Japanese scientific whaling: An abuse of right or optimum utilisation?

Asia Pacific Journal of Environmental Law

Volumn 5, Issue 1, 2000, Pages 33-58

  Triggs, Gillian ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

Author keywords

Abuse of rights; Good faith; Japan; Scientific whaling

Indexed keywords

EID: 63049125706     PISSN: 13852140     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (120)

1. 161 UNTS 72.
2. Ibid, Art. VIII.
3. IWC Press Release (28 May 1999). Japan is reported to have taken more than 3,600 whales by 1997, under its scientific permits, Global Information Network, Inter Press Service (13 May 1998).
4. A 1999 proposal by Japan that it be granted an interim relief allocation of 50 minke whales to be taken by coastal communities was not adopted; Final Press Release of the IWC, 28 May, 1999;〉ourworld.compuserve.com/homepages/ iwcoffice/Press99.htm〈 (10 April 2000).
5. A resolution on Japan's scientific whaling programme for 1999-2000 at the 51st Annual Meeting of the International Whaling Commission in Grenada, 25-29 May 1999 was passed 20 for, 10 against, with 4 abstentions. This compares with the vote in 1998 at Oman of 17 for, 9 against and 8 abstentions. The Resolutions call on Japan to stop issuing permits for a lethal take of minke whales. The Resolution of 1999 called on Japan to refrain from issuing new scientific permits and for the Scientific Committee to examine whether the research under such permits is required for management or could be carried out using non-lethal means.
6. Legal Opinion by L. S. Jenkins and K. Block (12 April 1998) (on file). For an example of earlier litigation regarding Japanese whaling see Japan Whalmg Association v. American Cetacean Society, 106 S. Ct. (Supreme Court Reporter) 2860 (1986) (US)
7. discussed in Melinda K. Blatt "Woe for the Whales" (1987) 55 University of Cincinnati Law Review 1285-1301.
8. See, for example, Report of the Secretary General "Large Scale Pelagic Drift-Net Fishing, Unauthorised Fishing in Zones of National Jurisdiction, High Seas, Fisheries By-Catch and Discards" (8 October 1998) at 〉www.un.org/Depts/los/a53-473.htm〈 (10 April 2000).
9. Case Concerning Fisheries Jurisdiction (Spain v. Canada), 4 December 1998; for a summary of the Judgment of the International Court of Justice see, 〉www.icj-cij.org/icjwww/ipresscom/iPressl997〈(16 November 1999).
10. The arrest took place under the Fisheries Management Act 1991 (Australia)
11. These migrating fish are to be found on the South Tasmanian Rise, 4 miles from the Australian Fishing Zone; Press Release, Minister for Agriculture, Fisheries and Forestry (5 August 1999) (Australia).
12. (1995) 34 ILM 1542.
13. Cases Nos 3 and 4, Order of 27 August 1999: at 〉www.un.org/Depts/ los/lTLOS/〈(13 December 1999).
14. (1999) 38 ILM 118.
15. Report of the Scientific Committee of the IWC (24 May 1999) IWC/51/4, 74.
16. 23-1 vote in the IWC in favour of the Southern Ocean Sanctuary.
17. IWC Resolution 1997-5; SC/49/Repl, item 7.
18. G. M. Lento, N.J. Patenaude and C. Scott Baker Molecular Genetic Identification of Whale and Dolphin Products for Sale in Japan and Korea, 1995-97: Report to the Scentific Committee of the lnternational (October 1997).
19. The IWC has also called on Norway to halt all whaling under its current programme which sets national catch limits on the whaling of minke; IWC Press Release, 28 May 1999.
20. See 〉www.//ourworld.compuserve.com/homepages/iwcoffice/Press99〈 (10 April 2000). The 52nd Annual Meeting will be held in Australia 3-6 July 2000.
21. 993 UNTS 243.
22. Report of the National Task Force on Whaling A Universal Metaphor. Australia's Opposition to Commercial Whaling (Environment Australia, Canberra: 1997) ch 5.
23. IWC Resolution (1997) 5.
24. At the Annual Meeting of the IWC in 1997, Japan presented evidence that minke stocks were growing in the Southern Ocean. A sustainable harvest of 2,000 minke per year is reported; see Inter Press Service (13 November 1997).
25. See Sara L Ellis "Japanese Whaling in the Antarctic: Science or Subterfuge?" (1988) 31 (2) Oceanus 68-69.
26. See, for example, Mexican Civil Code, Art. 1912 (Mexico).
27. See authorities cited by Ian Brownlie Principles of Public International Law (4th, Oxford University Press, Oxford: 1990) 444, note 74.
28. The work of Gleyes C. Berges (1906) is referred to by B. O. Iluyomade "The Scope and Content of a Complaint of Abuse of Right in International Law" (1975) 16 Harvard International Law Journal 47.
29. See the conclusion reached by Iluyomade, ibid at 92.
30. [1926] PCIJ Reports Ser. A, No. 7.
31. [1932] PCIJ Reports Ser. A/B, No 46.
32. Ibid at 167.
33. [1955] ICJ Reports 4 at 370.
34. [1966] ICI Reports 5.
35. Ibid, Judge Forster at 480-81, see also Judges Tanaka at 283-5; Jessup at 433-38; and Nervo at 466-9.
36. See discussion by Iluyomade, note 27 at 67.
37. Bin Cheng General Principles of International Law as Applied by International Courts and Tribunals (Grotius, Cambridge: 1953) 121.
38. G. D. S. Taylor "The Content of the Rule Against Abuse of Rights in International Law" (1972-73) 46 British Yearbook of International Laiv 322 at 352.
39. Iluyomade, note 28 at 91.
40. A. C. Kiss L'Abus de droit en droit international (1953), 187 as cited by Taylor, note 37 at 341.
41. Hersch Lauterpacht The Function of Law in the lnternational Community (Archon Books: Hamden, Ct: 1966) 287.
42. Nicolas Socrates Politis "La Theorie de L'Abus Des Droits" (1925) Vol 6 Nol Recueil Des Cours 1 at 190.
43. Note 37 at 352.
44. Note 26 at 445.
45. (1982) 21 ILM 1261.
46. UNCLOS, Art. 300 provides: "States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights⋯ recognised in this Convention in a manner which would not constitute an abuse of right."
47. Hersch Lauterpacht The Development of International Law by the International Court (Grotius, Cambridge: 1982) 164.
48. Note 26 at 445.
49. Note 37 at 333.
50. 1155 UNTS 331; Art. 26.
51. [1952] ICJ Reports 212.
52. [1957] ICJ Reports 9 at 53.
53. David John Harris, Cases and Materials on International Law (5th, Sweet & Maxwell, London: 1998) 806.
54. Gabcikovo-Nagymaros Dam Case (Hungary v. Slovakia) (1998) 37 ILM 162.
55. Ibid at para. 142.
56. Note 36 at 115.
57. Gabcikovo-Nagymaros Dam Case (Hungary v. Slovakia) (1998) 37 ILM 162. Ibid.
58. Note 26 at 446.
59. See, for example, the views of the Appellate Body of the WTO in the Shrimp Case :"A balance must be struck between the right of a Member to invoke an exception under Article XX and the duty of that same Member to respect the treaty rights of the other Members", note 13, para 156 and also 159.
60. This point is made by Luyomade, note 27 at 90.
61. See discussion in Jenny Schultz "Balancing the Relationship between Trade and the Environment within the World Trade Organisation: Is this the End of the Sea Turtle?" (1999) 4 APJEL 37 at 48.
62. Since 1975 the Leatherback, Green, Hawksbill and Olive Ridley turtles have been listed in Appendix 1 of CITES, note 20, as endangered species. They are also protected by U.S. law under the Endangered Species Act 1973, 16 U.S.C. (United States Code) 1531 (United States). The aim of the legislation was in part to "level" the playing field between US shrimpers who were subject to the costs of complying with US environmental regulations and foreign shrimpers who were not. The import ban was objected to by India, Malaysia, Pakistan and Thailand and their request to the WTO's Dispute Settlement Body led to the establishment of a panel to determine whether the ban violates the prohibition on quantitative restrictions under Art. XI of GATT (1994). Another 11 countries, including the European Union, Australia, China, Hong Kong, Mexico, Ecuador and Nigeria subsequently joined the request to the Dispute Settlement Body.
63. US-Reformulated Gasoline Case (1996) 35 ILM 274.
64. Ibid, para 158 and footnotes referring to Cheng, note 36.
65. [1994] ATS 16.
66. The M/V "Saiga" (No 2) Case (1999) 38 ILM 1323.
67. Note 12.
68. Ibid at para 71.
69. Ibid at paras 73-74.
70. Ibid at para 77.
71. Francisco Orrego Vicuna The Changing Law of High Sea Fisheries (Cambridge University Press, Cambridge: 1999).
72. Note 12, Separate Opinion of Judge Shearer at para 19.
73. The tribunal is expected to be established early in 2000.
74. The emphasis by the Appellate Body of the WTO in the Shrimp Case on balancing respective treaty rights will also be a relevant consideration.
75. UNCLOS, Art. 65.
76. Ibid, Art. 120.
77. For agreed estimates of stocks see, 〉www.ourworld.compuserve.com/ homepages/iwoffice/Estimate.htm〈 (10 April 2000).
78. The Antarctic regime is one of the best examples of such a creative and flexible development of a consensus based international regime.
79. For a discussion of regime theories in the context of polar regions see, Donald R. Rothwell The Polar Regions and the Development of International Law (Cambridge University Press, Cambridge: 1996).
80. Daniel Bodansky "The Legitimacy of International Governance: a coming challenge for international environmental law" (1999) 93 American Journal of International Law 596 at 605
81. David Caron "The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures" (1995) 89 American Journal of International Law 154.
82. See generally, A. Chayes and A. H. Chayes The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press, Cambridge Mass: 1995) 130.
83. Note 1, Arts. III and V.
84. Note that Norway and Iceland are not within the regime established by the IWC.
85. IWC Press Release (28 May 1999).
86. The initial Japanese objection was later withdrawn, effective 1 April 1988
87. see P. Birnie "International Legal Issues in the Management and Protection of the Whale; A Review of Four Decades of Experience" (1989) 29 Natural Resources Journal 903. Paragraph 10(e) of the Schedule came into effect for all Parties to the Convention.
88. Note 82.
89. Note 21 at 629.
90. D. W. Bowett The Law of International Institutions (4th, Stevens & Sons, London: 1982) 338.
91. Project Jonah, for example, proposes this interpretation see 〉www.w.wildside.gen.nz/PJ/pjhome.html〈(ll April 2000).
92. Birnie, note 83 at 931.
93. Ibid. This is a legal view supported by the US, the United Kingdom and Australia.
94. See, for example, the Report of the Scientific Committee presented to the 51st Meeting of the IWC, Grenada, May 1999, IWC/51/4.
95. Sanctuary Declaration was made under the Schedule to the ICRW, Section III [7].
96. "Proposal for a Widely Accepted Southern Ocean Sanctuary" IWC/46/53 (25 May 1994).
97. Circular to Commissioners and Contracting Governments "Japanese Objection to the Southern Ocean Sanctuary" RG/VJH/25435 (15 August 1994).
98. See, for example, William T. Burke "Memorandum of Opinion on the Legality of the Designation of the Southern Ocean Sanctuary by the IWC" (n.d.) (on file)
99. P. W. Birnie "Opinion on the Legality of the Designation of the Southern Ocean Sanctuary by the IWC" 1WC/47/41 Agenda item 13.
100. See Reports of the Scientific Committee to the IWC (1996-9).
101. Nuclear Tests Case (Australia v. France; New Zealand v. France) (1974) ICJ Reports 253 at 270-271, para 55
102. South West Africa Cases (1962) ICJ Reports 319 at 328
103. Mavrommatis Palestine Concessions Case (1924) PCIJ Reports Series A No 2.
104. Mavromatis Palestine Concessions, ibid at 11.
105. South West Africa, Preliminary Objections, Judgement, (1962) ICJ Reports 328.
106. Note 12 at para 45.
107. UN Charter, Art. 2(3).
108. UNCLOS, Pt XV s. 1, Arts 279-284.
109. See the Interhandle Case (1959) ICJ Reports 6 at 23; Norwegian Loans Case (1957) ICJ Reports 9.
110. See Art. 35(1) of the Statute of the Court, and Art. 93(1) of the Charter of the United Nations.
111. It is Australian policy to oppose commercial whaling and to work towards a permanent ban. Australia has proposed the creation of a South Pacific Whale Sanctuary, an initiative supported by the South Pacific Forum. This proposal has been referred to the Scientific Committee and will be tabled for discussion at the Annual Meeting of the IWC in 2000.
112. For a complete and regularly updated list of the text of declarations under Art. 36(2) see United Nations Treaty Series.
113. Australia has made a declaration under Art. 36(2) without reservation, save that it will not apply if the parties have agreed to some other method of peaceful settlement. It would be consistent with Australia's policies and activities in the IWC regarding Japanese scientific whaling for it to bring an application to the ICJ for judicial determination of the validity of whaling by a member. If Australia were to initiate such an application, Japan would not be able to avoid jurisdiction by relying on a reservation that eliminates any area of common acceptance.
114. UNCLOS, Art. 65.
115. Note the obligation to exchange views and the opportunity for conciliation under UNCLOS, Arts. 283 and 284.
116. Ibid, Art. 120.
117. Note 12 at para 53.
118. Ibid at para 51.
119. Ibid at para 56.
120. Ibid at para 60.