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Avoiding a zero-sum game over whaling: prospects for the future
Dr Julia Jabour
Leader – Ocean and Antarctic Policy Program
Institute for Marine and Antarctic Studies
University of Tasmania
Abstract
In diplomacy, having a winner take all and a loser lose all (a zero-sum game) is not necessarily the
ideal end to the game. A better solution is compromise, whereby each gives a little to achieve the
best outcome for both. But in the whaling issue, the situation seems hopeless. Australia wants to
preserve all whales in the world’s oceans; Japan wants access to whale meat. Both countries’
positions are intractable and neither grants any legitimacy to the other. All attempts to persuade
Japan to cease its whaling activities have failed and Australia has taken International Court of
Justice action as a result. It is unclear how the ICJ action can be won by Australia but if it is, Japan
may remove itself from the IWC and harvest unregulated. Or it may support the adoption of a new
whaling convention that excludes non-whaling states. If Australia loses, Japan will continue to have
access to whale meat but with no universal social licence to whale (even though it does not need
one). Resolution slipped further away with Australia’s action and it remains to be seen whether
Australian and Japanese youth will have the balanced perspective necessary to resolve the problem
in the future. In the meantime, the matter of one country’s idol being another country’s dinner must
not be allowed to sour otherwise good relations.
Introduction
In a zero-sum game between two players, one participant's gain is achieved at the expense of, and
balanced against, the other participant’s losses, so that the net change is zero. This cannot possibly
be the best outcome in a situation such as the competing ideologies at play over whaling. When
there is a requirement for high levels of intercultural communication, negotiation and diplomacy to
resolve a moral dilemma, having a clear winner and a loser is a poor result, particularly since the
loser may also lose honour and prestige in the international community and at home. How, then, can
the protagonists in the whaling game avoid a zero-sum result and reach a mutually acceptable
resolution? Is this even remotely possible when their positions appear to be fundamentally opposed,
for it seems that neither accept the legitimacy of any position other than their own? The defining
event has been the International Court of Justice action by Australia against Japan on the basis that
its take of whales in the Southern Ocean under scientific research permit provisions is, de facto and
de jure, commercial whaling in breach of the International Convention for the Regulation of
Whaling.1
Prior to Australia’s ICJ action, it would have been reasonable to suggest that negotiation and
resolution strategies should rest on the principles of mutual honesty, respect and tolerance within
the rule of law, but now the game has changed. This paper briefly examines the current state of play
and prospects for compromise.
1
International Court of Justice, information available at http://www.icj-cij.org and follow links to ‘Cases’, ‘Pending
Cases’, ‘Whaling in the Antarctic (Australia v. Japan)’ (accessed 4.8.11).
Background: The ‘moratorium’ on commercial whaling and scientific research
Since 1985/86 there has been a ‘moratorium’ on commercial whaling in the world’s oceans which
applies to parties to the International Convention for the Regulation of Whaling 1946. Japan and
Australia are both parties to that convention and are thus bound by its provisions, and by the rules
of international law generally.2 The moratorium was meant to be of short duration only, however
26 years later it is still in force.3
The moratorium was achieved by a 2/3 majority of states parties voting for a zero quota on any
whale species, irrespective of its conservation status, as permitted through the schedule to the
convention. Since that time, parties seeking the removal of the zero quotas have been unable to gain
the majority required to overturn the ban. Access to whale meat has thus been limited.
Whale species in all the world’s oceans have suffered from over-harvesting and very little
information is available about some of the more elusive populations. States parties to the whaling
convention are encouraged to conduct scientific research to fill in the knowledge gaps and build a
picture of the recovery (or otherwise) of whales. Scientific research is provided for in Article VIII
of the convention. It permits a state party to issue a permit to its nationals to conduct scientific
research on whales. The killing of whales is not expressly excluded therefore the assumption is that
killing is permitted. Scientific research is not expressly defined therefore the assumption is that
scientific research has an ordinary meaning. The conclusion is that the taking of whales by lethal
means for scientific research is a right available under Article VIII to any state party to the whaling
convention.
The difficulty this raises is that to overrule the right and prohibit the killing of whales for research
necessitates that the convention itself, rather than the schedule, be amended. This requires
consensus, not a majority. No state party has tried to achieve such an amendment because the
likelihood of reaching consensus is nil while there is a ban on commercial whaling in place. The
reality – whether it is popular or not – is that some cultures eat whale meat and the provisions of
Article VIII allow both the killing of whales for research and the processing of the carcass, thus
giving those states parties which exercise this right access to the meat.
Australia’s case in the ICJ
Australia’s position on whaling is relatively simple: it seeks a permanent international ban on
commercial whaling. It has achieved great success so far with the 26-year moratorium through zero
quotas, however it seems Australia’s agenda will not be complete until a permanent ban is in place
and so-called ‘scientific whaling’ is prohibited. Its position is intractable and it neither
acknowledges nor respects different cultural attitudes towards eating whale meat. On the other
hand, Japan does not seem to acknowledge that some people find the killing of whales cruel and
unnecessary and the eating of whale meat unpalatable.
In what has been described as a politically necessary but diplomatically risky move 4 on 1 July 2010
Australia took Japan before the International Court of Justice over whaling. From the small amount
of information publicly available to date, it is possible to deduce that Australia’s case includes
allegations about:
2
3
4
It is arguable whether non-parties to the convention are also bound by the moratorium through custom.
International Whaling Commission, information available at http://www.iwcoffice.org/commission/schedule.htm
(accessed 4.8.11).
Jabour J (2010) The double-edged sword of Australia’s whaling policy. In Gullett W, C Schofield and J Vince (eds)
Marine Resources Management, LexisNexis Butterworths, 157.
2
o Japan breaching good faith (ie, not performing its obligations under the Convention);
o Japan’s Antarctic research program (JARPA II) jeopardising the sustainability of vulnerable
stocks;
o Japan refusing to comply with International Whaling Commission Resolutions to cease
scientific research by lethal means;
o Japan breaching schedule para 10e (regarding zero commercial quotas – if it is proven that
special permit whaling is illegal); and finally,
o Japan breaching schedule para 7b (by selling humpback or fin whale meat on the domestic
market when its reservation to the 1994 Southern Ocean Whale Sanctuary related only to Minke
whales).
These allegations may be difficult for Australia to prove. In the first place, the notion of good faith
applies to all states parties to the whaling convention, not just Japan, and the accusation could
equally be levelled at Australia. Furthermore, when and how do non-binding IWC Resolutions from
the Commission become binding? Finally, the Court will be the arbiter of what constitutes scientific
research and thus whether or not Japanese whale research is scientific or commercial in nature. It
will be interesting to follow their deliberations. A statement that ‘research has found no
woodpeckers in Antarctica’ is a valid scientific observation, yet to many scientists this is not
science, even if it follows the traditional scientific method of asking a question, doing background
research, constructing a hypothesis, testing, analyzing results, drawing conclusions and proving or
disproving the hypothesis. The objective is then to publish the results so that others can validate the
findings through duplication. If Japanese researchers followed this process, can their activities be
held to be something other than scientific research?
Australia did not seek provisional measures from the Court to prevent Japan from further scientific
research on dead whales while the case was being determined. If the risks to vulnerable species
were well founded, surely Australia would have sought an injunction to stop the research
immediately? Perhaps Australia was unsure about the plausibility of its case, given that the granting
of provisional measures also requires a strong element of potential success of the underlying claim.5
On the other hand, Australia assiduously avoided mention of the Australian Antarctic Territory,
thereby circumventing the need for the Court to consider ruling on its status as a territorial
sovereign. This is despite the title of the action being ‘Whaling in the Antarctic’.
Fuelled by ideological enthusiasm, which is commendable under some circumstances, Australia’s
action has ensured that a winner and a loser will be determined from the Court’s judgment. A zerosum game might seem inevitable, but if Australia wins will this push Japan to withdraw from the
whaling convention and harvest whales regulated only by the general obligations contained in the
UN Convention on the Law of the Sea or the Convention on Biological Diversity? Or might Japan
take its supporters and adopt a new whaling agreement with membership rules that exclude
preservationists? Australia would not wish to see either of these actions happen because they would
completely overturn its preservation agenda. On the other hand, an Australian victory could provide
Japan with a legitimate exit from whaling, if that is what it wanted.
What if Australia loses? Does Japan actually gain anything other than the right to continue its lethal
scientific research in the Southern Ocean? Might it be only a pyrrhic victory because the loss of
respect by Australia (and possibly its other anti-whaling supporters) would outweigh its continued
5
Public International Law, ‘Recent Developments with Regard to ICJ Provisional Measures’, available from
http://www.dipublico.com.ar/english, wherein it was reported that “the Court may exercise this power [to indicate
provisional measures] only if it is satisfied that the rights asserted by a party are at least plausible” (Cambodia v.
Thailand Provisional Measures order, para. 33) (accessed 4.8.11).
3
access to whale meat? And having access does not automatically give Japan the social licence it
might like to kill whales. On the other hand, a loss might also be a victory in some respects, because
the Australian government could turn to its constituency, hand on heart, and say that it did
everything it could possibly do to save the whales.
Is it too late for negotiation and resolution strategies?
Consumption of resources is both natural and necessary – if for no other reason than humans need
food. But in relation to whales there coexists two completely divergent ideological positions. One is
essentially that whales should be conserved for the purpose of rational use – giving a utilitarian
value to the resource and with conservation principles achieved through the regulation of human
use. The other is essentially that whales should be preserved for their intrinsic value alone and
should not be seen as a resource to be consumed for food, achieved through the prohibition of
human use. This inevitably leads to debate, which is healthy, particularly when it is open and honest
and inspired by accurate information.
But it also puts an expectation on humans that they are open to receiving that information in the
first place, that they will process it rationally and that they will behave consistently. Humans do not
generally conform to this ideal because of inherent differences in their socialisation. Humans are
influenced by cultural, political, religious, economic, geographic and other necessities, therefore to
expect model behaviour from people who are naturally complex, unpredictable and inconsistent
beings, is unrealistic. The same people who oppose whaling may themselves keep pets – cats and
dogs, and birds in cages, or eat meat from feedlots. People who eat whale meat may themselves
abhor the caging of animals in zoos or the culling of kangaroos for environmental and ecological
reasons. One strategy required to resolve a contentious case such as whaling is to compromise,
which involves both respect for and tolerance of difference. Both are lacking in this case, leading to
a conclusion that compromise is probably not possible.
In all societies, some level of intolerance is healthy because it can challenge assumptions and
promote debate on emerging issues, but when it is characterised by mischief and misinformation on
all sides – as is the case in the whaling debate – intolerance fails to serve this higher order purpose.
The Australian public appears to be significantly influenced by media reports about whales,
whaling, the International Whaling Commission meetings, the relative merits of Australian nonlethal whale research and the activities of the Sea Shepherd Conservation Society. For the
government, whale conservation is a no-cost vote catching issue but in the past officials have made
unhelpful comments that reduce their credibility, for example, about sending war ships into the
Southern Ocean (considered a prohibited ‘military’ activity under the Antarctic Treaty 1959) to
protect ‘our whales’ (which of course they are not; under law, all free swimming species are ferae
naturae – wild and unowned until captured). Nevertheless the unknowing Australian public is
seduced by this misinformation, and by the ‘heroic’ mischief-making actions of anti-whaling NGOs
such as Sea Shepherd.
Newspapers, television news and current affairs and radio are the main conduits for translating
Australian government policy on whaling into popular discourse. Truth in reporting is very often
oblique; balance is almost always missing6; and stories exclusively target Japan. Although other
countries – Norway and Iceland, for example – and aboriginal communities around the world are
also taking whales, the proximity of Japanese activities to Australian interests – particularly the
6
For example, the media has not reported that both the International Maritime Organization and the International
Whaling Commission have issued resolutions condemning actions that threaten the safety of life at sea – actions that
can be directly connected to Sea Shepherd campaigns to harass the Japanese research fleet (Resolution
MSC.303(87), ‘Assuring safety during demonstrations, protests or confrontations on the high seas’, 17 May 2010
and Resolution 2011-2, ‘Resolution on safety at sea’, undated, respectively).
4
Australian Antarctic Territory – ensures that attention is focused on Japan. This gives the Australian
public buy-in to the ‘problem’, perpetuates a dominant anti-whaling discourse and justifies the
withholding of a social licence to kill whales for any reason.
Perhaps the presumed dominant discourse fulfills a sociological need to ‘fight evil’ or to feel good
about protecting the environment? Environmental campaigns against whaling are certainly very
successful because the graphic images push all the right ‘good v. evil’ buttons with the general
public. However it is arguable whether miners, hunters and farmers in Australia even give whales a
second thought, considering their more pragmatic approach to resources. Certainly there is no
empirical evidence to confirm the presumed dominant discourse that Australians are anti-whaling.
However, if anecdotal evidence is any indication, there is a certain amount of sympathy throughout
all layers of Australian society.
The level to which this actually effects bilateral relations is undocumented. In Antarctic relations,
countries can sit side by side at the conference table even during periods of conflict between them
(eg. Argentina and Britain during the Falklands ‘war’). The Antarctic Treaty parties achieve this
harmony by insulating themselves from all mention of contentious issues such as sovereignty (or in
this case, whales and whaling) in Antarctic forums. It may be an elephant in the room, but all are
adept at completely ignoring its presence.
In a recent study in Japan, Bowett and Hay7 collected data on the attitudes of Japanese youth to
whaling and its controversies. Among their findings was a quite profound discovery: the young
people who responded to the survey were not necessarily pro-whaling, but rather, were anti antiwhaling. Australian and Japanese policy makers could gain valuable insights from this result.
To conclude, the situation as it stands certainly seems irretrievable. An acceptable resolution is
unlikely through the determination of ICJ. Australia’s action virtually forestalls the potential,
however remote, of the IWC members adopting the commercial whaling regime already partly
agreed to8 that would give Japan access to whale meat. Australia could champion allocation of
aboriginal subsistence quotas to Japanese coastal communities, but it probably will not. Japan could
stop harvesting whales, but it probably will not. If neither party is prepared to yield, it is pointless
pursuing any kind of compromise. Perhaps resolution will be an organic process far removed from
today’s status quo, as our youth apply their fresh perspective, uncoupled from the historical conflict.
Game over?
7
8
Bowett J and Hay P (2009) ‘ Whaling and its controversies: Examining the attitudes of Japan’s youth’, Marine
Policy 33:775.
International Whaling Commission, information on the Revised Management Procedure (RMP) and Revised
Management Scheme (RMS) available at http://www.iwcoffice.org/commission/iwcmain.htm - conservation
(accessed 5.8.11).
5