Column: Australia vs. Japan Whaling Lawsuit Tests the Limits of Science

Australia vs. Japan Whaling Lawsuit Tests the Limits of Science

Daniel Sprockett (formerly of ‘Just 10% Human’) broadens his scope to look at scientific issues and stories more generally in ‘Shot of Science.’ This week, it’s how ambiguities in the definition of “science” have enabled the continued culling of whales, and the problems these ambiguities pose for the recent case Australia brought against Japan at the Hague.



Last month, the Australian federal government brought a suit against Japan in the International Court of Justice in The Hague for violating international law regulating commercial whaling.

The case is extremely complicated, but the legislation in question is one of the first multilateral attempts to regulate whaling, the 1946 International Convention for the Regulation of Whaling (ICRW). Prior to this agreement, factory-produced whaling vessels had enabled harvests to rapidly increase, peeking in the1930-1931 season at over 3.7 million barrels of whale oil (NOTE: Whale oil has since been almost completely replaced with vegetable oil and other synthetic alternatives). This abrupt upshot in production caused prices to fall, and lead to worldwide instability in whale oil markets. Following various limited regulatory agreements in 1930’s and 40’s, a conference was held in Washington D.C. to establish the International Whaling Commission (IWC), a organization charged with maintaining and conserving whale stocks for the development of the whaling industry. Both Australia and Japan are founding members of the IWC, which has grown to include 86 other countries. The resulting treaty, the ICRW, set catch limits for both commercial and aboriginal subsistence whaling, but also established methods of amending these limits as whale populations changes. The ICRW also includes a very important exception:

Article VIII. 1. Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.

2. Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.

Essentially, the ICRW grants all IWC members to issue permits to kill whales above and beyond any established catch limits, as long as the whaling activity is “scientific” in nature. It also specifies that the country can do whatever it wants with whales that are killed for these scientific purposes.

Over the next several decades, following a large amount of research into marine ecology and the impact of whaling on ocean communities, concern shifted from the preservation of whaling’s economic viability to ethical concerns for whales and for marine ecosystems in general. By 1982, the IWC proposed a moratorium on commercial whaling of sperm whales, killer whales, and baleen whales, but included an explicit exception for the killing of minke whales. Japan was one of four countries to formally object to the moratorium, and could have legally continued their whaling operations indefinitely. However, the United States threatened economic sanctions, including potentially revoking Japan’s access to U.S. fishing territories in the Pacific Ocean.

In response, the Japanese government then convened an expert panel, the Whaling Issues Study Group (WISG), who delivered their report in 1984. Their solution was to exploit the scientific whaling exception to the ICRW by issuing special research permits. These “scientific” permits would allow Japanese vessels to continue whaling activities, including the legal sale of whale meat. Hiroya Sano, Director-General of the Japan Fisheries Agency, summarized the WISG report by saying:

[I]n the current environment…after the moratorium commences, the path to ensure the continuation of whaling would be, for Southern Ocean whaling, to position it as a research whaling activity which has a scientific nature…[and] the continuation of whaling ought to be planned for while we seek the understanding of the relevant countries…

In 1987, the Japanese government formally revoked their objection to the whaling moratorium, but the very next year launched JARPA, their “scientific” whale research program. JARPA officially concluded in 2005, but was immediately replaced by JARPAII. JARPAII has no predetermined end date, and plans for the annual culling of 50 fin whales, 50 humpback whales, and 950 minke whales. Take a look at the graph below, adapted from the case’s written proceedings.

The bar graph represents the total numbers of whales killed for scientific purposes between the years of 1948 and 2010, with the red proportion of each bar representing how many of those whales were killed by Japanese whalers. As you can see, not only did Japan start its lethal research program at exactly the same time that the whaling moratorium came into effect, but that Japanese whaling account for the vast majority of whales being killed under the special permit exception worldwide.

One important part of this court case then comes down something philosophers of science sometimes call the Demarcation Problem: What is science, and how do you distinguish science from non-science?

This is a more difficult issue to pin down than is initially obvious. Science is not just publishing reports in peer-reviewed journals, although you do generally do that. Science is a process – a method for understanding the world. The foundations of science rest on empirical observation and logical reasoning, but observation alone is insufficient. Science also needs hypotheses, and these hypotheses must be well-defined and capable of being tested. In other words, they must be falsifiable. These hypotheses are adjusted on the basis of new observations, and thus science slowly builds a model of the universe that is as close to absolute truth as any human is capable of.

These are some of the points that the Australian government is using to show that JARPA and JARPAII are not scientific research programs, but simply commercial whaling cloaked in a white lab coat.

For example, Australia pointed out that the structure of JARPAII is essentially reversed of what proper experimental design should be. Instead of testing a hypothesis using the best available methodologies, JARPAII uses a predetermined method (killing whales) and retrofits hypotheses to the data they are able to collect. In fact, over 2/3rds of the research published from JARPA and JARPAII have relied on data collected from lethal methods.

Japan’s defense suggests that lethal sampling methods are essential for determining the health of the whales, since internal organs need to be examined for various measures of health to be assessed. I hope I don’t have to point out the glaring irony of that statement.

I am not a marine biologist, so I can’t comment on the specifics of the case or of the validity and/or usefulness of the JARPAII research program. However, I do personally find profiting off culled research organisms abhorrent. Japan has emphasized that a portion of the money funds future research programs, but I can’t imagine a situation where a conflict of interest wouldn’t be present. Even if 100% of the proceeds went towards future research, it would certainly influence decision making about the appropriateness of lethal vs. non-lethal sampling methods, as well as which types of research projects you were likely to pursue.

Unfortunately, the ICRW doesn’t get much more specific about how the terms “scientific research” should be interpreted, and how broad those projects can reasonably be. Japan has argued that its “scientific” research programs need not be limited to studies important for whale conservation, but could apply to a wide range of other topics, including whale physiology and/or anatomy, or even studies on the sustainability of the whaling industry, should it ever be revived.

Despite all of this, the case remains too close to call. The stakes are very high for both Japan and Australia, and even though the three-week hearing concluded in mid-July, a decision is likely still several months away.



Daniel Sprockett is a researcher at the Case Western Reserve University School of Medicine in Cleveland, Ohio. He currently resides in Double Bay with his wife, Andrea, while she completes a Master’s of International Public Health at the University of Sydney. Dan will return to the United States in September, when he begins his PhD in Microbiology and Immunology at Stanford University.



Read more of Daniel’s articles here.


(Top image from Chase Clark)