Japanese Whaling & the Future of the International Whaling Commission

This Tuesday (16^th July) saw the conclusion of the public hearings at the International Court of Justice for Australia's case against Japan's scientific whaling practices . The court will likely take several months to reach a decision, so, as the waiting game begins, we can only speculate as to the outcome of this pivotal moment in the history of the International Whaling Commission.

In their concluding remarks Japan reiterated their key points of defence, again placing great emphasis on the legitimacy of their scientific whaling practices under Article VIII of the International Convention for the Regulation of Whaling (ICRW) (see my previous post for an explanation of this clause and an overview of the case). Quoting the latin phrase "Pacta sunt servanda" ("agreements must be kept"), Mr. Tsuruoka, as Agent of the Government of Japan, argued that "What you have agreed, you are bound to observe. What you have not agreed, however, does not bind you."⁷ He also stated that "this Court is a court of law, not of scientific truth", claiming that the court has no jurisdiction to rule on the request or to decide what was or wasn't science.

This dispute has been ongoing since the establishment of the moratorium on commercial whaling in 1986 and, as result, the politicisation of science has seriously compromised the function of both the International Whaling Commission and its Scientific Committee. For either of the pro- or anti- whaling groups to get what they want would most likely require an amendment to the schedule - something which can only be achieved by a seemingly impossible (given that pro-and anti- whaling groups are almost equally split) three-fourths majority vote. The convention, as it stands, has therefore been described as "a pro-whaling convention giving effect to a Commission dominated by anti-whalers". It's no wonder then that all attempts at compromise have failed. So perhaps the court case at The Hague could shake things up a little?

"The ICJ case is the most interesting development in the whaling issue in years" says Phil Clapham, a senior American scientist and member of the IWC's Scientific Committee. "With this case - especially if Japan loses - we are entering a sort of legal terra incognita. It will be very interesting to see how it plays out."³

Whatever the result of the case then, these proceedings will shape the future of the International Whaling Commission... So let's take a look at the possible ramifications:

If the ICJ rule FOR Japan:

In the event that the International Court of Justice rules in favour of Japan, the likelihood is that the IWC will maintain its status quo. The only real difference being that Japan will get a big PR boost and will be able to cite the ICJ's decision as legitimising their current whaling practices. Arguably, Japan then has the best of both worlds in that, whilst they wait for the IWC to agree some kind of sustainable management scheme, Japan is able to continue whaling scientifically (at levels that would not otherwise be permitted by the IWC) and making use of the by-products as they see fit.

We'd be naive to think, however, that this would be a resolution to the ongoing conflicts within the IWC - the opposing views of both pro- and anti- whaling groups are too deeply entrenched. Pro-whaling groups will continue to push for a return to commercial whaling, and anti-whaling groups will still seek to eliminate unilateral "special permit" scientific whaling. The IWC will still need to find some kind of compromise if it is to survive.

So far, however, a compromise has never been achieved. There have been various attempts to resolve the seemingly perpetual conflict, as summed up by Iliff:

In truth, any significant progress is deemed implausible without either a mass withdrawal of pro-whaling countries, or a dramatic change of heart on the part of anti-whaling members⁴. Concidently, the withdrawal of Japan from the IWC was once again alluded to in their concluding comments on Tuesday, as their deputy foreign minister asked what would happen "when one morning suddenly you find your state bound by the policy of the majority and the only way out is to leave".

If the ICJ rule AGAINST Japan:

In the event that the ICJ rule against Japan, the biggest question is - will they leave the IWC?

Japan have threatened to do so on several occasions, never going through with it - but perhaps such a ruling would be the last straw. Japan have consented to abide by whatever the ICJ decide so, in theory, they should stay and abandon their scientific whaling practices. But as nothing binds them to remain in the IWC, they may conclude it is in their better interests to leave, despite the politically detrimental nature of such a public move.

If Japan were to leave, this could open up the IWC playing field to the remaining, largely anti-whaling majority. Since the main obstacle to anti-whaling interest has long been the "unshakeable determination" of the leading pro-whaling countries: Japan, Norway and Iceland, to continue whaling, the departure of one or more of these influential parties could create huge potential for reform of the IWC.

There has been an increasing focus, particularly among anti-whaling NGOs and scientists, on other environmental threats to cetaceans such as marine pollution (chemical and noise), ship strikes, bycatch and, most importantly, climate change. These topics were key focuses of the Australian Proposal for the future of the IWC, which originally failed to garner sufficient support due to Australia's ongoing condemnation of Japan's scientific permit whaling.

The departure of Japan could allow the modernisation of the ICRW to suit the preferences of an anti-whaling majority, but there is a danger that this would be merely a "hollow victory"⁵. If pro-whaling nations were to leave the IWC, this could result in the establishment of two separate, opposing conventions: one protecting whales, and another to regulate their capture. If such a convention on the hunting of whales were created, it is highly probable that world opinion would demand a declaration of and adherence to sustainable targets, making it unlikely that kills would increase above current catch levels. Effectively, the status quo would still been maintained and all this would really achieve, therefore, is the externalisation of the same tired debate from within the IWC to outside⁴.

The future of the IWC - the lesser of two evils?

If no concessions will be made, perhaps the best option is to "agree to disagree" so that the IWC can move forward with other, common goals relating to the conservation of whales (regardless of whether they're viewed as a resource or as ecologically valuable species in need of protection). The obvious benefit of this being the retention of the IWC and the survival of the convention. The drawback is that none of the stockholders involved get what they want.

It is far better, however, to reach a resolution WITH pro-whaling countries, WITHIN the IWC than to drive them to leave and conduct their whaling practices beyond control of the commission. Especially when one of the key issues in the whaling debate is that the whaling industry "cannot be trusted to regulate itself or to honestly assess the status of potentially exploitable populations".

Whatever the outcome, the case at The Hague is sure to have huge implications for global whaling policy, as well as providing a reflection on both the whaling debate as a whole, and the questionable efficacy of the IWC.

I'll be sure to return to this subject once the decision is announced.

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