How International Law saved the Whale

Whaling, the act of hunting and killing whales, has been practiced since prehistoric times. Whaling enjoyed massive popularity in the 18th and 19th century with the advent of modern whaling. A hunted whale served so many purposes that very little of its body was wasted. The fat under its skin was boiled to create oil; which was used to light “whale-oil” lamps, to make soft soaps, varnish, candles and more. Its baleen were used to support garments like stays, hoops and corsets. A rare form of whale excrement known as Ambergris was used in perfumes and was more than its weight in gold. Whale meat has also been an important source of protein, particularly in places like the Arctic where vegetation was scarce. As the largest of the Cetacean family, a single whale provides an enormous amount of meat that can be consumed with great versatility-from high-end sashimi to regular pet feed.

To regulate unsustainable amounts of whaling, the International Convention for Regulation of Whaling (ICRW) was signed in 1946 that led to the The International Whaling Commission (IWC). The IWC is an international institution that regulates whaling, conducts scientific research on whale stocks and imposes a moratorium on commercial whaling. The countries with the largest stake in whaling are/have been at one point a member of the commission. As of 2021, there are only 3 countries that actively practice commercial whaling; Japan, Norway and Iceland. Japan announced in 2018 that it will be leaving the commission to resume commercial whaling after its repeated efforts to overturn the moratorium were unsuccessful. This is the most monumental change in IWC in almost 35 years and has significantly weakened its mandate.

Creation

Whales were hunted because of their abundance and large size, where whole economies were set up that relied on whale byproducts. Whaling was also immensely profitable; there was a steady escalation in whaling technology. With the advent of modern whaling, catch numbers should have steadily gone up due the industrialization of the whaling boats, use of sonar, access to deeper water, capacity for longer missions and other advances. However, they remained constant, implying that the rate at which the whales were hunted matched the increase in technological progress.

Whales are a living resource finite in number with long maturation periods. Soon the hunting technology would have outpaced the rate of renewal for the whales. This was indeed the case in the late 19th and early 20th century, where smaller and younger whales were hunted due to a lack of larger whales in the oceans, which did not allow them time to mature and reproduce. Hunting outpaced the renewal of whales and it was only a matter of time before the oceans would be free from whales.

Even when the extinction of many species of whales seemed inevitable, whaling countries were still hesitant to institute catch quotas and regulate the industry. They feared that restricting their domestic industry would allow for other countries to capture a larger share of the resources. This represents a classic case of the prisoner’s dilemma, where the incentive to maintain an unregulated whaling industry was high as even smaller whalers had a high turnover rate, but which would ultimately lead them worse off in the span of a few short years by bankrupting the industry. The pareto optimum outcome would have been to regulate all whaling internationally and many attempts were made for such but short-term economic incentive for over-exploitative whaling to outcompete other whaling states lead to their failure.

Around this time, a new norm was emerging in the international understanding of whales as a resource. As large aquatic marine mammals from the Cetacean family, whales are found in the high seas. Their migratory nature disallows any single nation to lay claim on them and challenges the very logic of the nation-state system of the world. Until then, the political understanding of the high seas hinged on the fact that they were free for all, without any supranational authority to regulate them. And so extending the understanding of the resources of the high seas, they belonged to whichever country got to it first. Increasingly though, the oceans and the resources within were being thought of as a global common and thus understanding emerged that whales were a global resource and not the property of any single state. The fall in the whale stocks represented a tragedy of the commons.

The tragedy of commons is the idea that the high short-term incentives of individuals (or states) to draw maximum profit from a common resource pool whilst competing with other other individuals (or states) for the same resources at the expense of depleting the resource long-term and other’s potential to draw from it. To overcome the market failure in this case would require states to look beyond their own rational self-interested policies that render them worse off than they would have been through cooperation. The solution to which is that there needs to be intervention by the government or the creation of property right over the resource; in this case the whale.

The International Whaling Commission was created in 1946 based on Article 3 of the International Convention for Regulation of Whaling. Its initial members consisted of whaling countries i.e. countries participating in the act of commercial whaling predominantly, along with other types of whaling. As acknowledged in its founding convention, the IWC was created to safeguard whale stocks for future generations by the scheduling of open seasons, designation of sanctuaries and instituting size limits for each species. The institution was created as a means to solve cooperation problems that arise from the prisoner’s dilemma and the tragedy of commons. IWC worked by the mechanisms of a hand tying feature; where all the whaling states consented to limit the number of whales killed per year to ensure all parties enjoyed absolute long term gains.

Many environmental challenges face the same tragedy of commons and environmental regimes are expressly created to mitigate the problems of cooperation. Around the 1950s, a lot of the fears that fueled that creation of the IWC also led to the creation of multiple other fisheries commissions to better manage the resources within international oceans. The International Commission for the Northwest Atlantic was created in 1950 and the Inter-American Tropical Tuna Commission was created 1949 to regulate the fishery stocks at maximum sustainable yield. These commissions were responsible for independently verifying the fish stocks and setting catch quotas to prevent overfishing. Through these commissions, states implied their willingness to make a commitment to maintaining a healthy fish population in the global commons.

Many previous attempts were made for whaling management at a regional and an international level, however countries expanding their whaling capacities refused to adhere to it. It was only through the efforts of the United States of America that led to the uptake of the ICRW. While the USA wanted to protect its domestic whaling industry from international competition and ensure its long term survival, it also wanted to regulate whaling of the USSR just as the Cold War was starting to emerge.

Evolution

Over the 20th century, whaling became less economically viable and growing conservationist movements around the world led many whaling countries to abandon its commercial aspects. A gradual change in the membership of the IWC led itself to the admittance of countries that did not historically practice whaling. This led to the creation of two blocs in the IWC- whaling countries and anti-whaling countries. By the 70s the anti whaling countries had eclipsed the whaling countries to such an extent that the moratorium on the commercial hunting of whales was adopted in 1982 and instituted in 1986, initially for a limited amount of time, however it is still active.

This evolution is particularly remarkable in an institution called the “whalers club”, created by countries to preserve whaling, not whales, for the future. Under the ICRW, it was recognized as a common interest between parties to maintain whale stocks as the foundational norm among the IWC members was that whaling was not only acceptable but in fact essential post WW2. The change from preservation to conservation represents change in the preference of countries via domestic constituencies as environmental movements around the world, but the USA in particular, championed the cause of animal rights through the whale.

As long as whaling was profitable to the US, there was interest in maintaining whaling stocks. Post WW2, the US encouraged Japan back to whaling as a cheap source of protein while it was under the stewardship of Japan. When Japan maintained a reservation to the moratorium, the US threatened to deny Japan access to its waters for fishing. Consequently, Japan’s withdrawal in 2018 represents the steady decline of American hegemonic power and a period of tense US-Japan relations under President Trump. Japan’s withdrawal was not unforeseen, scholars had long predicted it. It raises questions on America's hold on its own allies, in spite of a grave divergence of norms.

Despite the moratorium, Japan still continued whaling under the permits of scientific research. Iceland left IWC in 1992 and rejoined 10 years later in 2002 with a reservation to set its own quota for whaling. Norway, under article 5 subsection 3 of the ICRW, had opted out of the moratorium by registering an opposition.

Design

The IWC provides high access to non-state actors which can be divided into two major groups: the scientific community and environmental and animal rights groups. Within the ICRW there are provisions to collaborate with the International Bureau of Whaling Statistics at Norway. The IWC required tremendous scientific research, particularly before the imposition of the moratorium where they were responsible for instituting catch quotas based on the maximum sustainable yield. They did not independently survey the oceans for the monitoring of whale stocks, instead outsourced data through other marine research organizations.

It also provides high access to NGO and civil societies, those at the forefront of constructing whaling norms. They can be independent observers or part of their national delegations. They provide the perspectives from animal rights advocacy groups as well as aboriginal rights to hunt whales for subsistence. It was the environmental lobby that proposed the moratorium at the UN Conference on the Human Environment in 1972. Overall, non-state actors have a high influence on the IWC.

The membership of the IWC is not restricted only to countries that participate in whaling. The consensus that whales are a global resource not restricted to an individual state implies that membership is open to all, even countries without access to the oceans. Individual states regardless of their status with respect to whaling, should have equal say in the preservation of the commons. Therefore any country that wants to have a stake in whale stocks, for hunting or conservation, can join the IWC.

Decision Making

The decision making in the IWC changed dramatically from the 1970s onwards when there was an increasing call for a moratorium on whaling. Previously, there was a contest between the scientific community and whaling states with regards to the extent of whaling permissible and the limit of catch quotas. However, post 1970, with the emergence of the anti whaling bloc, the debate within the IWC has shifted from ' how many whales should be hunted’ to ‘if whales should be hunted’.

The hardline of the moratorium jeopardizes internal politics and economies of the many whaling states; while some complied with the emerging norm; Japan, Iceland and Norway grew increasingly hostile towards the moratorium. Japan has been whaling for a very long time and the anti whaling position of the rest of the world, particularly the West, has put Japan on the defensive about its historical and cultural practices. The whaling debate within Japan has been framed as a culture war, emergence as the anti-whaling norm being thought of as Western and the moratorium just another imposition by the West of its ideals upon the rest of the world.

Despite this, Japan stayed within the IWC for a long period, constantly bargaining with the anti- whaling bloc to allow concessions to the moratorium. In the meanwhile, Japan continued to hunt whales, however, this was under the provision of the scientific allowance for the hunting of whales and not commercial whaling, thus technically adhering to the moratorium. However, it was repeatedly shamed for this practice as Australia took Japan to the International Court of Justice on illegal whaling under the moratorium. Japan was willing to make compromises; as its proposed catch quota was much lower than what it was hunting under the umbrella of scientific research. Cumulatively then, less whales would be killed overall had IWC agreed to Japan’s demands.

It left the IWC in 2019 and has since been scaling its whaling capacity. Norway too has faced a small win-set due to domestic preferences skewing towards whaling business.

The anti whaling norm and moratorium have such a powerful effect on the whaling regulation that even intense integrative bargaining for over 30 years has not let it budge. This begs the question, to what end? Had the IWC made concession to the moratorium, it would have been able to regulate Japanese whaling and cumulatively, less whales would be hunted. Within the framework of IWC legitimacy, more states can ask for the same concessions Japan has had whereby it could once again be turned into a whaler’s club; losing its legitimacy.

Impact

The most prominent reform within the IWC, the moratorium, occurred during a remarkable decline of the Soviet Union. Japan’s withdrawal from the IWC was during the US's own withdrawal from many international commitments and multinationalism in general.

As far as the impact of IWC on whaling, it is a mixed bag. Towards the end of the 19th century, there was already a steady decline in whaling, not least due to a reduction of whales available but the increase in the cost of whale products. Whale oil was obsolete with the discovery of petroleum and production of industrial plastics made for cheaper alternatives to baleen in garments.

The conservation of whales movement was an integral part of the development of the animal rights movement that would have emerged regardless of the IWC. Domestic attitudes towards consumption would be reformed either way as most countries have domestic regulation on the hunting and consumption of endangered species. To disgrate any of these variables while assessing the impact of IWC would lead to a faulty conclusion.

Cumulatively however, IWC has had a constitutive impact on states where the domestic norm of animal rights would have taken years, even decades to be internalized. However its success is mixed by the withdrawal of Japan. The revised norms of IWC have not been institutionalized nor internalized in Japan, where 53% of its population consider its withdrawal “very good” or “good”. The powerful anti-whaling lobby had pushed the concerns of whaling states to the fringes, not willing to accept their proposal to revise the moratorium. Thus shaming Japan via the ICJ, attacking their whaling ship and disrupting whaling operations has led them to imagine their devient status within the IWC as a form of national pride. A reversal from their current exit seems highly unlikely unless norms of anti-whaling emerge domestically.

The goals of the IWC have changed considerably since its inception; in the beginning to ensure compliance very high quotas were set for whaling such that among some species of whales there was more whaling. Now, under the rigid constraints of the moratorium, only scientific and aboriginal whaling is permitted. The purpose of the IWC has changed as has the goal, from regulation of whaling to the conservation of whales. A shifting goal post has often been observed when looking at environmental regimes, for a monumental problem, the solution is to start small, make incremental changes and revise the target. The Monertol and Ozone layer preservation regime complex started out small, laid attainable goals along the way until it reached a complete eradication of ozone depleting substances from the market. It remains one of the most successful environmental change regimes implemented.

Conclusion

Aboriginal subsistence based whaling and whaling for scientific research are also important regulatory functions of the IWC. Beyond that however, the IWC is also a scientific body that looks at the overall survival of the whales, beyond the threat of whaling. Despite Japan’s withdrawal and failure of anti whaling norms to be institutionalized in the most ardent supporters of whaling, it is my opinion that the IWC as an international institution has succeeded in its revised mission to protect the whales from whaling. There is little chance of back-sliding by other formerly whaling countries due to an international scaling back of whaling infrastructure and robust anti-whaling conservationist norms.

The real failure to protect whales is a consequence of a larger systemic issue. It is said that whales are a barometer on the health of the oceans. The inverse must be true as well, the health of the oceans are a good predictor of the life of the residents within. Currently, marine life and the ocean habitat as a whole is threatened due to complex man made problems of climate change, overfishing and ocean plastics. Whaling is a minor threat to the overall survival of cetaceans. The destruction of sea beds due to trawling, overfishing leading to a disruption in the food chain, being caught in large fishing nets as by-catch, changing ocean temperatures leading to a disruption in migration routes and excessive ocean noise pollution due to shipping are just some of the environmental challenges that threaten whales..

It is the responsibility of the IWC to monitor the threats posed by extraneous factors, however, it is outside their mandate to effectively deal with them. A comprehensive regime needs to be created for the protection of the oceans as a whole or we could risk not just extinction of whales but also could run out of fish altogether.