South Korea’s announcement at last week’s meeting of the International Whaling Commission in Panama City that it intended to commence a “scientific whaling” program came as a complete surprise.

Ever since the world-wide moratorium on commercial whaling began in 1986, only three countries have seriously challenged its legitimacy. Iceland and Norway still undertake whaling in the North Atlantic, but have done so under a number of exceptions to the International Convention on the Regulation on Whaling. That Convention, which was adopted in 1946, remains the principal international treaty dealing with whaling on the world’s oceans.

The other whaling nation is Japan, which through successive “special permit” whaling programs conducted under Article VIII of the Whaling Convention, continues to engage in a Southern Ocean whaling program (JARPA) and a much smaller North Pacific program (JARPN). Notwithstanding multiple IWC Resolutions condemning JARPA in particular, Japan has continued on with its annual whaling programs insisting that it has a legal basis to do so under Article VIII.

South Korea has also indicated that it will rely upon Article VIII in issuing permits for what it has claimed will also be a program of scientific research that will more than likely commence within the next year.

So-called “scientific whaling” is at the heart of the controversy between Australia and Japan over whaling which is now destined for resolution in the International Court of Justice. Since the beginning of the 1986 global moratorium on commercial whaling Japan has annually conducted a special permit “scientific whaling” program in the Southern Ocean which has increasingly raised the ire of successive Australian governments.

Initially only targeted at minke whales, from 2005 the JARPA program of Japanese “special permit” whaling in the Southern Ocean not only doubled the minke whale quota to in excess of 900, but was also extended to include smaller numbers of endangered and threatened fin and humpback whales. While Japan has never achieved its stated quota in recent years, due in part to the disrupting tactics of the Sea Shepherd Conservation Society plus a side agreement with the Americans that the catch of humpbacks would be suspended, Australia was nevertheless sufficiently aggrieved that in May 2010 it brought a case against Japan in the International Court of Justice.

The written phase of that case recently concluded and the Court, which sits in The Hague, will more than likely hear oral argument in early 2013 with a decision by mid-year. Australia’s legal case principally revolves around whether Japan’s whaling program is truly scientific and therefore consistent with the provisions of Article VIII of the Whaling Convention, or whether it is commercial whaling in disguise and infringes the moratorium. Australia also argues that Japan’s conduct infringes the Convention on Biological Diversity and the Convention on the International Trade of Endangered Species.

By seeking to issue its own “special permits” for whaling under Article VIII, South Korea appears to have responded to pressure from long standing coastal whaling communities, such as Ulsan, to at least permit some form of whaling. In doing so the South Koreans are reminding the international community that prior to the moratorium they too had a whaling culture which they argue should be respected by others.

While details on the South Korean proposal remain sketchy, it appears they are intending to catch whales predominantly off their own coast, most likely within the limits of the South Korean 200 nautical mile exclusive economic zone. It has also been suggested that the catch will be limited to minke whales.

What is missing to date though is any indication as to how many whales will be taken, and whether there will be anything approaching a rigorous scientific research program. The South Koreans did indicate that they will take their proposal before the IWC Scientific Committee, but also made clear that they will not be asking for their plans to be approved. In this respect the South Korean’s seem to be favouring the Japanese precedent in interpreting Article VIII of the Whaling Convention as conferring a unilateral right upon a country to issue permits for whaling for scientific purposes.

On its face, South Korean whaling will raise many of the same issues as has its Japanese equivalent. While the Australian and New Zealand governments have reacted with fury at Seoul’s announcement, given the diplomatic track record in resolving disputes over Japanese whaling it is doubtful whether it will bring about much success with the South Koreans. The IWC has repeatedly proven to be a toothless tiger over efforts to circumvent the moratorium and its membership remains split between pro-whalers like Iceland and Japan, and the anti-whalers/pro-conservationists lead by Australia and New Zealand.

Canberra and Wellington have dispatched their diplomats in Seoul to register displeasure, but it is unlikely the South Koreans will back down.

It would appear likely then that 2013 will be a pivotal year in the ongoing whaling debate. The International Court’s looming decision in the Australia/Japan whaling case will bring clarity as to how Article VIII of the Whaling Convention is to be interpreted. This will set an important precedent that may severely limit both the Japanese and South Korean whaling programs.

Peter Fray

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