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UNCLOS, CITES and the IWC – A Tailored International Duty to Cooperate?

Published on November 26, 2018        Author: 
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In October 2018, the Standing Committee (SC) of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITESconcluded that Japan had failed to comply with certain CITES provisions regarding the trade in Appendix I species (namely, sei whales). This blog post seeks to evaluate the relationship that such a conclusion could have on Japan’s duty to cooperate regarding the conservation of marine mammals (as required under Article 65 of the Law of the Sea Convention (UNCLOS)), and the duty to cooperate with non-binding resolutions made by the International Whaling Commission (IWC) – especially in light of the findings in the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Case.

The Whaling Case

In 2014, Australia took Japan to the ICJ, alleging that Japan’s Southern Ocean scientific whaling programme (JARPAII) was inconsistent with Article VIII of the ICRW. The Court concluded that JARPAII involved activities that, broadly speaking, could be scientific research but that JARPAII’s design and implementation was not ‘for purposes of scientific research’ as required by Article VIII (para. 227). In arriving at this conclusion, the Court held that Japan has a ‘duty to cooperate’ with the IWC and the Scientific Committee (para. 83). As stated by Meguro, the ICJ effectively shaped the duty to cooperate as a mechanism to bind Member States – who do not support a particular resolution – to the standards/recommendations under IWC resolutions (which, by nature, are non-binding).

Japan’s Recent Relationship with the IWC

In September 2014, the IWC (having regard to the findings in the Whaling Case) adopted a resolution indicating that no further special whaling permits be issued until they had been reviewed by the Scientific Committee and had received recommendations by the IWC. In November 2014, Japan submitted a proposal for NEWREP-A (a new research whaling programme in the Southern Ocean) in which Japan acknowledged that it had ‘taken seriously the Court’s finding that the decision to grant special permits under Article VIII, paragraph 1, of the ICRW, “cannot depend simply on that State’s perception”’. Read the rest of this entry…