Information note n°6
Whales at the International Court of Justice
The Hague, The Netherlands, New Zealand Intervening, July 8
During a short intervention on Monday July 8th New Zealand reflected on the historical context of the International Convention for the Regulation of Whaling (ICRW). They emphasised the fact that the Convention had developed from a body regulating unilateral whaling interests to a collective body for the conservation and the protection of whales. New Zealand, a founding member, noted that as early as the 1930s the need for conservation as a common objective was called upon due to ongoing “rampant whaling”. Unfortunately, even though the International Whaling Commission (IWC) was formally established in 1937, it was not until after WWII that efforts towards conservation were taken which, according to Ms Ridings speaking on behalf of New Zealand, was “too little too late”. Ms Ridings stated that it was precisely the “heyday of whaling” in the 1960s refered to by the Japanese in the hearings on July 4th that drove New Zealand to leave the IWC in 1968. The failure to conserve and the failure to recognise whales as a limited natural resource was a grave concern to New Zealand. The signal from the Convention to clearly commit to protect and conserve led New Zealand to resume its participation in 1976. However, New Zealand underlines that the collective nature of the Convention which was to follow in the years to come, particularily with the 1982 moratorium coming into force in 1986, was quickly dissolved with Japan’s pursuit of whaling via JARPA.
According to New Zealand, the heart of the case is Article VIII, yet this article and the integrality of the text of the Convention must be considered as a whole. A collective vision to conserve shared interests in the high seas, and an integrated vision of the text of the Convention must be the basis of the Court’s ruling. Japan’s unilateral vision of the IWC and more specifically of Article VIII, led New Zealand to spell out the purpose of both the Convention in general and scientific research in particular.* For New Zealand, the objective and the purpose of the Convention is one of “shared interests”. These “comon interests” should not be reduced to the protection of “commercial whaling” but to “proper and effective conservation and development of whale stocks” as spelt out in the preamble of the Convention. This collective vision could never be “secured by individual states acting alone”.
New Zealand stated that the IWC is not OPEC (Organisation of the Petroleum Exporting Countries) that it is not an “industrial cartel” and more specifically Article VIII is not a “carte blanche”. The article does not require, as Japan implies, the sale of whale meat. In New Zealand’s opinion Article VIII was introduced “exclusively” for scientific purposes and the sale of whale meat does not fit into this category, nor does the number of whales taken or the scientific analysis presented by Japan. Furthermore, they added that the sample size must be proportional and justified by the required data, including the utility of the scientific data. To clarify, the definition of ‘scientific research’ which “Japan has sought to mystify”, New Zealand proposed a practical interpretation for the Court, coined by the Brazilian born British scientist Sir Peter Medawar who wrote “research is surely the art of the soluble”.
New Zealand emphasized that the Court must assess JARPA as a whole, the activities which reflect scientific research must be balanced against the commercial activities. New Zealand, like Australia, emphasized that “once a whale has been killed it is gone” and cannot be used for any future research or any other purpose and that therefore, Japan’s actions directly impact the interests of all Contracting Governments. (see Japanese “Scientific Whaling” by its Right Name is “Commercial Whaling” Information note N°3) New Zealand emphasized that the Court’s decision will have consequences for all Contracting Governments.
* Paragraph 30 of the Convention: A Contracting Government shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them. The proposed permits should specify:
(a) objectives of the research;
(b) number, sex, size and stock of the animals to be taken;
(c) opportunities for participation in the research by scientists of other nations; and
(d) possible effect on conservation of stock.
Proposed permits shall be reviewed and commented on by the Scientific Committee at Annual Meetings when possible. When permits would be granted prior to the next Annual Meeting, the Secretary shall send the proposed permits to members of the Scientific Committee by mail for their comment and review. Preliminary results of any research resulting from the permits should be made available at the next Annual Meeting of the Scientific Committee.
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