With a less confrontational approach to whaling, more whales could be saved

Whales had another big win last week – allegedly. The Australian-sponsored resolution adopted by the International Whaling Commission will, in theory, make it harder for nations such as Japan to award themselves special permits for “scientific” whaling.

But as pointed out in The Conversation at the time, the non-binding resolution is likely to have little material effect on whales themselves.

Australia’s delight at the new resolution echoes its response to the International Court of Justice’s 2014 ruling that Japan’s JARPA II whaling program was unlawful.

But since then it has been business as usual for Japan, which simply created a new and different research program – one that makes it very difficult for Australia or anyone else to take it to The Hague again. It is hard to see what these legal and diplomatic victories have achieved in a practical sense, beyond prompting Japan to entrench its resolve to continue with its whaling programs.

It is time for some new tactics. Legal and diplomatic skirmishes with Japan and other pro-whaling nations might feel like the right thing to do. But they deliver little benefit to the whales, and could potentially provoke pro-whaling nations into leaving the IWC altogether.

Longstanding impasse

Before setting out my views as to the way forward, I must state that, on a personal and moral basis, I am absolutely opposed to any whaling whatsoever. I would like to see the complete cessation of whaling by any country in the world.

Unfortunately, however, it does not appear that the events at the recent IWC meeting will change much in practical terms. To be sure, any reform of the IWC is welcome. However, the failure to achieve the required three-quarters majority for the establishment of a South Atlantic whale sanctuary, coupled with the non-binding character of such resolutions, means the IWC has once again proven itself incapable of achieving a strong consensus on contentious issues relating to the protection of whales.

Herein lies the problem. Although this might sound strange coming from a law professor, I believe that the formal legal system is not an effective way to resolve long-entrenched impasses in a way that best serves the interests of the whales themselves.

This is particularly true when the issue draws such emotional responses from all sides. Using the IWC as an ideological battleground does not get us very far in terms of protecting whales.

In its early years, the IWC was characterised as a “whalers’ club”, allocating quotas to member states at levels that significantly harmed whale numbers. Over the past 30-40 years, however, nations such as Australia, New Zealand and Britain have become fiercely anti-whaling, and the commercial whaling industry has met its demise.

As a result, the IWC has over time adopted a much stronger anti-whaling stance, putting it at odds with the whaling states (including Japan, Norway and Iceland) and causing considerable tensions within the IWC.

These tensions have been exacerbated by the fact that, even though the underlying sentiment of many member states has changed, the terms of the 70-year-old treaty have not. That makes it hard for the IWC to morph seamlessly from a resource-management body into a conservation forum.

The logical endpoint

The worst-case outcome would be if Japan (or any other whaling state) feels it is being pushed too far at IWC meetings, and decides to withdraw altogether, which nations can do with as little as six-months’ notice under Article XI of the Convention. Such a country would no longer be bound by any of the restrictions established under the treaty regime – including the moratorium on commercial whaling that has been in effect since the mid-1980s.

Breaking away from the IWC would undoubtedly bring with it significant political and diplomatic costs, making it perhaps unlikely that nations will seriously consider it for now. But if the adversarial tensions continue, pro-whaling states could eventually decide simply to leave the IWC process in order to pursue commercial whaling with little or no international controls. If this were to happen the IWC would have presided over an ecological catastrophe for whales.

Japan’s response to recent developments has shown that a complete cessation of whaling cannot be achieved, at least in the short term. The only rational and pragmatic response is therefore to ensure that as few whales as possible are taken.

I believe the only way for that to happen is for IWC members to agree a compromise based on widely accepted environmental principles such as sustainability. The sad fact for strong anti-whalers such as myself is that this may involve some whaling, albeit on a far more controlled basis than at present.

In this way, the dubious reliance on “scientific” purposes as a disguise for what many observers regard as commercial whaling would end, replaced by a credible system to which everyone has agreed.

It is important not to lose sight of the ultimate purpose here: to preserve whales and do everything possible to protect them. The current emotionally charged legal and diplomatic battles, no matter how worthy and principled, aren’t really in the best interests of these magnificent creatures. An international management regime based on cooperation and clear, objective principles offers a far more promising prospect for their future than the current stalemate.