For many decades the hunt for whales has been under close scrutiny by the international community and has inevitably led to significant opposition worldwide. Indeed, the whale has become a symbol for mankind's domination over nature and nations still conducting whaling, such as Norway, the Faroe Islands or Japan, have suffered great reputational losses due to the changing discourse on whaling.
The controversial whale hunt has generated a wealth of academic literature with regard to, to name a few, the hunt's history (Tønnessen and Johnsen Reference Tønnessen and Johnsen1982); the political dimensions of whaling (Stoett Reference Stoett1997); the discursive environment of the whale hunt (Epstein Reference Epstein2005); or the whales’ normative status (D'Amato and Chopra Reference D'Amato and Chopra1991) – not to mention the plentiful non-academic literature on the issue. With Whaling and international law the literature sees its first comprehensive volume dealing with the legal dimension of the whale hunt, which in recent developments regarding Japanese whaling in the Antarctic has gained ever-increasing significance.
It is thus that the present volume in eight chapters legally approaches different dimensions of the whale hunt. The first chapter traces the history of the whaling regime up to the conclusion of the International Convention for the Regulation of Whaling in 1946 (ICRW 1946). The author does not just present historical data as regards the provisions of the different regimes prior to the ICRW, but she analyses these provisions concerning their efficiency in species conservation and international relations at the time in question. Albeit a brief analysis the chapter opens up a very important point of departure for the pages to come in light of its focus also on the indigenous exemptions within these regimes.
The second chapter constitutes the core of the book and deals with the history of the ICRW. The chapter traces the different steps towards the regime's conclusion in 1946 and presents crucial data on the different stances towards whaling and the institutional framework at the time. While not necessarily presenting new data, it is a chapter which in a comprehensive manner makes the difficulties of overcoming differences within a whaling context visible. One of the weaknesses in the ICRW that Fitzmaurice points at on page 50 is the utilisation of the term ‘whale fishery’ which in its terminology equates the whale hunt with other commercial fisheries. However, also the seal hunt is in Canada still referred to as the ‘seal fishery,’ not because it is to be equated with commercial fisheries, but rather because it stems from a time when 1. seals were considered fish and 2. they were considered fish for political reasons so that it would be possible to consume seal meat on Fridays when the consumption of meat was prohibited for religious reasons (Sellheim Reference Sellheim2015: 78). It would have been indeed interesting to find more information on this issue in the book and whether current IWC deliberations still make use of the term ‘whale fishery’ as this would give important insight into the mindset of the member states of the International Whaling Commission (IWC).
The third chapter takes a closer look at the functioning of the whaling regime and most notably the IWC. Much of the content can also be found elsewhere (see for instance Friedheim Reference Friedheim2001), but it is especially the adjudication under the International Court of Justice (ICJ) and most notably the Whaling in the Antarctic case which for the legal scholar are particularly interesting here. In fact, the author has dedicated an entire book to the issue, which at the time of writing this review is forthcoming (Fitzmaurice and Tamada forthcoming) and this chapter summarises the breadth of the academic literature which has been produced surrounding this case. The author concludes, and this reviewer would agree, that given the deep-running conflicts within the IWC as to the purpose of the ICRW – preserving whale populations or sustainable whaling – the judgement of the ICJ has not contributed to solving these (page 105).
Cultural diversity constitutes the core of the fourth chapter, exclusively focusing on Icelandic, Japanese, Faroese and Norwegian, non-indigenous whale hunts. Indeed, this is a deeply neglected angle in the public and academic discourse, equally an issue in the sealing debate (see Sellheim Reference Sellheim2015) and this reviewer finds it particularly laudable that the author has included a chapter on the issue in this book. Fitzmaurice's point of departure to tackle this contentious issue is not a discussion on what culture or cultural diversity conceptually are – indeed, there is a myriad of literature on this – but rather how international law approaches these concepts. Unfortunately, the scope of a book review like this one does not allow to go much into detail. Suffice it to say that Fitzmaurice succeeds in presenting the cultural elements attached to the non-indigenous whale hunt while staying convincingly detached from its cultural merit. Although she does insert her own opinion on the issue, she appears to leave it to the reader to conclude whether or not these hunts are culturally justifiable or not. Yet, she concedes that cultural diversity claims should not serve as justification to impose suffering on animals. Yet, this reviewer would challenge Fitzmaurice's statement that ‘[t]he majority of people in Norway and Japan are pro-whaling’ (page 148): in the case of the former, the author relies on data which is more than 20 years old. With regard to the latter, the main bulk of academic literature is in Japanese, challenging ‘cultural’ whaling. It thus remains rather speculative in the view of this reviewer to infer on present-day majority opinion regarding whaling.
A much-needed chapter that this volume holds deals with the distinction between the philosophical stances pertaining to animal welfare and animal rights and in how far the law responds to these. In essence once again summarising existing key literature on the issue, Fitzmaurice relates these findings as well as key concepts, such as intergenerational equity, in international environmental law to whaling. Unfortunately, the author does not engage in a legal analysis of actions taken to counter, in particular, Japanese whaling in the Southern Ocean. This chapter would have proved even more enlightening if the legal scope of, for instance, Sea Shepherd’s ‘direct action’ efforts to shut hinder and compromise the Japanese whale hunt had been analysed (see for instance Hodgson-Johnston and Jabour Reference Hodgson-Johnston and Jabour2014).
The interplay between the ICRW/IWC and other international environmental regimes is analysed in the sixth chapter of this engaging book. Fitzmaurice thus briefly outlines the relationship and (potential) legislative overlap in managing and protecting whales. For the polar regions, the author thus further discusses and develops the analysis of Molenaar and others (Reference Molenaar, Oude Elferink and Rothwell2013) and especially Molenaar's and Bankes’ chapters therein. Yet, this reviewer would have liked to see a deeper analysis of the institutional relationship between the North Atlantic Marine Mammal Commission (NAMMCO) and the ICRW/IWC. Although Fitzmaurice does include a brief discussion, an interesting point of investigation would have been Canada being neither a member to NAMMCO nor the IWC. While the latter is explained throughout the book, it remains unclear to this reviewer whether there is any relationship between Canada's IWC and NAMMCO (non-)membership status.
Chapter 7 presents IWC and non-IWC jurisdictional issues concerning whaling by indigenous peoples. Inevitably, the issue of cultural diversity plays an elementary role in this context, making this reviewer wonder why this chapter was not placed before chapter 6. Notwithstanding, while key international instruments and case law are presented, the chapter traces the historical development of aboriginal whaling under the ICRW up to its present day legal frame. Given the unclear scope and lack of consistency of the ICRW's legal history with regard to aboriginal whaling, Fitzmaurice concludes that ‘the politicisation of aboriginal whaling [is] inevitable’ (page 260). Indeed, the controversies surrounding the resumption of Makah whaling, which Fitzmaurice considers part of the most contentious issues with regard to aboriginal whaling, stands exemplary for this (page 265–270; see also Brand 2009).
As the last chapter Fitzmaurice has engaged in a case study on the protection of the narwhal (Monodon monoceros), which, however, does not fall within the ambit of the IWC. The reasons for this are in essence twofold: first, since the narwhal is considered a small cetacean, the IWC's competence over this species is contested; second, since the narwhal, whose population status is considered ‘near threatened’ by the IUCN (Jefferson and others Reference Jefferson, Karkzmarski and Laidre2012), is primarily hunted in Canada and Greenland, the IWC's managerial role is negligible: Canada withdrew from the IWC in 1982, and Greenland's narwhal hunt falls under the rubric of ‘aboriginal whaling.’ However, the chapter further analyses the species’ protection under other regimes that were already discussed in chapter 6, taken together creating an inconsistent and patchy conservation framework. Already in the opening of the chapter Fitzmaurice notes that ‘a great (and steadily growing) number of existing multilateral and bilateral agreements [. . .], paradoxically, do not provide sufficient for some species such as the narwhal’ (page 276).
Given the links in content between chapters 4, 5 and 7, on the one hand, and chapters 6 and 8 on the other underlines the above contention as regards the arrangement of the chapters. To this reviewer, it would have been more logical to have the chapters dealing with cultural, ethical and indigenous issues follow each other while the chapters on legislative interplay (or lack thereof), for which the narwhal case study is a good case in point, should have been taken together. Notwithstanding, this is the only shortcoming of this book. Of course, one might criticise that much of the information in Whaling and international law is not necessarily new and can be found elsewhere. Yet, this book has, as the title implies, taken a predominantly legal angle to the issues at hand and it shows how difficult a legal discourse the case of the whale hunt presents. The different chapters convincingly exemplify this. Moreover, the book is a rather easy read and the different threads are easy to follow, making the reader, either proficient in the whaling debate or not, quickly understand the difficulties of international governance of whale stocks, the conflicts prevailing thereover and the different elements involved in it. It can be concluded that Whaling and international law should be an elementary part of any library, private or public, dealing with whales and whaling, especially since taxonomic information on specific whale species as well as the text of the ICRW are added as annexes to the book.
