Whaling: Watson and Goldrick are both wrong

http://www.lowyinterpreter.org/post/2013/03/11/Whaling-Watson-and-Gold rick-are-both-wrong.aspx

Whaling: Watson and Goldrick are both wrong

by Michael Heazle - 11 March 2013 9:06AM


Michael Heazle is an Associate Professor with the Griffith University School of Government and International Relations and the Griffith Asia Institute.

While I certainly support Rear Admiral Goldrick's condemnation of Sea Shepherd's actions in the Antarctic, I do not agree with either his representation of Japan's whaling ambitions or the link he makes between whaling and Japan's territorial tensions with China. Japan's refusal to stop whaling is about much more than only the minority interests the Rear Admiral alludes to, while the connection he draws between the Southern Ocean protests and China-Japan tensions is based on a narrow characterisation of Japan as a contemporary nation and society.

I also disagree with Paul Watson's claims, in his response to Rear Admiral Goldrick, about how Sea Shepherd's actions against Japan's research whaling are upholding 'international conservation law'. This is a term Mr Watson often uses, but it would be helpful if he could explain exactly what he means by it, as his usage is broad and highly ambiguous.

Equally ambiguous is Mr Watson's use of the term 'international community', which he presents as a single, like-minded entity with only one voice on the whaling issue. This clearly is not the case, as demonstrated by the diversity of views within the International Whaling Commission (IWC), which includes countries that support a permanent ban on all whaling, active whaling countries, and non-whaling countries that support a limited return to commercial whaling under the control of the IWC. It is also worth noting that, with just under 90 member states and often less than 70 in attendance, the IWC membership and voting preferences represent less than half of the 'international community' as defined by the number of UN member states (193).

I offer the following additional points in response to Mr Watson's claims in order to illustrate some of the issues and arguments he overlooked in his recent post.

Firstly, there is no treaty or customary law that in any way supersedes or compromises the authority of, or the requirements and obligations set out in, the IWC's founding treaty, the 1946 International Convention for the Regulation of Whaling (ICRW), which is recognised as the authoritative source of international treaty law on the regulation of whales and whaling. Thus, contrary to Mr Watson's claims, so long as Japan adheres to its obligations under the ICRW, which it does, there is no clear basis for any legal action against Japan in relation to whaling.

Indeed, the relative strength of Japan's position under international law is illustrated by the clear absence over the last two decades of any action based on international law against whaling pursued by any government. The lone exception is the recent ICJ case brought against Japan by the Rudd and Gillard governments, which was more likely the result of Labor's desperate need at the time to deflect attention away from a series of policy disasters at home than any carefully considered analysis of the case's likely outcome and legal grounding.

Second, Australian domestic law does not apply to the Antarctic for the simple reason that no part of the Antarctic is internationally recognised as Australian territory. Any Australian government attempt to claim sovereignty in the Antarctic – via its internationally unrecognised Antarctic claim – as a basis for enforcing Australian domestic law in the Antarctic would not only be groundless but also put the government at risk of violating Australian obligations under both the Antarctic Treaty and the UN Convention on the Law of the Sea (UNCLOS).

One could even argue that the Australian policy of opposing any return to commercial whaling at any time and under any circumstances is itself a violation of the ICRW, which was created to 'make possible the orderly development of the whaling industry'. Furthermore, the Australian interpretation of the ICRW, upon which the Government bases its legal right to unconditionally oppose any return to commercial whaling, directly contradicts the 1969 Vienna Convention on the Law of Treaties (Article 31 in particular).

In response to Rear Admiral Goldrick's comments, I would like to point out that because marine wildlife is an extremely important source of food for Japan, all Japanese governments are committed to the freedom of the seas doctrine as codified under UNCLOS, and the rights UNCLOS gives states to responsibly exploit marine resources, including whales. From Japan's perspective, attempts to end whaling based only on what most Japanese see as cultural preferences is the thin edge of a dangerous wedge that could lead to other species being banned on cultural rather than science-based conservation grounds. As a consequence, international cooperation on wildlife management would become more difficult, as has occurred in the IWC.

Japanese governments and many Japanese people therefore continue to support Japan's right to whale under current international law even though most Japanese are no longer interested in eating whale meat regularly. Put simply, most Japanese believe that Japan has a legal right to sustainably hunt marine species, which they do, and they therefore resent foreign groups and governments demanding they stop. I am unaware of any major shifts in this view, and am extremely sceptical about Rear Admiral Goldrick's claims that Greenpeace has had any significant effect on Japanese public opinion.

Furthermore, Japan's resentment towards foreign 'persecution' over whaling has existed since the mid-1980s when some IWC members, including Australia, first began demanding a permanent ban on all whaling, predating the relatively recent territorial tensions with China in the East China Sea by some time.

Drawing a policy link between Japan's research whaling in Antarctica and its territorial dispute with China is dubious, since the issues are entirely different and unrelated. Japan, as a mature liberal democracy and a demonstrably responsible state, is no more likely to develop a 'siege mentality' than is any of its Western allies and partners, including Australia. Moreover, I am unsure what Rear Admiral Goldrick means when he says Japanese nationalism is 'never far below the surface'. Japan could hardly be described as a country where foreign policy is driven by aggressive nationalist sentiment; all states vigorously defend their sovereign rights in their relations with other states, and Japan is no different.

I am genuinely concerned with the issue of whale conservation (as opposed to simply demanding permanent blanket protection on all species regardless of their circumstances), and I believe the best way to ensure this happens is for the IWC to regulate whaling again, which is something the commission has been unable to do since the moratorium took effect in 1986 (the moratorium was, by the way, adopted as a temporary measure and against the advice of the IWC Scientific Committee).

Continuing the kind of hardline position adopted by Australia, which helped wreck the IWC's most recent (US-led) compromise initiative in 2010, can only result in Japan and the other whaling countries leaving the IWC sooner rather than later, which will effectively reduce the IWC to little more than a whale protectionist club and end any prospect for international supervision of whaling in the future.


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