January 26, 2000.

Excellency Phillip Gibson
New Zealand Ambassador to Japan

Dear Sir:

I am writing to you concerning the recent statements of your Prime Minister about Japan's whale research program in the Antarctic, her support for Greenpeace and the January 25, 2000 Media Statement.

At the outset, I would point out that Japan's research program in the Antarctic is perfectly legal under Article VIII of the International Convention for the Regulation of Whaling (ICRW) which unequivocally provides that Contracting Parties may grant permits authorizing the take of whales for purposes of scientific research. This provision begins with the words "Notwithstanding anything contained in the Convention...". Neither the IWC's moratorium on commercial whaling nor its Southern Ocean Sanctuary diminish the rights of Parties under Article VIII.

Your Prime Minister's statement that begins "Yet in spite of this moratorium..." incorrectly implies that the moratorium applies to whale research programs. It does not. Further, such statements, which are also a part of Greenpeace's anti-whaling rhetoric, mislead the public.

You may also be aware that Article VIII of the ICRW requires that "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". This means that the Convention requires the utilization of meat and other byproducts of the research.

The fact that whale meat resulting from the research program is sold makes the research program consistent with this provision of the ICRW. It does not provide a basis for Prime Minister Clark's reference to Japan's research program as "so-called research" or "commercial whaling in disguise". Indeed, the Prime Minister's media statement seems to parrot Greenpeace rather than present a sound rational for New Zealand's position on whaling issues.

The issue of scientific research on whales is of vital importance to the IWC since the Convention prescribes that regulations adopted by the Commission shall be based on scientific findings. Japan's research program in the Antarctic, which began with feasibility studies in 1987/88 and 1988/89 in response to claims of uncertainty of scientific information, has contributed valuable scientific information related to estimation of trends in abundance and biological parameters to improve the stock management of the Southern Hemisphere minke whales.

Valuable information has also been provided by the research program concerning the role of whales in the Antarctic marine ecosystem, the effect of environmental changes on cetaceans and the stock structure of the Southern Hemisphere minke whales. Indeed, the IWC's Scientific Committee has commended both the quality and quantity of data resulting from this program. The Scientific Committee specifically noted that "the program has provided considerable data which could be directly relevant for management" and that "the results of this program have the potential to improve the management of minke whales". Further, and contrary to Prime Minister Clark's statement, the Scientific Committee also noted that "non-lethal means to obtain some of this information are unlikely to be successful in the Antarctic".

Clearly, if we are to base the management of whale resources on scientific findings, as required by the ICRW, the conclusions of the Scientific Committee argue strongly for continuation of this research program.

Japan's research program in the Antarctic will include the take of up to 440 minke whales from a stock of over 760,000 animals. Since IWC's Scientific Committee calculated that 2,000 minke whales could be taken from the Antarctic each year for the next 100 years without any threat to the stock, it is clear that this small take for research purposes does not pose any risk to the status of minke whales.

Indeed, the Scientific Committee has agreed that minke whales in the Antarctic and elsewhere as well as stocks of other species including humpback whales in the North Atlantic, gray whales in the North Eastern Pacific and bowhead whales in the Western Arctic are increasing. Prime Minister Clark's statements about "serious decline in whale numbers" and that "whale numbers were only around five per cent of what they were a hundred years ago" are simply untrue.

As the Director General of the institute that is conducting the whale research under the special permit issued by the Government of Japan I must also note that Greenpeace has carried out a dangerous and violent campaign which has, among other things, caused a collision with our research vessel. It is difficult to understand your government's support for this organization which has risked the safety of our crews and scientists for purposes of publicity and fundraising.

I understand that there are different political views on the issue of whaling and that it is an emotive issue. However, the position of New Zealand on this issue, along with that of Greenpeace, is counter to the widely accepted principles of sustainable utilization of resources and scientifically based resource management. I would welcome the recognition by New Zealand that whales are an integral part of the ecosystem rather than something to be totally protected in isolation of such considerations. Even if your Government or the general public does not acknowledge or understand that whales in the world's oceans consume approximately 3 to 6 times the amount of resources as is harvested for human consumption, I am sure that those in New Zealand dependent on the fishing industry understand the serious implications of this.

I would also welcome recognition by New Zealand that just as there was no scientific basis for the establishment of the IWC's Southern Ocean Sanctuary, there is no scientific basis for a sanctuary in the South Pacific or for a global whale sanctuary as is being promoted by Greenpeace. Clearly, since the ICRW prescribes that its regulations shall be based on scientific findings, as a Party to the ICRW, the Government of New Zealand should be opposed to such measures since they contravene the terms of the Convention. I would appreciate your forwarding these views to your Prime Minister with a request that New Zealand withdraw its support for Greenpeace and reconsider its position on whaling matters.

Sincerely,

Seiji Ohsumi
Director General

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February 3, 2000

Editor New Zealand Herald
P.O. Box 32
Aukland, New Zealand

Sir:

Attached please find a response to IWC Commissioner Jim McLay's article (NZ Herald, Feb.1). In order to present balanced coverage and fair reporting I request that you use my letter as a full article in a manner similar to Mr. McLay's.

Your consideration in this matter is appreciated

Sincerely,

Minoru Morimoto IWC Commissioner, Japan

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February 3, 2000

Editor New Zealand Herald
P.O. Box 32 Auckland,
New Zealand

Sir:

New Zealand's Commissioner to the International Whaling Commission (IWC), Jim McLay (NZ Herald, Feb.1) misrepresents both the legal and scientific issues related to Japan's whale research program in the Antarctic.

At the outset, it is important to understand that the IWC has become dysfunctional because the majority of its members choose to ignore the object and purpose of the treaty and are attempting to change its intent from a treaty for the conservation and sustainable utilization of whales into a treaty solely for the protection of whales irrespective of their status. The IWC is also dysfunctional since it blatantly disregards the recommendations and conclusions of its Scientific Committee and because the majority of members seek an end to research that is providing valuable information for the management of whale stocks.

In 1993, the Chairman of the Scientific Committee resigned. In his letter of resignation to the IWC he says in part: "what is the point of having a Scientific Committee if its unanimous recommendations on a matter of primary importance are treated with such contempt". In a recent article published in The Atlantic Monthly, a former IWC Commissioner from the United States and two renowned scholars note that the actions of the ant-whaling majority within the IWC "...violates international law, fosters tensions between otherwise friendly nations, and undermines environmental legislation."

Clearly, McLay's use of the IWC's majority opinion as the basis of his presentation of the "facts" is therefore inappropriate.

The IWC's Southern Ocean Sanctuary, by its own terms does not apply to the research take of whales. His comments that it is regrettable that Japan's whale research program takes place in the sanctuary and that Japan should honour the sanctuary are therefore disingenuous. Indeed, the title "spurious legalese" you used for the article applies more aptly to McLay's arguments than to the justification for Japan's whale research program.

McLay's "(Lets) look at the facts" is deficient. He should have informed readers that Japan's whale research program is perfectly legal under Article VIII of the International Convention for the Regulation of Whaling (ICRW) and that the politically motivated non-binding resolutions adopted by the IWC to which he refers, in no way diminish the legal rights of Parties to the Convention to issue permits for the taking of whales for research purposes. He should also have informed readers that the ICRW requires that regulations related to whaling be based on scientific findings. It is obligatory.

This fact is relevant to two of McLay's arguments. Firstly, since regulations must be based on scientific findings, it argues strongly for continuation of Japan's research program. In fact other members of the IWC should be encouraged to undertake similar programs. Japan's whale research program is the only long-term study that will help in understanding the role of whales in the Antarctic ecosystem and the effects of environmental changes on whales. Secondly, it is precisely because the ICRW requires that regulations be based on scientific findings that the IWC exceeded its mandate in establishing the Southern Ocean Sanctuary. This is what makes the sanctuary illegal. Contrary to McLay's statement, this position has not been "comprehensively rebutted by international law experts". There is only one published opinion counter to the position that the sanctuary is illegal. The basis of the argument is that what is called "soft law" or "emerging opinion" overrides the terms of an international treaty. McLay can accept this argument if he chooses but as a lawyer he should recognize it for what it is - spurious legalese.

McLay's statement that the IWC is recognized as the international body with global legal competence for all cetaceans is wishful thinking on his part but it is contrary to fact. Nothing in the ICRW or other international law gives the IWC such powers. The Government of New Zealand can, as he says, "insist that that it (the ICRW) applies to all cetaceans" however, such insistence is contrary to both fact and practice

McLay is correct when he says that "the IWC was established under an international treaty to which both Japan and New Zealand are Parties" but he neglects to add that the purpose of the treaty as clearly stated in the treaty's preamble is " to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry". The Government of New Zealand's opposition to the resumption of whaling irrespective of the status of whale stocks subverts the purpose of the treaty to which it is a Party. In 1992, the Government of New Zealand acknowledged, in a formal position paper submitted to an intergovernmental meeting in preparation for the United Nations Conference on Environment and Development (Rio Conference), that it is impossible under the ICRW to prevent a resumption of commercial whaling on abundant stocks. Yet New Zealand continues to ignore its legal obligations under the ICRW in a manner that invites serious accusations of "bad faith" interpretation of the Convention. Clearly, this sets a bad example for much needed international cooperation in the management of the world's natural resources.

I would also like to correct McLay's misrepresentations of the scientific matters related to Japan's whale research program.

McLay is correct that scientific review of Japan's whale research program in 1997 identified 10 items that needed adjustment or further consideration. This should not be surprising for such a major research program and many of these items could only have been identified after several years of results were obtained. But McLay's offence here is that he failed to note that each year since 1997, Japan has provided detailed information to the IWC's Scientific Committee on program adjustments to address these 10 items. Indeed all ten items have been, or will shortly be, addressed.

Likewise, McLay lists benign research methods including photo-identification, biopsy sampling, acoustic studies, DNA analyses and sighting surveys to support his statement that it is not necessary to kill whales for research purposes. However, the IWC's Scientific Committee has noted that non-lethal means to collect some information are unlikely to be successful in the Antarctic. Perhaps McLay also forgot that a significant part of Japan's whale research program involves non-lethal methods including sighting surveys.

The Government of New Zealand has made its position on whaling clear. It is against the resumption of whaling irrespective of the status of whale stocks. This position is contrary to its obligations as a signatory to an international treaty. Since New Zealand is opposed to the object of the treaty it should withdraw from the IWC rather than continue its attempts to subvert it. McLay's misrepresentations will not deter Japan from continuing to exercise its legal rights.

Minoru Morimoto
IWC Commissioner, Japan

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