Commentary by Gary Stokes, Director of Sea Shepherd Asia

Imagine a world where criminals can decide which laws they’ll obey and from which they’ll be immune to prosecution. A world where profit and national pride can take precedence over science and world consensus. It would be a pseudo-lawless place where criminal organizations could literally be above the law.

Sadly, this world is the world we live in today. The criminals are the corporations who control the governments, the same governments that sign onto international agreements, treaties, moratoriums and conventions.

In 2013 I watched history being made at the CITES (Convention of International Trade in Endangered Species) CoP16 meeting in Bangkok. Amongst many of the species that received protection were five sharks and two species of manta ray. As the votes were cast and victory was sealed the hall exploded with cheers of joy from those who had fought hard to gain the protection for these endangered species. After the hysteria died down, five countries put in what are known as “reservations”, which means that these countries do not have to recognize the new protection status.

What is the point of having an international meeting to decide what needs to be protected if countries can merely opt out if it doesn't suit them? It makes the entire exercise a complete waste of time and money, as the countries opting out are in most cases the very same countries that are profiting from the killing of these species, and which have been driving them towards extinction in the first place. The five countries that placed reservations on the newly added sharks were Japan, Iceland, Denmark, Guyana and Yemen.

When the world chose to protect whales and dolphins at CITES, Japan chose to opt out.

(Japan placed reservations for Blue, Fin, Sperm, Humpback, Minke, Antarctic Minke, Sei, Bryde’s, Omura’s, Northern Bottlenose whale and Baird’s Beaked whales as well as Irrawaddy & Australian Snubfin dolphins)

When the world chose to protect sharks at CITES, Japan chose to opt out.

(Japan placed reservations for Great White, Whale and Basking sharks, Great Hammerhead, Smooth Hammerhead, Scalloped Hammerhead, Porbeagle and Oceanic Whitetip sharks)

When the world chose to protect all seahorses at CITES, Japan chose to opt out.

When the ICJ ruled against Japan’s “scientific whaling program”, Japan chose to opt out.

The Japanese government has rejected the jurisdiction of the ICJ over matters pertaining to whaling, among others. Photo: Wiki commonsThe Japanese government has rejected the jurisdiction of the ICJ over matters pertaining to whaling, among others. Photo: Wiki commonsIn 2012 Australia filed a case against Japan at the International Court of Justice (ICJ), the highest court of the United Nations. Australia claimed that Japan’s “scientific research” was just a cover for commercial whaling and not “scientific research” as Japan claimed. Japan had been using a loophole in the 1986 IWC (International Whaling Commission) moratorium on commercial whaling, which allowed for lethal research, with quotas set by the individual countries for their scientific needs. At the ICJ hearing in March 2014, Japan’s Foreign Ministry spokesman, Noriyuki Shikata, stated that, “Japan respected the rule of law and would abide by the decision.”

The court ruled against Japan 12 votes to 4, and Japan did abide by the court ruling against its JARPA 2 program. However, Joji Morishita, Japan’s representative to the 90-member IWC, asserts that the ICJ ruling didn’t actually rule out killing whales, but rather merely requires stronger scientific justification of this lethal cull. The ICJ actually stated and ruled that the program was “not for the purposes of scientific research” and that “Japan was abusing a scientific exemption set out in the 1986 international moratorium on whaling”. It concluded that Tokyo was carrying out a commercial hunt and using science as a fig leaf.

Japan has since presented to the IWC a new and revised “lethal scientific research” program called NEWREP-A. The 2015 IWC Scientific Committee report found the new proposal “contained insufficient information” for its expert panel to complete a full review and specified the extra work that Japan needed to undertake in order to fill these gaps. Regardless, Japan’s whaling fleet has headed out of port this December, intending to slaughter whales in a whale sanctuary.

Again, just as with CITES, Japan has entered what is known as a ”declaration” to the ICJ. This declaration rejects the jurisdiction of the ICJ over certain matters, including “research on, or conservation, management or exploitation of, living resources in the sea.”

Below is the excerpt from the declaration that outlines the specific matters to which Japan has denied the jurisdiction of the ICJ:

(1) any dispute which the parties thereto have agreed or shall agree to refer for final and binding decision to arbitration or judicial settlement;

(2) any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited or notified less than twelve months prior to the filing of the application bringing the dispute before the Court;

(3) any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.

The Government of Japan reserves the right at any time, by means of a written notification addressed to the Secretary-General of the United Nations, and with effect as from the moment of such notification, either to amend or terminate the present declaration.

Motohide Yoshikawa
Ambassador Extraordinary and Plenipotentiary
Permanent Representative of Japan to the United Nations

This declaration to the ICJ is not just about whaling, but covers Japan’s entire global fishing fleet as well. This means that the ICJ cannot be called upon in the future by any nation in matters relating to any of Japan’s high seas fishing fleets as well as its whaling programs. This should send alarm bells ringing around the world to governments concerned with illegal, unreported and unregulated (IUU) fishing.

Prime Minister Shinzo Abe has emphasized the importance of “the rule of law” in resolving international disputes, yet the Japanese government cherry picks which of these laws it wishes to recognize.

“We must ensure the safety of maritime traffic, defend our maritime interests within our territorial waters, EEZ, and the like, and tackle head-on the matter of handing down to the next generation “open and stable seas” based on the rule of law.  Maintaining the seas of all humankind as a “global commons” accomplished through the rule of law is an interest shared in common by the entire international community.

In addition, as we make use of our sea area, we must actively work to resolve climate change and other global issues, bringing development into harmony with environmental conservation.”

Shinzo Abe
Prime Minister
Director-General of the Headquarters for Ocean Policy

(Message from Prime Minister Shinzo Abe on the Occasion of "Marine Day" Friday, July 18, 2014. Read full speech here:

Prime Minister of Japan, Shinzo Abe, said he was deeply disappointed by the whaling ban, but that Japan would abide by the ruling of the ICJ. Photo: AAPPrime Minister of Japan, Shinzo Abe, said he was deeply disappointed by the whaling ban, but that Japan would abide by the ruling of the ICJ. Photo: AAPHow can Prime Minister Shinzo Abe ensure “handing down to the next generation open and stable seas” when the Government of Japan refuses to acknowledge the world’s scientists and governments in favour of their own profit and consumption. In addition to this, the Japanese government is currently pumping 300 tons of radioactive water from Fukushima into the Pacific Ocean, in complete disregard to the global commons.

How can Prime Minister Abe expect the world to take Japan seriously over matters such as the South China Sea disputes when it choses to opt out of any international conventions or court rulings that are not in favour of Japan? Japan’s primary ally in the South China Sea, the United States, has already placed itself in a compromising position by declaring that it will only accept ICJ jurisdiction on a case-by-case basis. The US is also yet to ratify the United Nations Convention on the Law of the Sea (UNCLOS), making it impotent to challenge China.

Another of Japan’s allies in the South China Sea dispute is the Philippines, which is currently challenging China’s maritime claims in a territorial dispute at the ICJ. If that decision goes in favour of the Philippines, China will almost certainly ignore the ruling, likely citing the Philippines’ ally, Japan, as an example of a nation that ignores the rule of law as and when it suits.

What China has slightly in its favour is that, unlike the Philippines and Japan, China has never recognized the compulsory jurisdiction of the ICJ and, as such, it does not have to abide by any ICJ ruling. Countries voluntarily recognize the jurisdiction of the ICJ, and China decided not to do so. Not that this makes China’s action right, but at least it is clear. What Japan has shown in regards to the ICJ ruling on its scientific whaling is that, publicly, Japan says it abides by the rule of law, yet chooses to ignore the highest court in the world when it doesn’t suit them.

File photo released by the Japan Coast Guard shows a Chinese Coast Guard ship near disputed islets.File photo released by the Japan Coast Guard shows a Chinese Coast Guard ship near disputed islets.This will likely play in China’s favour, too, when it comes to the dispute with Japan over the Diaoyu / Senkaku Islands. Tensions are rising over these uninhabited islands with an armed Chinese Coastguard vessel this week reported to have entered the islands territorial waters.

Unlike Japan, China has not entered any “reservations” with CITES, so currently agrees to uphold all the CITES protection statuses, even though China does acknowledge that some will be very hard to police 100% effectively across all of its border access points. There have been several high profile smuggling busts in the past few years by Chinese border control authorities, so some positive effort is certainly being made in this respect.

Time will tell how the South China Sea dispute plays out, but Japan’s consistent opting out of international bodies’ rulings when it suits them will not help their integrity on the world stage, and many in Japan will be asking if whaling is really worth the country’s increasingly poor international image.

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