Japan Expands Its Whale Hunt to Include Fin Whales and Violates Its Duty to Cooperate

On June 11, Japan expanded its whale hunt to include 59 fin whales. Yet, Japan did not communicate and consult with the International Whaling Commission (IWC) and any of the other range States of the fin whale or assessed the potential impacts of hunting a shared resource. As a result, Japan has breached its duty to cooperate and its duty to prepare a transboundary environmental impact assessment (EIA).

Japan has already lost a case before the International Court of Justice, which found its whaling of minke whales in the Antarctic to violate the International Convention for the Regulation of Whaling (ICRW). Whaling in the Antarctic (Australia v. Japan, New Zealand intervening) (ICJ Reports 2014, p. 226). In addition, in 2018 the Standing Committee of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) concluded that Japan’s movement of sei whale meat from the high seas into Japan violated CITES rules prohibiting trade for primarily commercial purposes of specimens of Appendix I species like the sei whale.

To avoid future international legal disputes, Japan withdrew from the ICJ’s jurisdiction for issues concerning marine resources in 2015 and from the ICRW and IWC in 2019. It also moved its commercial whaling operations from the high seas to its jurisdictional waters to avoid trade violations under CITES. Japan now hunts up to 25 sei whales, 187 Bryde’s whales, and 142 minke whale annually, in addition to the newly authorized 59 fin whales, in its territorial waters and exclusive economic zone (EEZ). In light of its actions, Japan’s whaling take place beyond the jurisdiction of any international management body. Despite its legal maneuvers, however, Japan’s whaling is not beyond international law. Japan must still fulfill its duty to cooperate and prepare a transboundary EIA.

The fin whale hunt requires international attention because of scientific uncertainty about the structure and status of the population. The United States has concluded that “[t]here are no reliable estimates of current and historical abundances for the entire Northeast Pacific fin whale stock”. Likewise, the IWC has not agreed a population estimate for North Pacific fin whales, stating that “[t]here are insufficient data to assess their present status”. Moreover, we have very little information about the population’s migratory behavior, its winter distribution, the location of its primary wintering areas, and its stock structure. Even the External Panel convened by Japan to review its proposal concluded that a hunt of 60 fin whales could be justified only if fin whales from two different areas of the North Pacific mix but that “[c]urrent information on mixing (movement) is limited (especially close to Japan).” The information that does exist, however, indicates that mixing is “not ‘immediate’, but rather on a time scale of the order of a decade”. As a consequence, the External Panel concluded that “the possibility of local depletion, given catches restricted to the (Pacific side of) the Japanese EEZ, has to be considered.” If “virtually no spatial mixing occurs”, the External Panel noted, then the hunt would reduce abundance near Japan by about 40 percent.

Given this scientific uncertainty, any hunt poses an unacceptable risk to the species. After decades of over-exploitation, including by Japan, the IWC prohibited commercial whaling of North Pacific fin whales in 1976 when it declared the species a Protection Stock. The fin whale is also considered endangered under the Convention on Migratory Species and the US Endangered Species Act, designations that prohibit any killing of the species except under very limited circumstances.  

As such, Japan’s compliance with its duty to cooperate is of vital importance. Japan, as a party to the United Nations Convention on the Law of the Sea (UNCLOS), has a duty to cooperate to conserve, manage, and study whales, including fin whales. UNCLOS Articles 65 and 120 provide that, whether on the high seas or in their EEZs, “States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.” In the context of commercial whaling, Japan must cooperate with the IWC as the appropriate international organization. That cooperation includes sharing data and seeking advice on its whaling plans from the IWC’s Scientific Committee. In the MOX Plant Case (Ireland v. United Kingdom), ITLOS Reports 2001, p. 95, at ¶ 89, and Land Reclamation Case (Malaysia v. Singapore) 2003, ITLOS Reports 2003, p. 10, at ¶ 106, the International Tribunal for the Law of the Sea (ITLOS) required data exchange as an aspect of the duty to cooperate. Given the IWC’s global mandate to conserve and manage all whale populations, only through this type of cooperation can the IWC fulfill its mandate and ensure that catches are sustainable.

Moreover, the ICJ, ITLOS, and other international tribunals have all declared that the duty to cooperate, whether as customary international law or as a fundamental principle of UNCLOS, requires States to give “due regard” to the rights of other States. See, e.g., Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), 31 RIAA 359, at ¶¶ 304, 322, 519 (Perm. Ct. Arb. 2015). Because the range of the fin whale population to be targeted by Japan, as acknowledged by Japan’s External Panel, likely includes the waters of South Korea, Russia, and the United States, Japan must be particularly solicitous of these States and, given the possibility of undermining the conservation status of the fin whale in the waters of these countries, undertake a transboundary EIA with its attendant duties of notification and consultation. See Case Concerning Pulp Mills on the River Uruguay (Arg. v. Uruguay), ICJ Reports 2010, p. 14, at ¶ 204.

Japan has done none of these things. Japan has not conducted a transboundary EIA or consulted with other North Pacific fin whale range States. Japan has not communicated with the IWC’s Scientific Committee on its proposed hunt. It appears, in fact, that Japan concealed the plan from the Scientific Committee at its meeting of 22 April to 3 May 2024; the Committee’s report does not mention Japan’s proposed hunt even though Japan attended the meeting (as did four members of the External Panel). As the External Panel completed its work in September 2023, the full scope of Japan’s proposal was available for review well before the Scientific Committee’s meeting.

And, the Scientific Committee, as the international community’s preeminent body of whale scientists, certainly would have had much to say because Japan’s methodology for generating catch quotas is inconsistent with the methodology approved by the Scientific Committee and the IWC. The IWC, on the advice of the Scientific Committee, accepted a Catch Limit Algorithm (CLA) to generate precautionary and sustainable catch quotas. Of great significance, the CLA establishes a “tuning level” of 0.72 to stabilize populations for any baleen whale, like the fin whale, at 72% of carrying capacity, or pre-catch levels. Yet, Japan calculated its catch quotas using a tuning level of 0.6, meaning 60% of pre-exploitation levels. Japan, thus, established a catch quota higher than would be allowable under the IWC’s rules.

Moreover, the IWC has stated that “[r]egular abundance estimates are essential to the ‘feedback’ way in which the CLA works. If no recent abundance estimate is available, catches are set to zero.” As noted above, scientists are not able to provide abundance estimates for the fin whale in the North Pacific. Without current abundance estimates for North Pacific fin whales — and without knowledge concerning the population’s structure and migratory behavior and — the Scientific Committee would surely have criticized Japan’s proposal.

Japan has therefore violated its duty to cooperate. In response, IWC members that are also UNCLOS parties should use the compulsory and binding dispute settlement provisions of UNCLOS to compel Japan to fulfill its duty to cooperate and its associated duty to prepare a transboundary EIA. A tribunal, as a first step, could issue provisional measures enjoining Japan from conducting its hunting of fin whales until the case can be heard on the merits.