Material for the International Whaling Commission’s next meeting, published on its website, answers some domestic questions and shifts the IWC focus from whaling to whales


Everyone will be grumpy, even if the package succeeds which is most definitely not assured.” — Sir Geoffrey Palmer [1]

The International Whaling Commission (IWC) reconvenes in June, in Agadir. Preliminary talks start on Sunday. The main business on this annual meeting’s agenda will be the IWC itself: the deadline expires on diplomacy on the future of the IWC.

Meeting material, published on the IWC website, includes the proposed “consensus decision to improve the conservation of whales”. This helps piece together earlier scraps, and shines a better light on the truth of claim and counter-claim that New Zealand has altered its anti-whaling policy position.

The proposal is a compromise text, written by the IWC chair and vice-chair, after a 12-country ‘support group’ to the small working group on the future of the IWC could not agree. They got close, but got stuck on the numbers. The proposal has been dismissed by our Minister Murray McCully, as indeed its authors predicted.

It says what has been asserted many times before: that the IWC status quo isn’t durable, and isn’t helping whales. Differences of opinion on whales and whaling policy have crowded out the time and other resources of the IWC, at the expense of proper conservation.

Because the IWC is voluntary, non-binding except insofar as its members agree to be bound, there are very real risks that whaling nations might leave, and establish their own ‘butchers’ club’. Moderately anti-whaling members, too, are fed up with the expensive, ineffectual, unpleasant business; should they leave, it would alter the balance of pro- and anti-whaling membership, which has been on a knife edge for some time.

Some tout the International Court of Justice (ICJ) as the remedy, and it may come to that yet, if these talks fail. Nothing about having participated in them rules out that option. Australia is simultaneously a participant in the talks, and a noisy prospective litigant.

On the other hand, if the talks succeed in their goal of building a consensus outcome, it would seem a bit rude and unfaithful to the spirit of the thing, to sign up to a contract, and then sue about it. Any country committing itself to these flawed talks had, therefore, better be quite convinced that the ICJ route is even more flawed.

Last night I went to learn more about the ICJ. That can wait for another day. But there are some self-evident problems with it, and to date, I have not heard any advocate tackle them. For example, the diplomacy attempts a comprehensive solution. By contrast, a legal response will only ever be patchily enforced, if and when the whaling is illegal, and Japan would have to consent to its enforcement.

The proposed “consensus decision” opens with a new IWC vision statement, about working co-operatively to improve whale conservation and management. The proposal is a sort of constitution for the next decade or so, the so-called 10-year interim period, in which the IWC will keep trying to rebuild its future. It is a step on the path of “this Mount Difficulty,” as Palmer described it in the same speech quoted above, not the final destination — but a step that he says is vital to save the IWC from falling back into its “slough of despond”.

The feat the proposal attempts is to be no worse off in the interim and, in many respects, substantially better off. There is much good in it, in terms of New Zealand’s objectives. I would go so far as to speculate that it does achieve all that Labour could have hoped, when they signed up to these talks. One might imagine their dearest, secret wish was that, with Sir Geoffrey among the leaders of the charge, all would be won over to New Zealand’s policy for the absolute protection of whales. But, as ever, the reality has proved rather more difficult.

Labour wanted to defend the moratorium on commercial whaling, and end special permit ‘scientific’ whaling or bring it under control. Under the proposal, the commercial moratorium remains in place. (As an aside, I note that Chris Carter’s “I oppose all moves to restart commercial whaling” petition is now closed.)

Even bringing thinly-disguised commercial whaling ventures under the auspices of the IWC, as this package does, doesn’t make it a pro-whaling package. Here’s why, in my view: you have to look at the substance of the thing, past the word ‘whaling’ and some sad dead whales.

Establishing and maintaining a whaling fleet must cost quite a lot. Expert economic advice commissioned by the WWF says whaling is uneconomic presently, heavily government-subsidised. If the take is capped at low enough numbers, lower than the present take, that will cap the commercial return; at some point, if there is a trajectory down in the numbers, it won’t be viable. That is how, I think, one can say this is indeed a proposal to phase out commercial whaling, not restart it.

Nor can anyone new enter the market: whaling would be limited under the proposal to those countries who currently take whales, and to species currently taken.

It suspends unilaterally-determined whaling under special permit or reservation, therefore, all whaling would be brought under IWC control, by contrast to the present position, where Japan, Norway and Iceland sail their whaling ships through large and expanding Convention loopholes.

Whale watching and environmental concerns are recognised as proper IWC interests. There are many no less pressing threats to whales than whaling: ship strike, marine pollution, entanglement in fishing gear, climate change.

All of this fits New Zealand’s objectives. The residual objections are about the proposed whale take from the Southern Ocean Sanctuary (New Zealand is committed to elimination of Southern Ocean whaling, and the projections show no path to that); and the numbers and species of whales that may be taken (it allows a fin whale take, an endangered species).

The proposal is supplied as the basis for further discussions; it is not agreed. The whole process has proceeded on the basis that “nothing is agreed until everything is agreed”, so countries can talk without prejudice.

It expressly says no governments will have altered their positions on matters of principle, or prejudiced future rights, by negotiating or signing up to this interim solution. The talks will rumble on for another decade if this phase succeeds, so this is not just semantics. It locks in whatever policy wins we can get now, whilst continuing to fight for others. I have never known the Greens to oppose such an approach before.

These have been tortuous high-stakes negotiations. People said that the Copenhagen climate change negotiations, too, were ‘too big to fail’. But what I will say is: with something so positive, if imperfect, so nearly within grasp, after so long, only a fool would just trample on it. In the words of the chair and vice-chair (my emphasis):

Evaluation also depends on whether one, for example, examines the Consensus Decision against one’s own strongly-held long-term principles or against the status quo. It is our view that the proposed Consensus Decision, provided that it can be adopted by consensus, represents a major step forward for whale conservation and management, and thus for the International Whaling Commission.

What the proposal does, in essence, is to shift the IWC on its axis, from in-fighting about whaling, to conservation and management of whales. It does that with no loss, in real terms, to whales, and many gains for them. It gives nothing new to commercial interests; it could, if the numbers can be agreed, fairly firmly lodge a harpoon in them. Whale lovers should weep if this fails.

[1] From Palmer’s address to the IWC Small Working Group as its Support Group chair, reproduced in the Report of the Fourth Meeting of the Small Working Group on the Future of the IWC (Florida, 2-4 March 2010).





Comments (7)

by Steve Melrose on May 28, 2010
Steve Melrose

"By contrast, a legal response will only ever be patchily enforced, if and when the whaling is illegal, and Japan would have to consent to its enforcement."

Claire - I may be wrong on this but Japan has recognised the jurisdiction of the Court and in doing so has consented to enforcement. See

by Gareth Hughes on May 29, 2010
Gareth Hughes

Fascinating times for whale watchers. I've tried to address some of your points in this post:

by Claire Browning on May 29, 2010
Claire Browning

Thanks both. Steve, you are probably not wrong, since (a) as we both know, you are the international law brains of the outfit, and (b) it would make more sense.

by Claire Browning on May 29, 2010
Claire Browning

Gareth, that's a comprehensive, thoughtful post. It doesn't respond to all of my points though, and here are a few more in response:


You say “New Zealand finally acknowledged the court case option“. As the press release you link to there says itself (and this is borne out by official materials, and Palmer’s comments to Pundit here last May), both Lab and Nat governments in New Zealand have always acknowledged and indeed seriously considered the option, and neither to my knowledge has ever ruled out exploring all possible avenues, in fact both have made explicit statements to that effect. But after investigating and receiving legal advice on it, they've taken the view that it is a more tenuous prospect than diplomacy.

Yes, the Greens are raising the ICJ option profile and, incidentally, your own ... I don't doubt, at all, that your views are genuinely and passionately held and are being put forward in that spirit, but the fact is, it’s not doing the Greens any harm politically, either. I saw Toad commenting somewhere, on the matter of Chris Carter, that anyone serious about saving whales should therefore be voting Green, since Labour and National are indistinguishable. I hope he/she was pulled up on that: it's a tricky line to be walking, I thought, in terms of possible perceptions of exploiting whales’ plight. I think you’re walking it well, by the way, and not crossing the line, but the point is still worth making.

There's a similar question about the extent to which Aus is convinced of the true merits of the ICJ course of action, or responding to domestic political imperatives.

On the matters of 'compromise' and 'loss' arising out of the consensus proposal -- I can't see that at all, I'm afraid, even on the terms of proposal as it currently stands, that is still subject to negotiation on the core issue of numbers and species. The post explains why.

You mention a tricky challenge for the government to “support but differentiate itself from the independent work Sir Geoffrey Palmer was undertaking”. I'm not sure what work that is. Palmer is NZ’s Whaling Commissioner. He's nobody's stooge either, of course, but his mandate comes from the government of the day. Cabinet signs off each year before the IWC annual meeting, agreeing upon the strategy, sometimes with a delegation for last minute urgent matters to be checked off with, eg, PM or Foreign Minister. There's an ongoing process of Ministerial briefing as matters arise, as OIA material released to me confirms, and Palmer is supported in the work by MFAT.

Whereas you believe diplomacy can be best served by having a legal option working in tandem, it's been the expert assessment of MFAT since 2006, when they looked into this in some detail, in response to Don Rothwell and IFAW's analysis, that this is not the case, and that it would be counter-productive to diplomacy. That was explained to Cabinet at the time; I have the paper (legal analysis, sadly, withheld). It's a tricky judgement analogous in a way to Sea Shepherd's activities -- does the interference with whale take produce net gains overall, set off against the cost of aggravating the Japanese? I don't know what the answer is. I do think it's bold to assert nothing would be lost if the case loses. Surely you have to acknowledge it would strengthen Japan’s moral authority.

Your points about whaling not being a commercially viable endeavour, and Japan not being immune to international pressure, cut both ways don't they? It is, for the very reasons you outline, a losing proposition long term (another reason often cited is the possibility of Iceland acceding to EU) -- therefore, you might with equal force argue that the risk of legitimising commercial whaling and opening the floodgates to it long term are likewise minimal at worst. As my post outlined I don‘t think the proposal does that anyway. But anyone losing an argument wants to save a bit of face, the Japanese particularly, and the proposal accommodates that.

And as to whether that adds up to an argument about sacrificing whales for a matter of pride -- I really do have a problem with the whole cultural imperialism thing. I don’t know how it is different from abhorring and working/legislating to ban female genital mutilation, or slavery -- it probably isn’t, really, but at the same time, I don’t feel one is on very strong moral ground, saying even whale populations that could be sustainably taken (minkes chief among them) can’t be, for no better reason than our particular cultural view about whales, when the view is not shared.


by Claire Browning on May 29, 2010
Claire Browning

You mention a tricky challenge for the government to “support but differentiate itself from the independent work Sir Geoffrey Palmer was undertaking”. I'm not sure what work that is ...

The penny dropped, only a few hours late: the Small Working Group on the Future of the IWC, plus Palmer-chaired Support Group. Der.

by Gareth Hughes on June 01, 2010
Gareth Hughes

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Hi Claire,

Thanks for the reply. You raise some really good questions which are very worthy of robust debate and thorough investigation.

I appreciate that international legal action has been discussed, but I don't believe that the options have been given nearly enough credit. In answer to my questions in the House in April, McCully dismissed a case to the ICJ saying that it could take 5 years. This indicates that the Govt had not considered the provisional measures to halt whaling in the Southern Ocean Sanctuary via an immediate injunction. Various legal opinions outline our very good case to achieve this provisional measure by the next whaling season. McCully's more recent comments indicate that legal action is indeed a viable option if diplomatic efforts continue to be unsuccessful in this heated negotiating climate we have at the moment. This is an encouraging reversal in policy from my perspective.

There has been talk that Australian domestic politics are playing a role in the decision making across the ditch. I disagree with this in part. Australia has maintained transparency as to the bottom line of their negotiating position, and been upfront as to the course of action they intend to take throughout this process. They are making a wise move starting proceedings now rather than later over an election period or under a caretaker government. Australian domestic politics does have a bearing on our position though. Because of the uncertainty of the Australian elections, it is even more important that New Zealand joins in this legal action to ensure stability of the case throughout the election period.

Will diplomacy be hampered or assisted by legal action? That's a great question. Diplomacy over the last few years has been unsuccessful in this case. I sincerely hope that there are improvements at the Whaling Commission over the next couple of weeks, but at least with an ICJ case we have further options. I believe that the new space for diplomacy created by an ICJ case would be a better environment to negotiate in. With an immediate injunction on whaling in the Southern Ocean Sanctuary, there will be no 'whale wars' with activists which would take the unconstructive heat off the negotiations. It would also illustrate more respect for the international law that the Whaling Commission has created already, rather than just changing it to suit those who break the law.

In response to your "... it's bold to assert nothing would be lost if the case loses. Surely you have to acknowledge it would strengthen Japan's moral authority." In 1995, NZ and Australia lost a case at the ICJ against France for nuclear testing in the Pacific. Did this strengthen France's moral authority? No, it was a worthwhile step towards resolution of the issue in international law.




by Claire Browning on June 01, 2010
Claire Browning


Gareth, let’s cut through some of this.

Your position is that one shouldn't compromise principles. It seems not to occur to you that the corollary, if we’re to succeed in our mutual goal of minimising or stopping the cull, is that the Japanese must compromise theirs. You can disagree with the point of principle, but the fact remains that they do have one.

The Greens have that luxury of the high moral ground, not being in government. If you were in the Minister’s chair, and had to hear the advice, and take responsibility for the outcome, tangibly expressed in numbers of dead whales, the answers might not come so easy. You, like successive governments, would be wanting to explore all the options, not hinge everything on one of them.

Neither of us know whether an injunction was considered, or not. You can speculate that it wasn’t, based on the Minister’s answer to your PQ. I can speculate that it would have been, by extrapolation from the fact that the advice seems to have turned its mind to each of the other key angles; furthermore, how the Minister knocked back your question on that particular day doesn’t illuminate matters a lot, in the absence of a supplementary from you addressing the specific point. Also, what the Minister said was, only one option could achieve elimination. I read this as a bit of semantics. An injunction is a holding pattern, not elimination.

I think that's a red herring, anyway. Even IFAW saw legal action as supplementary to diplomacy. The question is, therefore, why not give it a chance to work. Why go now, in the light of what it risks?

Of course, you’ve already dismissed the SWG as unsuccessful, given we can now be all but certain it won't immediately eliminate all whaling, and in particular, all Southern Ocean whaling. But at current JARPA II quotas of 850 minke (vs mooted 400 --> 200), 50 fin (vs mooted 10 --> 5), and 50 humpback (vs mooted 0), and current takes something inbetween the two sets of numbers, the real world question ought to be: how many fewer dead whales?

As to whether more recent comments by McCully are a 'reversal', they are also to be expected: whatever the original estimates of the strength of the case (relative to the merits of the talks), it’s been taken out of our hands. For various reasons, NZ won’t be wanting to publicly undermine it now.

The Aus bottom line may have been transparent; however, it does seem to have changed somewhat as of Friday, from a former position that (a) did not require recourse to the ICJ if Japan’s take substantially reduced (it being open to debate what amounts to a substantial reduction), and (b) did not require going this week, as opposed to another week or few.

I’d guess the judgement was that it would do no harm, might do some diplomatic good, and would certainly serve domestic political good, saving them from buying a fight on a hot issue in tight pre-election circumstances.

I find that a huge call; fact is, neither you nor I can be particularly well informed on it. That is MFAT’s job. Since the record shows they’ve been weighing and advising on the strength of various options in diligence and detail over a period of many years, I’m more inclined than you seem to be to defer to their expertise.

You call on NZ to join, to bolster the stability of the case over an election period. What you mean, I suspect, is that there is a risk of a change of government, and the current opposition (the former government, that knocked Mr Rothwell back before) does not support the ICJ approach.

Glad you concede the summer activism efforts are unconstructive to the talks though! It’s an "encouraging reversal in policy from my perspective" … :-)


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