Explainer: Is Japan’s Antarctic whaling legal?

The IWC can only review ‘scientific’ whaling programs, it cannot stop them.

With the Japanese whaling fleet heading back to the Antarctic, we’ve had a lot of questions about how this is possible. Below is my best attempt at explaining the legal situation. Bear with me, it’s not simple!


I thought the International Court of Justice had declared Japan’s scientific whaling illegal?

In March 2014, Australia won its case against Japan’s Antarctic whaling in the International Court of Justice (ICJ). However, that case was about Japan’s Antarctic whaling program underway at that time, called JARPA II. The international court declared it illegal and told Japan not to issue any more permits under that program, which was why there was no Antarctic whaling last year.

But the case was specific only to that whaling program. The Court could only end that Japanese whaling program and could not prevent Japan concocting another ‘scientific’ whaling plan, as the whaling convention does still allow for scientific whaling.

The Court did, however, set a number of tests for any future proposal to qualify as genuinely scientific and said that it expected Japan to take account of its reasoning and conclusions when considering any further scientific whaling.

Can’t the International Whaling Commission (IWC) stop scientific whaling?

The legal tests established by the ICJ were embedded into the International Whaling Commission’s (IWC) review processes. An expert scientific panel, convened by the IWC in January to review Japan’s new scientific whaling program, called NEWREP-A, concluded it did not demonstrate the need for lethal whaling and recommended further work that Japan would need to do before a full review could be completed. The IWC Scientific Committee met in May/June and highlighted that much of this work was yet to be done by Japan.

However, the IWC can only review ‘scientific’ whaling programs, it cannot stop them.

Also, IWC rules allow for by-products of scientific whaling, such as whale meat, to be utilised. This is why the Japanese Government openly sells the whale meat from its ‘research’ expeditions, in the hope that it can recoup the costs. However, as many Japanese people no longer eat whale meat, the Japanese Government is now heavily subsidising the whaling fleet.

So is Japan’s new whaling program illegal and can it be challenged?

In October 2015, we asked a panel of experts in international law exactly those questions. They found that Japan’s new whaling plan did not meet the tests for scientific whaling as established by the ICJ case and it is therefore illegal.

At the same time, Japan alerted the United Nations that it would no longer recognise the jurisdiction of the ICJ on matters to do with whaling, essentially precluding any future cases at the ICJ. However, this does not exempt Japan from its obligation to abide by the previous ruling, nor does it alter the test of legality established by the Court for any future scientific whaling programs to be in conformity with international law.

They also outlined that despite Japan’s attempts to avoid future cases at the ICJ, there are still other international legal avenues that could be pursued, such as under the United Nations Law of the Sea. You can read a summary of the legal panel’s findings on our website.

What’s the situation under Australian law?

The Humane Society International (HSI) also launched a case under Australian law in 2008 against Kyodo Senpaku, the company that carries out the whaling. Australian Courts judged that the whaling company was operating illegally because it was killing whales in the Australian Whale Sanctuary. In a further case this year, the whaling company was found in contempt of court and fined $1 million for continuing to hunt whales in the Sanctuary.

Under Australian law, whales are protected from whaling in all Commonwealth waters, which have been declared the Australian Whale Sanctuary. This includes the waters off the Australian Antarctic Territory where Japan hunts whales. However, many nations, including Japan, do not recognise Australia’s claim to an Antarctic Territory and therefore do not recognise those waters as Australian.

Can’t Australian and international law be enforced?

The Japanese whaling company doesn’t recognise those Antarctic waters as Australian waters so it is refusing to pay the contempt of court fine. It’s not clear yet whether there may be other ways to enforce that fine.

Under international law, technically Japan has fulfilled the legal requirements of the ICJ case by stopping its previous Antarctic whaling program, JARPA II. So unless Australia goes back to the ICJ for a revision or interpretation of that previous judgment (which is possible but there are strict requirements), there is currently nothing further to enforce in relation to that judgment. However, as explained above, Japan’s new whaling plan still fails to meet legal tests under international law and it is possible for Australia or any other country to seek further legal action against Japan through other international legal avenues. The Australian Government confirmed recently they are looking at this option.

Why won’t the Australian Government send a boat?

The Australian Government hasn’t yet ruled out sending a customs vessel. However, even if they did send a vessel it would be unlikely to directly intervene. This would likely cause a major diplomatic incident and start a much wider international controversy about Antarctic territorial claims. Rather, if a vessel was sent, it may just monitor the whaling activities. This could still be useful as it might help with evidence gathering for any future legal case should that be required.

So what else can be done?

Right now, the critical thing is to maintain the diplomatic pressure on Japan. External pressure can only be successful if enough decision-makers in Japan understand the risks to Japan’s wider interests by continued whaling and start to question the wisdom of that decision.

So while further legal action may yet happen, until that time the main option for governments is to make strong diplomatic protests to Japan. 33 countries, including Australia, the USA, Mexico, South Africa and all 28 EU member states, led by New Zealand, have recently done that.

It’s important that this pressure is maintained. 

Ultimately, the decision to end Antarctic whaling will have to be taken by Japan. This is why IFAW also works within Japan to build domestic voices against whaling. It’s important here to make a distinction between the Japanese Government and the Japanese people. For the most part, the Japanese people are largely indifferent to whaling, and resent their taxes being spent to prop up a dying industry.

However, decisions by the Japanese Government are closely controlled by a small collection of pro-whaling individuals and agencies, which carry on regardless, despite the damage this does Japan’s international reputation and interests. It is no small task to challenge the power of this group but we’re confident with time, we can turn the tide on whaling.


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Brian Sharp, Emergency Relief Officer, Stranding Coordinator
Manager, Marine Mammal Rescue and Research
Dr. Maria (Masha) N. Vorontsova, Senior Advisor to the IFAW Marine Conservation
Senior Advisor to the IFAW Marine Conservation Program
Matt Collis, Director, International Policy
Director, International Policy
Patrick Ramage, Program Director, Whales
Program Director, Marine Conservation