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[Forthcoming (May 2009) in the Asia Pacific Journal of Environmental Law]

Every Australian summer, relations with Japan heat up over whaling. This New Year of the Ox is no exception. On 8 January 2009, a Japanese official reportedly called on Australia to deny port access to the Sea Shepherd Conservation Society’s protest ship, which has begun impeding the lethal research underway again by the Japanese whaling fleet in the Southern Ocean. But there is uncertainty over whether the ship’s activities amount to the alleged ‘sabotage’, and about the implications under national and international law. The editor of The Australian has also argued that Sea Shepherd is ‘On the wrong course’, and that Captain ‘Paul Watson’s zealotry at sea will not stop Japanese whaling’.

On the other hand, as a practical matter, it is hard for Australia to refuse entry to the ship. Sea Shepherd renamed it the Steve Irwin, after the nation’s recently-deceased iconic figure for conservationism – still (in)famous for his own larrikin image. Such symbolism, and the public photo of Paul Watson ‘standing resolute beneath a skull-and-crossbones flag’ highlighted by the editorialist, illustrates the impact of images and wider discourse in framing the contested issue of whaling. And that is the main thesis of USydney’s Dr Charlotte Epstein, in her new book on The Power of Words in International Relations: Birth of an Anti-Whaling Discourse (MIT Press, 2008, Cambridge, Mass. /
London, England (distributed in Australia by Footprint Books), ISBN 978-0-262-55069-7, xii + 333 pages). Her book should be required reading for government officials and others interested in this issue in Australia, Japan and beyond, because the work also helps explain the irony of each country adopting mutually contradictory positions when it comes to whaling. Economic and political interests do partly explain such internally inconsistent positions, but they also seem more likely to prevail when such material interests interact with a broader ‘discourse’, which can persist in different forms in different countries at different times.

That final point is elaborated by Epstein’s work, strongly influenced by Michel Foucault. Chapter 1 (‘Making meaning matter in international relations’) is aimed at those interested in applying social theory in her discipline. A more accessible version for non-specialists, and a more detailed summary of the Chapters, can be found in Chapter 12 (‘Conclusion: The Study of Identity in International Relations’, followed by a useful Appendix chronicling key events involving whales and whaling since pelagic or Antarctic whaling began in 1904). The book is divided into three Parts, The first (Chapters 2-4) outlines the original (pro-whaling) ‘Whaling Order’. Part II (Chapters 5-7) analyses the production of an ‘Anti-Whaling Order’ from around 1970, as part of new ‘metanarratives’ arising from the Cold War and the ‘Saving the Planet’ movement. Part III (Chapters 8-11) examines the various modes for ‘Reproducing the Anti-Whaling Order’.

Chapter 2 (‘An international political economy of modern whaling’) reviews the transformation of whaling from a craft to a large-scale industry by the mid-20th century. This epitomised the second industrial revolution, and sometimes modernisation itself, with whales becoming an aspect of everyday life. ‘Whaling nationalisms’ also emerged – with Germany and Japan challenging Britain and Norway, and the Netherlands attempting a comeback after World War II – and a ‘whaling Olympics’ began to threaten dwindling stocks. Epstein presents her first argument that national interests in whaling went beyond material interests. At this stage, this was because they endured well after whaling became uneconomical.

Chapter 3 (‘Whaling, sovereignty and governmentality’) looks more closely at how whaling became integrated into particular structures of power and knowledge implicated in forming the modern nation-state. It buttressed sovereignty within the state and expanded it outwards, for example by enlisting whalers in national defence or to help transport convicts from Britain to Australia, and in the ‘race to Antarctica’ after the War. National interests were also deeply entwined with the emergence of cetology, the new science of whales.

Chapter 4 (‘The society of whaling states’) tracks how some national regulation of whaling (especially in Norway) led to bilateral cooperation, the first Whaling Conventions (1931-7), and then the 1946 International Convention for the Regulation of Whaling (with the original ‘club of whalers’ establishing the International Whaling Commission in 1949). The regime centred on the IWC remains the key space where states reaffirm that their subjectivity in international discourse over whales, which have become more than the object of national interests or everyday life.

Epstein’s account reminds me of another episode where Japan also sought more than material interests, but also acceptance as a fully industrialised and ‘modern’ state, including under then-prevailing norms in international law and politics. That was Japan’s annexation of Korea over 1905-45, including the imposition of a legal system palatable to ‘Western’ eyes that also helped to complete recognition of Japan’s own ‘modern’ legal system (Alexis Dudden, Japan’s Colonization of Korea: Discourse and Power, U Hawaii Press, 2005). A problem for Japan there, and then with whaling, was that norms and acceptable practices changed over the 20th century.

Chapter 5 (‘Making of a dominant global discourse’) shows how a pro-whaling storyline about noble whalers (taking on Herman Melville’s Moby-Dick, originally published in 1851) and ‘killer whales’ was recrafted into an anti-whaling discourse. Epstein (p 97) identifies one of the first ‘image-events’ by Greenpeace in 1974, the year it was founded, as a founding moment in this transition. It involved film coverage of Paul Watson and another activist impeding harpooning by a Russian factory ship. This tied in, much more comfortably than Greenpeace’s initial opposition to nuclear weapons or the Earth First! campaign to save old-growth forests in the US, to the Cold War meta-discourse on capitalism and democracy. Opposing whaling pitted these new NGOs against another (collectivist) state, rather than their own (the US having stopped whaling in 1968).

The shift to an anti-whaling discourse also fitted into a second meta-narrative about protecting the environment, initially domestically (from the mid-1960s in the US, for example) and then world-wide. Epstein argues (pp 104-8) that a key event was the UN Conference on the Human Environment held in Stockholm in 1972. It consolidated a synecdoche whereby protection of the ‘environment’ was equated with protection of ‘endangered species’ in international forums, underpinned by a shift towards animal rights and away from utilitarian approaches to environmental law in the US from the 1960s. In particular, after its stance on other issues such as nuclear testing attracted widespread criticism, the US successfully championed a proposal for a ten-year moratorium on commercial whaling.

Chapter 6 (‘The power of science’) revisits the role of science, suggesting that it has improved increasingly in the IWC but has been decreasingly listened to. Epstein’s point here is that (context-specific) discourse is important not just vis-à-vis material interests: ‘If science speaks to us in a discourse that is completely at odds with our own – with the one we have chosen to speak, because it marks us in certain ways – then it is likely that we will simply not listen. What science does not have is the power to alter a society’s normative order. In fact, its own knowledge frames are informed by those underlying norms.’ (p 249). Dan Kahan, a social psychologist at Yale University, has similarly demonstrated with his colleagues recently how our specific cultural identities tend to frame risk cognition, resulting in differential responses to more or ‘better’ (scientific) information about at least some issues.

Chapter 7 (‘The anti-whaling campaign’) details how environmental NGOs succeeded by 1982 in getting the IWC to suspend whaling indefinitely. The campaign first targeted individuals, effectively appealing beyond nationalistic attachments at a time when whaling was petering out anyway, and engaging a nascent global media. This generated the political clout to be taken seriously by states. The campaign refocused on the IWC, with NGOs sometimes literally appropriating states’ voting powers. Epstein’s broader theoretical argument here, contrary to methodological individualists, is that ‘social actors – whether individuals or states – engage in the realm of action by first stepping into subject-positions, that is by taking on certain discourses. It is these discourses that make certain courses of action desirable’ (p 249).

Chapter 8 (‘Crafting the anti-whaler (I)’) is the first in Part III to examine how the newly dominant anti-whaling discourse has managed to persist. It offers ‘an applied discourse analysis’, focusing on an ad in 1974 by US environmental groups calling for a boycott of Japanese goods, to show how a new identity is implicated. The ‘others’ still engaged in whaling are set up in complete opposition to a vast ‘us’, an international and moral community ‘encompassing the global civil society, the community of scientists, heads of states, literary figures, and the whales themselves’ (p 181). Such ads invoking identity claims, also echoed in more contemporary slogans and images, result in whales continuing to matter again – but now for outright preservation, rather than sustainable consumption – despite the limited material interests involved for most.

Chapter 9 (‘Crafting the anti-whaler (II)’) looks not at what anti-whalers say, but at their ‘consumptive practices’. These involve the whale as a more abstract whole, as a signifier for many ideas such as communion with nature or harmonious social organisation, and the eclipse of ‘use value’ by ‘exchange value’ in a post-modern and post-industrial system (pp 190-3). The target of anti-whaling marketing, accordingly, becomes the global anti-whaler: ‘a consummate Internet browser, dedicated to travelling, who cares about the environment’ (p 197).

The last two chapters turn back to ‘State positionings’. ‘Anti-whaling discourse’ marks states as ‘good’ members of contemporary international society. They are ethical and civilised (whales have a moral right to life); democratic (citizens want their state to save the whales); and green (although Australia, the US and New Zealand joined with Japan and Canada to oppose measures to address climate change in the run-up to the 1997 Kyoto Protocol: p 212). Anti-whaling states also position themselves as neoliberal, opposed to protection of declining industries and in favour of market-led efficient resource reallocation to new opportunities like whale-watching.

Contemporary ‘pro-whaling discourse’ then shows, as we would expect from Foucault, how states (and others) continue to frame out alternative significations even in the face of a now-dominant discourse. Resistance occurs at the state level in different guises. Iceland is cautious but always postures as a ‘whaling country’, crystalising a tradition of resisting outside interference. Norway is the only country to persist fully in whaling, having never retracted its 1982 reservation on the IWC commercial whaling ban. Its ‘attitude of prudent harvest and its stringent regulatory framework form part of a broader commitment to a rational, science-based utilization of its resources’ (p 223). Japan relinquished its reservation in 1987, under US pressure, and has changed from ‘whaling’ to ‘anti-anti-whaling’ diplomacy’ (pp 226-9). It has not followed Canada, which permanently withdrew from the IWC and has quietly resumed some (indigenous or ‘aboriginal subsistence’) whaling. Instead, it has tried unsuccessfully to have the IWC recognise new types of whaling (namely ‘small type coastal whaling’ – currently generating around 300 tonnes of whale meat, compared to around 2000 tonnes from its ‘JARPA scientific whaling’, and about 700-1000 tonnes of small whale or dolphin meat not under IWC jurisdiction).

Such articulations of sovereignty also underpin resistance at the interstate level. Key themes are ‘food security’ (appealing also to developing countries with limited traditions of whaling, as in the Caribbean, and often linked to resisting foreign interference), or ‘sustainable use’ (appealing instead to an alternative neoliberal discourse). The latter also connects pro-whaling state discourse to alternative discourses within the state, notably involving some New Zealand Maori groups, which in 2000 hosted the third annual meeting of the ‘World Council of Whalers’. These discourses tend to try to refocus on ‘real’ whales, such as those traditionally used by indigenous peoples, and to appeal more generally to ‘localness’ and ‘community’. Epstein concludes that all such resistance involve attempts at reclaiming the power to define oneself.

Readers are left, like Oliver Twist, wishing for a little more – especially in terms of her views on the best way forward to address whaling, this most persistent thorn in the side of Australia-Japan relations. (Indeed, Neville Meaney [Towards a new vision: Australia and Japan across time, UNSW Press, 2nd ed 2007, p 68] points out that, disastrously at the time and ironically by today’s standards: ‘Australia’s first encounter with Japan occurred in April 1831 when Captain Bourn Russell, in command of a leaking whaling ship, the Lady Rowena out of Sydney, sought refuge in Hamanaka Bay on the east coast of Japan’s northernmost island, Hokkaido’.)

Both Japan and Australia, as democratic post-industrial societies, could use whaling as a case study for rethinking what values and structure they wish to promote in the 21st century. Since 2001 Japan has embarked on a third wave of reforms to its judicial system, aimed at completing a progression towards ‘modern’ liberal citizen-state relations. But visions and norms of community tend to rebel against that model, even in the US (Takao Tanase, Luke Nottage & Leon Wolff, trans & eds, Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity, Edward Elgar, December 2009; see already http://ssrn.com/abstract=921932). This helps explain why the first wave of law reform (late 19th century) and the second (post-War Occupation) were not ‘successful’, and also the ‘gradual transformation’ of Japanese corporate governance despite the economic upheavals and many legislative amendments since the 1990s (Luke Nottage, Leon Wolff & Kent Anderson, eds, Corporate Governance in the 21st Century, Edward Elgar, November 2008).

To be consistent, Japan might now commit to a particular neoliberal view of whaling, stressing efficient and sustainable use above all else. But this implies rolling back financial support to whaling communities, and certainly other agricultural groups. If instead Japan wishes to emphasise community, however, constitutional theorists and others like Tanase remind us of the risks for democracy of simply validating ‘conservative community’. Japan will need new structures and discourses to develop novel forms of community, local and nation-wide. Australia, too, stands at a crossroads after three decades of neoliberal discourse accompanied by a fundamental reshaping of its society and local communities (Mark Davis, The Land of Plenty, Melbourne UP, 2008).

As each state reframes the crisis occasioned by the whaling season each year, into an opportunity for revisiting more broadly their own patterns of governance combining both discourse and material interests, both Japan and Australia may be able to engage more constructively at bilateral, regional and multilateral levels. It may be too much to expect something like this to be addressed in their FTA (or ‘Economic Partnership Agreement’, as Japan now likes to call them). National interests and discourses are probably too entrenched. And a bilateral agreement will largely mirror the WTO, which involves particular roles for science and economics that may not be suitable for a more multifaceted issue like whaling. Yet, at the multilateral level, the IWC seems too dominated by politics in general. Longer-term, therefore, a regional agreement for Australia and Japan involving developing countries may help break the deadlock. From a different ‘systems theory’ or Habermasian approach to law and society, it is important that law, politics, science and economics all continue to play a part in new processes to deal with complex problems like whaling.

Epstein’s work provides theoretical insights, as well as enormous detail on all aspects of whaling, to be able to develop such longer-term strategies to resolving this contentious issue. I hope you can see now why I recommend this rich and innovative book to a broader audience, even if some parts are aimed more at readers steeped in the discipline of international relations.


P.S. See now this new paper, freely available via http://ssrn.com/abstract=1378635, by Law School (ex/)colleagues:

"The Regulation of Southern Ocean Whaling: What Role for the Antarctic Treaty System?"

Michigan State University Public Policy Journal, 2009
Sydney Law School Research Paper No. 09/20

DONALD R. ROTHWELL, Australian National University - ANU College of Law
Email: RothwellD@law.anu.edu.au
TIM STEPHENS, University of Sydney - Faculty of Law
Email: t.stephens@usyd.edu.au

In 2009, the 1959 Antarctic Treaty celebrates its fiftieth anniversary. Over its fifty-year existence the Treaty and the Antarctic Treaty System (ATS) built upon it, have promoted freedom of scientific research in Antarctica and the Southern Ocean. Despite the many successes of the Antarctic legal regime, there has been growing disquiet over the conduct by Japan, an Antarctic Treaty party, of its 'special permit' whaling program in the Southern Ocean. This program now has a lengthy history stretching back to the late 1980s, and has been undertaken purportedly in reliance on the 1946 International Convention on the Regulation of Whaling, which allows whaling for scientific purposes in limited circumstances. It has also been pursued on the assumption that the global whaling regime takes priority over the disciplines imposed by the regionally-focussed Antarctic Treaty System which seeks, among other things, to promote scientific research in Antarctica and to protect the Antarctic ecosystem. This article examines the interaction between the Antarctic and whaling regimes and argues that the main environmental text in the ATS, the 1991 Environmental Protocol, imposes obligations upon Japan to minimise or eliminate the environmental risks of its burgeoning Southern Ocean whaling program.

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Japanese Law in Asia-Pacific Socio-Economic Context