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

In October 2018, the Standing Committee (SC) of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) concluded 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”’. In April 2015, an expert panel convened by the IWC Scientific Committee reviewed the NEWREP-A proposal and found that the proposal failed to demonstrate the need for lethal sampling. Despite the findings of the expert panel, Japan went ahead with its NEWREP-A whaling programme in the Southern Ocean.

At the 67^th IWC meeting in 2018, both Japan’s current Special Permit (whaling) Programmes (NEWREP-A and NEWREP-NP) were evaluated. The Commission again noted that both programmes had failed to provide sufficient scientific evidence that justifies the need for lethal sampling and that although non-binding, the recommendations of the Commission ‘represent an informed view of the Commission on the scientific merit of the research’ programmes.  

Japan and CITES

As an executive body with wide responsibilities, the CITES SC provides guidance to the Secretariat and assists with compliance and implementation of the Convention and, on this basis, the SC evaluated the recent compliance concern brought against Japan. At this point, it must be noted that the international trade in Appendix I species is prohibited except where the purpose of the import is not commercial (such as for scientific research) and even then, should only be authorised in exceptional circumstances (Article II(1)). Before turning to the reasoning for the SC’s conclusion, it is important to highlight the content of Article III(5)(c) of CITES which provides that:

The introduction from the sea of any specimen of a species included in Appendix I shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met: […]

      (c)  a Management Authority of the State of introduction is satisfied that the specimen is not to          be used for primarily commercial purposes.

‘Introduction from the sea’ is one of four types of trade regulated under CITES and is defined as the transportation ‘into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State’ (Article I(e)). With this in mind (as well as the fact that CITES is concerned with international trade), the compliance concern brought against Japan for its previous lethal research programme in the North Pacific (JARPN) was contextualised by the Secretariat as follows (para. 43):

[…] the Secretariat considers that inquiry is warranted with respect to meat and blubber of sei whales which are not utilized in the scientific research to determine whether the Management Authority of Japan has had reasons to be satisfied that those specimens are not to be used for primarily commercial purposes.

In analysing the introduction from the sea of sei whale specimens into Japan, the SC found that ‘the frequency and number of introductions from the sea [of sei whales] cast[s] doubt on whether the trade is authorized by the Management Authority of Japan “only in exceptional circumstances”’ (para. 57). The primary reasoning behind this finding was that Japan introduced, from the high seas into its national jurisdiction, some 90 to 100 sei whales annually from 2007 to 2016 and the introduction of such Appendix I specimens did not, according to the SC, constitute exceptional circumstances (para. 57). In analysing the requirement articulated in Article III(5)(c) (i.e. that the introduction from the sea is not primarily for commercial purposes), the SC concluded that regardless ‘of whether the proceeds from the activity are used for scientific purposes or not, an activity can [still] be qualified as commercial’, and that ‘the sale of meat and blubber on the domestic market is an activity that can generally be described as “commercial” because its purpose is to obtain economic benefit’ (para. 59).

In coming to the above conclusion, the SC recommended that Japan take immediate remedial action, noted Japan’s commitment to taking such immediate remedial action in order to comply with Article III(5)(c), and requested that Japan report to the Secretariat by the 1^st of February 2019 on the implementation of any remedial actions. Should the SC not be satisfied with the remedial action(s) taken by Japan, the SC may take compliance measures – which includes recommendations that the, at present, other 182 States Parties impose trade sanctions against Japan.

A question that needs to be asked in the present context is whether Japan’s taking of remedial action (which actions are yet to be seen) can be seen as Japan’s fulfilment of its duty to cooperate or merely a duty to comply? Sands notes that the ‘international character of our environmental problems requires a cooperative international approach to their resolution’ and the duty to cooperate, therefore, seems to be inherent in both a duty to comply as well as any actions taken in coming to a resolution. In resolving the compliance concern brought against it under CITES, Japan is expected to cooperate in resolving the concern by coming up with appropriate remedial actions. Although the extent of Japan’s remedial actions is yet to be seen, cooperation in the form of remedial actions (so as to come to a resolution) will prevent any further compliance procedures against Japan by other CITES States Parties.

Duty to Cooperate

International dispute bodies (see Mox Plant; the Fisheries Advisory Opinion; Case Concerning Land Reclamation)  have declared that the duty to cooperate is a fundamental principle of international law, but it needs to be highlighted that the duty to cooperate is dependent on the specifics of each relevant regime – in this case, Japan’s remedial actions being done in fulfilment of its cooperation duties under CITES. However, what influence, if any, does Japan’s duty to cooperate under CITES have on Japan’s duty to cooperate under the general framework of UNCLOS (specifically Article 65), or Japan’s duty to cooperate with the recommendations of the IWC and its Scientific Committee? In answering these questions, the relationship between the regimes established by CITES, UNCLOS and the ICRW need to be examined. In this regard, the CITES SC has on several occasions noted that, although the ICRW and CITES clearly regulate different aspects, ‘CITES and [the] ICRW are to be applied in a mutually supportive manner to protect certain stocks and species of whales’ (para. 76). Therefore, given the similar subject material dealt with by the ICJ – ruling that Japan has a duty to cooperate with the IWC and the Scientific Committee and should thus give due regard to IWC recommendations – and the CITES SC, it would be expected that Japan’s duty to cooperate concerning the conservation of marine mammals (although across different regimes) should remain uniform. That is, if there are substantial repercussions for non-compliance with CITES SC recommendations to implement remedial action – which repercussions are more limited under the IWC – is Japan acting in good faith when fulfilling its international duty to cooperate regarding the conservation of marine mammals (under Article 65 of UNCLOS) if it implements adequate remedial actions by February 2019, but chooses to ignore certain recommendations (although non-binding) of the IWC? If the argumentation in the South China Sea Arbitration can be extrapolated to the present case (para. 956), it would seem that CITES – enjoying nearly universal acceptance – does have the ability to inform the content of a State’s duty to cooperate regarding the conservation and management of Appendix I species such as whales. None of this is to say that Japan is not cooperating, but rather to question to what extent Japan’s implementation of remedial actions could, first, inform Japan’s duty to cooperate with IWC recommendations concerning non-lethal research and, second, to evaluate Japan’s application of its international duty to cooperate regarding the conservation of marine mammals (as required under Article 65 of UNCLOS).

This blog post does not seek to argue that Japanese scientific whaling is illegal, nor that Japan is failing to fulfil its international duty to cooperate in conserving whales. Rather, it remains to be seen whether the implementation of remedial actions by Japan – complying with CITES – has the potential to inform Japan’s uniform and coherent application of its duty to cooperate regarding the conservation of marine mammals.