Japan’s recent announcement that it will withdraw from the International Whaling Commission (IWC) in 2019 to openly carry out commercial whaling in its territorial waters is a catastrophic development for the conservation of whales. The decision—in many ways a long time coming—seems to have been precipitated by the most recent iteration of frustrated negotiations this past fall, with Japan blaming anti-whaling countries for being rigid in their views and failing to incorporate recent scientific evidence on the abundance of certain whales.1 The IWC has engaged in this sort of acrimonious and sterile debate for the past thirty years as a consequence of its contravening one of the cardinal principles of international organizations: modifying the goals and objectives of the organization in the absence of the unanimous agreement of its key members.
This occurred when in 1984 the IWC adopted—by vote and not consensus—a moratorium on commercial whaling despite the fierce opposition of three of the major whaling countries: Iceland, Japan, and Norway. This decision amended the international convention on whales, which had allowed for the rational use of cetaceans (whales and dolphins), and replaced it with a total freeze on catches due to the severe depredation of whales at the time. The three whaling countries rejected the prohibition and pursued de facto ways to maintain the status-quo ante. Japan chose to “disguise” its commercial whaling under the name of scientific research (deceiving no one), while Iceland and Norway continued to hunt whales within their Exclusive Economic Zone, which was allowed for within the framework of the Law of the Sea Convention.
Although the IWC adopted some palliative measures in light of these developments, it did not address the crux of the problem, that is, that it had lost control over the number and species of whales that could be taken. As of that moment, no consensus on the conservation of whales would be possible in the IWC.
In 2009, in this highly strained environment, I was elected Chair of the IWC. The Chair is not subordinate to any country’s national position, including his or her own—in my case, Chile, which was strongly conservationist. Thus, the Chair has the freedom to explore possible agreements and to propose suggestions. In order to pursue negotiations, I felt it was important to take into account the fact that the moratorium did not have the expected success. According to the World Wildlife Fund, between the years 1986 (when the moratorium entered into force) and 2009, 33,561 whales had been caught.2 As of today, that number exceeds 40,000.
Given this stark reality, it seemed obvious to me that a new approach was needed, and the IWC membership agreed. To be clear, the IWC is comprised of countries from all over the world (currently eighty-nine), most of which are not in any way engaged in whaling, and all members are signatories to the International Convention for the Regulation of Whaling, which is the legal framework that established the IWC in 1946. Under my chairmanship, a small working group was created, composed of significant conservationist countries such as Australia, New Zealand, and the United States, as well as the pro-whaling nations of Iceland, Japan, and Norway. The participants were either the heads of their delegation (IWC Commissioners) or high-ranking members of their respective foreign or environmental ministries.
The group worked for a period of seven months, facing many problems and obstacles to produce a final document, IWC/62/7rev-SP (3), available on the IWC website.3 The 45-page text addresses almost all facets needed for a new governance of the IWC, including the issue of conservation. In this regard, the central pillar of the proposal was to obtain a considerable reduction of catches through quotas awarded by the IWC in a manner that would save approximately 500 to 1,000 whales each year. Further, a strong monitoring system was included.
The bottom line was that the IWC would in fact revert the moratorium to authorize some level of commercial whaling through quotas and strict surveillance—an attempt to satisfy the whaling countries and simultaneously reduce the number of whales killed. To my disappointment, however, this compromise turned out to be too high a price for the anti-whaling countries, and without any deliberation the proposal was rejected at the IWC’s 2010 meeting in Agadir, Morocco. Keep in mind, the proposal was always intended as the basis for negotiations, to be considered under the principle that nothing is agreed until everything is agreed, and thus open to all the amendments and reforms judged necessary, including rejection of the final outcome. It was never presented as a “take it or leave it” proposition, but it was unfairly treated as such.
What was most surprising to me was the reaction of the anti-whaling countries. The ministers of foreign affairs and/or the environment were declaring as unacceptable, in a very public and vehement manner, a proposal that was drafted by their own representatives in the working group. As governments, it seems the anti-whaling countries had initially been prepared to negotiate on the basis of the text. Otherwise, they would have made their objections known in the course of the drafting and that would have been that: just another failed attempt at consensus in the IWC. Only one possible conclusion could be drawn from this development: the problem was that after drafting they simply could not sell the proposal domestically in terms of public opinion and national NGOs—particularly the latter. In the highly emotional case of whaling, NGOs have demonstrated that they are maximalist in their objectives (no whaling, period); rigid in their negotiating tactics (whaling countries must accept the moratorium unconditionally); and unwilling to change their approach or take responsibility when such tactics fail to deliver the desired outcome.
Sadly, conservationist countries are comfortable with this scenario, one that does nothing for the protection and conservation of whales. The reason is the time-worn doctrine of agreeing to disagree—in this case with Japan. Otherwise, they would have to get serious and include the issue on their bilateral agendas, and no country wants to suffer the slings and arrows of a Japanese reaction. Instead, for all their roars of indignation and ire, the proposal was allowed to die, and with it so have approximately 1,000 additional whales each year over the last decade.
Admittedly, the proposal had some scientific snags and political complications, demanding significant concessions from conservationist and whaling countries alike. Be that as it may, had the negotiations taken place, Japan certainly would not have withdrawn from the IWC, or at least it would have postponed its decision until after appraising the outcome of the new agreement. In light of what has occurred, massive creativity will now be required to entice Japan back to the negotiating table. However frustrating it may be, there simply is no alternative for the protection and conservation of whales other than to negotiate with the countries that hunt them.
Cristian Maquieira, a retired Chilean diplomat, served as chair of the International Whaling Commission in 2009–2010. His postings included Washington, D.C., Geneva, the United Nations in New York (Deputy Permanent Representative), and Ambassador to Paraguay. He has published articles on Law of the Sea issues, multilateralism, and the participation of Chile in the UN Security Council.