by Gareth Hughes
For the last week I’ve been on a road-trip with Professor Donald Rothwell, from Australia National University, talking international legal solutions to whaling, specifically taking a case to the International Court of Justice (ICJ).
I’ve had a whale of a time.
We’ve spoken at four public meetings over the last four nights, hosted an inter-party forum at Parliament and given lots of media interviews. With the International Whaling Commission (IWC) meeting this Sunday for its big annual conference, Pete Bethune going on trial and Australia announcing it will take a case to the ICJ, it’s been a great week to spend with the Professor and learn from his experience and the considerable work he has contributed to this field.
Today the Australian Government announced that they will be taking a case to the ICJ, and New Zealand finally acknowledged the court case option. The Green Party has been the only Party in Parliament asking questions and raising the profile of the ICJ option because we care about whales and want to investigate all the tools in the tool-kit to protect the whales.
In the few months I’ve been an MP I’ve given some thought to the issue which I outline below in a whale-sized post:
A little history.
Firstly, whaling is an important issue to New Zealanders. New Zealand has, for the majority of its history, been a whaling nation. The first recorded whaling ship in NZ arrived in 1791, and by 1840 there were about 1000 whalers in NZ. A visitor to Wellington in the early 1800s humourously complained about the mating antics of the Southern Right Whales in the harbour. I remember as a child growing up in one of NZ’s old whaling ports, Gisborne, playing inside the antique tri-pot where whalers would melt down the blubber for oil. It wasn’t till 1964 that New Zealand ceased whaling.
New Zealand left the IWC in 1967 but rejoined in 1974 amongst a world wide revival of interest in the IWC and its potential to play a role in conserving the whales, which was but one of many battles faced by the new and growing environment and conservation movement. Now New Zealand is one of the staunchest anti-whaling nations and voices for whale conservation.
The challenge of whaling and the IWC.
Whaling is one of the most vexed international policy problems. Looking to the IWC in 2010 it faces many challenges, number one being the 33,000 whales slaughtered since the 1986 moratorium on commercial whaling under objections or ‘scientific’ permits. As the oldest international environmental treaty in the world, the institution suffers from both the attempt to implement an essentially conservation minded agenda atop a historic whaling infrastructure created in a bygone age and the ongoing contentious and polarised debate between whalers and conservationists. It’s dysfunctional and split between pro-whaling and pro-conservation nations, neither having the numbers to get the 75% of votes needed to make change.
IWC membership is voluntary and open to any nation; it’s is not backed up by a treaty (anyone can leave or opt out of specific regulations by lodging a formal objection – the idea being it’s better to have nations within than outside), and lastly there’s no enforcement mechanism, no UN Navy to patrol the seas (or Peruvian Navy, who in an interesting aside, seized the private pirate whaling fleet of Aristotle Onasis).
Another major challenge is the intractability of the debate. The anti-whaling side within IWC are accused of using conservation as a cover for their ideological opposition to whaling itself, which mirrors the accusation from the anti-whaling side that Japan’s scientific whaling is a cover for commercial whaling. Add in cultural arguments by the three whaling nations and you have a potent mix.
Whilst the moratorium and debates around scientific whaling have occupied nations for years the IWC has not had the space to adequately address the other big issues facing whales: climate change, marine pollution, by-catch, and poorly regulated whale watching industries for example.
Whilst the IWC has managed to stay together, despite regular threats by Japan to leave, and ‘imminent-schisms’, the biggest failure of the IWC today is the simple fact that whaling continues despite the spirit of the moratorium by Japan, Iceland and Norway.
Looking at the IWC meeting starting next week in Agadir, Morocco.
In 2008 the ‘Future of the IWC’ process was set up. This created the Small Working Group, chaired by former New Zealand Prime Minister Sir Geoffrey Palmer, to try and reach a compromise position. He said at the time “change is painful, but change will happen.”
The process to date has been driven by the attempt to reach consensus via compromise. Compromise isn’t bad – but I believe it is out-of-order to compromise on principles. The challenge facing New Zealand is we don’t want to see whaling continue but, at the same time, we are pragmatic and want to keep the IWC as an international body. We need to reform the IWC but don’t want to change the law to suit the law breakers and see the last two decades of gains made by the international conservation movement lost.
The New Zealand Government didn’t help itself by first over-selling what was happening, with Key announcing in January, ‘a bold new initiative’ to end Japanese whaling in the Southern Ocean and by the difficult challenge to support but differentiate itself from the independent work Sir Geoffrey Palmer was undertaking, and, lastly, by its lethargic, quiet stance on detained Kiwi activist Peter Bethune.
Finally, last month the detail of the ‘reform proposal’ was released with details. There are some good aspects, such as the creation of the South Atlantic Whale Sanctuary and a reduction in whales slated to be killed but there are also considerable negative elements in the proposal. These include essentially condoning commercial whaling, legitimising whaling in the Southern Ocean Whale Sanctuary (the last place whaling should be conducted) legitimising the slaughter of 400 Minke whales (dropping to 200 after 5 years) per annum; the ‘inflammatory’ inclusion of 10 fin whales (dropping to 5 per annum after 5 years), the possibility of humpback whale hunting, no timetable to reform Article VIII – the ‘scientific whaling loophole’; and the macabre fact the conservationist nations would essentially be funding the whalers to a small-though-unpalatable degree through their IWC membership.
Overall, I agree with the Australian Government position that as the proposal stands it demands too many first order concessions and does not do enough to protect whale populations. As Australian Federal Environment Minister Peter Garrett says it’s “…difficult to acquiesce to a proposal that asks us to abandon the gains of the past…” It is actually worse than the status quo. It favours the conservation of whaling, not whales.
The following weeks will show how the negotiations around this proposal pan out, but my money is on neither block having the numbers to pass a version, so essentially we’ll see the status quo continue.
If diplomacy is failing is it time to get judicial to save the whales?
The Green Party are the only party saying we need to seriously look at the International Court of Justice option because we believe in the rule of law and believe diplomacy can be best served by having a legal option working in tandem. New Zealand and Australia have a long history of working together on the international legal stage including on French nuclear tests, and challenging Japan before International Tribunal for Law of the Sea in the ‘90s Bluefin Tuna case.
Sure, victory isn’t guaranteed – it never is, but the major benefits I believe of the ICJ is that we have the option of applying for an immediate injunction and challenging the ‘scientific whaling loophole’ article Japan currently whales under. It isn’t exclusive of diplomacy; I believe it could work in tandem, in a respectful, non-combative way, as outlined under the Australian agreement with Japan and allow a less heated debate. At the moment the discourse is framed as the annual battle between Sea Shepherd and Japan in the Southern Ocean where a captive Kiwi is portrayed as a ‘terrorist’ in Tokyo. I reckon let the activists have a summer off and let the lawyers have a go.
An injunction is likely to be respected by Japan, who have a major stake in supporting the international legal environment – they aren’t a rogue state, who will flaunt an ICJ ruling or injunction, especially when one of their own citizens, Hisashi Owada, is the ICJ President. This could stop the fleet sailing south this summer.
The major risk raised by our Foreign Minister and other pundits is ‘what if the case loses?’ All legal cases face failure, as did the nuclear testing case, but it needs to be stressed, this would challenge one aspect – Article VIII of the International Convention for the Regulation of Whaling (the scientific loophole), not whaling in general. If the case failed all we’d find out is that Japan has legally used this loophole since 1986 and this wouldn’t then open up the door to commercial whaling, like the ‘reform proposal’ would if it passed.
I acknowledge the points raised by Claire Browning, and others that an ICJ case wouldn’t see a comprehensive solution outcome – that’s not the point, the case would be focused on challenging ‘scientific’ whaling. I believe the case could support and definitely wouldn’t exclude future diplomatic moves through a less confrontational atmosphere and also assist Japan in coming to its own phase-out decisions.
A 3-5 year ICJ case and injunction could support the domestic conservation movement in Japan. Whaling is uneconomic and bringing conflict internationally for Japan. Whaling is currently dependant on Government direct and indirect subsidies, has decaying infrastructure, falling demand, and over supply (it is estimated there are 40,000 tonnes of whale meat in storage in Japan). Whaling long-term is a losing proposition especially considering it’s the younger generations who don’t eat it. An ICJ case could allow a more rational internal debate without the high-drama, high-emotion, annual high seas battle. Japan is open to world wide pressure as demonstrated in 2007 when Kyokuyo and Maruha, two of Japan’s four largest fishing companies decided to end selling whale meat because of pressure internationally.
A pause could highlight, especially to the new Japanese administration, there’s more money in whale watching than catching. In 2008 whale watching in 119 countries and territories generated more than $2B, and employed 13,200 people world wide. One Southern Right Whale, returning to Tonga over its lifetime, was estimated by Massey University to bring in $1m to the local economy.
In summary, New Zealand as a proud anti-whaling nation needs John Key’s Government to show some guts and oppose any return to commercial whaling and join our ‘mates across the ditch’s’ court case to stop illegal whaling. What do you think?
Published in Environment & Resource Management by Gareth Hughes on Fri, May 28th, 2010
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on the trolls and those who are unable to keep on topic
Australian Federal Environment Ministe Peter Garrett says it well,
“it’s“…difficult to acquiesce to a proposal that asks us to abandon the gains of the past…” It is actually worse than the status quo. It favours the conservation of whaling, not whales.” (my bold)
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Good piece Gareth.
I found this (below) very instructive.
“Japan is open to world wide pressure as demonstrated in 2007 when Kyokuyo and Maruha, two of Japan’s four largest fishing companies decided to end selling whale meat because of pressure internationally.”
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What does happen if Japan doesn’t want to go to the ICJ, if they do how many whales will be killed while it gets dragged through court, and what is the precedent if Japan wins the case? does this mean that no one can ever stop them from whaling for all time?
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“victory isn’t guaranteed” – fair point, so what does happen if Japan wins the case though? surly it would be fair to tell everyone what happens in that situation?
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An injunction is likely to be respected by Japan, who has a great deal of stake in supporting the international legal environment – they aren’t a rogue state, who will flaunt an ICJ ruling or injunction, especially when one of their own citizens, Hisashi Owada, is the ICJ President. This could stop the fleet sailing south this summer.
I kinda doubt it…For the Japanese people the whaling issue is about pride and principle- why would they put those on the line in trial when they can just disregard an ‘injunction’ or a trial by not turning up?
An important consideration to note is that the 1986 moratorium was originally intended as a 10 yr recovery term that got re-assessed when countries such as NZ and Aussie started feeling a bit bad for their own recent Whaling past and felt we had to make up for it by save the ones we hadn’t harpooned yet!( kinda quite rightly so…) but nevertheless that was not the original intention of the IWC…there is a reason why it still calls Whale Numbers as ‘stock’ (kinda like livestock)…just to think about…We aren’t cultural about our whaling but Japan is and there’s has been going on for quite some time , perhaps as long as humans have lived in New Zealand …also think about reasoning as to why Mongolia and Mali are on the IWC…
We all want an end to profit Whaling, that is a given but it has to be done in stages that will work for everyone; It has to be done in a way that Japan sees itself as winning a legal compromise that won’t tarnish it’s pride and it’s future and in a way that will remove it from the Whale Sanctuary permanently
Iceland and Norway will continue to refuse any deals, they see it as their right just like the Japanese but they do it within their own general territorial waters so they are not hounded in the same way as the Japanese…
To sum up
1. Japan’s pride would prevent it from going to a trial which they would lose (particularly against Nations that forced their surrender in WWII)
2. Even if Japan went to trial they could refuse to enforce the ruling – the UN security council would be very very reluctant to enforce it in any way
3. the IWC will have reviewed and quite possibly passed the compromise motion long before any trial began
4. If we lose in either venue, Japan gets validity in one way or another
5. Whales continue to die, possibly to the point of extinction for a certain species until around 2054 when the Antarctic Treaty expires and NZ and Aussie can enforce our Antarctic territorial water rights if they themselves are accepted by the UN/International Courts.
6. Fail on NZ’s Part
Again I have to say we either break International law at the risk of Japanese trade and diplomatic sanctions by impounding their vessels
or
We find a compromise that doesn’t make it look like we are kicking mud into their faces.
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NZ stopped in 1964…Aussie in 1978…Canada still does…USA still does…so why not Japan? they are just a slightly larger culture than the Inuit (or Eskimo if you happen to be sitting in a big leather chair with port in your hand and ranting about something socially awkward)
peoples of North America. Even if you take into account most Japanese don’t eat Whale meat you have to remember the size of the population that clearly indicates that they have a market for this stuff and until that market is convinced otherwise by force or compromise by changing the market price then..well…we’ll just continue going in circles over and over again…
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@ Oliver It sounds like from Australian press that they have agreed with Japan in advance of the announcement not to allow the court action to harm their broader relationship. “The agreement between Australia and Japan is that we will treat this matter in a calm, responsible and mature way,” Smith told reporters.
“We will treat this matter effectively as an independent legal arbitration of a disagreement between friends,” he added.
This sounds like Japan is engaging with the case so far.
@ Stephen. I’m all for diplomacy and compromise, but not compromising our principles and agreeing to commercial whaling (with no end in sight), whaling in the Southern Ocean Sanctuary, fin whaling etc. I’m hoping there’s some innovative diplomacy that reaches an agreement over the coming weeks that achieves NZ’s goals but not optimistic.
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Well if that is the case then you have answered my first question, thanks.
Though the second question around what is the potential downside should the case be lost is quite a serious one, with no political undertones, but does it actually mean that Japan would be legally allowed to whale forever?
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But Summer is Prime Time in the Southern Ocean Gareth – if our Government had any spine those Japanese Whalers would be standing trial in New Zealand for attempted murder….instead the Ozzies are carrying this issue for their tiny, little, hapless cousins across the water.
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Gareth,
The amount of whale meat in storage in Japan is roughly 4,000 tonnes (not 40,000). Additionally, for comparison, the tuna stockpile is around 60,000 tonnes. I personally eat whale from time to time, and I’m of the view that your assumption that there is an over supply of whale meat merits re-evaluation.
The other thing I’d draw your attention to is that the Japanese too have in the past had independent legal advice that they could take their own grievances to the ICJ. A difficulty noted with the ICJ approach for Japan was that they would need to find another nation to agree to the arbitration, and none were likely to. Presumably for this amongst other reasons (including a cultural aversion to court cases) to date they have stuck with the diplomatic route, although it was largely due to the Japanese suggestion that they were being forced to review their participation at the IWC that the current (final?) round of negotiations got under way.
Nonetheless, Japan’s former IWC representative, Komatsu-san, is on the record as saying that he looks forward to the day when Japan does get to put forward it’s arguments in a court. Australia’s decision to go to the ICJ presents the Japanese side with an opportunity their officials may actually be very happy to take.
Their own qualms include the issue that the “moratorium” is not supposed to be permanent (as moratoriums aren’t) and that the Southern Ocean Sanctuary was imposed by the IWC without fulfilling the requirements for such a measure according to the whaling convention. It will be interesting to see if the Japanese now take up the opportunity provided by Australia to seek to have these issues examined by the court as part of this case. I’m not familiar with the legalities, but I presume that this is something that they may be able to do.
If that is the case, then there is the very large potential for this to be a massive own goal by the Australians.
The basic problem for the anti-whaling movement is that anti-whaling has no real legal basis so far as I can tell. The whalers on the other hand have an international agreement that is clearly in their favour.
As you might gather from my statement that I eat whale meat from time to time, I have no issue with whaling and indeed I support it 100% to the extent that it is sustainable, but if I were an anti-whaling strategist with a serious desire to keep the numbers of whales killed down, I would be doing everything possible to make sure the Japanese stay at the discussion tables for as long as possible. The IWC “compromise” proposal that no one likes would be the best route for this from my perspective, and another ten years of limited whale meat supply is only going to continue to help strangle demand for the product in Japan as the population ages.
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@Davidintokyo
I like your rational alot, the main problem I see in any compromise is the want of hunting the Fin whale…a point they may stick at the compromise stage…
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I personally imagine the Japanese are more likely to compromise on excluding Fin whales from their Southern Ocean hunts than they are likely to lose this court case to Australia, but perhaps Australia’s actions have precluded the possibility of compromise. The Japanese side may prefer to simply close up shop now and go to court.
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“Komatsu-san, is on the record as saying that he looks forward to the day when Japan does get to put forward it’s arguments in a court.”
Will there be whales in attendance?
No?
No victims impact report filed?
Kangaroo court, by the sound of it.
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stephensmikm – why on earth do you baulk at the killing of fin whales?
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greenfly,
I might be mistaken in my understanding, but I assume that it is because Fin whales are listed as “Endangered” on the IUCN’s Red List, according to the IUCN categorization criteria, that McCully stated New Zealand finds it “offensive” that a handful of them might be caught under the IWC proposal each year for 10 years.
If indeed that is the basis for the “offense”, it is rather curious because New Zealand catches a greater tonnage of Southern Bluefin Tuna, which is listed on the Red List as “Critically Endangered”.
Furthermore, New Zealand also exports most of it’s Southern Bluefin Tuna to Japan as well, if I am not mistaken?
Personally I think there is some hypocrisy there, some abuse of the IUCN Red List outside of the purposes that it was intended for, but that is what comes with the whale debate.
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david@tokyo – entirely agree with you re. bluefin tuna. I’m no fan of hypocrisy.
Neither should be ‘fished’, in my view.
Your view seems to be the opposite – take both species, endangered or not – yes?
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What matters to me is whether the exploitation of these fisheries resources is sustainable or not. In addition to that, where exploitation is sustainable we should look at whether we couldn’t achieve higher levels of catch in future by forgoing some of the sustainable harvest now. This can potentially see the resources increase to more productive levels.
“Endangered” in the dictionary means “threatened with extinction”.
But “Endangered” as an IUCN Red List category has a different and quite specific set of criteria to be fulfilled, which were designed for a certain purpose.
Categorising marine resources, such as whales and tuna, for the purposes of exploitation is not the goal of the Red List.
In the case of Fin whales, they’ve been protected by the IWC since the 1970′s (before the “moratorium”) and should be increasing in number on the assumption that the protection was in place fast enough, and their environment since then hasn’t completely packed up on them.
An IWC scientific advisory group recently advised that: “the information provided by Japan on the proposed level of catches and the fact that the catches will be spread over a wide area every two years renders it unlikely that the catches will affect the long-term status of the stock(s).”
http://www.iwcoffice.org/_documents/commission/future/IWC-M10-SWG6.pdf
As such, I don’t have a problem with some limited harvest of fin whales.
For southern blue fin tuna, I’ve not seen the recent scientific advice but the fact that quotas are still set in the thousands of tonnes indicates to me that it’s probably OK to catch at least some.
In both cases, we should be catching less than what is sustainable as both resources have been over-exploited, and thus enable them to recover further and support larger harvests in future. I think this is likely the case with fin whales, but I’m uncertain about current levels of southern bluefin tuna catch.
The government on the other hand will probably stick with it’s “no whaling” policy, but it ought to give more appropriate reasons for it’s opposition than it has to date.
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