveat against excessive unilateral use of CITES, Article 14(1), see J. Hutton, 'CITES: The Issue of Endangered Species', in P. Koenz (ed.), Trade, Environment and Sustainable Development: Views from Sub-Saharan Africa and Latin America (International Centre for Trade and Sustainable Development, 2000), 143, at 145.
111. See L. Krämer, 'Environmental Protection and Trade: The Contribution of the European Union', in R. Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means? (Springer, 1996), 413, at 437; and R. Reeve, n. 93 above, at 126. Species-specific 'stricter' EU measures already prohibit the importation of all whale products anyway, following Council Regulation 348/81/EEC of 20 January 1981 on Common Rules for Imports of Whales or Other Cetacean Products, [1981] OJ L39/1, as implemented by Commission Regulation 3786/81 of 22 December 1981 on Common Rules for Imports of Whales or Other Cetacean Products, [1981] OJ L377/42; see P. Sands, Principles of International Environmental Law, 2nd edn. (Cambridge University Press, 2003), at 779.
112. Lacey Act of 25 May 1900, as amended by the Act of 15 June 1935 (49 Stat. 378), 16 U.S. Code §3371; see R.S. Anderson, 'The Lacey Act: America's Premier Weapon in the Fight Against Unlawful Wildlife Trafficking', 16:1 Public Land Law Review (1995), 27.
113. Fishermen's Protective Act of 27 August 1954, as amended by the Act of 23 December 1971 (85 Stat. 786), 22 U.S. Code §1971; see S. Charnovitz, 'Encouraging Environmental Cooperation through the Pelly Amendment', 3:1 Journal of Environment and Development (1994), 3.
114. Fishery Conservation and Management Act of 13 April 1976, as amended by the Act of 15 August 1979 (93 Stat. 407), 16 U.S. Code $1801; see G.S. Martin and J.W. Brennan, 'Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments', 17:2 Denver Journal of International Law and Policy (1989), 293.
115. See E. Zoller, Enforcing International Law Through U.S. Legislation (Transnational Publishers, 1985), at 84; D. Caron, 'International Sanctions, Ocean Management, and the Law of the Sea: A Study of Denial of Access to Fisheries', 16:1 Ecology Law Quarterly (1989), 311; V.N. Spencer, 'Domestic Enforcement of International Law: The International Convention for the Regulation of Whaling', 2:1 Colorado Journal of International Environmental Law and Policy (1991), 109; A.F. Upton, 'The Big Green Stick: Reducing International Environmental Degradation through U.S. Trade Sanctions', 22:3 Boston College Environmental Affairs Law Review (1995), 671; E.R. De Sombre, Domestic Sources of International Environmental Policy: Industry, Environmentalists and U.S. Power (MIT Press, 2000), at 51; and L. Boisson de Chazournes, 'The Use of Unilateral Trade Measures to Protect the Environment', in A. Kiss et al. (ed.), Economic Globalization and Compliance with International Law (Kluwer, 2003), 181.
116. See inter alia, an import ban under the Lacey Act against Singapore in 1986, see R. Reeve (n. 93 above), at 129; and certification under the Pelly Amendment against Taiwan in 1994, see 'Proposed Import Prohibitions on Wildlife Specimens and Products Pursuant to the Pelly Amendment', 59 U.S. Federal Register (28 April 1994); and S. Patel, 'The Convention on International Trade in Endangered Species: Enforcement and the Last Unicorn', 18:1 Houston Journal of International Law (1995), 157, at 197.
117. See the certification issued under the Pelly Amendment in March 1991 for persistent imports or introductions from the sea (even though Japan had entered a valid reservation under CITES Article 23). As a result, the Japanese Government withdrew its reservation and prohibited the importation of Appendix I olive ridley turtles (Lepidochelys olivacea) in April 1991, and in 1994 withdrew its remaining reservation on hawksbill turtles (Eretmochelys imbricate). See C.D. Stone, The Gnat is Older than Man: Global Environment and Human Agenda (Princeton University Press, 1993), at 45; S. Murase, 'National Report: Japan', 5 Yearbook of International Environmental Law (1994), 426; M. Dupree, 'Passing Through Enemy Waters: Marine Turtles in Japan', 14:1 University of California at Los Angeles Pacific Basin Law Journal (1995), 75; and R. Reeve (n. 93 above), at 102.
118. A list of all certifications until 1988 can be found in G.S. Martin and J.W. Brennan, n. 104 above; cf. S.C. Whitney and S.R. Perles, 'Critical Issues Left Unresolved in Japan Whaling Association v. American Cetacean Society', 28:3 Virginia Journal of International Law (1988), 679, at 684, n. 34.
119. They were not IWC members at the time (certification for 'whaling without ICRW quota').
120. These were for objections/reservations against IWC decisions; both objections were withdrawn after US certification. 111 After Taiwan enacted a ban on whaling, the US certification was withdrawn.
121. See D. Caron, n. 105 above, at 325. After the Japanese Government had initially reduced its 'scientific' catch quota from 825 to 300 minke whales in 1987 (see n. 12 above), the US Secretary of Commerce issued a further certification on 21 January 1988, followed by a withdrawal of fishing rights in US waters by President Reagan on 6 April 1988; see C.L. Johnson, 'Environmental Law: Certification of Japanese Violations of International Whaling Agreement', 29:2 Harvard International Law Journal (1988), 541. Nevertheless, Japan took 273 minke whales in 1988 on the basis of ICRW Article VIII; see also K. Sumi, 'The "Whale War" Between Japan and the United States: Problems and Prospects', 17:2 Denver Journal of International Law and Policy (1989), 317.
122. See S. Andresen, 'The International Whaling Regime: Order at the Turn of the Century?', in D. Vidas and W. Østreng (eds), Order for the Oceans at the Turn of the Century (Kluwer Law International, 1999), 215, at 224.
123. See n. 112 above. On the sanctions threatened but suspended after negotiations in 1995 and 2000, see 'Letter from President Clinton to Congress', 3:3 Journal of International Wildlife Law and Policy (2000), 311; S.D. Murphy, 'Contemporary Practice of the United States Relating to International Law', 95:1 American Journal of International Law (2001), 151; and R.B. Ackerman, 'Japanese Whaling in the Pacific Ocean: Defiance of International Whaling Norms in the Name of 'Scientific Research', Culture, and Tradition', 25:2 Boston College International and Comparative Law Review (2002), 323, at 335.
124. See A. Ishii and A. Okubo, n. 18 above, at 55.
125. See D. Caron, n. 105 above, at 346 ('not particularly effective'); see also D.M. Wilkinson, 'The Use of Domestic Measures to Enforce International Whaling Agreements: A Critical Perspective', 17:2 Denver Journal of International Law and Policy (1989), 271; E.A. Gardner, 'Swimming Through a Sea of Sovereign States: A Look at the Whales' Dilemma', 12 Ocean Yearbook (1996), 61, at 72; and D.A. Wirth and D.J. Caldwell, 'Unilateral Trade-Based Measures for Protection of the Marine Environment: A Legal and Policy Perspective', in D.G. Dallmeyer (ed.), Values at Sea: Ethics for the Marine Environment (University of Georgia Press, 2003), 147.
126. GATT Panel decision (Mexico v. USA) of 16 August 1991, 30 ILM 1594; see S. Charnovitz, 'Environmental Trade Sanctions and the GATT: An Analysis of the Pelly Amendment on Foreign Environmental Practices', 9:3 American University Journal of International Law and Policy (1994), 751; T.L. McDorman, 'Iceland, Whaling and the U.S. Pelly Amendment: The International Trade Law Context', 66:4 Nordic Journal of International Law (1997), 453; S. Andresen, n. 113 above, at 225; and R.B. Ackerman, n. 114 above, at 331. See also n. 10 above.
127. Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 106 S. Ct. 2860 (30 June 1986). See V.A. Curry, 'The Great Whales Become Casualties of the Trade Wars', 4:3 Pace Environmental Law Review (1986), 277; D.A. Wirth, 'A Matchmaker's Challenge: Marrying International Law and American Environmental Law', 32:2 Virginia Journal of International Law (1992), 377, at 393; and J.K. Setear, 'Can Legalization Last? Whaling and the Durability of National (Executive) Discretion', 44:3 Virginia Journal of International Law (2004), 711, at 753 ('national executive authority was triumphant').
128. In 2005, the Federal Court of Australia at first instance also dismissed an NGO action against JARPA-II whaling inside the Antarctic EEZ claimed by Australia - although not recognized by Japan - on the grounds that the foreign policy questions involved were 'non-justiciable', and that the injunction requested against the Japanese whaling ship 'may be contrary to Australia's long-term national interests, including its interests connected with its claim to territorial sovereignty to the Antarctic'; see Humane Society International Inc. vs. Kyødø Senpaku Kaisha Ltd, Federal Court of Australia (Judge J. Allsop, 27 May 2005), [2005] F.C.A. Decisions 664, at para. 27, case summary in 25 Australian Yearbook of International Law (2006), 401; see C. McGrath, 'Japanese Whaling Case Succeeds', 23:5 Environmental and Planning Law Journal (2006), 333; S. Blay and K. Bubna-Litic, 'The Interplay of International Law and Domestic Law: The Case of Australia's Efforts to Protect Whales', ibid., at 465; A. Hutchinson, 'Baleen Out the IWC: Is International Litigation an Effective Strategy for Halting the Japanese Scientific Whaling Program?', 3:1 Macquarie Journal of International and Comparative Environmental Law (2006), 1, at 7; T. Stephens and D.R. Rothwell, 'Japanese Whaling in Antarctica: Humane Society International Inc. v. Kyødø Senpaku Kaisha Ltd', 16:2 RECIEL (2007), 243; and R. Davis, 'Enforcing Australian Law in Antarctica: The HSI Litigation', 8:1 Melbourne Journal International Law (2007), 142. However, the finding on the asserted lack of jurisdiction was reversed on appeal, and on 15 January 2008, Judge Allsop issued a court order to restrain Kyødø Senpaku from whaling in the Australian Whale Sanctuary; [2008] F.C. Decisions 3.
129. CITES Resolution 14.3 ('CITES Compliance Procedures', 15 June 2007), Annex: 'Guide to CITES Compliance Procedures', 46: ILM (2007), 1178. As explained in the introduction, this most recent codification merely is a (non-binding) description of existing Convention practice. The authentic legal basis thus remains CITES, Article 13, and the relevant earlier CITES Conference Resolutions and Decisions listed in footnote 1 of Resolution 14.3: I.e. CITES Resolution 11.1 ('Establishment of Committees', 20 April 2000, revised 15 June 2007), CITES Resolution 11.3 ('Compliance and Enforcement', 20 April 2000, revised 15 June 2007); CITES Resolution 11.17 ('National Reports', 20 April 2000, revised 15 June 2007); CITES Resolution 12.8 ('Review of Significant Trade Specimens of Appendix II Species', 15 November 2002, revised 14 October 2004); and CITES Decision 14.29 ('Cooperation Between Parties and Promotion of Multilateral Measures', 15 June 2007). See also S. Biniaz, 'Remarks about the CITES Compliance Regime', in U. Beyerlin et al., n. 14 above, 89, at 94; and C.R. Payne, 'CITES Compliance Procedures: Conf. 14.3', 46:6 ILM (2007), 1174.
130. For general definitions, see H.G. Kausch, 'Embargo', in Bernhardt (ed.), 2 Encyclopedia of Public International Law (Elsevier, 1992), 38; and H.K. Ress, Das Handelsembargo: Voelker, europa- und aussenwirtschaftsrechtliche Rahmenbedingungen, Praxis und Entschaedigung (Springer, 2000), at 7.
131. On 'species-specific sanctions' that are alternatively available, see R. Reeve, n. 93 above, at 159; for example, the EU import ban on whale products, mentioned in n. 101 above.
132. See Resolution 14.3, n. 120 above, para. 30. On the demonstrated effectiveness of these collective measures as an economic pressure tool, see R. Reeve, 'Wildlife Trade, Sanctions and Compliance: Lessons from the CITES Regime', 82:5 International Affairs (2006), 881; see also n. 131 below.
133. U. Beyerlin and T. Marauhn, Rechtsetzung und Rechtsdurchsetzung im Umweltvoelkerrecht nach der Rio-Konferenz 1992 (Erich Schmidt Verlag, 1997), at 79 and 87.
134. See P.H. Sand, n. 68 above, at 38.
135. For example, CITES embargoes for infraction of this treaty obligation were enforced in 1985-1987 against Bolivia, in 1985-1990 against the UAE, in 1991-1992 against Thailand, in 1992-1995 against Italy, in 1998-1999 against Greece, in 2001-2002 against the Democratic Republic of Congo, and in 2005-2007 against Nigeria. See R. Reeve, n. 123 above, at 890, Table 1. 127 CITES embargoes for infraction of this treaty obligation over three consecutive years (see CITES Resolution 11.17, n. 91 above) were enforced in 2004-2005 against Algeria, in 2004-2007 against the Central African Republic, in 2002-2003 against Djibouti, Dominica, Liberia, Somalia, and since 2003 against Mauritania. See R. Reeve, n. 123 above, at 891.
136. In 1999-2002, CITES embargoes for infraction of this treaty obligation were enforced against Afghanistan and Rwanda. See R. Reeve, n. 93 above, at 153.
137. Rules of Procedure of the Standing Committee (1 July 2005), available at the CITES website at , Rules 23 and 24; and Rules of Procedure of the Conference of the Parties (14 October 2004), available at , Rule 26. Paragraph I(3) of CITES Resolution 14.3, n. 120 above, also expressly confirms the priority of any traditional dispute settlement proceedings under CITES, Article 18(2), as discussed in section IV/1, nn. 96-98 above.
138. Estimates of the total volume of world trade in wildlife species (animals and plants) and their products range from US$5 to 50 billion annually (not including fish and timber trade); see G. Hemley (ed.), International Wildlife Trade: A CITES Sourcebook (Island Press, 1994); and P.H. Sand, n. 59 above, at 19.
139. 'An almost 100 percent success rate' as compared to other environmental agreements, according to D. Brack, 'Environmental Treaties and Trade: Multilateral Environmental Agreements and the Multilateral Trading System', in G.P. Sampson and W.B. Chambers (eds), Trade, Environment and the Millennium, 2nd edn (United Nations University Press, 2002), 321, at 334. See also R. Reeve, 'Enhancing the International Regime for Protecting Endangered Species: The Example of CITES', 63:2 Heidelberg Journal of International Law (2003), 333, at 351; and S. Oberthuer, 'Die Wirksamkeit von Verrechtlichung: Die Compliance-Mechanismen internationaler Umweltregime', in K. Jacob et al. (eds), Politik und Umwelt (Verlag fuer Sozialwissenschaften, 2007), 73, at 80.
140. See J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002). See also D.J. Bederman, 'Counterintuiting Countermeasures', 96:4 American Journal of International Law (2002), 817; and C. Laly-Chevalier, n. 97 above, at 550.
141. See P.H. Sand, 'Sanctions in Case of Non-Compliance and State Responsibility: Pacta sunt servanda - Or Else?', in D. Zaelke et al. (eds), Making Law Work: Environmental Compliance and Sustainable Development (Cameron May, 2005), 259. 134 See J. Cameron and J. Robinson, 'The Use of Trade Provisions in International Environmental Agreements and Their Compatibility with the GATT', 2 Yearbook of International Environmental Law (1991), 3, at 8; S. Charnovitz, 'Green Roots, Bad Pruning, GATT Rules and Their Application to Environmental Trade Measures', 7:2 Tulane Environmental Law Journal (1994), 299, at 333; C. Crawford, 'Conflicts Between the Convention on International Trade in Endangered Species and the GATT in Light of Actions to Halt the Rhinoceros and Tiger Trade', 7:2 Georgetown International Environmental Law Review (1995), 555; R.G. Tarasofsky, 'Ensuring Compatibility between Multilateral Environmental Agreements and GATT/WTO', 7 Yearbook of International Environmental Law (1996), 52, at 57 and 63; R. Wolfrum, 'Means of Ensuring Compliance with and Enforcement of International Environmental Law', 272 Hague Academy of International Law: Collected Courses (1998), 9, at 66; G. Marceau, 'Conflicts of Norms and Conflicts of Jurisdictions: The Relationship Between the WTO Agreement and MEAs and Other Treaties', 35:6 Journal of World Trade (2001), 1081; and C. Wold et al., Trade and the Environment: Law and Policy (Carolina Academic Press, 2005), at 678.
142. See M. Yeater and J. Vasquez, 'Demystifying the Relationship between CITES and the WTO', 10:3 RECIEL (2001), 271. Of the 150 WTO Member States, only seven are not currently parties to CITES: Angola, Armenia, Bahrain, Haiti, the Maldives, Oman and Tonga.
143. See A.E. Boyle, 'State Responsibility for Breach of Obligations to Protect the Global Environment', in W.E. Butler (ed.), Control Over Compliance with International Law (Nijhoff, 1991), 69, at 73; P.H. Sand, 'Transnational Environmental Disputes', in D. Bardonnet (ed.), The Peaceful Settlement of International Disputes in Europe: Future Prospects (Nijhoff, 1991), 123, at 131; and C. Laly-Chevalier, n. 97 above, at 525.
144. See the 'Draft Guidelines for Compliance with the Convention' (CITES Doc.23/CoP14, 2007), Annex, para. IV(B)(2) (now para. 22 of the Guidelines); cf. O. Schachter, n. 97 above; and K. Sachariew, n. 97 above.
145. See nn. 23-29 above.
146. Within the sub-order of baleen whales (Mysticeti), humpback whales have been listed since 1979, and sei whales since 2002, on Appendix I of the Convention on Migratory Species of Wild Animals (n. 23 above), to which currently 100 of the 172 CITES Member States are contracting parties - although Japan is not (see n. 35 above).
147. In light of recent research findings (including the ICR's own test results), the whale meat offered on the Japanese market may not only be contaminated by toxic heavy metal residues - mainly mercury and cadmium - but may also be infected with brucellosis bacteria (otherwise notorious among scientists as one of the classical agents of bacteriological warfare); see M.P. Simmonds et al., 'Human Health Significance of Organochlorine and Mercury Contaminants in Japanese Whale Meat', 65:A Journal of Toxicology and Environmental Health (2002), 1211; K. Ohishi et al., 'Pathological and Serological Evidence of Brucella-Infection in Baleen Whales (Mysticeti) in the Western North Pacific', 26:2 Comparative Immunology, Microbiology and Infectious Diseases (2003), 125; T. Endo et al., 'Contamination by Mercury and Cadmium in the Cetacean Products from Japanese Market', 54:11 Chemosphere (2004), 1653; and E.C.M. Parsons, et al., 'It's Not Just Poor Science: Japan's Scientific Whaling May Be a Human Health Risk Too', 52:9 Marine Pollution Bulletin (2006), 1118. It is worth recalling in this context that the two most famous Japanese cases on environmental liability (the Itai-Itai decision by the Toyama District Court on 30 June 1971, and the first Minamata decision by the Niigata District Court on 29 September 1971, as reported on the front pages of the Japan Times of 1 July and 30 September 1971) dealt with food contamination by mercury and cadmium; see P.H. Sand, Legal Systems for Environment Protection: Japan, Sweden, United States, FAO Legislative Studies No. 4 (Food and Agriculture Organization of the United Nations, 1972), at 20; cf. the second Minamata decision by the Kumamoto District Court on 20 March 1973, English translation in C.J. Milhaupt et al., The Japanese Legal System: Cases, Codes and Commentary (Foundation Press, 2006), at 357.
148. The corruptibility of the ICR 'research programme', because of its predominant business orientation towards full cost recovery, has been criticised in public by renowned Japanese scientists; see, for example, the interview with Professor Toshio Kasuya - prominent international whale expert and former head of the Animal Science Department, Teikyo University of Science and Technology - in 'Tøron: Chøsa-Hogei no Zehi' (Agora: For and Against 'Scientific' Whaling) Mainichi Shimbun (3 October 2005), at 3; see also T. Kasuya, 'Hogei Mondai o Kangaeru' (Deliberations on the Whaling Problem), 16 Ekosofia (2005), 56.
149. Established in 1973 as an inter-university research institute under the auspices of the Science and International Affairs Bureau (Monbu-kagaku-shø) of the Ministry of Education, Culture, Sports, Science and Technology (Monbu-shø), the NIPR maintains four Antarctic stations and a Center for Antarctic Environment Monitoring (established in 1995), as well as an Arctic Environment Research Center (established in 1990) with a field laboratory on Spitsbergen/Svalbard; see T. Aso and H. Ito (eds), Environmental Research in the Arctic 2005 (National Institute of Polar Research, 2006). NIPR is responsible for the Japanese Antarctic Research Expeditions (JARE), and participates in a number of multilateral and bilateral cooperative programmes such as the ongoing 2007/2008 Japanese-Swedish Antarctic Expedition (JASE) as a contribution to the International Polar Year. The annual budget of JARE is approximately 7 billion yen (about US$65 million); see Y. Fuji, Japanese Research Plan in IPY 2007-2008 (National Institute of Polar Research, 2007), at 3.
150. After a 'special permit under ICRW Article VIII' for the introduction of 50 humpback whales (Megaptera novaeangliae) from the Antarctic Southern Ocean under JARPA-II was temporarily suspended - after massive international protests - on 21 December 2007, the Japanese Fisheries Agency now plans to grant to the ICR a special permit for the introduction of 100 sei whales (Balaenoptera borealis) from the north-west Pacific in the summer of 2008, pursuant to JARPN-II (n. 3 above). Neither of these populations of great whales on CITES, Appendix I are subject to Japanese reservations under Article 23(2) or 15(3); see n. 68 above.
151. See nn. 125-128 and 133 (table 1, at 261) above.