1.

The Historical Context

The whale has been hunted for its oil, bones, and meat for centuries as a food source. Whaling
seems to have started thousands of years ago, probably as early as 2200 BC. The Basques are
thought to have organised the first organised hunt in 700 AD, followed by the Flemish and
Normans, then the British and Dutch, who eventually surpassed the Basques' whaling activities.
Spain, Norway and France began whale hunting in the ninth century AD. Whaling operations in
the North Atlantic were extended by the British, Dutch, and Germans. Coastal whaling is thought
to have begun in the twelfth century in Japan and Russia, and in the sixteenth century in the
United States. Early whaling was characterised by whaling from land stations as the primary
process, with hand-thrown harpoons and nets deployed from rowing vessels. The whales were
then processed in coastal waters after being caught. The era of pelagic – that is, open ocean –
whaling started after the coastal whale resources were depleted. Pelagic whaling has culminated
in the creation of new whaling methods, the establishment of stations in Korea by Russia, and the
establishment of land stations in several other littoral nations, including Australia and Canada.
Land stations have lost their relevance as new technology emerges. Since whales were processed
entirely on factory ships, states were able to extend their activities into their territorial waters.
New technology has also led to an increase in the number of whales captured. This included
explosive-head shell harpoons that detonated inside the whale, sonar devices, and helicopter
tracking (for more on the modern history of whaling, see J.N. Tnnessen and A.O. Johnsen, The
History of Modern Whaling (R.I. Christophersen trans., C. Hurst & Company 1982); L. Larry
Leonard, ‘Recent Negotiations Toward the International Regulation of Whaling'). Whales and
Nations, by Kurkpatrick Dorsey. Whaling and International Law, Cambridge University Press,
2015; Malgosia Fitzmaurice, Environmental Diplomacy on the High Seas, University of
Washington Press, 2014). Unlimited and unregulated whaling began in 1883 and lasted for 21
years, proving that whale populations could not be sustained. There was no accurate data on the
number and type of species caught until 1883. Despite the lack of details, Tnnessen and Johnsen
believe that all species of whales were captured. In 1921, Peter Srlle invented a ‘slip-way' for
factory ships, which contributed to an increase in the number of whale species hunted.
Thousands of whales were captured every year, especially in the Antarctic, thanks to pelagic
whaling technologies. Between 1927 and 1931, the amount of Antarctic pelagic whaling
quadrupled over three years. Overproduction and growth, however, coincided with the global
economic crisis and a drop in the price of all raw materials, resulting in the whaling industry's
demise.  Whale overexploitation between World Wars I and II led to the signing of two
international treaties on whale protection: the Geneva Convention for the Regulation of Whaling
(155 L.N.T.S 349) in 1931 and the 1937 Agreement for the Regulation of Whaling (8 June 1937,
190 L.N.T.S. 79) in 1937. The 1931 and 1937 Whaling Conventions were ineffective, but they
established a legal basis for future whaling regulation, which, although imperfect, continues to
this day and is governed by the 1946 International Convention for the Regulation of Whaling
(ICRW).

1. WHALES, UNCLOS, AND INTERNATIONAL ENVIRONMENTAL LAW

With the end of the 1982 United Nations Convention on the Law of the Sea, the status of whales
in international law took on a new and more thoughtful dimension (UNCLOS). 6 UNCLOS is
one of the United Nations' most notable accomplishments. It establishes a systematic structure
for modern maritime law and mandates proper marine resource protection and management.
More specifically, when it comes to the status of whales, UNCLOS considers marine mammals
as a unique resource that deserves special attention. UNCLOS has specific provisions dedicated
to the protection, rather than the use, of marine mammals in a state's waters. Article 65 of
UNCLOS provides:

“Nothing in this Part restricts the right of a coastal State or the competence of an international
organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals
more strictly than provided for in this Part. States shall co-operate with a view to the
conservation of marine mammals and in the case of cetaceans shall in particular work through
the appropriate international organizations for their conservation, management, and study.1”

The relevant provisions of UNCLOS can be considered as the lex specialis most specifically
addressing the current status of cetaceans under international law. In comparison, laws favouring
consumption and use of other living marine resources, such as fish, are balanced against more
general commitments to protect those resources.

Article 65, which requires states to "work through appropriate international organisations for
their conservation, management, and research," is important to the IWC's position. Although the
1
Id. at art. 65 (emphasis added). Article 120 extends this status to the high seas. See id. at art120
IWC is not listed by name, its long history leads one to believe that it was on the minds of the
UNCLOS drafters. However, the plural "organisations" also implies that additional
organisations, current or future, were considered.

The UNCLOS' favourable treatment of cetaceans should be viewed in the light of the growth of
international environmental law, which started in large part with the Stockholm Conference of
1972. Significantly, the UNCLOS negotiations began almost simultaneously with the Stockholm
Summit and its immediate aftermath. Although UNCLOS is a comprehensive text covering
nearly all aspects of ocean use it is also undeniably an environmental treaty with articles
requiring the prevention of emissions, sustainable use of resources, and general commitments to
protect and conserve the marine environment.

Because of their intellect, elegance, and communal lifestyle, whales are a forerunner species in
the environmental movement. Some people regard them as a consumable resource, which sparks
heated debates regarding ethics, animal rights, human rights, cultural preservation, cultural
relativism, and resource utilisation. While these concerns are not limited to cetaceans and exist
elsewhere within the context of international environmental law, it is difficult to find another
species where the debate is as loud.

Whaling isn't the only reason for concern about whale safety. All marine animals, including
whales, are vulnerable to pollution.2 Recent scientific evidence indicates that cetaceans are
particularly vulnerable to the effects of global warming.3 In addition, the collapse of key fish
populations from which cetaceans feed complicates their management. In the future, the IWC's
capacity, let alone commitment, to resolve these issues would be a major obstacle.

2. Regulating Whaling in International Law: the International Convention for the

Regulation of Whaling

States came together to regulate whaling and set up a new institution in 1946, which was very
conservatory and to some extent highly radical (see Kurkpatrick Dorsey, Whales and Nations in
the history of the ICRW negotiations. University of Washington Press, 2014). Environmental
2
MARK P. SIMMONDS, Evaluating the Threat from Pollution to Whales, in THE FUTURE OF CETACEANS IN
A CHANGING WORLD 317 (William C.G. Burns & Alexander Gillespie eds., Transnational Publishers, Inc.
2003).
3
WILLIAM C.G. BURNS, Climate Change and the International Whaling Commission in the 21st Century 339
(William C.G. Bums & Alexander Gillespie eds., Transnational Publishers, Inc. 2003).
diplomacy on the high seas. The Convention draughtsmen have relied upon scientific expertise in
their efforts to reconciliate industry's needs with those of whale conservation stocks according to
the more progressive tradition of the United States (as exemplified in the Preamble to the
Convention by the reference to sustainable use). Dean Acheson, the acting US secretary of state,
has stated that whales are "wards of the whole world," a "common resource" to maintain. He
emphasised the need for cooperation in using world resources and argued that "increased
cooperation between nations in solving international conservation problems" was demonstrated
by the conference. Against this backdrop, it appears that the Convention's aim was to serve as a
means to realise such cooperation to preserve whaling stocks. The UK approach did not focus so
much on preserving the whales worldwide, but also on preserving the whaling industry. The
post-war conditions in Britain, namely scarcity, hunger, and want, were largely dictated by this
approach. He also explained his vision for the International Whaling Commission (the “IWC”),
the central body of the Convention, to be that of a body of scientific excellence, the vocation of
which would be the careful management of resources belonging to the whole world, thus
contributing to ‘a more\speaceful and happy future for mankind.’ The ICRW was a successful
negotiator. Delegates agreed to two clauses from the United States progressive-era laws:
protection of aboriginal whaling, and authorisation for collecting whales for scientific purposes,
with both of these grounds for whaling being outside the stipulated quotas. Some unexpected
events related to the arrival of the Soviet délégation were taking place which won some
concessions from other delegates, for example an extended period from 1946 to 1947 to ensure
their participation in the Convention.

The tacit acceptance system of operations of the Convention and the two-thirds-voting procedure
for any change to the agreed timetable of the regulations caused a certain degree of disagreement
among delegates. The former remained and, while the latter had been amended in order to make
an amendment in three-fourths of the parties to the Convention, ensuring that a larger share of
the contracting parties were necessary to effect any change. The Norwegian delegation argued
that the IWC would be empowered to decide bindingly. The UK also favoured a more powerful
IWC. However, delegations that were completely satisfied that the IWC was not given the power
to take binding decisions, such as the French and the Dutch Delegations, were opposed to
stronger IWC because this development was to the disadvantage of the self-interests of their
governments. The opt-out system was seen as necessary as the proposed IWC model created a
new agency that would have limited states' freedom of action on the high seas and, consequently,
had negative effects on the ability of states to benefit economically in particular. Impacts on the
ability of States to achieve their economic advantage without limitations. The US, the
Netherlands, France and the Soviet Union would not sign the ICRW if the opting-out procedure
were not included. Dorsey noted that the failure to reject the opt-out system was the biggest
mistake at the meeting in 1946. No wonder how mechanisms of opting out have often led to a
group of states' collective efforts being undermined. For example, it is not unknown that states
use the opt-out to prevent their own interests from implementing decisions. Which their
governments have been best served. As the proposed IWC's model created a new agency which
would have curtailed the freedom of action of high seas states and therefore negatively impacted
the ability of countries to pursue their particular economic benefits unimpeded, the option-out
scheme was considered necessary. The US, the Netherlands, France and the Soviet Union would
not sign the ICRW if the opting-out procedure were not included. Dorsey has noted that the
retrospect is that it was the biggest mistake of the meeting of 1946 not to reject the opt-out
system. No wonder how mechanisms of opting out have often led to a group of states' collective
efforts being undermined. It is, for example, not unknown that States use the opt-out mechanism
to prevent their interest from implementing decisions. However, apart from Dorsey's reflection,
the refusal to incorporate such a mechanism could reasonably have led to the alienation of
certain countries, thereby undermining the chances of inter-governmental cooperation and action.
The Norwegian and UK positions on the opt-out procedure have been based on inaccurate
projections for the future. The Norwegian and the British had not foreseen the expansion of
Soviet whaling; and were of the view that Japan would not be admitted to whaling on a
permanent basis. Having miscalculated their perspective, they have taken a view of the future of
the whaling industry dominated by Norway and the UK, to the exception of other serious
whaling nations. Also, there was no acceptance of the proposal to make the IWC supervisory by
the Food and Agriculture Organization (the 'FAO').

The delegates broke the negotiations into two parts: the first part was agreeing on a new Protocol
modelled on the 1945 Protocol to regulate the whaling season between 1947– 48; and the second
part was to negotiate a more complex convention – namely, the 1946 ICRW– to establish the
International Whaling Commission. The ICRW signatories would be given more time to ratify
such an approach. More importantly, the 1944 annual limit of 16,000 blue whale units ('BWU')
in Antarctic waters has been maintained by this Convention; The delegates from the United
States, Norway and the United Kingdom felt the quota should be based on continuity, so as to be
able to determine the number of wales on a statistical basis. In addition, Remington Kellogg, the
United States delegate, argued that the quota of 16,000 BWU was meant to set the limit that
constituted two-thirds of the annual catch in the last seven peaceful seasons, which had been too
intensive. Most delegates who thought the quota was too high did not satisfy this quota. Later the
BWU was criticised and left.

These previous conventions are inherited from matters such as the complete protection of certain
species (prohibited commercial walking and moratorium), the setting up of walnut sanctuaries
and the organisation of autochthonous whaling. These legal approaches are consistent with the
opposite views between whales as a sacred object and whales as utilities. Therefore, during this
inter-war period we are at the outset of the approach of international law to the whale, for
example, as the subject of economic exploitation and thus of legal regulation; on the other hand,
the totemic object; and almost the object of worship.

In addition to a schedule integral to the text of the Convention, this International Convention for
the Regulation of the Whaling is composed of the Convention itself. The Convention establishes
the general regulatory scheme for whale stock management. Under Article V(1) of the Schedule,
standards for the 'conservation and use' of whale species are established. It addresses specific
conservation issues such as: opening and closing seasons; methods of whaling; limits of size for
every whale; and inspection of whaling boats. The method for amending the Schedule shall be
laid down in Article III(2) by majority of three quarters of voting members, A few subsequent
changes to the schedule have occurred including the imposition of the Moratorium, the creation
of the Indian Ocean Shrine and the Southern Ocean Shrine.

The ICRW actually does not include a generic 'whale' definition. Rather, in the Annex to the
Convention, it lists species under its protection. Only so-called big whales appear in the
programme. Such totemic whales as the narwhal whale, which are medium-sized, are probably
outside of the remit of the ICRW. But many states say that the IWC has the responsibility to deal
with all whales to protect such beauty objects as the narwhal. In practise, it remains vague and
hard to determine the object of the Convention's regulation.
Three types of whaling are provided for in the Convention's whaling scheme: commercial (now
no quotas), Aboriginal (indigenous whaling).

The ICRW preamble includes the 'proper conservation of whale stocks and . – orderly
development of the whaling industry' among its objectives. It therefore preserves the historic
binary objectives of the conservation and preservation of whale stocks. But the International
Walking Commission (IWC) has never "really delivered," even with this fairly contained
objective in mind. Increasing monitoring of inventories, in particular in the past, and depletion
continued In 1982 the IWC introduced a total ban on commercial whaling (generally known as
moratorium or "zero quotas," in the season 1985-1986, in the light of the very different
membership and a fundamentally different concept as to what the purpose of control should be).
However, only temporary was the moratorium intended. Stocks were anticipated to recover and,
in due course, safe and durable stock levels of at least some species would be sufficiently
recovered for whaling to be resumed. However, every effort to provide an acceptable basis for
properly controlled whaling resumption has failed to date, and the moratorium remains in place.

Conflicting Moratorium attitudes illustrate the significance of a whale for various societies. They
show that there is the huge and uncrossable dividing line between two diametrically opposed
camps: conservationist and conservationist (the whale as a beautiful object which should not be
exploited). The vague and indecisive wording of the Convention clearly indicates that most of
the issues in relation to the ICRW are contentious, starting with its binary object and purpose: the
conservation and management of whale stocks in order to provide for the ‘orderly development
of the whaling industry,’ and, on the other, recognition that whales are a ‘general trust,’ to be
safeguarded for ‘future generations.’ The whaling moratorium has been chosen by Norway and
Iceland and they conduct legal commercial whaling activities. Scientific whaling takes place
outside of the regulatory scope for IWC and is based on Article VIII of the ICRW. National
authorities issue permits for scientific whaling.

However, considerable quantities of whales remain outside the direct scope of the IWC on the
alleged base of other provisions of the ICRW. Although the validity of refuges introduced or
offered by the IWC and the terms "autochthonous whaleing" are also contending, above all it is
"scientific whaleing," and the problem of reintroducing commercial whale whaleing which
underlies the current conflict. The IWC has become a separating body and is full of incompatible
problems. There are still a few countries who passionately maintain their almost inalienable right
to continue business whaling and so the ICRW's attitudes to whaling and the very underlying
Convention and Commission objectives have developed in the midst of the Member States.
Whaleing – though in these days it is controlled and sustainable – remains a legitimate activity
for this limited number of remaining 'Whaling nations' along with other sustainable forms of
marine resources exploitation. Whaling in any form, however, is seen as an unnecessary and,
indeed, immoral activity by the mostly non-whaling nations, who are backed vociferously by the
powerful lobby of environmental and preservationist NGOs – as well as by much general public
opinion (Charlotte Epstein, The Power of Words in International Relations, MIT Preprint).

One aspect that has been proposed as being harmful to the Whaling Convention's efficacy is its
old age. The ICRW was signed and organised almost seventy year ago and its key provisions
were based on two pre-war treaties from 1931 and 1937. The basic structure of the Convention
represents the approaches to environmental issues of the time when it was negotiated and, as
such, it was not founded on principles that characterise the current environmental protection
approach It may be argued that the imposition and extension of the whaling moratorium is an
expression of the IWC's use of the precautionary principle (approach). A State Party to the
ICRW is in charge of its compliance in relation to acts of ‘persons within its control,' as well as
the prosecution of its breaches, according to Article IX (1). The IWC now needs to try to
function as a platform for resolving irreconcilable conflicts of interest. The whaling nations'
expectations, as they stand now, simply cannot be met without some sort of resumption of
commercial whaling, however restricted. On the other side, the preservationists' hopes, which
now constitute a plurality within the IWC, cannot be fully realised unless the prospect of
resuming commercial whaling is eliminated. As a result, the most critical and challenging issue
is whether the ICRW is still a valid international instrument, or whether it needs to be amended
(or even discarded as an outdated treaty) to satisfy the current collection of needs of the parties.
The Whaling Commission's functioning has been paralysed by a lack of shared understanding
and an acrimonious environment among its members, which has resulted in international
litigation, which is addressed in the next section.

3. The Whaling in Antarctic case (Australia v. Japan, New Zealand Intervening)

One of the most contentious issues under the ICRW has been Japanese scientific whaling, which
resulted in the International Court of Justice (ICJWhaling )'s in Antarctic (Australia v. Japan,
New Zealand Intervening) Judgment in 2014 (Malgosia Fitzmaurice & Dai Tamada, Whaling in
Antarctic: Significance and Implications of the ICJ Judgment, Brill/Nijhoff, 2016 Both Australia
and New Zealand stated that Japanese scientific whaling (dubbed JARPA II) was not conducted
for scientific purposes. The Court accepted, and Japan was forced to cancel all pending scientific
permits. The Court's decision only applied to Japan's scientific whaling at the time, and would
have no bearing on future whaling. The ICJ noted in its decision that JARPA II appeared to
include practises that could be narrowly classified as scientific research, but that the evidence
was insufficient to determine that the program's design and execution were rational in relation to
achieving its stated goals. The ICJ concluded that Japan's special permits for the hunting, taking,
and handling of whales issued in connection with JARPA II were not "for scientific research
purposes" (pursuant to Article VIII, paragraph 1 of ICRW). The International Court of Justice,
on the other hand, found that Japan had fulfilled the criteria of paragraph 30 of the Schedule to
the International Convention for the Regulation of Whaling in relation to its JARPA II Program.

The question of whether the ICJ is the right place to raise scientific issues about whaling
emerged as well. Both Judges Owada and Abraham opined that the ICJ lacked the necessary
expertise (Judge Hishashi Owada, Dissenting Opinion and Judge Ronny Abraham, Dissenting
Opinion; William de la Mare, Nick Gales, and Mare Mangel, ‘Applying Scientific Principles in
International Law on Whaling,' (2014) Science 345 (6201); Caroline Foster, Science and the
Precautionary Principle in International Co-operation, (2014) Science 345 Cambridge University
Press, 2011). Expert Evidence, Burden of Proof, and Finality.

There's also the question of how the criterion of "objective reasonableness" can be applied. What
was the position of the ICJ in implementing such a norm in this case: engaging in de novo
analysis, or leaving this to the discretion afforded to states issuing permits which is subject to
review by the Scientific Committee and by the IWC. Lawyers frequently have reservations about
science. Certainly, whaling problems cannot be addressed without science and in the Whaling
case, all the experts appearing before the Court were scientists, and their testimony played a
fundamental role in the Court’s Judgment. The IWC's operation is focused on research, and one
of the key concerns posed in connection with its work has been the alleged lack of a clear
scientific basis for decision-making. Generally speaking, the role of science in environmental
law is very complex. Overall, we see a trend in the valorisation of research and, more
specifically, science-based decision-making, in various instances of interstate cooperation, be it
in treaty-based foreign or supranational organizations, the WTO or transnational policy
networks.

CONCLUSION:

Will the International Whaling Commission (IWC) soon allow some kind of commercial
whaling, or will the status of whales as intelligent, living beings be overshadowed by arguments
for their consumption? The future of cetaceans is inextricably linked to the future of the IWC.
The IWC is now a fractured house, with no signs of true unity on the horizon. Scientific research
whaling and aboriginal subsistence whaling are only two examples of the broad cultural divides
that exist between pro- and anti-whaling advocates. It remains to be seen if the IWC will
continue to serve as a leading agency in international resource management.

The United Nations Convention on the Law of the Sea (UNCLOS) establishes the legal structure
under which cetacean conservation and management must take place. States on both sides of
the \sideological divide need to cooperate to fulfil these objectives. Continued animosity, on the
other hand, risks squandering what has already been accomplished in the recovery of key
organisms. Whatever problems the IWC faces today are insignificant in comparison to those it
faced prior to the moratorium.

Whales are a pioneering species in terms of wildlife conservation, and the IWC is a pioneering
organisation in terms of international resource management. From an institutional standpoint, the
IWC's progress will reveal a lot about international environmental law and its institutions in the
twenty-first century. For the sake of present and future generations, one can only hope that all
1WC member states recognise their obligations to effectively meet these challenges.