New Ideas or simply whaling’s apologists?

There seems to be an interesting trend in the semi-scientific literature where authors, consciously or unconsciously, seek to represent the arguments of the pro-whaling lobby but dress them up as if they are creating something original for us to consider. Interestingly these opinions are coming from credible scientists and this gives them more weight, but I believe their arguments are flawed and contain significant misunderstandings.

In particular, Leah Gerber, of Arizona State University has recently published in Frontiers in Ecology and the Environment on why she believes that commercial whaling should now again be accepted. In reality, the consequence of accepting Gerber’s arguments may be simply to reward Japan and the other whalers for their intransigence within the IWC over the years?

One area of possible misunderstanding comes about in her claim that Japan has been willing to compromise, by being happy to accept “including such provisions as placement of independent observers, satellite-based vessel-monitoring systems, and a mandatory DNA registry of whales caught.” A close analysis of the history of the IWC discussions would demonstrate that nothing could be further from the truth. Attempts at establishing a management regime for whaling – which would indeed include such matters – fell apart some years ago and this was primarily because of the intransigence of the whaling nations. Contrary to Gerber’s assertions, Japan has brought nothing new to the table in recent discussions, and indeed, it was the ‘conservationist-minded’ countries that slowly eroded their positions to try and bring the whalers to the negotiating table.

Gerber also presents some thoughts on the legal interpretation of recent events. She claims that “Without a functional agreement on global management, any nation could decide to scientifically whale or to join IWC under an objection to the moratorium”. Gerber may be thinking of the one-off situation of Iceland, which re-joined the IWC with a much disputed reservation. If Gerber is implying that the reservation of Iceland to the Moratorium set any form of precedence, she and others who make this argument forget that Iceland used a sleight of hand to vote on a procedural question on its own reacceptance (breaking a deadlock of 18 votes in favour and 18 against) even before Iceland had been accepted back as a voting member. Whilst Iceland has since been able to act as signatory to the Convention, a significant number, some 18, of the then IWC members subsequently rejected Iceland’s arguments by legally objecting to the addition of the reservation. I don’t think any nation would like to rely on Gerber’s interpretation to try anything similar again, especially with an IWC that, hopefully, now knows more about the relevance of the Vienna Convention on the Law of Treaties.

Gerber admits that the Moratorium has never been complied with by the whalers who have been able to disregard the ruling of the IWC, and yet she now argues in effect that such intransigence should be rewarded by acquiescence of those nations that did abide by the decisions of the IWC. Gerber claims that the recent International Court of Justice Judgment “…applies only to a small Japanese whaling program in the Southern Ocean known as JARPA II.” This is a very narrow interpretation – again it is made by a scientist trying to interpret law, and again, this view effectively favours the whalers’ side. Whilst the ruling was based on the case at hand, the ICJ actually stated that ‘It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII, paragraph 1, of the Convention’. Also the programme that Gerber calls ‘small’ killed thousands of whales in a process that they repeatedly claimed was ‘science’ but which the ICJ identified as both unscientific and commercial.

The judgment of the ICJ therefore categorically confirms that the ‘reasoning and conclusions’ in this judgment should not be considered to be specific to the facts of JARPA II or whaling programmes in the Antarctic only, but will apply to all future scientific whaling conducted by Japan under Article VIII of the Convention around the world. This is also apparent in the discussions that have followed within the IWC where Japan has recently argued that its new ‘research programme’ – known as NEWREPA – and which has been in discussion – meets (or will meet) the requirements of the ICJ. So, Japan unlike some commentators, clearly recognises the wider implications of the case. As a side note, to-date, Japan has been unable to convince the IWC or the world community that its new whaling program in Antarctica is compatible with the ICJ ruling.

Gerber, an advocate of the application of market forces to managing whale populations avoids mentioning the perversion of the existing markets for whale meat where the current whaling governments highly subsidize the whaling industry to artificially maintain the practice. This article also fails to mention the undermining of the IWC as practiced by Japan in its campaign of economic imperialism whilst economically encouraging the votes of developing nations at the IWC.

Such market manipulations, both financial and political, make a mockery of all current or future negotiations on any supposed deal as advocated by Gerber.

Japan’s latest concept of a deal appears likely to allow for the maintenance of the moratorium in the text of the IWC Schedule, but seek to introduce a new form of whaling, so-called ‘Small type coastal whaling’ or ‘sustainable community based whaling’ (For an interesting discussion on this I would encourage you to read Mark Simmonds’ recent piece for the Huffington Post). Without going into the detailed history of how Japan has sought to make similar arguments in the past, which have been consistently rejected by the IWC, I would argue that Japan is pursing a careful and strategically long-game.

This strategy, as we have discussed in these pages before, has evolved in recent years. It originally focused on arguing that Japan’s whaling should be both an exception and that the moratorium should be overturned with a quota for its whalers specifically. Unable to convince the world community that commercial whaling should be allowed, since then, Japan’s whaling industry has sought to increase the pressure on the IWC, by both attacking ASW operations when it suits its interests (such as bringing pressure on the US for its Inuit’s ASW) and encouraging increased commercialization within ASW, such as we have seen in Greenland. These actions have allowed it to pitch an argument that it’s whaling is comparable with such ASW hunts, and therefore, that it should be granted an exception. Japan’s so-called scientific whaling has been employed to maintain its fleets, keep open the domestic processing and trade networks, and for stoking up the pressure on the IWC every year by seeking to kill more and more whales – a form of emotional blackmail used against the conservation-led countries which also leads to proponents of a ‘deal’ claiming that such a move will bring with it ‘less whales dying’.

Coupling Japan’s new tactics on achieving whaling outside of the moratorium but within the purview of the IWC, this classic strategic pincer movement is now being intensified with Japan seeking to capitalise on the US Government’s renewed interest in the regional politics. Japan’s aspirations to become a permanent member of the United Nations Security Council (Japan’s recent decision to change its constitution to allow for assertive military action has been linked to some views that insist that permanent members need to be able to carry out military roles) is putting a new fire under those who wish to get the whaling issue ‘out of the diplomatic public eye’ and so enable Japan to fulfil an active regional and international role. For some interests in the US and the whaling countries, finding a final solution for the whaling issue is increasingly pressing, and support is being looked for from all quarters.

Coming back to Gerber’s thoughts on a resumption of commercial whaling, the ICJ judgment categorically confirmed that no additional form of whaling activity can be inferred from the text of the Convention and the Schedule, beyond scientific, aboriginal subsistence or commercial whaling, thus pre-empting Japan’s attempts to make such a case before the IWC.

Gerber also nods to a recent series of arguments by the pro-whalers by reiterating the tired suggestion that this is an issue of ‘food security’ verses ethics. Not only does this do a disservice to the very real welfare issues of whales suffering in whaling operations, but scientists who wish to engage with these complex assertions must be very careful not to simply repeat the rhetoric of the pro-whalers whose interests only lie in achieving an endorsement of future commercial whaling.

The upshot of Gerber’s arguments appears to be that Japan’s corruption of ‘scientific whaling’ within the IWC and Iceland and Norway’s refusal to be bound by past decisions, should simply be ignored and that ‘international practice’ (rather than international law), should effectively be based on the strength of the parties to force a decision.

I am not sure conservation, science or democracy is best served by such arguments, and I am sure that the future of the whales is not.