Last week Japan’s whaling fleet set sail for Antarctica again under its new scientific whaling program NEWREP-A. In 2014 the International Court of Justice decided that Japan’s previous program was not scientific.
But this year Japan renounced its recognition of the court’s jurisdiction on whales, effectively ruling out further legal challenges.
Predictably, the Australian government and NGOs have been quick to condemn the move.
I argue both countries are undermining science-based international environmental law. In essence, Australia and other prominent anti-whaling parties have long frustrated international efforts to resume sustainable whale harvests. Japan, prevented from taking a legitimate approach, cynically abuses research exemptions.
Whaling is regulated under the International Convention for the Regulation of Whaling, administered by the International Whaling Commission (IWC). In 1982, members of the commission agreed to a moratorium on commercial whaling. Subsequent lobbying for a permanent whaling ban has always been opposed by countries such as Japan and Norway.
Most Australians now don’t realise that the convention was set up “to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”.
Some legal academics have argued that this purpose has transformed over time and is now something other than it was originally. But a significant minority of IWC parties support the treaty’s original purpose.
Two fundamental tenets of international law are firstly that states, having ratified a treaty, must apply it in good faith and not frustrate its purpose; and secondly, to interpret treaties in accordance with their ordinary meaning.
While some celebrate the 2014 finding that the Japanese scientific whaling program was not sufficiently scientific, some IWC parties have criticised Australia’s outright refusal to contemplate a resumption of commercial whaling as undermining the treaty itself.
The result is that the IWC is mired in dysfunction and acrimonious disagreement. Australia has legislated a massive whale sanctuary that cannot be enforced since to do so would call into question Australia’s Antarctic claim; whales continue to be hunted commercially by Norway and Iceland (Iceland continues to hunt endangered fin whales) and Japan’s recent legal manoeuvring serves as an untimely reminder of the fact that international laws and institutions are only as strong as the respect paid them.
The real dangers to whales
For a generation, opposing domestic political considerations have focused debate and concern upon the few hundred minke whales hunted by the Japanese in the southern ocean. Meanwhile, more than 300,000 cetaceans die annually from entanglement and ship strikes.
Noise and water pollution threaten many whale species. More whales washed up dead this April in Patagonia in an unexplained incident than Japan will capture in the southern ocean all summer.
Unmitigated climate change also poses a significant threat to whales, through the collapse of marine ecosystems “from the top of the food chain down” and other climate-related impacts such as severe krill reductions.
Why are whales special?
In an in-depth exploration of the whaling wars investigative journalist Sam Vincent explained the symbolic place of whales in Australia. In a pre-enlightened past Australians brutally exploited whales. We then recognized their majesty and humanity (or, perhaps, super-humanity), and now we are among their strongest protective champions.
Of course, this version of our civilizing narrative is only animated because there remains an uncivilized oriental “other” determined to kill and eat the sacred whales.
Aggressively championing international whale protection is the lowest hanging political fruit in Australian environmental politics. It costs nothing, is opposed by no one and requires zero change.
In Japan whales carry a different significance. Just as it would be Australian political suicide to support a resumption of Japanese commercial whaling, Vincent reports it would be almost as damaging for any Japanese politician to voice anti-whaling sentiment.
This has little to do with parochial Japanese whale hunting or culinary traditions, but is driven by attacks from outsiders, such as Australia. It is not Japanese demand to eat whale meat that is the primary incentive to continue whaling, but instead the desire to not give in to foreign pressure.
This argument is detailed by Japanese academics, and supported by recent Greenpeace Japan statements.
Allow whaling to end it
A return to whaling is being considered by the IWC under a Revised Management Plan, but talks have reached an impasse since 2007.
If Australia and other anti-whaling nations compromised, it could be a model for how science, law and international diplomacy can combine to solve major international environmental problems.
Certain whale species were hunted close to extinction. The International Whaling Commission was formed in 1946, but failed at initial regulatory attempts, so parties agreed to a moratorium. The species under threat were saved from over-hunting.
Now, armed with better data, is an opportunity for the international community to agree to a tightly-controlled commercial harvest of non-endangered whales, alongside a range of universally-supported conservation programs.
This would likely have two effects in Japan. It would firstly remove the primary incentive for Japanese public support for southern ocean whaling.
Secondly, without pretence as “scientific research” the whaling program will be subject to commercial imperatives. Given that it is a loss-making taxpayer-subsidized exercise producing an increasingly unwanted product, the likely outcome is that southern ocean whaling would cease altogether in due course.
All species, even whales, benefit from an international legal system characterised by respect, tolerance, compromise and cooperation.
Justin will be on hand for an Author Q&A between 9 and 10am AEDT on Friday, December 11, 2015. Post your questions in the comments section below.