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The International Whaling Commission has become increasingly dysfunctional. Australia and New Zealand should now use international law to prosecute Japan for 'scientific whaling'. The next few months may prove to be pivotal in breaking the continuing impasse which exists over Japan's 'scientific whaling' program. Long the subject of international controversy, and recently the focus of immense public interest during the Australian summer when Japanese whalers are in the Southern Ocean, both the international and national debate has reached the stage where it appears something has got to give. The controversy over Japan's scientific whaling program has its foundation in a moratorium on commercial whaling agreed to by the International Whaling Commission (IWC) in 1986. The impact of the moratorium has been to prohibit nations like Japan, Iceland and Norway from legally engaging in whaling. Throughout the past decade Japan has been attempting to gather together sufficient support in the IWC to overturn the moratorium – but has so far been unsuccessful. Following the recent May 2007 meeting of the IWC in Anchorage, Alaska, the likelihood of Japan being able to gain the necessary three quarter majority support to overturn the moratorium seems remote. Doubling its chances In the face of the limitations it faces with respect to commercial whaling, Japan has reverted to so-called scientific whaling. First under a research program known as JARPA, and now under JARPA II, Japan has gradually increased the scope of the research program to include greater numbers of whales and more species. In the coming 2007/08 season, Japan proposes to take up to 935 minke whales, 50 fin whales and 50 humpback whales. In sum, this will be more than double the total number of whales Japan has previously taken on its annual whaling voyages to the Southern Ocean. Japan's continued insistence on its right to engage in scientific whaling has been subject to heavy diplomatic criticism. At the 2005 IWC meeting a resolution – co-sponsored by Australia – was passed condemning the JARPA II program. However, Japan completely ignored this criticism and continued on with its whaling program despite the loud protests of many environmental NGOs. Likewise at the Anchorage IWC meeting in May this year, a further resolution was adopted calling upon Japan to halt JARPAII. What seems clear is that the diplomatic options for the pro-conservation IWC members such as Australia and New Zealand are limited. As a result, the time may therefore be fast approaching when Australia, New Zealand, and other like-minded countries, need to consider whether there are any viable legal options open to halting Japan's whaling activities. Legal loophole At first glance this seems difficult as Article 8 of the Whaling Convention clearly permits 'scientific whaling' to be undertaken. However, given the current moratorium on commercial whaling, Japan cannot use the scientific whaling loophole to engage in what in reality is commercial whaling. Here the nature and extent of Japan's whaling activity comes under the spotlight. In the face of fresh evidence that non-lethal means of research can be legitimately conducted on whales, Japan's increase in the number it kills has become an abuse of a legal right to engage in scientific whaling contrary to international law. Australia's Howard government is now in possession of legal advice from the Sydney Panel of Independent International Legal Experts, of which I was chair. This outlines a number of viable options for the government to challenge the legality of Japan's scientific whaling program. Such a challenge would not involve the enforcement of Australian law but international law. Central to the legal argument is that there are limits to legitimate scientific whaling. The numbers of whales which Japan is now proposing to take is contrary to the threatened status of the fin and humpback whales and new non-lethal means of research. Australia has open to it not only international courts such as the International Court of Justice and the International Tribunal for the Law of the Sea, but also more informal means of dispute resolution including ad hoc arbitration. One outcome of such proceedings would the issuing of an international 'injunction' requiring Japan to halt the JARPA II program for this coming summer. The other, would be an ultimate finding that Japan's conduct was illegal under international law and that it should cease its scientific whaling programs. That Australia and Japan are currently in the midst of a free trade negotiation should not be a barrier to seeking to peacefully settle a dispute between friendly nations; after all it was only last year that both countries confidentially settled another fisheries dispute. The Australian Labor Party has indicated its broad support for the legal options outlined by the Sydney Panel. Dysfunctional commission In addition to the taking of legal action, there is a new push for reform of the IWC. Recognising that the commission has become increasingly dysfunctional in recent years, two separate initiatives have been undertaken in the past year to reassess the international management of whales. One approach, sponsored by Japan has argued for the 'normalization' of the Commission so as to permit some form of commercial whaling to take place. The other, sponsored by the U.S.-based Pew Foundation has sought to explore a variety of means to circumvent the current impasse over commercial and scientific whaling. These initiatives were endorsed at the Anchorage IWC meeting in May and it is now proposed that a special inter-sessional meeting be held prior to the 2008 meeting to move the reform agenda forward. Whilst such initiatives have been proposed in the past, on this occasion there is some prospect of success given the widespread acceptance amongst IWC members that the commission is simply not functioning, and the goodwill that senior IWC commissioners such as Sir Geoffrey Palmer of New Zealand are able to bring to the negotiations. The impact upon humpback numbers once Japan commences its new 'scientific' cull remains uncertain. The humpbacks migrate annually along the Australian coastline and the young are born in Australian waters. The taking of these whales is bound to provoke a response from many Australians who take great joy from seeing them return each year to local waters. The whales also have an economic impact and have become the mainstay of the whale watching boom which generates significant tourism income for coastal towns and villages along both the eastern and western Australian coasts. In the face of these realities, governments such as Australia and New Zealand will have to make some hard choices in the coming months. Either way, pursuing legal avenues or agreeing to sit down at a negotiating table with Japan may be the only way forward to limit or even completely halt further devastating impact upon the iconic and endangered whale. Donald R. Rothwell is Professor of International Law at the Australian National University's College of Law, in Canberra and chaired the Sydney Panel of Independent International Legal Experts assessing Japan’s scientific whaling program.
Readers' commentsStretching the limits of 'research'It's stretching credibility to argue that Japan's whaling programme really is for scientific research purposes. I can't see how killing 1000 whales can provide much, if any, data on population dynamics. Especially when there are such advanced techniques for monitoring populations pretty much non-invasively using electronic tags and taking DNA or even dung samples. Aside from the fact Japan barely maintains the pretense that they're gleaning much new data from the JARPA programmes themselves. Where are all the publications in international peer-reviewed journals if they are? Surely it's sensible to take a wait-and-see approach before - and if - commercial whaling is resumed. It's just a few decades since many whales were teetering on the brink of extinction; they have lengthy generation times and we don't understand enough about how their populations will recover over time. I agree that the IWC as it is can't go on however... it's just a renewed slanging match each year. Something has to give. Submitted by Visitor on 1 August 2007 - 11:06am.
Useful data most certainlyUseful data most certainly can and is being obtained through lethal research methods. The data obtained through the JARPA programme has been made available through the IWC scientific committee's data availability protocol, and the data is being used in analyses by both Japanese and non-Japanese scientists. The JARPA programme also employs non-lethal techniques where those have the power to provide information that lethal methods can not. But there is a limit to what whale dung and DNA can currently tell us. One of the most important pieces of information obtained through lethal methods is whale age. Australian scientists are currently attempting to develop a non-lethal method of determining whale age using telemeres, but despite widespread media coverage the method is still yet to even be completely developed and tested, let alone acknowledged as best practice. In such cases, lethal methods are reality, equivalent non-lethal methods remain fantasy. At the end of the day, information obtained through the JARPA programme is being used by the IWC's scientific committee in it's ongoing assessment of Antarctic minke whales. This speaks for itself. Humpback whales have been protected since the 1960's - 40 years of protection now and Japan is only just starting to take an interest in them. Is this not "wait-and-see" enough? Furthermore the idea of commercial whaling is not to deplete populations. The idea is to take a conservative number only, such that the population can continue to recover, or if already recovered will otherwise be maintained at a high, productive level of abundance. I think we come back to the core issue: some people don't like the idea of others killing whales and benefiting from them as we do with tuna and cows. Others do like the idea and hope to benefit in such a way. Until consensus or at least mutual understanding can be reached on this core issue, discussions about other matters all lead into blackholes. This is what the IWC needs to get away from. The IWC is either a whaling regulation organization, or it isn't. If it isn't, then what reason is there for nations interested in such utilisation of whale resources remaining within the organization? They have the right to withdraw from the existing convention and set up a new organization to take up the responsibility that Australia and New Zealand would see the IWC abdicate. The policy makers of Australia and New Zealand need to take this issue and their role in international society a little more seriously, I believe. My proposed solution is that Australia and New Zealand agree to whaling in the North Pacific if Japan agrees to not permit hunting of whale species of interest to them, such as the humpback. Neither side would be entirely happy, but it is a lot better than the alternative. Submitted by Visitor on 1 August 2007 - 11:41am.
Why is Japan taking fin andWhy is Japan taking fin and humpback whales? Fin whales are still endangered, and humpbacks are classed vulnerable. I don't think forty years of protection is really enough when you consider that the humpback population has taken that long to recover half of its former number. I would have thought counting them would be of more importance than discovering how old they are, especially if Japan wants their numbers to return to commercially harvestable levels, it seems a little counterproductive. But I don't understand why Japan wants to double its harvest of whales anyway. Just supposing there was a return to commercial whaling, what then? A Japanese paper poll a few years ago found that only 4% of the population regularly eat whale meat, 9% rarely eat it, 53% haven't eaten it since childhood and 33% never eat it. Not to mention the fact that whale meat (and especially minke whale meat) contains a dangerously high amount of toxins... Submitted by Visitor on 1 August 2007 - 1:01pm.
Arguments over the status ofArguments over the status of various whale stocks is another reason the IWC must be fixed. Japan's classification system is different to that which you refer to, and by their definitions fin whales are not endangered. This is based on 18 years of JARPA research during which time they have observed what they believe is a substantial increase in fin whale numbers (which is ongoing). With the humpback the situation is even better. Recent estimates presented to the IWC by an abundance estimation expert (based in South Africa) showed that there are more than 50,000 humpbacks in the southern hemisphere now. Australian scientists too agree that the populations which migrate up the east and west coasts of Australia to breed are increasing rapidly (for example, Mike Noad, who compared their rate of breeding to that of rabbits, at least as far as whales are capable of). And again, Japan isn't talking about going back to hunting them at the same level they were exploited at by the whalers back in the 1950's and early 1960's. They are planning to take 50 each year for now. This is out of perhaps 20,000~25,000 humpbacks, of which numbers are growing at 10% each year. Taking 50 of them is not at all likely to lead to a significant drop in the rate of increase in numbers that is being observed, thus hardly counterproductive with respect to the desire to resume commercial whaling in future. As it happens, Japan does conduct whale counts for abundance estimation as well as the lethal aspects of it's programme. Japan also provides the IWC's SOWER programme with a vessel which the IWC uses for it's own whale counting work (this vessel will apparently be in Fremantle later this year). If the IWC does set catch limits, commercial operations will only be possible if it makes economic sense for a business to utilise the quota set. If it's true that not enough people wishes to eat meat to make commercial whaling feasible, we hardly need a moratorium anymore (and what are we arguing about?). However, from the information I have seen the reason that Japanese people eat less whale meat today than in the past has a lot to do with the fact that the commercial moratorium imposed in the 1980's saw annual supply of whale meat drop drastically, to only about 2,000 tonnes. Prior to the moratorium there was 10 times as much meat available. Recently with increased sample sizes from the research programmes has seen supply increase, but this still only sees around 5,000 tonnes of "by-product" meat on the market each year. Interestingly, with this increase in supply, official stockpile figures from the Japanese ministry of agriculture indicate that volumes of outgoing stock (i.e. indicating consumption) subsequently increased as well. Still there is probably less potential demand for whale meat than their was in the hey-day, but given that the Icelanders have lined up a buyer in Japan for their own whale meat, there looks to be additional potential there to me. It's also a generalization to suggest that all whale meat is toxic. If it were then we should have greater concerns for whale conservation that a little bit of whaling. Submitted by Visitor on 1 August 2007 - 2:15pm.
Exactly what can AustraliaExactly what can Australia or New Zealand do under international law to stop Japan? Rothwell doesn't actually say what can be done... Submitted by Graham on 1 August 2007 - 10:54am.
WhalingAs an interested observer and from a farming and conservation background I have to say that I personally have no problem with a balanced harvest of whales (except that I can't see the need), but only if there was a humane way to slaughter them. Submitted by Visitor on 1 August 2007 - 1:17pm.
To be fair, Norway (and ITo be fair, Norway (and I believe Iceland) also employ the same penthrite grenade harpoon technology as was developed by Japan in the early 1980's. This technology marked a significant improvement over earlier technology employed by whalers in western nations who were driven out of business by the collapse in whale oil prices. We ought to be careful about accusing others of cruelty. "they need to ... to even get a hearing in most countries" The situation at the current time is that Norway and Iceland are setting commercial whaling quotas already, and Japan looks as if it could be preparing to join them shortly. These are sovereign nations, and they are not obliged to convince non-whaling nations of anything. These nations are talking about quiting the IWC and setting up a new organization to do the job properly. I think people underestimate the gravity of this. Our priority should be first to ensure that whaling that is conducted is conducted on a sustainable basis. If we drop the ball here, and these nations go off and start harvesting whales in accordance with a new set of rules determined by themselves and themselves alone, there may not be any whales left to be worried about as far as cruelty is concerned, if they were to screw up to the same degree that others have in the past. Submitted by Visitor on 1 August 2007 - 2:31pm.
Donald Rothwell adds: "OneDonald Rothwell adds: "One outcome of such proceedings would the issuing of an international 'injunction' requiring Japan to halt the JARPA II program for this coming summer. The other, would be an ultimate finding that Japan's conduct was illegal under international law and that it should cease its scientific whaling programs." Ed. Submitted by John on 3 August 2007 - 8:56am.
If Australia loses anIf Australia loses an attempt at a court case that could be pretty bad right? What would "Plan B" be in that case? Submitted by Visitor on 3 August 2007 - 10:17am.
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Rothwell presents some
Rothwell presents some rather one-sided views on aspects of the issue.
Japan's whaling programme is essentially of an scientific nature, attempting to improve our knowledge of the whale population dynamics in the Antarctic with a view to implementing an optimal sustainable commercial whaling programme in future when, for example, the moratorium on whaling is lifted.
The core issue that sits beneath this issue is of course that some people think the moratorium should remain in place (no matter how much whale populations increase), where as others think that the moratorium is unnecessary as the IWC now has a scientific procedure for setting safe commercial catch limits (Japan's research aims to improve this procedure).
Rothwell does make a useful suggestion however, and that is that New Zealand and Australia should negotiate with Japan on this issue. It is naive to think that they can have things exactly as they please - the same is likely true of Japan in it's situation. Unfortunately, Australia and New Zealand's recent behaviour at the latest IWC meeting in Alaska showed that they were willing to stonewall Japan's attempts at negotiations in order to prevent Japan from whaling even within it's own coastal waters, let alone the high seas.
A change of attitude towards this issue from Australia and New Zealand is required, or the IWC will almost certainly break down as a international whaling regulation organization before the decade is out.