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.
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