Tomorrow, the International Whaling Commission meets for the beginning of its 5-day conference in Agadir, Morocco. The annual conference will be of particular importance this year, due to Australia’s decision to move ahead with its claims before the ICJ against Japan, based upon the latter’s whaling activities.

Although there has been a moratorium on whaling since 1986, Japan (as well as Iceland and Norway) have continued whaling under the “research exception” of the Convention for the Regulation of Whaling.

Article VIII, section 1 of the Convention provides as follows:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.

So it’s not clear cut who has got the better side of the argument, here. “Scientific research” is not defined elsewhere in the Convention, and, if this case does make it up to the ICJ, the Court will have a fairly complex question of treaty interpretation to grapple with.

Japan is, currently, hunting whales for what can fairly be characterized as commercial purposes. However, Japan is also using the whales it kills to conduct research, through its Institute of Cetacean Research. Although debate continues about the necessity of using lethal methods for whale research, it would not be accurate to characterize Japan’s whale research programs as merely a front for the commercial operations — the research on the whale populations is genuine.

On the other hand, the principle of good faith in treaty interpretation would seem to prevent construing the Convention to allow the “research” exception to encompass any sort of whale harvesting that also incidentally includes a research component. The ICJ will have a difficult task before them, in determining whether or not the Japanese research whaling fleet is authorized as a matter of law.

But if the judicial process does not go Japan’s way, there’s always the political method. And, if things go the way the pro-whaling nations hope, the upcoming IWC conference in Morocco could ultimately lift the whaling moratorium, rendering Australia’s claims moot.

I’ve talked before on this blog about Nauru’s practice of selling its recognition power. China and Abkhazia both essentially purchased Nauru’s recognition of their statehood, through the use of foreign aid. A similar situation has now developed with regards to the IWC, and Japan is engaging in very direct forms of diplomacy in order to secure more votes for the pro-whaling coalition.

Currently, 88 states are parties to the Convention, and any state that wishes to join may do so. Most of these countries, however, are not themselves whaling states, nor do any whales live in their jurisdictions. Eight of member states are actually landlocked territories. For countries that have no strong interest in whales or whaling, the decision of whether to prohibit or allow whaling on international waters is a decision controlled less by State preference, and more upon which option will garner them the most diplomatic favor. As a result, the vote-buying has been pretty blatant.

The Caribbean states all largely vote along with Japan on whaling issues, and receive large amounts of aid from Japan in return. The Pacific is more divided, as some of the countries there have been wooed by Japan, while others have been bought out by Australia and New Zealand. The Marshall Islands and Kiribati are among those Pacific Island states who receive aid from Japan and vote with the pro-whaling bloc in return.

What is interesting about Japan’s purchasing of pro-whaling votes, however, is the form of compensation offered. Although some of the compensation consists of fairly standard foreign aid packages, or the paying of smaller states’ IWC fees, or covering the travel costs for their diplomats to attend the IWC conference, some of Japan’s tactics are more questionable.

Other forms of compensation include providing prostitutes to foreign diplomats, giving government officials generous “discretionary expenses funds” for their visits to Japan or IWC conferences, and providing diplomats with lavish vacations. Although generally I disagree with those who characterize this sort of compensation-based diplomacy as a form of “bribery,” in this case, the label does seem to fit.

Japan’s justification for this particular brand of diplomacy is that the IWC is abusing its mission by failing to have adequate membership requirements. Some Japanese politicians go as far as to argue that only pro-whaling nations should be permitted to join the IWC, because the goal of the IWC is to regulate the harvesting of whales — and countries that do not harvest any do not have any legitimate interest in setting that number.

They do have something of a point. The object and purpose of the Whaling Convention clearly indicates an intention to protect whale stocks in order to create a sustainable global whaling industry. The purpose of the IWC was not to work towards the complete elimination of whaling, but rather to ensure the preservation of the earth’s whale resources so that commercial harvesting could continue — and by allowing in any country that wants to join, the IWC is letting states with no economic or territorial interest in whales to exert control over states like Japan.

But the prevalence of schemes through which smaller states sell out there international-law-making-power in exchange for cash poses something of a long term dilemma for customary international law. CIL is developed through a combination of state action and opinio juris, but for international legal issues in which “state action” is only conducted by a bare handful of states — such as with whaling — or where there state action consists of a nebulous act of “recognition”, having opinio juris be determined by who’s writing the biggest checks undermines the credibility of the whole process.

-Susan