The Legal Analysis of Dolphin Hunting as Cultural Rights in Japan under International Law

Abstract

Dolphin hunting practice in Japan gains international attention from many parties such as Non-Governmental Organization (NGO), animal welfare activists, marine mammals scientists, and conservation biologist. As defense, the government of Japan argued that dolphin hunting practice has always been part of their culture and tradition since ancient times therefore they continue the practice and they also consider scientific research and management of dolphins’ population. In relation to that, Japan is also alleged to have breached its international obligation concerning the protection of dolphins as marine mammals or migratory species. This thesis aims to research on how Japan carried out such practice as part of their culture and also whether such practice is in accordance with international law. This thesis used normative legal research by analyzing certain regulations that suitable for the protection of dolphins. As the results of the research, the author found that there were practices of dolphin hunting since ancient times, particularly since Jomon period in Japan. International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right to take part in cultural life, hence, the argument of the government of Japan is logical. Even though Japan has no specific regulation on dolphin’ protection, it carries scientific research regarding the sighting of dolphins and sets annual quota for dolphins to be caught. In regards with international law, United Convention on the Law of the Sea (UNCLOS), article 65, obliges Japan to cooperate with International Organization. Yet, the application of this regulation is unclear since UNCLOS does not set coherent parameter. The Convention of Migratory Species of Wild Animals (CMS) provides clear protection towards dolphins as migratory species, however, Japan is not a State Party and also not a Range State within the meaning of the Convention. Obligation under CMS also does not reflect customary international law therefore Japan is not bound by it. Under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), there is no issue at all since Japan, as a State Party still conducted export activities at least until 2018. However, CITES must reconsider how non-detriment findings can be objectively used in order State Parties get permission to trade species concerned. Under the principles of international environmental law, Japan has permanent sovereignty over natural resources yet must not cause damage to other States. The application of the principle not to cause damage is not easy since it requires clear and convincing evidence. Nevertheless, despite the status of principle has not gained customary status, Japan must consider intergenerational equity principle, so that dolphins’ populations can be enjoyed by future generations.