Of importance in terms of how the court may deal with the issue of the Southern Ocean Sanctuary is the fact that it applies to “commercial whaling” only. It does not apply to any other activity including fishing, marine transportation or research conducted under Article VIII of the ICRW. This fact alone renders false the conclusion of Nelissen and van der Velde that because Japan continues to take fin whales as part of JARPA II8 and because Japan’s objection to paragraph 7(b) of the Schedule did not include fin whales, it “can be considered not compatible with the Convention”.
Japan’s objection to paragraph 7(b) of the Schedule has nothing to do with its research program. It simply means that for “commercial whaling”, Japan is not legally bound by paragraph 7(b) as it applies to Antarctic minke whales but is legally bound by the paragraph as it would apply to fin whales. Of course this point is somewhat academic in any event given the zero quotas for commercial whaling set under paragraph 10(e) of the Schedule (commonly referred to as the “moratorium”) and the fact that Japan has withdrawn its earlier objections to that paragraph.