Disagreements And The Need For Revision

Introduction

This essay identifies, explores, and critically analyses the issues underpinning the International Convention for the Regulation of Whaling 1946 (‘1946 Convention’). This essay puts forth the contention that in order for the 1946 Convention to be effective, it needs to be revisited because there are too many disagreements in the current convention, especially over moratorium on whaling, quotas and scientific whaling. Revisiting the Convention will be useful for drawing up new principles for whaling.

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At the outset, it will be useful to mention that in the early to mid-twentieth century, the activity of whaling was acceptable and whales were a strategic resource, raw material and source of food. However, the anti-whaling discourse in international law started with the awareness of there being a gradual paucity of whales in the sea due to the ferocious hunting of whales and whaling itself becoming an uneconomical activity. In international law, anti-whaling convention in the form of the International Convention for the Regulation of Whaling 1946 was set up by twelve whaling states with the intention to create an international structure that would force a cut back of whaling. However, the efficacy of the system over the years has been impacted by factual disagreements, such as, over which species of whales are threatened by extinct enough be afforded protection under the Convention.

The foundational principles of International Environmental Law are also relevant to understand why there is a need to protect threatened species like whales. One of the principles is that of sustainable development, or the need to ensure that development does not submerge the environment as first defined in the Brundtland Commission report. The International Whaling Commission was also created in 1946 by members of the 1946 Convention, for the purpose of making whaling more sustainable by regulating the whaling industry, the ultimate purpose being to protect the whaling industry. Another important principle is that of intergenerational equity, which demands that the resources are available to the future generations. The 1946 Convention was also prompted by the reduction of whale stocks around the world due to overhunting of whales. The third principle is that of the state responsibility to protect the environment and this includes the different species in the environment.

The Convention on Whaling: Issues and Evidence

The International Whaling Commission regulates the provisions of the Convention through the Schedule, which enlists the whales types that may be caught, and the quota for the whaling activity, and the areas where hunting is allowed by member countries. This Schedule is amended every year as per the agreement between at least three-quarters of the membership. Before 1982, the International Whaling Commission set annual international whaling quotas under the 1946 Convention Schedule so that the whaling season would not see unsustainable hunting of whales. There is a moratorium on commercial whaling, which was achieved in 1986. The moratorium prohibits commercial whaling by the member states.

The International Whaling Commission has become ineffective over the time because there is a lack of agreement between the members of the Convention and this affects the decision making process under the Convention. There is a difference of opinion between whaling and non-whaling countries and their conceptualisation of the roles and objectives of the International Whaling Commission. The principal reasons for the tensions between the whaling and the non-whaling countries are related to the commercial whaling ban and the setting of the national quota system. The divide between the membership in the 1946 Convention is also due to the division between those who want whales to be recognised as a resource that can be consumed and this group of countries want that there should be sustainable catch limits and no moratorium for the protection of whale populations. These members argue that the original intent of the 1946 Convention was also on the same lines and their position is justified by the original intent of the 1946 Convention and the fact that the provisions have not been amended to the extent that this intent is changed. This is justified by the preamble of the 1946 Convention as per which the purpose of the convention was to provide the regulation of whaling industry and conservation of whale stocks so that the whaling industry could grow sustainably. In other words, as per this group of pro whalers, the convention sought sustainable development of the whaling industry and not a complete moratorium on whaling.

The countries who are pro whalers include Iceland, Norway and Japan and the most contentious of the activities are those of Japan because it is contended by others that Japan is conducting commercial whaling in the guise of scientific exploration. So far, Japan has said that it does whaling for understanding the whale population specifics, while other countries insist that Japan is just using it as a ruse. On the other hand, other countries are also involved in quota formulation for themselves. For instance, Norway still has annual quotas that it decides for itself as does Iceland. However, these quotas are monitored by the International Whaling Commission while scientific permits are not monitored by the Commission. This means that Japan sets quotas that are not tested by anyone. Therefore, one of the controversies for the implementation of the 1947 Convention is that some countries want to phase out scientific whaling altogether. Countries that want to end scientific whaling include Ireland and Denmark, although the latter just wants to create a code of conduct that can be applied to countries that are involved in scientific whaling.

At the centre of the controversy over the whaling convention is the question as to the nature and purpose of the International Whaling Commission. The 1946 Convention was made to facilitate the whale harvesting in order to ensure the longevity of the whaling industry. In that case, the moratorium on commercial whaling would not seem to be correct. However, considering the vulnerability of the whaling population, there have been calls for moratorium on whaling. Therefore, there is a need to reassess the 1946 Convention so that the stalemate between the pro whaling and anti whaling countries within the International Whaling Commission can be resolved. At this point, the biggest difficulty is the non agreement over what should be the objectives of the International Whaling Commission. Pro whaling countries argue that the original objectives of harvesting should continue to be relevant whereas the anti whaling nations believe that even harvesting is no longer sustainable. There is a need to reassess the 1946 Convention in light of its objectives so that the stalemate can be broken.

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Conclusion

To conclude, the 1946 Convention was formed for the purpose of assisting whaling industry by regulating whaling. However, over the years differences between the pro whaling and anti whaling countries have come in the way of implementing the convention and the basic question rests on the 1946 Convention and its objectives. The only way to move forward on this issue is to reassess the convention and find a middle path to resolution. The middle path may see a removal of the moratorium and also the scientific whaling may come within the purview of the International Whaling Commission.

Bibliography
Books

  • Bodansky D, The art and craft of international environmental law (Harvard University Press 2010)
  • Desombre ER, The Global Environment and World Politics (2d ed. 2007)
  • Epstein C, The power of words in international relations: birth of an anti-whaling discourse (MIT Press 2008)
  • Journals

  • Iliff M, ‘Compromise in the IWC: Is it Possible or Desirable?’ (2008) 32 Marine Pol’y 997
  • Jordan T, ‘Revising the international convention on the regulation of whaling: A proposal to end the stalemate within the international whaling commission’ (2011) 29 Wis. Int'l LJ 833
  • Schiffman HS, ‘The International Whaling Commission: Challenges from Within and Without’ (2004) 10 ILSA J. INT’L & COMP. L. 367

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