Chapter 2


Chapter 2

Background on regulation of whaling

International regulation of whaling

2.1        The International Convention for the Regulation of Whaling (ICRW) was agreed by participating governments in 1946. It was to 'provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry'.

2.2        The convention created the International Whaling Commission (IWC) as a body to advise the participating governments and to regulate detailed provisions of the convention (for example, concerning permitted whaling seasons or protected species).[1] The IWC currently has 88 country members, including Australia and Japan.[2]

2.3        Since then, most member countries have abandoned whaling, but continue to participate in the IWC as a forum to focus on the conservation of whales.[3]

2.4        Australia prohibited whaling in Australian waters in 1980.[4] The current prohibition is contained in the Environment Protection and Biodiversity Conservation Act 1999: a person may not kill, injure or interfere with a cetacean within the 'Australian Whale Sanctuary'.

2.5        In 1982, the IWC agreed a moratorium on commercial whaling from 1986. This was done by amendment to the schedule of the convention. In keeping with convention rules, member countries that objected to the amendment are not bound by it. Japan objected at the time, but withdrew its objection in stages during 1987–88. In recent years Norway and Iceland have continued commercial whaling under objection.[5]

Scientific research whaling

2.6        Although there is a moratorium on commercial whaling, under Article VIII of the Convention a member government may authorise its nationals, by permit, to kill whales 'for purposes of scientific research'. A member government must provide proposed permits and research results to the IWC for comment by the IWC's Scientific Committee.[6]

2.7        In recent years only Japan and Iceland have issued scientific permits. Under the 'JARPA II' program (Japan's current research program in the Antarctic), in the 2009/10 season Japan issued permits to take 850 plus or minus 10 per cent Antarctic minke whales, 50 fin whales and 50 humpback whales.[7] In that season Japanese whalers actually took 506 Antarctic minke whales and one fin whale.[8]

2.8        In the 2010/11 season, Japan issued permits to take up to 935 Antarctic minke whales, 50 fin whales and 50 humpback whales.[9] In mid-February 2011, Japanese whalers ended their season early as a result of anti-whaling protest actions, after reportedly catching only a small proportion of their quota.[10]

2.9        Fin whales and humpback whales are listed as 'vulnerable' under the threatened species provisions of the Environment Protection and Biodiversity Conservation Act 1999.[11] Antarctic minke whales are not listed; however the population of Antarctic minke whales is uncertain.[12]

2.10      Japan's scientific research whaling has been highly contentious. According to the IWC, 'recent discussions [in the IWC Scientific Committee] have centred on accusations that such permits have been issued merely as a way around the moratorium decision'.[13] In recent years the IWC has passed a number of resolutions asking governments to refrain from issuing scientific permits. According to the IWC 'these discussions are usually contentious and the resolutions passed by relatively small majorities.'[14]

Australia's policy on whaling

2.11      The Australian Government's policy goals for whaling are:

  • whaling in the Southern Ocean to be phased out within five years;
  • all other whaling around the world, other than aboriginal subsistence whaling, to be phased out within a reasonable period of time;
  • all whaling to be brought under the control of the [International Whaling] Commission ending the practice of countries being able to unilaterally grant permits for so-called ‘scientific’ whaling.[15]

2.12      In May 2010, Australia initiated legal action in the International Court of Justice against Japanese scientific whaling in the Southern Ocean.[16] Australia argues that the program cannot be justified under the scientific permit provisions of the ICRW because of the 'lack of any demonstrated relevance for the conservation and management of whale stocks':

'...having regard to the scale of the JARPA II programme, the lack of any demonstrated relevance for the conservation and management of whale stocks, and to the risks presented to targeted species and stocks, the JARPA II programme cannot be justified under Article VIII of the ICRW...

Australia alleges further that Japan has also breached and is continuing to breach, inter alia, its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and under the Convention on Biological Diversity.[17]

2.13      The court has fixed 9 May 2011 as the deadline for filing initial pleadings by Australia, and 9 March 2012 as the deadline for filing initial pleadings by Japan.[18]

2.14      According to the Department of Sustainability, Environment, Water, Population and Communities, 'Australia will continue to seek a diplomatic agreement to end whaling in the Southern Ocean through the International Whaling Commission.'[19]

Anti-whaling protests

2.15      In recent years there have been concerted anti-whaling protests in the Antarctic by Greenpeace (up to summer 2007–08) and by the Sea Shepherd Conservation Society (from 2002–03 to the present).[20]

2.16      The Sea Shepherd Conservation Society (SSCS) has harassed Japanese whalers in the Antarctic by means such as attempting to foul propellers with ropes, throwing stink bombs onto ships' decks, and shining lasers at ships.[21]

2.17      On 6 January 2010, the SSCS vessel Ady Gil collided with the Japanese whaler Shonan Maru No. 2. An investigation by Maritime New Zealand found that both vessels failed to act appropriately to avoid a close quarters situation, however there was no evidence that either intended to hit the other.[22]

2.18      The IWC at its June 2010 meeting noted with concern 'reports of an escalation of such behaviour [dangerous behaviour at sea]'. On several occasions the IWC has passed resolutions deploring actions that put life or property at risk at sea.[23] Japan has urged the flag states, and Australia as the 'virtual home port of the SSCS vessels', to 'take every means available to prevent their unlawful activities'.[24]

2.19      The Australian Government does not condone activities which put safety at sea at risk.[25]

2.20      In the 2010/11 season, the SSCS's Antarctic protest action used ships registered in Australia (Gojira) and the Netherlands (Bob Barker and Steve Irwin). In February 2011 the Japanese cut short their whaling season. Japan's Institute of Cetacean Research described this as being 'to avoid any injury or threat to life of the crew members and property of the fleet caused by the continued illegal attacks and sabotage by Sea Shepherd Conservation Society'.[26]

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