By Emma Macfarlane*
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is a multilateral treaty enacted to protect endangered plants and animals. CITES is legally binding on all 183 parties who have joined but does not take the place of international laws.[i] One of the most contentious issues that CITES has dealt with as of late is the enforcement of the 1946 International Whaling Commission’s whaling moratorium. This article details CITES’ problematic and at times discretionary enforcement of the whaling moratorium. This piecemeal enforcement on countries like Japan indicates CITES is inadequately structured to induce participating countries to comply with their treaty obligations.
CITES is a treaty with teeth: it acts as a regulatory oversight body which has the power to impose sanctions on its participants who do not abide by the international conventions that protect endangered plants and animals.[ii] This includes the International Convention for the Regulation of Whaling, enacted in 1946 by the International Whaling Commission (IWC).[iii] The purpose of this convention was to set out catch limits for commercial and aboriginal subsistence whaling.[iv] One of the convention’s members, Japan, has exploited a loophole in Article VIII of the convention, which allows for a Contracting Government to, “grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research…and the killing, taking and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.”[v]
The most visible steps that Japan has taken to skirt around the international moratorium are through its four whale research programs—JARPN, JARPNII, JARPA, and JARPAII.[vi] JARPNII and JARPAII are still in effect today. These programs involve killing whales and selling the whale meat openly in Japan; proponents of the program claim the proceeds from the sales are used to fund further research.[vii] Japan claims that these programs provide valuable information related to whales and the Antarctic ecosystem; it deflects criticism by arguing that “emotional responses” to its practice ignore both science and international law.[viii] The IWC has issued at least nineteen resolutions condemning Japan for failing to meet two important conditions found in Article VIII: first, the condition that demands the research being conducted meets critical scholarly needs; second, that non-lethal research techniques cannot provide the same information.[ix]
Japan’s exploitation of Article VIII has effectively allowed the country to circumvent the global moratorium on commercial whaling adopted in 1982 by the IWC—at least, until October 2018.[x] In its meeting in Sochi this past month, CITES ruled that Japan was not in compliance with the IWC’s moratorium in regards to Sei whales. Sei whales can reach up to sixty feet in length, and are found in almost every ocean in the world; they are a protected species, as they were hunted to near extinction over the past two hundred years.[xi] International trade of these whales is prohibited by CITES. CITES found that Japan’s primary purpose was not for scientific purposes as the treaty requires, but for commercial purposes to sell the blubber on the domestic market.[xii] CITES rebuked Japan’s practices, and recommended the country suspend its practices of killing Sei whales and bringing them across international waters to sell in Japan.[xiii]
Certainly, this is a stern reprimand. It’s not the first, either. In 2014, the International Court of Justice (ICJ) also ruled that Japan’s Antarctic hunt was devoid of a scientific basis and in violation of the moratorium.[xiv] In response to CITES’ most recent admonishment, the Japanese delegation have been quoted as saying they were, “ready to formulate remedial actions.”[xv] If past is prelude, this “remedial action” might simply consist of Japan removing itself from the agreement altogether. It did exactly this in 2015 by declining to accept the ICJ’s jurisdiction over any dispute over any dispute concerning the research, conservation, management or exploitation of living resources of the sea.[xvi]
Japan is a powerful actor on the world stage. For Japan to withdraw from an international convention that does not perfectly comply with its domestic practices sets a dangerous precedent which loosens the effect of binding international conventions. Moreover, Japan is the second-largest financial contributor to the CITES budget.[xvii] If Japan were to withdraw from the organization altogether, the organization would lose a significant source of funding and legitimacy. The flip side of the coin seems just as grim: Japan could continue to participate in CITES without suffering any trade sanctions. After CITES’ October rebuke, this would surely impair the legitimacy of the organization, perhaps to an even greater extent than the first hypothetical. One should note that this second scenario is not an unlikely one. CITES has been aware of Japan’s illicit practices for years and declined to impose any sanctions on Japan, financial or otherwise.[xviii] As Professor Peter H. Sand from the University of Munich notes, the credibility of an organization that operates selectively is greatly diminished.[xix] Other organizations have similarly criticized CITES for its inaction over the years in holding Japan accountable for its whaling practices.[xx]
While international news outlets have been quick to demonize Japan for its whaling practices since the October reprimand, Japan is not the only country which has disregarded the whaling moratorium. Norway and Iceland have also foregone the decades-old ban in ways that have been condemned as especially brutal and cruel in international media.[xxi] The two Nordic countries have managed to evade the moratorium as both have expressed a reservation on the ban (meaning, a unilateral statement excluding the effect of this provision of the treaty on their country); this has allowed them to keep up with the practice of whaling in a legally permissible manner.[xxii] All three whaling countries have criticized the moratorium. Each has condemned the IWC for refusing to authorize quotas on subspecies that are not endangered, despite evidence that controlled whaling would not endanger the targeted species.[xxiii] The question must be raised: why aren’t all three countries rejected from the Convention for their noncompliance? Even more pertinent – why don’t all three just eject themselves?
There are two straightforward answers. First, if these countries were cast out from CITES, they would lose their influence in the organization and CITES would lose their funding. Thus, their membership in CITES is mutually beneficial. Second, the whaling issue is but one of many environmental problems that CITES must contend with. Given CITES’ inaction regarding Japan’s whaling practices in the past, an apt analogy might be that through CITES’ perspective, it is better to lose the battle and win the war. Given the multitude of environmental issues that CITES concerns itself with, the Convention might opt to relax the standards on Japan’s whaling practices in exchange for its funding efforts in other problem areas. This is clearly an imperfect argument. Criticism has been levelled at CITES in this vein, in that more than ninety-five percent of States targeted by all-out trade embargoes to curb their environmentally damaging practices were Third World Countries.[xxiv] It seems that even in an international environmental convention, one’s bargaining power diminishes greatly when one’s funds are limited.
Although Japan may not act as a pillar of moral excellence in its commercial whaling practices, neither, it seems, does the oversight body to which it must answer (or, at least, facially respect). It seems that there are plausible enforcement alternatives that CITES could spearhead to maintain its legitimacy and punish Japan successfully. Soft repercussions against Japan such as shame in the international community and diplomatic pressure from influential powers are two such options. As for now, it remains to be seen what consequences will be had if Japan refuses once again to abide by international norms. As international attention is now centered on both Japan and its oversight body, environmental stalwarts may yet remain optimistic. Should CITES fail to live up to our expectations, it is far from the only environmental oversight body that our international community can turn to – as the saying goes, there are many fish in the sea.
*Emma Macfarlane is a Junior Editor for MJEAL and can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[ii] Peter H. Sand, Enforcing CITES: the rise and fall of trade sanctions, 22 Rev. of Eur. 251, 251 (2013).
[iii] CITES censures Japan for trading in whale products from an endangered species, Int’l Fund for Animal Welfare (Oct. 2 2018), https://www.ifaw.org/africa/news/cites-censures-japan-trading-whale-products-endangered-species.
[v] Article VIII, Int’l convention for the Regulation of Whaling (Wash. 1946).
[vi] Scientific Contribution: JARPN/JARPNII, The Inst. of Cetacean Research, https://www.icrwhale.org/scJARPN.html (last visited Oct. 29, 2018); Scientific Contribution: JARPA/JARPAII, The Inst. of Cetacean Research, https://www.icrwhale.org/scJARPA.html (last visited Oct. 29, 2018).
[vii] Simon Denyer, Japan Kills Endangered Whales for ‘Science’ and Sells the Meat. That’s Illegal, Regulator Rules., Wash. Post (Oct. 3 2018), https://www.washingtonpost.com/world/2018/10/03/japan-kills-endangered-whales-science-sells-meat-thats-illegal-regulator-rules/?noredirect=on&utm_term=.6d34bac14e07.
[ix] Int’l Envtl. Law Project, Lewis & Clark Law School, https://law.lclark.edu/clinics/international_environmental_law_project/our_work/whaling/ (last visited Oct. 29 2018).
[xi] Denyer, supra note 7.
[xiii] Convention on Int’l Trade in Endangered Species of Wild Fauna and Flora, CITES 11 (2018), https://cites.org/sites/default/files/eng/com/sc/70/E-SC70-27-03-04.pdf.
[xiv] Id. at 13.
[xv] Denyer, supra note 7.
[xvi] Josh Gabbatiss, Japan faces potential trade sanctions after whaling operations deemed illegal, Independent (2 Oct. 2018, 2:06 PM), https://www.independent.co.uk/environment/japan-whaling-cites-trade-sanctions-sei-whales-illegal-meeting-sochi-a8564871.html.
[xviii] Sand, supra note 2, at 263.
[xix] See Id. at 261-63.
[xx] Id. at 263.
[xxi] Japan Whaling – CITES Fails to Act on Imports, Int’l Fund for Animal Welfare (Nov. 27 2017), https://www.ifaw.org/united-kingdom/news/japan-whaling-–-cites-fails-act-imports.
[xxii] Josh Gabbatiss, Exploding ‘Whalegrenade’ Harpoons take up to 20 Minutes to kill Whales, Norwegian Data Reveals, Independent (7 Sept. 2018, 8:45 PM), https://www.independent.co.uk/environment/whales-whaling-norway-exploding-harpoons-whalegrenade-a8528141.html.
[xxiii] Julia Jabour & Rachael Lorna Johnstone, Why Iceland is set to Resume WhalingDdespite International Opposition, The Conversation (14 May 2018, 4:16 PM), http://theconversation.com/why-iceland-is-set-to-resume-whaling-despite-international-opposition-95642.