International Law Roundtable

Given the ongoing tensions between Australia and Japan over whaling in the Antarctic Southern Ocean, and the new government’s election promise to “enforce Australian law banning the slaughter of whales in the Australian [Antarctic] Whale Sanctuary” — an act most states would consider illegal at international law, see Anton, Why the Australian Antarctic Whale Sanctuary Does Not Pass International Legal Muster — it is heartening to see a more multilateral approach taken in the release of a recent discussion paper on the future of the International Whaling Commission. See Australian Government, Whale Conservation and Management: A Future for the IWC (undated). The SeaWeb OceanUpdate (May 28, 2008, vol. 13, no. 4), summarizes:

A document released by the Government of Australia at an IWC meeting in London in March posits that, “The conduct of scientific whaling has created significant tension at the Commission,” and that the “unilateral killing of whales” by countries using either the research whaling loophole or conducting openly commercial whaling under objection to the moratorium “remains the greatest impediment to moving the Commission forward in the future.”

That the Commission does indeed need to move forward is highlighted, says the report, by the changes that have taken place since the IWC Convention was written in 1946: Many whale populations have decreased dramatically as a result of commercial whaling. New threats to whales have arisen, including overfishing, toxic and noise pollution, ship strikes and global climate change. And the public attitude worldwide toward whales has changed to one that is now overwhelmingly supportive of their conservation.

The document notes that, although the Commission is considered the preeminent authority on conservation and management of whale populations, that management is presently restricted to setting catch limits for directed hunts of the great whale species. It presently has no mechanism in place to, for example, reduce bycatch or regulate whale-watching operations.

The Australian government proposes that the IWC address some of these shortcomings by developing conservation management plans that address, for example, the recovery of South Pacific humpbacks, the highly endangered status of northwest Pacific gray whales or the impact of climate change on whales in high latitudes. This would link the IWC with other international fora such as the Convention on Migratory Species and the United Nations Convention on the Law of the Sea.

However, the document argues that perhaps the most significant and immediate step the Commission must take is a “reformed approach to science.” It points out that the IWC has adopted more than 30 resolutions calling for an end to “scientific whaling” and for all further research to be conducted using
nonlethal techniques. However, under the rules established in 1946, any Member State that wishes to kill whales for science can do so without seeking the Commission’s approval. That, say the Australians, has to change.

The document recommends that all scientific research under IWC auspices be brought directly under the control of the Commission, and that the IWC should agree a set of criteria to which all such research should conform. Such criteria might include quantifiable measures of success, use and availability of nonlethal methods, and a transparent and open process. In addition, all governments should commit not to issue scientific whaling permits except with the approval of the Commission.

The document concludes that such measures “would strengthen the Commission by increasing collaboration on science and would remove the most serious source of tension that presently impedes the Commission’s work.”