Bigger fish to fry

ICJ decision on whaling will have few practical consequences with Japan, Australia trade agreement the bigger fish.

Last week, the International Court of Justice (ICJ) handed down its ruling on the “Whaling in the Antarctic” case, which pitted Australia against Japan. In a legal battle that has been colloquially known as the “Whale Wars”, the parties asked the ICJ to interpret provisions of the heretofore largely obscure International Convention for the Regulation of Whaling (1946).

The case dates from an Australian complaint first lodged in 2010, which alleged that Japan was breaching a nearly 30-year-old moratorium on commercial whaling by carrying out operations under the guise of a “scientific research” exception. By a margin of 12-4, the judges ruled in Australia’s favour, ordering Japan to cease its current whaling operations.

Conservation groups hailed the decision as an important milestone in the Court’s jurisprudence, since it marks the first time the ICJ has presided over litigation regarding an environmental treaty.

That the issue of commercial whaling was controversial enough to be brought before the ICJ is perhaps surprising. According to the International Whaling Commission (IWC), only Norway and Iceland currently engage in commercial whaling and they both operate under legally-permissible derogations from the moratorium. Japan’s programme, ostensibly carried out for scientific purposes, was always legally dubious. But there are no credible claims that the programme was environmentally unsustainable: at its apex, Japan culled 850 minke whales per year. Using the environmentalists’ own statistics, this represents 0.1 per cent of the estimated global whale population.

Back in 1986, when the majority of IWC member states agreed to the moratorium on commercial whaling, global stocks were severely depleted from over-fishing. Some whale species are still endangered, but many have recovered in the intervening decades.

During their opening statements before the Court, Japan’s lawyers emphasised this fact, noting that Australia’s own experts agreed that the killing of 850 whales per year would not cause undue harm to the global population. Accordingly, they asserted, the real issue under consideration was one of culture — the implication being that Australia was trying to impose its morals, ethics and values onto Japan.

The judges did not address this claim in their decision; however, it is almost certainly true. Law is always reflective of the era in which it is devised. Sovereigns have been waging war against each other and mistreating their subjects since time immemorial, but it took the horrors and excesses of the Second World War to nudge the international community into action.

In the same vein, whaling was previously uncontroversial — Australia was itself a whaling nation until 1979, less than 10 years before the moratorium was imposed. But over time, enough countries became concerned about whale welfare to decide to place legal limits on commercial whaling. Japan may not have liked the moratorium, but it agreed to it (under rumoured US pressure).

While undoubtedly satisfying for environmental groups and the Australian legal team, the ICJ’s decision will likely have few practical consequences. The modern Japanese public has largely lost its taste for whale meat and derivative products, so the commercial impact will be limited. Perhaps more importantly, Japan and Australia are strong allies who are currently negotiating a free trade agreement — thus, there are bigger fish to fry.

Published in The Express Tribune, April 13^th, 2014.

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