ABSTRACT
Prior to the Meiji Revolution of 1864-1868, fishery management by feudal governors was mostly for the purpose of taxation and less for conservation In 1875, the new government declared that Japan’s coastal seas belong to the government and that those who fish must rent an area from the government (Dajokan Declaration No 195) [the Dajokan of the time functioned like a prime minister or cabinet member] However, this caused trouble with fishermen who practiced traditional fishing customs, and in 1876, the government replaced Declaration No 195 with Dajokan Notification No 74, which approved traditional fishing rights and made it an obligation of the fishermen to pay taxes to their prefectural government (Katayama 1937; Matsumoto 1977, both in Japanese) This action also was aimed at taxation
The first bill that resulted in a Fishery Act was presented in 1893 to the Imperial Diet by Diet members with an intention of protecting fishermen’s rights and fishery resources After numerous amendments, the bill passed the Diet in 1901, was promulgated in the same year, and came into effect on July 1, 1902 (Katayama 1937, in Japanese) This first Fishery Act, now called the “old Fishery Act,” comprised 36 articles Article 13 stated that governors of the prefectures could issue, with approval of the Minister, orders necessary for the protection of fishing resources and for the regulation of fisheries and that the Minister could send orders to local governors to carry out such actions Thus, the Act had the new goal of conservation of fishery resources With amendments in 1910 and 1933, this Fishery Act functioned as the basis of Japanese fishery management until 1950
The Fishery Act of 1901 did not have language relating to whaling or dolphin and porpoise fisheries However, it stated that those who operate a fishery using fixed fishing gear, those who operate in a particular limited sea area (Article 3), or those who monopolize a particular sea area (Article 4) must obtain a license from the local governor This offered a legal basis for dolphin-drive fisheries and old-type whaling operations using hand harpoon and net or a trap-net set at an expected whale passage This was after unsuccessful attempts at importing old whaling technology, that is, Americantype whaling with sailing ships attempted by Manjiro in
1859-1863 and bomb-lance-gun whaling by several coastal whaling groups in 1872-1888 (Yamashita 2004, in Japanese), and before the establishment of modern Norwegian-type whaling Although Japanese Norwegian-type whaling took the first whale in 1898, success in the business had to wait the efforts of Nihon Enyo Gyo-gyo [Japan Far Seas Fishery] Co Ltd, established in 1899 in Senzaki (34°23′N, 131°12′E), Yamaguchi Prefecture (Akashi 1910, in Japanese)
The Fishery Act was amended in 1910, and the changes came into effect in April 1911 The new Article 35 stated that “steamship trawling and steamship whaling require a ministerial permit” Another amendment of March 1933 had the additional words “mother-ship fisheries” in Article 35, which meant that mother-ship whaling required a permit from the Minister The complete text of the Act is printed in Akashi (1910, in Japanese) and Katayama (1937, in Japanese)
The new and current Fishery Act was promulgated on December 15, 1949, and came into effect in March 1950 (Law No 267) As of 2006, the amendment of June 23, 2006 (Law No 93) was the last The current Act contains the following elements that relate to small-cetacean and whale fisheries
1 Fishery Right: This is the right to operate the following three particular types of fishery: (a) a fishery using a trap net that is fixed at a particular location, (b) various kinds of aqua-culture operated in a particular sea area, and (c) various fishing activities by local communities such as taking seaweed and animals on the beach, driving animals that enter into a particular harbor, or into a particular fenced area (dolphin-drive fisheries were once managed by this), and (d) fishing in a particular fishing ground created by continued feeding of fish for subsequent fishing activities These fisheries require the license of the prefecture governor This fishing right is usually owned by Fishery Cooperative Unions (FCU) for use by the member fishermen
2 Specified Fishery: Particular types of fisheries determined by Government Ordinance, which include mother-ship whaling, large-type whaling, and smalltype whaling
3 Fisheries Adjustment Commission (FAC): There are three types of FAC: (a) A Regional FAC is established for each prefecture; the members are elected by fishermen The prefectural governor, who can give necessary instructions to the Regional
ing a fishery license The Regional FAC can issue orders prohibiting or restricting particular fisheries, restricting the number of fishermen, restricting fishing grounds, and other items considered necessary (b) The Multiple Regional FAC is to handle problems common to multiple prefectures and is composed of members representing the Regional FACs (c) A Broad Area FAC is established for each for three marine areas: the Pacific, the Sea of Japan and western Kyushu, and the Seto Inland Sea It is composed of the Regional FACs, fishery specialists, and representatives of fisheries, and presents its opinion to the Minister when requested
To have representatives of fisheries in the FAC is democratic, but the structure has an important drawback because it is insufficiently structured to reflect opinion of citizens other than fishermen on management of fishing resources or conservation of the marine environment
4 Fishery Policy Council: The Council responds to requests for consultation by the Minister and sends opinions to the Minister on issuing permits for specific fisheries or changing the conditions of permits
5 Fishery Adjustment: After consulting the Fishery Policy Council, the Minister can issue ministerial orders on the following four items and decide penalties for offences The governor of a prefecture can issue regulations on the same matters with the advice of the Regional Fishery Adjustment Committee and with consent of the Minister
a Restriction or prohibition of take or processing of aquatic animals and plants
b Restriction or prohibition of selling or possession of aquatic animals and plants or their products
c Restriction or prohibition on fishing gear or fishing vessels
d Restriction on the number or qualifications of fishermen
Based on these provisions of the Fishery Act, the Minister in charge of fisheries has issued ministerial orders and notifications and announced details of fishery management In addition, various documents, called tsutatsu or tsuchi hereinafter translated as “circular,” have been dispatched from the Director General of the Fisheries Agency or from the Director or General Manager of various Departments or Divisions of the Fisheries Agency They functioned to supplement the rules determined by the minister in issuing additional regulations for the fisheries and had the same function as regular orders from the minister when they reached the prefecture or FCUs If any prefecture or FCU ignored them, it could receive an adverse response from the issuing section This custom caused a loss of transparency in fishery management
The following are brief summaries of various regulation measures for cetacean fisheries
The government promulgated the Rule for Regulation of Whaling (Ministerial Order No 41) on October 21, 1909, and placed it into effect on November 1 of the same year, which was just before promulgation of the previously mentioned amendment of the Fishery Act in 1910 Article 1 of the Rule reads that those who hunt whales using steam or sailing vessel must obtain a ministerial permit for each vessel Article 3 states that the same rule applies to land stations The permit was to be invalidated if the fishery was not operated for 2 years without justifiable reason (Article 8) The Minister could regulate or prohibit whaling for particular whale species, seasons, and areas (Article 9)
Based on Article 9, the government limited the number of “steamship whalers” to 30 vessels on October 21, 1909 (Ministerial Notification No 418) This was altered to 25 vessels on June 27, 1934, and maintained at that number until 1963 (see Section 721) This coincided with actions of the Japanese whaling community in 1909 and 1934 that reorganized the whaling companies and reduced the number There could have been government pressure behind this activity However, the government did not take direct action to protect depleted whale species
The Rule for Regulation of Whaling had a minor insignificant amendment in 1911 Subsequently, it was amended twice in July 1934 and June 1936, as stated by Omura et al. (1942, in Japanese) The amended rule stated that it applied to fisheries that take sperm whales and baleen whales other than the minke whale (Article 11) It was made clear that the type of fishery which was later called small-type whaling was not regulated (see Section 54) The amendments defined “steamship whaling” as “whaling that uses a harpoon cannon from vessels equipped with screw propeller and excludes mother-ship whaling” (Article 12) and stated that the operation required a ministerial permit Although whaling from sailing vessels was also regulated by this rule (Article 13), there were none in operation at the time Mother-ship whaling was outside of the scope of this rule because it was regulated by the Rule of Regulation of Mother-ship Fisheries (promulgated in July 1934)
To harmonize the Rule with the international regulation of whaling of the time, Japan modified the Rule for Regulation of Whaling on June 8, 1938 (Ministerial Notification No 200), prohibiting steamship whaling from taking certain whales: mothers accompanied by suckling calves (all species), and blue, fin, humpback, sei and sperm whales of a size below certain limits In those days, the Bryde’s whale was not distinguished from the sei whale The minimum size limits for blue and fin whales were 2 or 15 m smaller, respectively, than in the international regulations of the time that came into effect on May 7, 1938 Although the gray whales and right whales were internationally protected, they were allowed to be taken by Japanese whalers in the North Pacific These species became protected in Japanese North Pacific whaling after World War II (Table 51)
There was a period of about 10 years from the time a Japanese whaler first whaled with the Norwegian-type
method in 1898 to the time the government started to control the fishery in 1910 The number of whaling vessels rapidly increased during the period, and the government had to continue its efforts to reduce the expanded fishery even into the postwar period
The Rule for Regulation of Whaling functioned to control one type of coastal whaling that was later called “large-type whaling” by the Rule for Regulation of Steam Vessel Whaling of 1947 (Section 54)
In conjunction with the amendment of the Fishery Act in 1933, the Ministry of Agriculture and Forestry enacted the Rule for Regulation of Mother-ship Fisheries (Ministerial Order No 19) in July 1934 This new rule placed mother-ship whaling being planned for the 1934/1935 Antarctic season under its control together with then-existing mother-ship fisheries for salmon and crab, which had been controlled by another rule and required ministerial permits for their operation
The Ministerial Notification No 200 of June 8, 1938, decided minimum size limits and prohibition of certain whales for mother-ship whaling as well as land-based whaling in Japanese coastal waters, which was later called “largetype whaling” (Table 51) This was to match the international agreement that came into effect on May 7, 1938 (Omura et al. 1942, in Japanese; Section 721) Although the minimum size limits for mother-ship whaling were slightly greater than those for coastal whaling, that for the most important blue whale was still 13 m smaller than the international size limit
of the time, presumably for the protection of the Japanese fleet (Kasuya 2000, in Japanese) This Notification prohibited take of gray whales and right whales with the exception of the North Pacific north of 20°N Thus, these species could be hunted by Japanese coastal whaling and mother-ship whaling operated in the North Pacific
After World War II, the Rule for Regulation of Mothership Fisheries was amended by Ministerial Orders No 52 of September 30, 1946 (not seen by the author) and No 112 of December 14, 1948 Chapter 4 of the latter amendment regulated mother-ship whaling and determined operation areas (Articles 40 and 41), species allowed, and body-length limits (Article 41) as in the international agreement of the time Before this amendment, the General Head Quarters of the Allied Forces (GHQ) ordered the Japanese government to respect the international rules of whaling (Section 57)
The Nihon Hogei [Japan Whaling] Co Ltd purchased the whaling factory ship Antarctic from Norway in 1934 and on the way to Japan operated whaling in the Antarctic from December to February of the 1934/1935 Antarctic season This was the start of Japanese Antarctic whaling Amendment of the Fishery Act and promulgation of the Rule for Regulation of Mother-ship Fisheries were to prepare for this movement in the whaling industry
On December 5, 1947, the Japanese government abolished the Rule for Regulation of Whaling and promulgated and brought into effect a new Rule for Regulation of Steamship Whaling
Protected Species and Minimum Size Limit of Whales: Comparison between International and Domestic Regulationsa
probably anticipated the fundamental renewal of the Fishery Act that happened 2 years later (December 15, 1949) and contained quite important provisions for the management of whaling
One important change was deletion of sailing-ship whaling, presumably to recognize the status quo However, it created an environment where free operation was allowed for such whaling Soon after an announcement by the Japanese government in 1986 closing all commercial whaling by March 1988 after accepting the international agreement of a moratorium of commercial whaling (Section 7), there appeared a newspaper article stating that somebody had announced a plan for sailing-ship whaling Such an operation could have been legally possible under Japanese law, but economic and technical problem might have interfered Based on the same idea of circumventing the regulations, some Okinawa fishermen in the 1970s started a dolphin fishery using harpoons discharged from a crossbow or catapult powered with rubber cords (see Section 28) Actions taken to resolve this loophole are described in Section 56
A second important action was to classify all Norwegiantype whaling in coastal waters into two types: large-type whaling and small-type whaling The so-called small-type whaling had been unregulated with exception of the Chiba area (Sections 41 and 1371), and this new rule brought it for the first time under government control It defined “steamship whaling” as “fishing activity to catch whales using a harpoon cannon mounted on a vessel equipped with a screw propeller” Largetype whaling, which is one of the types of steamship whaling, was allowed to take sperm whales and baleen whales other than minke whales The other type of steamship whaling-smalltype whaling-was allowed to take cetacean species other than those allowed for large-type whaling by using a whaling cannon of less than 40 mm caliber The regulations on cannon size and vessel size have been amended several times
The third point in the Rule was assignment to the Minister the right to issue permits for whaling vessels and whaling stations and to determine whale species to be taken, whaling season, whaling ground, and number of whaling vessels to be operated (Article 15) Based on this article, ministerial notification determined details of whaling operations, including quota and size limit For information on the regulation of factory ship whaling, see Section 53
The Rule for Regulation of Steamship Whaling of December 5, 1947, covered both large-type and small-type whaling, but the new Fishery Act of 1949, which came into effect in 1950, classified the former fishery as one of the Specified Offshore Fisheries (see Section 56) and only small-type whaling was left under the control of the Rule for Regulation of Steamship Whaling This prompted the government to move regulation of small-type whaling to a newly created Rule for Regulation
1950) Caliber of the cannon was not to exceed 43 mm
Article 52 of the new Fishery Act (Law No 267), which was promulgated on December 15, 1949 and came into effect on March 14, 1950, stated that fisheries using vessels and specified by the order would require ministerial permits (Specified Offshore Fishery) Based on Article 52, the government promulgated the Rule for Regulation of Specified Offshore Fisheries (Ministerial Order No 17) on March 14, 1950 Chapter 2 of the rule regulated large-type whaling in a way that was almost identical to that in the earlier Rule for Regulation of Steamship Whaling of 1947 Regulation on size limits, protected species, and number of catcher boats could be decided by ministerial notification The amendment of this rule in September 1962 seemed to have been made on matters not relating to whaling (Matsumoto 1980, in Japanese)
In 1983, there arouse a suspicion that some of the Japanese whalers were taking Bryde’s whales in Philippine waters and processing them on board, that is, a possibility that they were violating the decision of the International Whaling Commission (IWC) to prohibit factory ship whaling in the North Pacific (any vessel used for on-board flensing was considered a factory ship) In order to stop such illegal operations, in 1984 the Japanese government amended Ministerial Order No 5 of 1963 on Permission and Regulation of Specified Fisheries and prohibited Japanese nationals from participating, without ministerial permit, in taking and processing of baleen whales and sperm whales by non-Japanese vessels operating in the western North Pacific
On February 22, 1990, the Ministry of Agriculture, Forestry and Fisheries further amended Ministerial Order No 5 and placed it into effect on April 1, 1990 (Ministerial Order No 2) The amendment was an addition of an article that stated “no one can take sperm whales and baleen whales with harpoon (with the exemption of harpoons discharged from cannon), gun (with exemption of harpoon cannon), or by the method of drive fishery” This was a new prohibition on hunting large cetaceans by dolphin fishermen Such incidents were known previously among dolphin fishermen
Japanese whaling during and before World War II operated with regulations that were less strict than in the international agreement of the time, but the surrender of Japan to the Allied Forces on August 15, 1945, triggered actions to accept the international standards on minimum size limits, protected whales, and the season of Antarctic whaling
On November 3, 1945, the GHQ sent memorandum SCAPIN 233 to the Japanese government ordering it to respect
of the time The international agreements included (1) the Geneva Accord of September 24, 1931, (2) the International Agreement for the Regulation of Whaling signed in London on June 8, 1937, and (3) the International Agreement for the Regulation of Whaling signed in London on June 24, 1938 In those days, any directions or orders by the GHQ superseded every Japanese legal regulation, so SCAPIN 233 prohibited Japanese whaling from taking gray and right whales Following this memorandum, the Minister of Agriculture and Forestry issued Ministerial Notification No 126 on September 30, 1946, mentioning in Article 9 (which authorized the Minister to regulate whaling operations) of the Rule for Regulation of Whaling and Ministerial Notification No 200 of 1938 (describing prohibition and size limits) (see Section 52) This notification (not seen by the author) could have incorporated the order of the GHQ
Ministerial Order No 91 dated December 5, 1947, repealed Ministerial Order No 200 of 1938; prohibited steam-ship whalers from taking gray, right, and bowhead whales; and declared new minimum size limits for other whale species Then Ministerial Notification No 263 of December 14, 1948, altered the minimum size limit from two decimal places to a single decimal place, for example, from 2134 to 213 m for the Antarctic blue whale (Table 51)
On November 23, 1948 [sic], the GHQ issued Memorandum No 1942, repealing its earlier memorandums on Japanese whaling and ordering the Japanese government to respect the international agreement on regulation of whaling signed in Washington, DC on 27 [sic] December 1946, which was the current International Convention for the Regulation of Whaling (ICRW) This was the date when Japan was bound to the current ICRW and was earlier than April 4, 1951, when Japan joined the convention or September 8, 1951, when the peace treaty was signed (it came into effect on April 28, 1952)
On February 12, 1959, the Ministry of Agriculture and Forestry issued Ministerial Order No 4 titled Rules for Regulation of Dolphin and Porpoise Fisheries This was the first legal action of the Japanese government on such fisheries and prohibited the take of dolphins and porpoises with firearms other than harpoon cannon in waters north of 36°N during February 20 to June 20 The prohibition period of 4 months was the migration season of the fur seal Small-type whaling was not bound by this Ministerial Order
The Japanese government promoted the pelagic fur seal fishery with some restrictions, as seen in the Rule of Issuing Licenses for the Fur Seal Hunt (Dajokan Declaration No 16 of 1884) and Rule for Licensing of Fur Seal and Sea Otter Hunts (1895) However, on July 7, 1911, the North Pacific Fur Seal Convention for protection of fur seals was signed (and ratified in the same year) by four countries: Japan, Russia, the United Kingdom (Canada), and the United States It contained a prohibition on pelagic hunting of fur seals (Section 24) In 1912, the Japanese government placed in force a law prohibiting the pelagic fur seal hunt and paid compensation to the hunters Then, in 1940, probably as one of various actions taken in preparation for war, the Japanese government announced its
convention automatically lost validity) and issued a ministerial permit for the pelagic fur seal fishery Although the GHQ ordered prohibition of the fur seal hunt after World War II, some fishermen continued the hunt fur seals with guns, by disguising it as dolphin and porpoise hunting
A new convention, the Interim Convention on the Conservation of North Pacific Fur Seals, was signed in February 1957 by Canada, Japan, the United States, and the USSR (ratified in October of the same year), which prohibited commercial hunting of fur seals in pelagic waters Under these circumstances, the Japanese government paid compensation and put a stop to the pelagic hunt by September 1959 The earlier mentioned Ministerial Order No 4 of 1959 was for this purpose The Japanese government was afraid of a situation where firearms used in dolphin and porpoise fisheries would be used also in the pelagic fur seal fishery (Ohsumi 1972)
Ministerial Order No 92 of April 20, 2001 on amendment of Ministerial Order No 5 of 1963 (on Permit and Regulation of Specified Fisheries) came into effect on July 1, 2001 This was the first action of the Japanese government to place hunting of all cetacean species under its control Article 901 of the earlier Order No 5 stated that “Whale species designated separately by the Minister shall not be taken in Antarctic waters south of 60°S,” but it was amended by Order No 92 that stipulated that “Whale species other than baleen whales and such and designated separately by the Minister shall not be taken [italics by the author]” The Minister defined baleen whales and such as baleen whales, sperm whale, and two species of the genus Hyperoodon, on which Japanese government accepted the competence of the ICRW and accepted prohibition of commercial hunts by the IWC I interpret this to mean that this amendment had in mind the regulation of hunting of small cetaceans Ministerial Order No 92 of 2001 stated in Article 908 that “Any persons other than large-type whalers, smalltype whalers, and mother-ship whalers are not allowed to take baleen whales and such,” which intended to close the above mentioned loopholes in the whaling regulations (Section 54) Further, Article 909 of Order 92 stated that “Take of toothed whales other than sperm whales and the genus Hyperoodon in waters north of 60°S is allowed for mother-ship whalers and small-type whalers, with the exception of toothed whale species designated by the Minister and the exception of operations of fishermen permitted by a prefectural governor” This provided a legal cover for dolphin and porpoise fisheries currently in operation with prefectural license and quota by species determined by the Fisheries Agency of the Ministry of Agriculture, Forestry and Fisheries Penalty for violation of the rule given earlier is imprisonment for 2 years or less, a fine of 500,000 yen or less, or both (Article 10611) Those who wish to take small cetaceans for scientific purpose must acquire a permit from the Minister of Agriculture, Forestry and Fisheries (Article 1 of the Rule for Enforcement of the
General of Fisheries Agency dated July 1, 2001)
Article 908 of Ministerial Order No 5, with amendment by Ministerial Order No 92 (2001), stated that “Any persons other than large-type whalers, small-type whalers and mother-ship whalers are not allowed to take baleen whales and such, with the exception of incidental take made during the operation of fisheries determined by the Minister [italics by the author]” Ministerial Notification No 563 of the same date (April 20, 2001) stated that fisheries of the exception were fixed trap net of large type and small type and that violation of this would be subject to penalty These two types of net fishery must analyze the DNA of the whales taken incidentally and report it to the Minister (Article 972 of the amended Ministerial Order No 5)
The amendment apparently opened a way for utilization and free circulation of baleen whales and sperm whales incidentally taken in the two types of fixed trap nets, which were not allowed previously (see also Sections 63 and 64) However, the situation was not so clear On the same day when the amendment of the old Ministerial Order No 5 by a new Ministerial Order No 92 came into effect, a Circular (13 Suikan No 1004, dated July 1, 2001) was sent out by the Director General of the Fisheries Agency to the prefecture governors It had the lengthy title “On a Principle to Control Hunting and Incidental Take of Whales (including Small Cetaceans) after Enforcement of the Ministerial Order that Amends Part of the Ministerial Order on Permit and Regulation of Specified Fisheries” This circular gave a new guideline on the handling of incidentally taken cetaceans and stated that previous guidelines on the same subject would be abolished between June 30, 2001, and March 31, 2002 The earlier guidelines were following circulars No 2-1039 on Whales Found in Fixed Trap-nets (dated June 26, 1990), No 10-2638 On DNA Sampling from Stranded Minke Whales (dated September 29, 1998), and No 3-1022 on Small Cetaceans Captured, Incidentally Taken, or Stranded (dated March 28, 191), some of which will be discussed further in Chapter 6
The circular from the Director General of Fisheries Agency dated July 1, 2001, detailed the procedures required before selling cetaceans incidentally taken in the trap-net fishery, which I interpret as creating additional hurdles to Ministerial Order No 92 It is summarized as follows:
1 Ministerial Order No 92 of 2001, acknowledging that the fixed trap-net fishery does not operate with the intention of taking baleen whales and such, and taking into account such facts as that incidental capture of whales can cause damage to fishing gears and other targeted species in the net and incur costs in disposing of the carcasses of captured whales, intends rational use of fisheries resources (The “baleen whales and such” is defined in the same manner as by the Ministerial Order [see above])
2 This amendment has no intention to promote the utilization of baleen whales and such found in fixed
erto practiced effort of releasing whales found in the fixed trap net, when the situation of the entrapment and condition of trapped whales suggest it is reasonable to release them
3 The whale species listed in Table 51 are of low abundance and should be dealt with adequate consideration as noted earlier [The table lists five species of whales: right whale, gray whale, humpback whale, East China Sea stock of fin whale, and East China Sea stock of Bryde’s whale]
4 Any incidents of incidental take of baleen whales and such shall be reported to the Minister of Agriculture, Forestry and Fisheries, irrespective of presence or absence of utilization (Article 9082)
5 If an incidentally taken whale is utilized, a sample for DNA analysis must be presented to a scientific institute (Article 9722), through which the incident of entrapment can be reported to the Minister The Institute of Cetacean Research (ICR) in Tokyo is recommended for the analysis [WWW of the Whaling Section of Fisheries Agency stated that payment of 100,000 yen must accompany the DNA sample for analysis]
6 Those who possess, sell, or process such whales in violation of the guideline given earlier shall receive imprisonment not exceeding 6 months or a penalty of 300,000 yen (Article 1071)
I had difficulty in creating this summary and expect that readers will have problems in understanding it In particular, the original statements of (1) and (2) presented earlier are extremely ambiguous, and that of (3) is also unclear to me as to whether it is an obligation, recommendation, or request It seems to me that Circular No 1004 of the Director General of the Fisheries Agency intends to twist the interpretation of Ministerial Order No 92 toward the opposite direction, or at the best to reflect honest interpretation of the Ministerial Order The ambiguity of the Circular was probably intended to avoid criticism on inconsistency between the two documents (Ministerial Order No 92 and Circular No 1004)
It is difficult to punish violation of Circular No 1004 of the Director General of Fisheries Agency if it is not supported by Ministerial Order No 92 Even if a fisherman kills a baleen whale found alive in his fixed trap net, there will be difficulty punishing him Japanese official statistics before 2001 reported annual incidental mortality of minke whales in fixed trap nets to be at most around 10-20, but the number increased to over 100 since 2002 The earlier figures must have been due to underreporting (Kasuya 2007)
Article 909 of Ministerial Order No 5 (with amendments by Ministerial Order No 92 of April 20, 2001) allowed the take of certain species of small cetaceans in certain fisheries (Chapter 6) Ministerial Notification No 564 of 2001 listed seven species of dolphins and porpoises to be allowed in such fisheries: Dall’s porpoise, striped dolphin, common bottlenose dolphin, pantropical spotted dolphin, Risso’s dolphin,
identical to the species list accompanied by catch quotas of the Fisheries Agency in 1993 Later, in December 2006, the Fisheries Agency added the Pacific white-sided dolphin to the species list to be hunted beginning in the 2007 season
The previously mentioned Circular No 1004 of the Director General of the Fisheries Agency (July 1, 2001) also mentioned small cetaceans stranded or incidentally taken in fishing gear:
1 In principle, live animals stranded or found in fishing gear should be released
2 It is acceptable to consume carcasses found in fishing gear, with hygienic caution Consumption of stranded carcasses requires special hygienic caution, and it is desirable that they be buried or cremated
3 Every incident of (1) and (2) mentioned earlier shall be reported to the Fisheries Agency via the prefectural governor
4 Those who use small cetaceans stranded or found in fishing gear must report each case to the Fisheries Agency However, the use of the following nine species for such purposes shall be limited to animals found dead: killer whale, white whale [beluga], Cuvier’s beaked whale, Blainville’s beaked whale, ginkgo-toothed whale, Hubbs’ beaked whale, Stejneger’s beaked whale, harbor porpoise, and longbeaked common dolphin
These guidelines do not deal with stranded baleen whales Therefore, Ministerial Order No 77 was promulgated on October 12, 2004, and brought into effect on the same day, to further amend Ministerial Order No 5 of 1963 on “Permit and Regulation of Specified Fisheries” (Ministerial Order No 5 had been already amended by Ministerial Order No 92 of April 20, 2001) The amendment was on the handling of stranded baleen whales and such (see above for the definition), and Article 81 (which corresponds to Article 908 of amendment of 2001) stated that “Persons other than largetype whalers, small-type whalers or mother-ship whalers are not allowed to take baleen whales and such This rule is exempted for incidental take in fisheries determined by the Minister and take of stranded or drifted baleen whales and such whale species in a condition defined by the Minister (underlining by the author)” Then Ministerial Notification No 1834 of the same year defined such conditions of whales as follows:
1 Dead animals 2 Animals that have the possibility to harm humans 3 Animals that are unlikely to recover from wounds 4 Animals that do not change position on their own for
over 48 hours
To accommodate this change, the previously mentioned Circular No 1004 (dated 2001) of the Director General of the Fisheries Agency was also amended on the same day to
with similar procedures as for those taken incidentally in particular fishing activities A request was made to release stranded or incidentally captured gray whales in a Circular of the Director General of Fisheries Agency in April 2006 (Kato et al 2008)
This act, promulgated on December 17, 1951, and last modified on June 2, 2010, differs from the legal actions mentioned earlier that intend to manage cetacean stocks while allowing exploitation This act authorizes the Minister and prefectural governors to designate prohibited species, protected areas, and prohibited fishing gears and to quarantine and regulate marine constructions and makes it their obligation to conduct the release of artificially incubated juvenile fish and maintenance of fish ladders The Minister and prefectural governors can prohibit take of some aquatic animals and plants (Article 4)
Ministerial Order No 15 of April 1, 1993, modified the existing Rule for Enforcement of the Act on Protection of Fisheries Resources (Ministerial Order No 44 in 1952) and prohibited the hunting of blue whales, bowhead whales, finless porpoises, and dugongs A Circular of the Director General of Fisheries Agency of the same day (not seen) requested the prefectures to release (if found alive) and bury or incinerate (if found dead) finless porpoises incidentally taken in fishing gear and to report the incidents to the Ministry of Agriculture, Forestry and Fisheries Scientists who wish to use stranded carcasses of the species mentioned earlier must request a permit
The action given earlier does not prohibit incidental takes of such animals or request effort to decrease the number of such incidents; it only prohibits intended takes It could have functioned to stop the live capture of finless porpoises by Japanese aquaria, but there were no fisheries in Japan targeting any of the four marine mammal species mentioned earlier It is a mystery why the bowhead whale was listed; it does not inhabit Japanese waters
Gray whales in the western North Pacific have been hunted to an extremely low level; the number of 1-year-old or older individuals was estimated at about 130 in 2007 Western gray whales have occasionally been killed in Japanese fixed trap nets on their migration between feeding grounds in the Okhotsk Sea and yet unconfirmed wintering ground in more southern waters, and the adverse effect on the population is of great concern (IWC 2008) Under these circumstances, the Japanese government on December 3, 2007, amended the Rule for Enforcement of Act on Protection of Fisheries Resources and listed the gray whale as a protected species (came into effect on January 1, 2008) Four cetacean species are now protected by this law; their capture, possession, or sale is prohibited
This act established on June 5, 1992, was aimed at the domestic implementation of the Convention on Trade in Endangered Species (CITES) and bilateral agreements on protection of migratory birds It also develops regulations on capture and transportation of wild animals and plants and rules for conservation of their habitats and artificial breeding activities
CITES was signed in Washington, DC on March 3, 1973, and came into effect on July 1, 1975 Japan ratified it on November 4, 1980 The convention lists species in three Appendices Listed on Appendix I are the most endangered species, whose survival is affected or potentially affected by international trade These species cannot be traded internationally for commercial purpose, and import and export permits are required for scientific exchange Appendix II lists species that are likely to become listed on Appendix I if international trade is not regulated International trade in such species must be accompanied by export permit of the state of origin Appendix III lists species that member countries request be listed for the protection of the species within their territory, soliciting the cooperation of other member countries in regulating international trade International trade in such species must be accompanied by export permit or certificate of origin prepared by the exporting country The CITES regulations also apply to transfer of a species into national territory from international waters Each member country is allowed to have a reservation on the classifications presented earlier to avoid trade regulation
Appendix I lists all the baleen whales and toothed whales of 10 genera in 6 families, of which 9 species of baleen whales and 3 species of toothed whales inhabit Japanese waters These are the North Pacific right whale, gray whale, blue whale, fin whale, humpback whale, sei whale, Bryde’s whale, Omura’s whale, minke whale, sperm whale, Baird’s beaked whale, and finless porpoise Appendix II lists the rest of the cetacean species There are no cetacean species listed in Appendix III
The Government of Japan took reservations on the fin whale, sei whale (with exception of North Pacific and southern hemisphere waters between longitudes 0°E and 70°E), Bryde’s whale, common minke whale, Antarctic minke whale, sperm whale, Baird’s beaked whale, and Irrawaddy dolphin Thus, Japan is allowed to manage these reserved species as listed in Appendix II The Japanese reservation on the Irrawaddy dolphin could function to camouflage its intention to reserve all the commercially important cetacean species
The Japanese “Act for Conservation of Endangered Species of Wild Fauna and Flora” classifies endangered species into four categories: (1) internationally endangered fauna and flora, which should be conserved with international cooperation; (2) domestic endangered fauna and flora, which inhabit Japanese territory; (3) specific domestic endangered fauna and flora, which are not included in item (1) and are domesticated and commercially reproduced; and (4) species newly identified or found to inhabit Japan and require
by the Minister of Environment, but take of small cetaceans for scientific purposes requires permits from the Ministry of Agriculture, Forestry and Fisheries (Section 58)
Government Order No 134 dated April 20, 2012, included most of the CITES Appendix I cetacean species in Category 1 (Internationally Endangered Species) and listed no cetacean species in Categories 2-4 The exceptions are cetacean species commercially exploited by Japanese fisheries Among the cetacean species that are listed in CITES Appendix I and found in Japanese waters, only five species (North Pacific right whale, gray whale, blue whale, humpback whale, and finless porpoise) are listed in Category 1 The seven remaining species are not listed in Category 1, although six of them are known from Japanese waters: fin whale, sei whale, Bryde’s whale, common minke whale, Antarctic minke whale, sperm whale, and Baird’s beaked whale These seven species are reserved by Japan under CITES and are hunted in Japanese whaling
In Japan, the Fisheries Agency functions as the scientific authority as well as the management authority of CITES for marine fauna and flora, and it issues export and import permits for them The government reservation to CITES Appendix I enables Japan to carry out commercial trade in whale products Further, this reservation together with the government definition that “cetaceans taken by Japanflagged vessels outside Japanese territory can be considered as obtained within Japan” eliminates problem for Japanese cetacean fisheries in landing their catches made outside territorial waters However, it can hinder the importation of cetacean samples collected by biopsy by Japan-flagged vessel in the exclusive economic zones of other countries, because Japan does not issue an import permit and therefore the export country does not issue an export permit Such a case occurred between Russia and Japan in August 2009 In the case of exporting biopsy samples taken by Japan-flagged vessels in international waters, there is no such problem because Japanese export permits copy the CITES classification as it appears on the import permits (as in the case of export of blue whale, fin whale, and sei whale sample to the United States in June 2012) CITES has a rule allowing for an institutional permit, where international transfer of scientific specimens between the permit-holding institutes is exempt from other limitations This system is meant to promote scientific research by reducing the documentation task for scientists but has not been practiced in Japan
This act can classify a particular animal or plant or its habitat as a “Natural Monument” and take measures necessary for its protection The finless porpoise in the Inland Sea is the only example of cetaceans dealt with in this way In November 1930, the Ministry of Education designated the area within a 15 km radius of the southern tip of Abashima Island in the Inland Sea (34°19′N, 132°57′E) a natural monument as an “Area of Finless Porpoise Migration” and prohibited capture
for the designation: (1) Japan is located at the northern limit of the species, (2) aggregation of numerous finless porpoises is a spectacle, and (3) there is an angling fishery that was believed to be assisted by the presence of finless porpoises (Kaburagi 1932, in Japanese)
The line-and-hook fishery uses aggregating finless porpoises as a marker for fishing sea bream and other fishes It was based on understandings that both finless porpoise and sea bream fed on sand lance which were abundant in the Inland Sea and that sand lance attacked by finless porpoises from the sea surface would descend to escape and would attract sea bream to ascend for feeding, which would make them available for the fishermen According to the local fishermen, this fishing ended in the late 1960s following the disappearance of sand lance in the vicinity (Kasuya and Kureha 1979) I was able to see numerous finless porpoises near the area of the natural monument in the 1970s, but they had almost disappeared from the area by the late 1990s (Kasuya et al. 2002; Section 845) For the conservation of finless porpoises, it is necessary to protect the broader habitat of the species as well as that of their prey species
