On a day when the Japanese Prime Minister once again pledged the Japanese taxpayer to foot an increasingly costly programme to reopen Antarctic whaling, the BBC is reflecting on British whaling in Antarctica and its place in history. The contrast could not be more real.
One country with a tradition of whaling, the UK, consigning the destruction of these remarkable leviathans to history, and another country, relatively new to the open ocean slaughter, desperate to keep whaling alive at any cost as a false symbol of Japanese nationalism.
Japan is threatening to reinstate its scientific whaling programme in the Southern Ocean. The recent International Court of Justice (ICJ) ruling  which struck down Japan’s JARPA II whaling programme in the Antarctic should, to most observers, have caused Japan to pause and consider the judgement’s implications for all Japan’s remaining whaling. But again, in a demonstration of the relative strength of the Japanese Ministry of Fisheries over the Japanese Ministry of Foreign Affairs , Japan has continued its whaling programme in the north Pacific with little more than a cursory nod towards the guidance laid down by the ICJ. 
The apparent contempt of Japan’s Ministry of Fisheries for the decision of the Court and its disregard for its loss at The Hague may say more about the agency’s fear of losing political power domestically that the substance of its case for whaling in the North Pacific.
It may also be that with the US manoeuvring in President Obama’s declared policy of a ‘pivot to Asia’, Japan thinks it can get away with anything in the next few years.
The same self-perpetuating rhetoric that led Japan’s Ministry of Fisheries to believe that it could win at the ICJ appears to be driving it to disbelieve that the ICJ’s judgments mean nothing of note.
In seeking to understand how Japan could have convinced itself that it was right and everyone else was wrong, it is maybe worth reflecting on the history of scientific whaling and the way the IWC has sought to deal with this contentious issue.
Whaling and Science – a heady mix
Whilst for many so-called ‘scientific’ whaling is a relatively new phenomenon, Article VIII whaling, as it should be known, has its origins in the perceived incentive of ‘whaling paying for science’. Now, only a century later, it would appear that ‘taxpayers would be paying for science would be paying for commerce’.
If you have not had a chance to read Professor D. Graham Burnett’s  history of the early years of the IWC and the clash of science and ‘practical men’ in his opus, ‘The Sounding of the Whale’, I would urge you to get a copy and delve into the history of the IWC’s attempts to try to manage the whaling interests and their desire to mine the oceans of leviathan.
Burnett’s balanced and well-researched work describes the development of, and the political and scientific-political wrangling, that inadvertently gave birth to what we now know as ‘scientific‘ whaling today.
Burnett recounts how, in the first years of the 20th Century, Swedish commercial whaling interests were exploring the idea of sending an expedition to British and Norwegian dominated Antarctica. The separation of Norway and Sweden in 1905 and Norway’s use of its industrial whaling to help reinforce its sense of nationalism (a feature resonant in the whaling debate today) had, alongside the potential financial returns, provoked Sweden into wishing to assert its whaling rights against that of their, until recently, Norwegian subjects.
In 1911 the Swedish proposal, languishing in London and faced with a already whaling ship-saturated Antarctic, chose to make its case on the basis that such an expedition would ‘give an opportunity for further geographical and scientific researches in those areas where whaling will be carried on’ – it went on to claim that specific research would provide solutions to problems which, ‘…may clearly be of the very greatest importance for rational exploitation of whaling’.
The introduction of an element of science was designed to capture the imagination of the British scientists and bureaucrats that regulated access to South Georgia and adjacent Antarctica at that time.
After initially being rejected by the British authorities the expedition offered to provide 10% of their profits to create a fund for the pursuit of scientific research. The lure of funding for future studies slowly eroded the opposition of administrators and scientists that had been asked to comment on the proposal and who had openly opposed the original proposal on the grounds that whaling was already wiping out whole populations of southern whales.
In a twist that some universities involved in whale research today would maybe recognise, the lure of funding overcame their previous political and ethical considerations and the scientists acquiesced to the proposal which would have been seen through to fruition if not for the intervention of the First World War in 1914.
Even before the end of hostilities in 1918, the greed of the whalers started to overcome their desire to pursue ‘science’. Burnett writes that the Swedish commercial backers of the proposed expedition were now suggesting that instead of donating 10% of their profits to research, this contribution should be fixed at a maximum value of £2,000 and that all research that would be undertaken should be embargoed from publication for five years. Burnett suggests that this may have been to maintain commercial advantage and to avoid any regulatory controls that might arise out of the research findings. This would, of course, appear to make ‘good’ business sense if one views whaling as simply a commercial business in which one is seeking to maximise profits.
The UK regulators used the opportunity of these revised Swedish demands and the lure of the chance to do their own government-funded research, to side step the Swedish proposal and launch their own programme of investigation ‘…under the strongest moral obligation to do all that can be done for the protection of the whales’.
Whilst they did have some real concerns about the potential for the extermination of whale populations in the southern ocean one cannot also escape the truth that protecting British whaling interests may have also been as important as protecting the whales in some people’s minds at the time. The BBC series may well throw more light on this.
Science and commerce had been used to support each other, but was 20th Century conservation policy going be rooted in science or was the science going to be driven by the commerce? Antarctic whaling has been riven by this dichotomy ever since.
The meaning of ‘Scientific’ Whaling
The 1946 Convention on the Regulation of Whaling (ICRW) had been born of much debate as to the role of science in the workings of this new Commission.
The whalers of many nations, describing themselves as ‘practical men’, had like the Swedish investors of 1912, wanted to avoid too much of what they saw as scientific interference in the commercial imperative of exploiting as many whales as possible.
The formulation of the IWC in 1946 after the catastrophe of expansionist Nazi Germany and imperialist Japan had, through the 1950s, seen this ongoing debate crystalize into two polarized positions, – between those who saw science as a mechanism to delay regulatory measures and those who could see the use of science as a way to achieve such regulations.
As Burnett notes, nothing quite personified these discussions such as the debate over what was meant to ‘take whales for purposes of scientific research’.
The clause that covered Scientific Whaling was enshrined in Article VIII of the ICRW:
‘Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government think fit, and the killing taking and treating of whales in accordance with the provisions of the Article shall be exempt from the operation of this Convention’
But this was not the first time such an exception had been considered in relation to whaling.
The 1931 Geneva Convention for the Regulation of Whaling did not mention a specific exemption for scientific takes, but the original draft had had a note stating that ‘provision would have to be made to give the necessary exemptions for scientific purposes’.
The final Article VIII text of the ICRW was an almost complete transposition of a similar clause from the 1937 international whaling agreement.
What is critical here is that the US drafters of the ICRW meant this Article to be used in a specific way.
‘…it was originally introduced in 1937 in order to “legalize and encourage scientific investigations on the order of those carried out by the Discovery Committee”’ 
Burnett notes that as soon as Article VIII was proposed, arguments broke out as to the commercial value of a whale taken under such a permit, – foreshadowing the many discussions and disagreements to come.
The ink on the 1946 Convention had hardly dried when ‘scientific’ whaling permits were being issued, but not in the way the drafters had envisaged. It was however, sporadic and generally the numbers involved were less than thirty a year.
Jeremy Cherfas, who, as a journalist for the New Scientist magazine, reported that Norwegian and British whalers complained to the IWC that the Soviets were systematically abusing Article VIII to cover any illegal activity that they wished to carry out with respect to catches including the taking of undersized and immature whales.
Norway even demanded that the IWC should be intervening to set more stringent regulations with respect to what was and was not allowed under Article VIII.
The Commission’s Scientific Sub-Committee reacted by stating that such whaling should not take place outside the designated whaling season and that such catches should always target ‘as few whales as possible’ and ought to be within the overall quota allocated for the Antarctic. 
This enlightened proposal did not survive the full meeting of the Scientific Committee when delegates argued that such a measure would require a revision of the Treaty itself. However, it did stimulate a discussion of whether technical measures related to whaling could be tested under Article VIII. When the UK proposed to use a ‘scientific’ whaling permit to grant itself a quota of twelve whales to enable its whalers to test a new form of harpoon, it was Norway that complained that this was not within the ambit of Article VIII. 
Cherfas went on to claim that Norway argued that Soviet and Japanese whalers’ failure to publish the scientific findings of their so-called research invalidated all their whaling under Article VIII. Whilst this specific demand foundered at the time, subsequent debate has led to a the fact that a failure of appropriate and adequate peer review was to be one of the grounds for the ICJ to find against Japan in its recent dispute with Australia .
As a later abuser of Article VIII it is interesting to see that Cherfas notes that Norway even threatened to leave the IWC in the 1950s because they felt that the IWC could not enforce controls on those who used Article VIII to avoid abiding by total catch quotas.
This was a turning point in the IWC, – when unregulated ‘scientific’ whaling was allowed to continue, in the spirit of not being seen to be, ‘anti-scientific’.
The IWC had fallen into the trap of feeling it had to proclaim, even if not really believing it itself, that science was some sort of ‘pure pursuit’, unencumbered by politics and such lowly motivations as greed.
The thought that the politicians may not be able to regulate the science they wished to pursue may also have motivated some, but they had unleashed a tiger that was to come to back to bite them in recent years.
Whilst the Scientific Committee continued to offer ‘no restrictions in the name of science’, the IWC’s Technical Committee urged member governments to ‘interpret the term “scientific research” just as narrowly as it can’. 
Tønnessen and Johnsen  note that the Norwegians believed that the IWC had responded to its concerns and that the 1957 meeting had addressed the threat of ‘scientific’ whaling when it, the IWC, ‘resolved that permission for whaling of this kind should only be given to a very limited extent’.
By 1958 it was clear to many within the IWC that Norway’s 1957 ‘idealism’ had been naiveté, and science was indeed being used predominately as a tool to prevent regulatory controls with an aim of maintaining the largest quotas possible – and all despite mounting evidence that the whalers were actually putting themselves out of business.
In 1959, the tenth report of the Commission  notes that during the year (June 1958 to May 1959) permits had been issued by
- Netherlands – nine baleen whales
- Australia – six adult sperm whales and sic juvenile sperm whales
- United States four protected species
In 1962 the number of whales listed in research permits jumped to 100. In 1963 when Antarctic quotas were reduced by a third, more than 500 whales were being killed under Article VIII permits.
Most permits in the 1960s were for lucrative catches of sperm whales, which were not subject to IWC quotas until 1970 and whose oil fetched a higher price than that of other whales. The charge to clear the oceans of sperm whales was led by the USSR and Japan.
Countries such as New Zealand that felt that they were suffering from reduced quotas of coastal humpbacks also exploited this loophole to try and keep its whaling industry alive during the early 1960s.
The Commission was also told of previous research that had been undertaken by the US and the Netherlands.
In 1964 the IWC records  show that in the previous year,
- The Australian government had allowed for the taking of 56 undersized sperm whales
- Australia then had authorised the taking of five undersized sperm whales each month for the rest of the season.
- New Zealand had issued a permit for the taking of 100 sperm whales during the year.
- The US had issued a permit for the taking of four protected species but that the permit had not been used.
- The US issued a permit for the taking of 20 gray whales and a ‘harem’ of sperm whales.
- The Canadian government issued a permit for the taking of 20 undersized and/or lactating sperm whales.
- The Japanese government had issued permits for the taking of three schools of sperm whales (up to 30 in each school.
That same year the Chairman’s report  notes (page 20) that the,
‘Scientific Committee and the Infractions Sub-Committee of the Technical Committee had directed attention to the provisions of Article VIII of the Convention. The Scientific Committee noted in paragraph 15 of their report that there had been recent instances of special permits having been given by Contracting Governments for the taking of much larger numbers of whales under this Article than in the past’.
The Committee then agreed a number of points, including,
‘(iii) the numbers shown in each permit should be the lowest necessary for purposes indicated in the permit;’[Emphasis added]
The following decades saw ever increasing numbers of whales taken under Article VIII as the commercial quotas crashed under an unsustainable onslaught. By the 1970s the IWC was debating a moratorium and finally as the 1980s dawned, reason prevailed.
However, just before the moratorium vote of 1982 the final proposal during the commercial whaling period came from the European Community member, Denmark.
Despite being of huge concern, fin whales had continued to be hunted by the Faroese with the full knowledge of Denmark. The Scientific Committee had designated the West Norway-Faroe Islands stock of fin whales as a ‘Protection Stock’ with a zero catch limit, a point it reiterated in 1981 . In 1981 the Scientific Committee had made a deliberate point of drawing the attention of the Commission to the Faroese hunt of 11 fin whales despite the zero catch limit.
The Scientific Committee had reviewed an advanced copy of the Danish/Faroe Islands proposal (SC/33/RP3) for an Article VIII take of nine fin whales and decided that they could not endorse the proposal. 
The Faroese Home Rule Authority went ahead and issued the permit anyway. The Danish newspaper Ekstra Bladet is noted by Cherfas as quoting the Director of Fisheries Investigation Office as saying,
‘…the research is not the most important part of the whaling. What is most important is the whale meat, as a source of food and income’
What the Director failed to say at the time was that the real target was always to supply the Japanese market, and that the profits from the hunt accrued to a few individuals involved in the commercial whaling business. With the advent of the implementation of the moratorium the Faroese hunt, which had been designed to not have an end date, ended with no more reports to the IWC of fin whales being killed.
Whilst one could have hoped that the 1982 moratorium decision would have seen the back of these abuses, its implementation in the 1985/86 season saw a slew of new research proposals.
Within the first ten years of the IWC adopting the moratorium on commercial whaling Japanese ‘scientists’ had killed a total of 3,527 minke whales in the Antarctic and Northwest Pacific under special permits for scientific research. Also under special permits, Norway had killed 289 minke whales in the Atlantic off Norway; Iceland 292 fin whales and 70 sei whales in the Atlantic, off Iceland, and South Korea 69 minke whales in the Sea of Japan. 
No one should have been surprised. The road upon which Japan set itself and which was to culminate in the ICJ decision some 29 years later, was to be found in the words of the then Japanese Minister of Agriculture, Forestry and Fisheries, in a speech on the 5th April 1985. The Minster, Moriyoshi Sato, was reported as saying,
‘The government will do its utmost to find out ways to maintain the nation’s whaling in the form of research or other forms’.
In 1987 Japan launched into its JAPRA I programme, intending to kill an annual 875 minke whales a year, for twelve years.
Thus began Japan’s programme of commercial whaling under the guise of ‘scientific whaling’, which eventually led to their disgrace at the ICJ in March 2014.
The moratorium was designed to see what effect a pause in whaling would have on whale populations. The very fact that the leading whalers of Iceland, Norway and Japan wanted to continue whaling struck at the very heart of the decision and its scientific underpinning. It’s a course they would continue to steer for decades to come.
Science needs a moral compass
Burnett (2012) notes that the 1950s and the abuses that were seen at that time, had created an environment where:
‘…the whole framework for regulatory decision making “based on scientific findings” (as called for in Article V of the ICRW) had shifted through the 1950s. Gone was any trace of hope (except perhaps amongst the most hapless or deluded participants) that the “collaborative model” for scientific advising might eventually yield a working regulatory system. The whole notion that a community of scientists might, through sustained research, strategic relationship building, and careful boundary work, nurture into existence a system of cooperative, rational, international regulation of the whaling industry – that optimistic vision of the forties – had emphatically foundered in the middle passage of the decade that followed. The scientific whaling controversy revealed that the apolitical space the IWC’s originators had set aside for scientific investigation was a rule-free zone enormously susceptible to misuse’.
Neil Alison Mackintosh, who served as chairman of the IWC Scientific Committee between 1952 and 1962, is recorded as stating in the 1960 plenary session,
‘We are always a little doubtful about exactly what we should say about this because we know there are more factors to take into consideration in fixing the limit [quota] than the purely scientific point of view’ 
In 1962, when discussing a potential reduction in the sperm whale quota, Mackintosh said ,
‘…it is certainly a point in which purely scientific and technical questions are inevitably mixed because the protection of the females is a scientific question and the limitation of the catch and its effect is a technical question.’ 
The growing political nature of the Scientific Committee and the use of science is attested to in the writings of Dr A Remington Kellogg, the head of the US delegation to the IWC in its early years
‘There were meetings of the scientific committee when insisted that as scientists the members should be guided in their deliberations by the available facts and that they should do well to leave policy considerations to their commissioner at plenary sessions. Unfortunately some members of this committee had neither biological training nor appreciation of the rules of evidence’ 
Gillespie (2005) notes that the IWC Commissioner for New Zealand, the Honourable Jim McLay, again articulated this quandary at the IWC meeting in 1997 :
‘Science is the province of the Scientific Committee, but there are occasions when it is proper for this body [the IWC] to give guidance on the Committee’s scope. That is particularly true where a scientific research program raises moral and ethical issues. And ethical issues are inevitably raised when a research program results in nearly 3,000 animals being killed over eight years, with the prospect of another eight years to come . . . We need more than just a scientific direction here… we also need a moral compass.’
Jim McLay was stating something that many others already knew. Science was never, and never had been, divorced from politics and its associated opportunities for abuse.
In 2014 Japan’s nationalistic and self-serving interpretation of ‘science’ had led it directly to the doors of the ICJ.
Whether the Japanese public can continue to allow its Fisheries Agency and Prime Minister to drag Japan through continued international condemnation remains to be seen. At the moment the domestic orientated Japanese Fisheries Agency does not seem to believe that it ‘needs a moral compass’ or the guidance of the ICJ, or even that of the IWC.
It appears that Japan’s Fisheries Agency and the Japanese leadership has learned nothing. The whaling that Japan is currently undertaking has failed to get the endorsement of the IWC and, therefore, is, and remains an infraction under the terms of the ICJ ruling.
But will the IWC now hold Japan to account?