In late December, Yoshihide Suga, a spokesperson for the Japanese government, announced that Japan was to withdraw from the International Whaling Commission. Simultaneously, they withdrew from the International Convention on the Regulation of Whaling, which served as the Commission’s origins.
Japan’s withdrawal, although attracting international condemnation, was not altogether unpredictable.
The Origins of the Commission
The International Whaling Commission is ‘an inter-governmental organisation whose purpose is the conservation of whales and the management of whaling’.
The Commission was created through Article III of the Whaling Convention. Signed in Washington on 2nd December 1946, the treaty was created with two purposes that may at first appear conflicting.
This is evident from its preamble, which lists the aim of State Parties as ‘ensur[ing] proper and effective conservation and development of whale stocks’. However, it also asserts that this conservation ‘thus make[s] possible the orderly development of the whaling industry’.
The Necessity of Conflict
These aims, although perceivably oxymoronic, were decided with the intention of achieving a unity of sorts. Certain States, particularly those with a history of whaling, were unlikely to support a convention with conservation as its sole purpose; such an instrument would have been counterproductive to the functioning of the whaling industry.
The industry is, in some cases, perceived not only as traditional but also essential for subsistence. For example, in Norway, one of the original signatories to the Whaling Convention, whaling has occurred for centuries, with whale meat being used as both animal and human food.
The consensus-based nature of conventions means that the functioning of international law is heavily dependent on the will of States. In a system at the mercy of autonomy, appeasement is essential.
Furthermore, a convention with the main aim of conservation and apparently lacking regard for the functioning of the whaling industry, would have resulted in signatories without a history of whaling. Consequently, they would more likely take an anti-whaling view.
The cooperation of pro-whaling States was, and continues to be, essential. It is the States that engage in whaling that contribute to a reduction in whale populations. It follows that it is their efforts that will make or break the aim of whale conservation.
Despite this, subsequent developments since the Convention entered into force have resulted in pro-whaling States becoming increasingly frustrated with the International Whaling Commission.
In its early years, the Commission was accused of acting as a ‘whalers club’, since a lack of effective restrictions on whaling and high catch limits meant that whale numbers continued to fall dramatically.
Something had to be done to make the Commission’s work effective in relation to the Convention’s goal of conservation. Therefore, it is unsurprising that measures taken since have appeared primarily conservation-driven. For example, the 1994 vote to establish a Southern Ocean whale sanctuary. Most notably, in 1982, following a vote won with a majority of 25 to 7, the Commission issued a moratorium on all commercial whaling. This was effective from 1986.
Japan was one of the few State Parties to lodge an official objection following this. Such objections are allowed under Article V(3) of the Convention and can mean that the relevant amendment made by the Commission ‘shall not become effective with respect to any Government which has so objected’. Therefore, in this case, it essentially exempted Japan from the moratorium.
However, Japan withdrew its objection as of the 1987/88 season. This was largely a result of pressure exerted from other powerful State Parties, like the United States.
States being allowed the opportunity to lodge objections under Conventions arguably puts the effectiveness of endeavours, such as the commercial whaling moratorium, at a disadvantage.
Nevertheless, it is a common feature of international treaties and is reflective of its consensual foundations. Moreover, it still holds advantage through its incentive to ratify. Could we imagine pro-whaling States ratifying the Whaling Convention, with anti-whaling States forming the majority of its signatories, if this mechanism were not included?
But this led to accusations that the Commission, by focusing on conservation, was neglecting the Convention’s other purpose: the orderly development of the whaling industry.
Recent Developments and Whaling in the Antarctic
Nevertheless, the opportunity to launch objections is not the only leeway available for those States still engaging in whaling.
For example, Article VIII authorises the signatory governments to ‘grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research’.
This was a controversial provision, which attracted complaint from anti-whaling States who feared that the exception would be misused. It has also fuelled further tension between State Parties.
It is this that formed the subject matter of the dispute brought before the International Court of Justice in 2015 in the form of Whaling in the Antarctic. This was a case between the anti-whaling States of Australia and New Zealand on one side and Japan on the other. There, the Court assessed whether whaling carried out under Japan’s project, JARPA II, constituted scientific research within the meaning of Article VIII.
The Court employed a two-stage test to determine whether it did so. Firstly, they considered whether it could be said to be for scientific research and, secondly, whether the methods employed to achieve that research was reasonable.
It was held that, due to the unnecessary use of lethal methods. the second strand of this test was not satisfied. The exception under Article VIII did not apply and, therefore, the whaling violated the Convention.
Consequently, the Court decided that research under JARPA II must cease. However, this has not prevented Japan from employing similar methods under differently named programmes.
Withdrawal – A Domino Effect?
Tension between the Convention’s State Parties has not lessened since the Court’s judgment. Japan’s continued assertion of its activities falling under the scientific research exception has attracted doubt and condemnation from critics.
Indeed, some question whether Japan’s similar endeavours since JARPA II do constitute scientific research. But, given how it would be impractical to bring every project before the International Court of Justice, this was a challenge that could not be assessed in quite the same way.
Despite whale meat having fallen in popularity since the convention’s inception, Japan’s withdrawal from the treaty was influenced by the intention of recommencing commercial whaling. Indeed, it is to be resumed from July.
This is unlikely to be the last withdrawal from the International Whaling Commission, since Japan’s exit may effectively blaze a trail for other pro-whaling States to do the same.
One possibility is Iceland. Despite having a history of whaling, Iceland did not initially put forward an objection to the commercial moratorium. But, controversially, after withdrawing in 1992, it re-joined the Convention ten years later. This time, it was accompanied with a reservation to the ban. Norway, with its similar whaling history and long-sustained opposition to the moratorium, serves as another candidate.
Considering the views of pro-whaling States that the ban had become a permanent measure, it is only a matter of time before others follow Japan’s example.
For all its merits, it is the autonomy allowed through this Convention that will be its downfall. The availability of withdrawal to the scarce number of pro-whaling signatories remaining means that each may leave and, if they so desire, with significant impact.