Whaling and Trade

(from "Public Perception of Whaling", ICR, 1994)

Chikao Kimura
 ICR


When a Japanese individual wants to import or export whale meat from or to other countries, he must abide by Japanese domestic laws and regulations, including those promulgated pursuant to international agreements to which Japan is party. However, in the international arena where States, not individuals, are the actors, international transactions involving whale meat are also regulated by international treaties, the most important of which are the International Convention for the Regulation of Whaling (ICRW) and the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES). Also important is international power politics, particularly the practices of the U.S., which seeks to impose its policies upon other countries through the use of domestic legislation.

The ICRW was adopted in Washington in December 1946 and came into force two years later. Since then, the International Whaling Commission (IWC) has met annually, the meeting made up of the Contracting Governments of the Convention. Japan acceded to the ICRW in 1951. As of May 1993, at the time of the 45th IWC meeting, held in Kyoto, forty States1 were party to the ICRW.

The foremost purpose of this Convention, as its name indicates, is the regulation of the whaling industry, not the regulation of international trade in products of whaling such as whale meat. The Schedule, which details whaling regulations such as whaling seasons, size limits, and catch quotas, forms an integral part of the Convention. The regulations included there legally bind the Contracting Governments. A Contracting Government may, however, based upon Article V(3) of the Convention, file an objection to an amendment to the Schedule in a timely manner, and thus be exempted from the amendment.

Article VI of the ICRW stipulates that the IWC may "make recommendations to any or all Contracting Governments on any matters which relate to whales or whaling and to the objectives and purposes of this Convention." Based upon this article, the IWC has adopted resolutions pertaining to international trade in whale products, including whale meat. Legally, these resolutions and recommendations are different from the regulations included in the Schedule in that they are not binding. However, a States, despite its sovereignty, could have difficulty in acting differently from what was decided at an international conference; it can be said the resolutions and recommendations have near binding power.

In 1979, in order to tackle the "pirate whaling," the 31st IWC meeting resolved that the Contracting Governments "shall cease immediately any importation of whale meat and products from ... non-member countries."2 In 1986, as regards whale meat and other products obtained from research whaling, the IWC recommended that they "should be utilised primarily for local consumption," meaning that they should not be primarily traded internationally3.

Furthermore, political pressure influences the international trade of whale products. The U.S. pressures other countries not to trade in whale products by using two domestic laws: the Packwood-Magnuson Amendment and the Pelly Amendment. The Packwood-Magnuson Amendment prohibits fishing in the U.S. 200-mile exclusive economic zone (EEZ) by vessels of a foreign State if the State or its nationals are considered to have diminished the effectiveness of the IWC conservation measures. This amendment used to be a great threat to Japan, which had fishing quotas in the U.S. EEZ. However, given the change in U.S. fishery policy, which now generally precludes fishing by foreign vessels in its EEZ, this amendment has lost substantive meaning.

The Pelly Amendment prohibited importation of fishery products from a State which was considered to have diminished the effectiveness of fishery conservation measures of an international fishery convention. In 1992, the Pelly Amendment was further amended so that the target of an import embargo would not be limited to fishery products. In 1986, in relation to whale meat obtained as a by-product of Icelandic research whaling, the "local consumption" of whale meat stated in the IWC resolution became an issue. Iceland, however, interpreted that the exportation of 90% of whale meat was permissible under this resolution. But as a result of the U.S. pressure with the Pelly Amendment, Iceland finally agreed that it would not export more than 49% of whale meat and whale products from its research whaling4.

Finally, it is CITES which is most directly concerned with international trade in whale products. This Convention, based upon the recommendation of the 1972 United Nations Conference on Human Environment, was adopted in 1973. It is intended to regulate international trade in endangered wild animals and plants. Japan acceded to it in 1980. As of March 1993, CITES had 119 parties5 and the Conferences of the Parties are generally held biennially.

CITES categorises species of wild fauna and flora into Appendices I, II, and III, depending on the degree of endangerment, and regulates international trade in them with differing degrees of strictness. Endangered species are listed in Appendix I, and international trade in these is most strictly regulated. What is noteworthy here is that, under CITES, transporting marine resources captured on the high seas is regarded as international trade in which the product has been "[introduced] from the sea" (Article III(5)). Antarctic whaling, in whatever form it may be resumed, will be classified as such.

Some species of whale, such as the blue whale, have been listed in Appendix I since adoption of CITES. In 1981, the third Conference of the Parties, held in New Delhi, increased the number of whale species in Appendix I. In 1983, as a result of the fourth Conference in Botswana, all species of baleen whale were also listed in Appendix I, as was the Baird's beaked whale, which has long been harvested in Japanese small-type coastal whaling operations. The present listings of the order Cetacea are shown in the accompanying table6.

The decision made in Botswana lacked scientific justification and can be construed as an abuse of the Convention7. If the listing were based upon the spirit of the Convention, only those species in danger of extinction would be listed in Appendix I. However, despite the agreement of the IWC Scientific Committee that there are 760,000 minke whales in the Antarctic, CITES has listed the species in Appendix I. This departure from the original spirit of the Convention is also contradictory to the principle of sustainable use agreed to at the 1992 United Nations Conference on Environment and Development. For this reason, Japan maintains reservations, under Article XV(3) of CITES, regarding the listings of six species of whales (fin, sei, sperm, minke, Bryde's, and Baird's beaked whales).

In November 1994, the ninth Conference of the CITES Contracting Governments is to be held in Fort Lauderdale, Florida, USA. One of the issues there will be the amendment of the CITES listing criteria. The current criteria, the Berne Criteria, have been criticised as qualitative and ambiguous, thus allowing for political manipulation. The criteria need amending to make them more quantitative and scientific. The questions of whether amending the criteria themselves will be successful and whether those species now listed will be reconsidered or other species will be added at the ninth Conference remain open.

1) Information obtained from the Fisheries Agency of Japan.
2) IWC, 30th Report(1980), Appendix 9, p. 38.
3) IWC, 37Ih Report(1987), Appendix 2, p. 25.
4) G.S. Martin, Jr. and J.W. Brennan, "Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments," Denver Journal of International Law and Policy, vol. 17 no. 2 (1989), pp. 311-312.
5) MITI, Tsusansho Koho - Special Edition (30 March 1993), p. 35.
6) Adapted from the table in lbid., pp. 67-68.
7) F. Nagasaki, "Gaborone, Botswana," Geiken Tsushin, vol. 350 (1983)

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