Whaling: Not where I wanted to be

Vernon Rive . 30/04/2010 5:24:05 p.m.

‘This has been a fraught subject for much more than twenty years …a boil on the international body politic that needs to be lanced…’ -Sir Geoffrey Palmer, NZ Whaling Commissioner, 1 April 2010.  Two years of intense discussions since the last IWC meeting in Chile in 2008 have left the parties in a state of unresolved wrangling, just one month out from the forthcoming IWC meeting of parties in June in the Moroccan seaside resort town of Agadir.

The last four months have seen a frenzy of activity on the vexed issue of international whaling, a pattern that looks set to accelerate in the remaining weeks leading up to the start of pre-meetings of IWC committees in late May, and the Annual Commission meeting on 21 June.  In January, an upbeat John Key, fresh from his summer break, mentioned to reporters his plan to raise with US Secretary of State Hillary Clinton in meetings a few days later a ‘potential solution’ that could end Japanese whaling.  Details were scant at that point. But an emotionally charged, politically intense debate was triggered when it emerged that the potential solution involved an arrangement which, on its face, legitimised limited whaling by Japan, Norway and Iceland for a period at least, while parties to the IWC attempted a longer term consensus.

Australia meanwhile, remained relatively staunch, confirming its commitment to ongoing discussions, but making no secret of its Plan B, if a satisfactory solution cannot be thrashed out at the next IWC round: proceedings in the International Court of Justice against Japan and other countries who have exploited a perceived loophole in IWC rules allowing the harvesting of whales for ‘scientific purposes’.  

The timing driven by an IWC deadline for tabling proposed amendments to the 1946 International Convention for the Regulation of Whaling, on 22 April (coincidentally Earth Day 2010) , the IWC, reportedly with US support, released a 'Proposed Consensus decision to Improve the Conservation of Whales'.

Under the ‘proposed consensus decision’:

- Japan would be allowed to legally kill and take whales in the Antarctic's Southern Ocean Sanctuary, but its quota would drop from 935 to 400 minke whales for 5 years, reducing to 200 after 5 years;

- Japan would also be allowed to harpoon 10 fin whales in the sanctuary and 120 minke whales in its own coastal waters;

      • - More active monitoring of whaling activities would take place under the auspices of the IWC;
      • - The maintenance of DNA records to enable detection of illegal international trafficking in whale meat would be mandatory.


Fin whales, the second largest whale species after blue whales, are on the IUCN ‘redlist’ of endangered species.  NZ Foreign Affairs Minister Murray McCully has described the inclusion of a catch limit for fin whales in the Southern Ocean Whale Sanctuary as “inflammatory” and “offensive”.

The introduction to the IWC’s proposed consensus decision frankly acknowledged that no party would be happy with it: "The only inevitable result of the example numbers we have included…is that as a package, they will be disliked by all for one reason or another, including ourselves.”  It is a self-acknowledged ‘straw man proposal’ – there to provoke and allow discussion. Provoke discussion it has.

NZ was swift to reject it.

To an extent, the IWC document might be seen as a ‘get out of jail free’ card for Key & McCully on an increasingly volatile political issue: after having gone out on a limb earlier in the year, it has now allowed them to move a little closer to public opinion, using descriptions such as ‘unrealistic’ and ‘inflammatory’, and emphasising that attempts at diplomatic solutions will not be pursued beyond a point. 

Australia’s inevitable rejection was made clear by Environment Minister Peter Garrett on 23 April, amplified in a 28 April speech in Canberra, saying “Australia believes the proposal before us falls well short of any outcome that Australia could accept.”

Japan was never likely to show enthusiasm for the text, nor did it: Japanese Fisheries Minister Hirotaka Akamatsu by way of loaded understatement put it this way: "Regarding the total catch allowed, it is different from Japan's position.” 

It hardly needs to be said that the stakes are high, and issues almost intractable.  And while position-taking, breast-beating, veiled and open threats are increasingly par for the course in the period leading up to contentious international treaty negotiations – the Copenhagen climate change conference for example – hopes must be dimming as to the prospects of an enduring situation being reached in Agadir in June.

Of obvious concern, if entrenched positions are maintained, is the possibility of the IWC process completely breaking down.  On this scenario, Sir Geoffrey’s views are clear:

I think there is a big risk of that and I don't relish it… We cannot afford to see the end of the International Whaling Commission because if it comes to an end, there will be no international instrument for protecting the whales.

Unregulated whaling would almost certainly result in an increase in the number of whales slaughtered in both hemispheres, without any dedicated international body - no matter how dysfunctional - to regulate it.

The possibility of the IWC falling apart leads to thoughts of alternative mechanisms such as the ICJ. 

It would not be the first time Australia and New Zealand have resorted to international law institutions to resolve environmental disputes.  In 1999, Australia and NZ embarked on international legal proceedings over a controversial Japanese ‘Experimental Fishing Programme’ for southern bluefin tuna.  There was mixed success: an initial ruling favourable to Australia and NZ was subsequently overturned by arbitral tribunal constituted under the United Nations Convention on the Law of the Sea (with a notable dissent by NZ’s Justice Kenneth Keith – now sitting in the ICJ).  The parties were ultimately sent back to the negotiating table to work things out ‘peacefully’.

New Zealand has been to the ICJ twice over the legality of French nuclear testing in the Pacific.  France ignored provisional measures ruled on by the ICJ in NZ’s favour in 1973 and 1974, proceeding with tests, and then avoided a detailed merits assessment of the legality of its actions by undertaking not to undertake further atmospheric testing.  In 1995 an attempt by NZ to seek rulings on the legality of underground testing was dismissed by the ICJ, although France subsequently joined a treaty banning all nuclear testing in 1998. 

International legal proceedings can have utility in putting additional pressure on nations to alter their behaviour in the global realm.  But they potentially take years to come to hearing and produce rulings, are frequently dogged by tactical procedural challenges (which, as seen in the BFT and nuclear cases, have gone against NZ as often as for) and even if successful, require political goodwill to be complied with.

For all parties there is a real conundrum over tactics.

The Sea Shepherd’s supporters will be basking in obvious satisfaction at the success of significantly reducing the numbers of whales taken by Japanese vessels through a determined campaign of obstruction.

Unregulated and increased whaling could well provoke future campaigns by the likes of Sea Shepherd compared with which, the past obstruction activities could be seen as a clearing of the throat, a gentle warm-up.  The military jargon that already permeates websites, speeches and other media of some anti-whaling organisations reflects the position that not only has war already been declared, but also that it most certainly will be televised.

But it would be naïve to think that these tactics will provoke anything but a hardening of position by whaling nations.  Attracting the attention of a section of young Americans to reality-type shows capitalising on the age-old romance of adventure on the high seas is one thing.  Unlocking entrenched attitudes of pro-whaling nations and their leaders, for whom whaling has been elevated to an issue of international identity, sovereignty and esteem is another. 

Peter Singer, the respected Australian philosopher, writing in 2008 pithily summarised one of the core ethical issues thrown up by the whaling debate:

The Japanese do have one argument that is not so easily dismissed. They claim that Western countries object to whaling because, for them, whales are a special kind of animal, as cows are for Hindus. Western nations, the Japanese say, should not try to impose their cultural beliefs on them.
The best response to this argument is that the wrongness of causing needless suffering to sentient beings is not culturally specific. It is, for example, one of the first precepts of one of Japan's major ethical traditions, Buddhism.

But Western nations are in a weak position to make this response, because they inflict so much unnecessary suffering on animals. The Australian government strongly opposes whaling, yet it permits the killing of millions of kangaroos each year—a slaughter that involves a great deal of animal suffering. The same can be said of various forms of hunting in other countries, not to mention the vast amount of animal suffering caused by factory farms.

NZ is by no means lily white in this respect.  A recognition that our own house needs to be in order is seldom part of the discussion, but should be.  So too, might an acknowledgement of NZ’s own role in historic whaling activities – 1964, the year that the last whale was harpooned in NZ waters is not so long ago.   The point is not so much that anguished introspection is needed, but rather that a small dose of humility might go a long way in the international debate.

It seems unlikely that the question of whaling will be finally resolved by extreme tactics by either side, rulings of international courts, or trade wars.  Those elements may play their part, but ultimately, resolution lies in the shifting of ethical views: a fundamental revisiting of the relationship between humans and this class of higher mammals, whose lifespan frequently exceeds that of humans, whose brains are up to ten times the size of ours, and whose number include the largest creatures on earth.

Perhaps what is needed is not another Operation No-Compromise, but a global charm offensive, aimed at the capturing the hearts and minds of the Icelandic, Norwegian and Japanese public, particularly the young.  More Whale Rider than The Cove?  Less Sun Tzu than Heathcote Williams?  The tactics of Te Whiti over Guevara?

By Vernon Rive on 30/04/2010 5:24:05 p.m. | Comments (1) | Print |

Leave a comment...

  • Comment

Running Commentary

  • Neil Waddington - 1/05/2010 7:22:56 a.m.

    Well written, Vernon. I completely agree that the "Charm offensive" is the only one with any hope of success. I hope you wise words find a wide audience.word



I’m an Auckland based writer, researcher, lawyer and lecturer specialising in environmental, resource management and public law.  My particular interest is in the international law framework influencing domestic law and policy on climate change and biodiversity protection.  I'm the author of chapters on the International Framework, New Zealand Climate Change Regulation and Adaptation to Climate Change in the 2011 Lexis Nexis-published book Climate Change Law and Policy in New Zealand and the general editor of the Resource Management Bulletin.  I also lecture in Public, Resource Management Law and International Environmental Law at AUT Law School.