The Wailing about Whaling
Written by Dr Klaus L.E. Kaiser
The International Court of Justice in The Hague has spoken: In a 12-to-4 judgment the court found that Japan was in breach of its international obligations by catching and killing Minke whales and issuing permits for hunting Humpback and Fin whales within the Southern Ocean Whale Sanctuary, established by the International Whaling Commission well after the commission had come into effect (New York Times).
If you think that this court decision is good for the world perhaps you may reconsider when realizing the potential consequences.
Japan’s Whaling History
Like other seafaring societies Japan has been harvesting ocean resources since time immemorial. For example, Japan’s recorded whaling history goes back well over 1,000 years. So, just for historical reasons alone, Japan never needed to pretend that its whale harvest was anything else than a long-established tradition.
Nevertheless, the country promoted this “research” idea as the sole reason for their whaling activities. It may have been an acceptable explanation a few decades ago, but never was the sole reason and now the chickens are coming home to roost.
I have eaten whale meat once in my life, I think, approximately 50 years ago when travelling through Norway. Being poor students at the time, my buddy and I found this butcher shop in a remote hamlet with a large hunk of red meat at relatively low cost. It provided good protein to our less than ideal diet at the time but the taste was a bit fishy. Only then did we realize that it must have been whale meat.
In Japan, consumption of whale meat has been common for a long time. Recently though, with the negative, “biodiversity-conscious” good citizenry of the country, consumption has declined in favor of imported beef and other meat but not everyone thinks so: “Some people eat beef, others eat whale. We should respect all cultures,” said Komei Wani who leads the Group to Preserve Whale Dietary Culture, based in the whaling town of Shimonoseki (New York Times).
There are well over 50 whale species inhabiting the world’s oceans. Of these, the Southern Minke Whale, also known as Antarctic Minke Whale’s (Balaenoptera bonaerensis) population alone is estimated at greater than 500,000 animals. These baleen whales are substantially smaller in size and more numerous than other well-known species like the Blue, Right, Humpback and Fin whales.
Though I could not find a reference to the Minke whales fecundity, even at a very conservative estimate of only 5% rate of annual replacement (implying an average lifespan of 40 years), an annual harvest of 2,000 animals would not lower their natural abundance. In fact, it would keep their numbers still increasing.
International Whaling Commission
The International Whaling Commission (IWC) has been formed to oversee the international management of whales. Its legal basis is the International Convention for the Regulation of Whaling. That convention was signed by the US, Japan and many other nations in 1946 with the aim to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.” Since then, the numbers of the previously heavily decimated stocks of large whales have recuperated quite well and are thought to be in the neighborhood of 100,000 animals of each species.
Several whaling countries apart from Japan have never committed to or renounced their previous agreement to the IWC’s 1986 moratorium on commercial whaling. For example, Iceland, Norway, Peru, and Russia also have whaling operations.
Japan’s Whale Research
Even casual observers would have concluded that Japan’s whale “research,” requiring the harvest of 1,000 (less a few) Minke whales, year after year, never had much to do with research. More likely than not, the extent of that “research” was largely limited to make sure they did not exceed that 1,000 animal harvesting quota.
As the term “scientific research” has not been defined in the IWC’s moratorium of 1986, it could well be claimed that simply measuring the lengths or weights of Japan’s harvest of Minke whales suffices to qualify as such. Besides, there are also claims of some DNA-typing done on such whales as well.
Irrespective of any research angle, “save-the-planet” organizations have been hounding countries, companies, and individuals who do not conform to their ideology. The (self-proclaimed) Shepherds of the Sea are among them.
Sea Shepherd Conservation Society
The Sea Shepherd Conservation Society (SSS) is one of many “do-good” conserver societies around the world. Like others of the kind, they have many small and a few large supporters. For example, the French movie star Brigitte Bardot is among their supporters. Apart from Paul Watson (the SSS vessel’s Sea Shepherd captain and former member of Greenpeace), the group has financial and support arrangements with other “green” organizations and individuals around the globe.
The SSS has also been embroiled in all kinds of legal disputes, suits and counter-suits in various countries. One of the more recent cases involved their disruption of drilling activities off the Siberian coast where the ship’s crew got apprehended by Russian forces and released after a few weeks.
Without doubt, the SSS’ modus operandi is less than traditional. Wherever and whenever, their tactics are highly provocative and most certainly skirting the fringes of applicable laws in any jurisdiction. When apprehended and charged with infringements, the SSS typically claims to fend for some higher justice and, therefore, the goal is supposed to justify the means.
For example, in 2012, Japan’s operator of its whaling activities, the Institute of Cetacean Research (ICR) and others sued the SSS under the “Alien Tort Statute” for “injunctive and declaratory relief.” The original decision was appealed by the appellees (defendants) and on Feb. 12, 2013, the US Court of Appeals for the Ninth Circuit found for the appellants (the ICR) against the SSS, reversing the lower court’s ruling and even admonishing its clear errors in judgment. The Appeal Court’s Chief Justice Kozinski remarked as follows:
“You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.”
Undeterred, the SSS and associated entities marched on. In 2010, it persuaded the Australian Minister of Foreign Affairs to deposit an application, titled “Whaling in the Antarctic” against Japan in the International Court of Justice. That is the case on which the court has just pronounced its findings.
International Court of Justice
Established at the end of WWII in 1945 the International Court of Justice (ICJ) is an agent of the United Nations Organization. The ICJ is composed of fifteen judgeselected to nine-year terms by the UN General Assembly and the UN Security Council. No country has more than one judge on the court and, currently, both the US and Japan have one member each. The five permanent members of the UN’s Security Council (China, France, Russia, the UK and the U.S.) have a veto power of the ICJ’s rulings.
Now, I am not a lawyer and really know next to nothing about the vast array of laws, their adjudication and courts ‚Äì like most citizens everywhere. Perhaps that is a good thing—keeping my mind open to new ideas and common sense. Among those ideas is my thought that the ICJ really overstepped its boundaries with that (anti-)whaling order. Let me tell you why:
To begin with, I think it appropriate that any question on the interpretation of international treaties to be brought before the ICJ should have the backing of more than one country or nation. According to Robert’s Rule of Order, even the smallest volunteer organization requires a member’s motion to be seconded. Would it not make sense to have the same requirement for a case of (claimed) international concern? Though Australia was the official appellant in this case, the driving force behind it was the SSS which railroaded the already leaning government of the time.
Next, I think the ICJ clearly overstepped its boundaries. The ICJ is not to make laws but to adjudicate disputes between nations on the basis of international agreements. The statute of the ICJ says the court shall apply (i) international conventions, (ii) international custom, and (iii) the general principles of law recognized by civilized nations. While Japan has had and continues to have the right to issue whaling permits, the ICJ judged that it granted such licenses for purposes other than scientific research. That, in turn brings us to a much greater issue, namely the usurpation of power by unelected (UN) officials to make international law on the fly.
International Law on the Fly
The real concern with this judgement by the ICJ (and Japan’s apparent willingness to accept it) goes much beyond the issue of whaling. It concerns the independence of nations to decide how they can proceed with international treaties they have signed. The ICJ justices certainly appear to have no qualms about dictating what counts as scientific research on whales or not and hence, who can harvest whales where, when and how.
If the world is simply going along with that judgment and not raising any fuss, what is going to stop the ICJ from pronouncing similar orders on all kinds of other activities, both in the seas and on land, not previously envisaged as being part of a treaty signed on to by a country in good faith? It would open Pandora’s Box to the imposition of novel conditions and restrictions, entirely unforeseen at the time when the treaties were signed.
Even if you were to think that any and all whaling activities ought to be stopped to “save the planet” or for whatever reason, upon consideration, you may find that the “cure is worse than the disease.” If so, express your dismay about the ICJ’s power grab to your elected officials.
Dr. Klaus L.E. Kaiser Bio
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Dr. Klaus L.E. Kaiser is author of CONVENIENT MYTHS, the green revolution – perceptions, politics, and facts
Dr. Kaiser can be reached at:email@example.com