'The Trouble With Whales: Call Me Dr. Ishmael' Wayne lecture features Aussie international law expert

By John Minnis

Legal News

Professor says that biggest threat to whales comes from scientists

Call me Dr. Ishmael.

That is how Herman Melville's classic "Moby Dick" would have begun had he written it today. In the 19th century, the whale's greatest foes came from Massachusetts.

Today the whale's biggest threat comes from academia, from scientists.

Those and other observations were made by guest speaker Natalie Klein, dean and professor at Macquarie Law School in Sydney, Australia, at Wayne State University Law School's Program for International Legal Studies lecture series sponsored by the International Law Students Association.

In her lecture, "Protecting Whales Under International Law: Australia's Case Against Japan Before the World Court," Klein discussed Australia's effort to stop scientific whaling in the Southern Ocean.

Klein teaches and researches in various areas of international law, with a focus on law of the sea and international dispute settlement. She earned a Bachelor of Arts and Bachelor of Laws from the University of Adelaide and a Master of Laws and Doctor of Laws from Yale Law School.

At the outset, Klein said that Australia has a legal dispute with Japan in the World Court, but she wanted to make it clear she was sympathetic with the ongoing crisis in Japan.

"We certainly hope that Japan will soon have nothing more serious to look at than the crankiness of their nation's whaling industry," she said.

As far as international law governing whaling, there are two principle treaties: the United Nations Convention on the Law of the Sea (the "Constitution of the Oceans") and the International Convention on the Regulation of Whaling.

"There is no shortage of law when it comes to regulating whaling on the high seas," Klein said.

The "high sea" begins at 12 nautical miles offshore; however while territorial waters only extend for 12 miles, certain rights also accrue to a state for the next contiguous 12 miles and in the state's Exclusive Economic Zone extending to 200 nautical miles.

"A coastal state has a right to conserve and manage its marine resources," Klein said. "Once you get to the high seas, it's a different story all together."

Except for in the case of piracy, the only legal authority over a ship at high sea is that of the country of the flag under which it sails.

A moratorium on commercial whaling was adopted in 1986 by the International Whaling Commission, an international body set up by the terms of the International Convention for the Regulation of Whaling.

In 1994, the IWC created the Southern Ocean Whale Sanctuary, an area surrounding the continent of Antarctica where all types of commercial whaling are banned.

Japan has argued that the establishment of the Southern Ocean Whale Sanctuary was in violation of the International Convention for the Regulation of Whaling and, therefore, is illegal.

The only exception to the 1986 moratorium on taking whales is for scientific research.

"Member states determine what is scientific whaling," Klein said. Further, the byproducts of scientific whaling, the whales themselves, can be sold to consumers.

"It's kind of good in that respect," Klein said, "that there is no waste of a whale once it is taken."

The Scientific Committee of the IWC, consisting of 200 of the world's leading whale biologists, review and comment on member states' scientific whaling programs, yet the committee has no authority, and its opinions are not binding.

Klein said Australia was founded in part by whaling settlements.

"There have been earlier attempts to limit whaling before the adoption of the whaling conventions," she said. "It wasn't until the 1970s that it became recognized that the fate of whales was quite dire due to falling numbers."

Initially refusing to join the commercial whaling ban, Japan changed its mind under pressure from the United States, including U.S. threats that Japan whalers would not be allowed in the U.S. Exclusive Economic Zone waters.

Instead, Japan instituted its own "scientific whaling" program, JARPA, and, in 2005, JARPA II.

Under JARPA II, Japan announced its scientists would "sample" 850 minke whales, 50 humpback whales and 50 fin whales.

At the request of the United States, however, Japan suspended its take of humpback whales under JARPA II, and to date none has been taken.

Australia has persistently raised its objections to Japan's scientific whaling program within the IWC and in May 2010 began proceedings against Japan in the International Court of Justice.

Both countries have granted the court jurisdiction over the case, Klein said.

The IWC is currently evenly divided between "pro-whaling" and "anti-whaling" states, she said.

"There have been efforts to overturn the moratorium," Klein said, "but they haven't been able to get the three-quarters majority necessary."

She said there is disagreement among member states over the continued need for the moratorium and disagreement over the efficacy of JARPA II.

Japan argues, Klein said, that scientific research is needed to lift the moratorium, which remains under review pending scientific evidence as to its justification. As of now, "scientific whaling" is legal.

"It's a very black-letter argument Japan is making before the court," Klein said.

On the other hand, Australia is arguing that JARPA II is tantamount to commercial whaling.

"Do you really need to do lethal research?" she asks.

"Australian and New Zealand are trying to show that you do not have to kill the whales to do scientific research, but those are more difficult (legal) arguments to make. At the end of the day, is Japan conducting scientific or commercial whaling?"

The court is likely to rule on various issues of the case rather than come down decisively on one side or the other, she said. However, she welcomes the court's role as a "circuit breaker."

"The court needs to define what is commercial versus scientific whaling," Klein said. "I am certainly hoping the court will take on this circuit breaker role in this case, but that is quite difficult to predict."

Klein also discussed The Sea Shepherd Conservation Society's efforts to hinder Japanese whaling. Methods include launching rotten butter bombs and obstructing, dogging and even ramming and boarding Japanese vessels.

The professor was taken to task by a Sea Shepherd captain when in an Australian newspaper she said the anti-whaling group crossed the line from protestor to pirate when a Sea Shepherd member boarded a Japanese vessel and demanded reparations.

In a letter to the editor responding to Klein's commentary, the captain wrote, "Thus we have no choice than to be pirates of compassion in opposing the pirates of greed."

"As a lawyer," Klein said, "I have to ask, 'What is a pirate?' "

Under the U.N. Convention on the Law of the Sea, a pirate is someone from one ship who boards another ship and demands a payment under threat, which is exactly what the Sea Shepherd captain did. (He objected to being called a "protester," not a "pirate.")

"Under international law," Klein said, "at high seas, the only one who has jurisdiction over a Japanese boat is Japan."

Beyond legal and scientific concerns, whaling is also a cultural issue with the Japanese.

"They believe they are entitled to maintain their culture," Klein said, "which includes eating whales."

Wayne Law's Professor Fox asked if scientific whaling presented a threat to whales and if the Scientific Committee of the IWC has studied and reported on Japan's research.

Klein said little is known of the number and viability of minke whales, but she indicated that if Japan's scientists decided to take 50 humpback whales, that could be a threat to that species.

She said Japan claims its scientific papers are not being published in peer-reviewed journals and that there is an anti-whaling bias among editors and reviewers. Other scientists argue they are not given enough time to review Japan's data.

One student asked about other endangered marine species.

"There are other endangered species," Klein said, "but they do not have the sentiment among the public as whales do. My area is sharks, but it is difficult to get the public behind saving the sharks."

Published: Thu, Apr 14, 2011

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