From the Bangudae Petroglyphs in Korea to Herman Melville’s epic tale of Moby Dick, whales have captured the popular imagination like no other marine creature.  For centuries, whales were hunted for food and used for products such as lamp oil and corsets. But since the early 20^th century, there has been a global shift from the exploitation of whales to a conservation-based approach.

As early as 1925, the League of Nations recognized that whales were being over-hunted. It was not until 1948, however, that the International Convention for the Regulation of Whaling was agreed upon. This convention set up the International Whaling Commission (IWC) to promulgate regulations for whaling activities. At that time, the international community believed that sustainable commercial whaling was possible, and the ICRW was intended to provide a framework for this.

Over the following decades, whale populations continued to decline, and by 1982 it was apparent that commercial whaling was unsustainable. Accordingly, the IWC agreed on a complete moratorium on commercial whaling, to take effect in 1986. A significant factor leading to the adoption of the moratorium was the political pressure exerted by the United States, which threatened to restrict access to its fisheries for countries that did not agree to it. Some whaling nations, such as Iceland and Norway, dissented and continued to whale “under objection” within their own territorial waters.

Aboriginal subsistence and scientific whaling were permitted as exceptions to the moratorium. In recent years the most attention has been focused on Japan’s issuance of permits for scientific whaling. Japan has continued to hunt whales under this exception, and numerous parties have questioned the bona fides of its scientific research program. The practice of hunting whales in the sub-Antarctic is particularly controversial, because it involves whaling on the high seas rather than in Japan’s territorial waters, and in an area that is part of the Southern Ocean Whale Sanctuary.

This culminated in Australia bringing an action against Japan in the International Court of Justice in 2010, which was later joined by New Zealand. The main issue before the Court was whether the “JARPA II” research program was being conducted for scientific purposes. The ICJ found that the use of lethal sampling in the course of scientific research is not per se prohibited, but that any such sampling must be for the purposes of scientific research.

Relevant factors in determining whether lethal sampling satisfied this test included: decisions regarding the use of lethal methods; the scale of the program’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a program the program’s scientific output; and the degree to which a program co-ordinates its activities with related research projects.

The ICJ ruled that, although JARPA II involved activities that could broadly be characterized as scientific research, “the evidence does not establish that the program’s design and implementation are reasonable in relation to achieving its stated objectives”. For instance, the number of scientific publications produced was not proportionate to the number of whales killed. The ICJ held that the special permits granted to Japan to hunt whales in connection with JARPA II were not for the “purposes of scientific research”, and ordered Japan to revoke such permits.

This was an important judgment in terms of clarifying the scope of scientific research that is permitted. However it did not resolve the underlying cultural tension between states who wish to continue whaling, and those who want to see it banned completely.

In response to the ICJ decision, Japan indicated that it would abide by the ruling, but proposed to continue scientific research on a reduced scale. In November 2014, Japan submitted its revised whaling plan (NEWREP-A) to the Scientific Committee of the International Whaling Commission. According to the new plan, Japan would hunt 333 minke whales each year between 2015-2027 for scientific purposes (about one third of the previous target catch).

The Scientific Committee of the International Whaling Commission did not consider NEWREP-A satisfied the “scientific purpose” test, and said that the need for lethal sampling had “not been demonstrated”. However Japan is not bound by this finding and can choose to issue scientific permits regardless. Therefore, Japan has indicated its intention to resume whaling in December 2015, in accordance with NEWREP-A.

Some states have argued that Japan’s recent actions contradict the findings, or at least the spirit, of the ICJ judgment, and that the scientific justification for NEWREP-A is inadequate.   This raises the issue of the enforcement of international law; when a state simply refuses to abide by international conventions or an ICJ ruling, the options to encourage compliance are limited. The most successful strategy is arguably the threat of trade sanctions, as occurred in 1982, however this is a drastic and inflammatory option.

The perceived ineffectiveness of international law has caused non-governmental organizations to take the law into their own hands. Most notably, Sea Shepherd has waged a campaign against whaling by using their boats to obstruct Japanese whaling ships. Opinions are divided on these activities. Sea Shepherd claims they are simply enforcing international law, but they have been labeled “eco-terrorists” and accused of endangering lives by the Japanese government. Somewhat ironically, US Sea Shepherd members have been banned by the United States Court of Appeals from approaching Japanese whaling ships on the high seas.

It is arguably unfair to focus criticism on these activists, given it is the inaction of the international community that has allowed whaling with a spurious scientific pretext to continue. The broader issue that needs to be addressed is the fact that the initial purpose of the IWC (sustainable commercial whaling) no longer matches up with the prevailing view of whaling. That is, most states have shifted from viewing whaling as a sustainability issue, to a perception that whaling is in itself an inhumane activity that should be completely banned. In contrast, whaling nations maintain that the moratorium was a temporary measure to allow populations to regenerate, and suggest that some whale species could be sustainably hunted.

This uneasy tension means that scientific whaling is likely to be a continuing source of controversy, particularly in the Southern Ocean. If members of the IWC consider that commercial whaling should be banned permanently, or that the scientific exception to the moratorium should be revoked, the international community needs to have a conversation about this. Unless there is a concerted effort to continue conservation efforts, there is a risk that the pictures and stories of whales will be all that remain.