Save the Whales... with a trade deal

by Amrietha Nellan

Last year, Japan made headlines when it resumed whaling activities in the Southern Ocean just 20 months after the International Court of Justice ruled against Japan’s scientific whaling practice. Activists and concerned citizens worldwide were left dumbstruck and questioning how Japan can continue to hunt whales with impunity after an international tribunal ruled against it. Are international institutions powerless to enforce international agreements, like the International Convention for the Regulation of Whaling? At first glance, it seems that way. But a deeper dive into the issue reveals that international institutions and law can be effective but are limited by the text of the agreement and the mandate of the international tribunal. This is why trade agreements, like the Trans-Pacific Partnership (TPP), that incorporate enforceable environmental obligations are so important. The TPP expands countries’ abilities to hold each other accountable by giving an alternative legal process with the added influence of trade sanctions.

To understand the Japan whaling situation, we must first learn how whaling in regulated. The International Whaling Commission (IWC) is the international body that carries out the obligation of the International Convention of the Regulation of Whaling (the Convention) to conserve whale species and regulate whaling. In 1986, the IWC introduced a moratorium on all commercial whaling. However, countries can still hunt with a special permit for scientific research, better known as the scientific whaling exception. Under Article VIII of the Convention, individual nations have the authority to issue special permits and only have to inform the IWC of the permits issued. Therefore, the IWC and its members lack the authority to deny a special permit even when its scientific committee finds problems with the program.

This is where the International Court of Justice (ICJ) comes in. Article IX of the Convention gives governments the sole authority to prosecute infractions of the Convention. So after the IWC identified multiple concerns with Japan’s special permits, Australia, as another member of the Convention, initiated an ICJ case against Japan. Australia’s substantive claim against Japan was that its scientific whaling program, JARPA II, was not a program for scientific research within the meaning of the Convention and therefore breached the moratorium on commercial whaling. The ICJ agreed, finding “the evidence does not establish that the program’s design and implementation are reasonable in relation to achieving its stated objectives” and concluded that the special permits granted by Japan were not for the purposes of scientific research.

With this decisive ruling, Japan ended JARPA II, only to start NEWREP-A eight months later- a new and slightly different program that immunizes Japan from the ICJ ruling. Some of the key changes in NEWREP-A include reducing the annual capture of minke whales from 850 to 333 and not hunting endangered species like fin whales. While there is little to indicate Japan’s whaling programs will yield substantive scientific data, the whale meat continues to enter the commercial market. So what options does Australia have to pursue its fight against Japanese whaling? Australia could file another case against Japan’s NEWREP-A for violating the Convention, which as demonstrated is not an ideal solution. Or Australia could use the TPP.

The TPP enshrines the mission of the Convention in Article 20.16(4), which states each Party shall promote the long-term conservation of marine mammals. Notably, this obligation is subject to the the TPP’s dispute resolution process in Chapter 28. Together, these provisions provide a more robust enforcement mechanism than the IWC process. First, the broad language of Article 20.16(4) expands a country’s ability to bring a claim against another TPP country regarding whaling. Australia does not need to limit its claim to just scientific whaling and can make a more substantial challenge to Japan’s whaling program.

Second, the TPP dispute settlement process is an additional mechanism available to the IWC process. Therefore, a country could use the TPP and IWC process simultaneously or keep it as a follow-up to apply added pressure to come to a faster and acceptable solution. Finally and most importantly, the TPP dispute settlement process specifically reserves the right of a prevailing party to impose trade sanctions if a party does not meet its obligations under a judgment. This is a unilateral right. So if Australia had used the TPP process against Japan, Australia could immediately impose trade sanctions if it found Japan’s new program fails to substantively meet the obligations in the judgment. This mechanism could force compliance without having to go through a second tribunal.

The impact of the TPP on the current whaling regulatory system clearly demonstrates how the TPP is a 21st century trade agreement. Including core environmental objectives, delineating a dispute settlement mechanism, and tying those obligations to trade sanctions creates a powerful regime to lift environmental standards and create sustained improvement worldwide. So as Australia continues its work to end whaling, the TPP will be a powerful tool for change.