‘Do we have to wait for some comely white whale to come along and wake up Japan,’ Professor Laurence Boisson de Chazournes said in the first day of hearings against Japan’s whaling program at the International Court of Justice.

Professor Boisson is of course referencing Moby Dick. Ahab, the captain of the doomed whaling ship Pequod, was consumed by his unrelenting desire to kill the white sperm whale:

… all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick. He piled upon the whale’s white hump the sum of all the general rage and hate felt by his whole race from Adam down; and then, as if his chest had been a mortar, he burst his hot heart’s shell upon it.

The novel by Herman Melville was based on a huge sperm whale bull who rammed and sank a whaling vessel in 1820 and a legendary albino sperm whale off Chile, dubbed Mocha Dick, who had survived many attacks by humans and was known to become aggressive if harmed. Mocha Dick was finally killed after coming to the aid of a distraught mother whose calf had just been killed.

Sperm whales were hunted to the brink of extinction along with so many of the toothed and baleen species of whale over the last couple of centuries.

Japan seems to be just as irrationally obsessed with whaling as Ahab was with Moby Dick. The world is moving on from the days of the ruthless murder of these gentle giants of the sea. Nonetheless, Japan, and a few other staunch pro-whaling nations, refuse to do so.

Australia’s case against Japan’s Southern Ocean whaling program in The Hague is wrapping up after three weeks of hearings. The whole case hinges on whether Japan’s whaling program can be proved to be primarily for scientific reasons but what is emerging is an argument over the role and purpose of the International Whaling Commission. Both parties to the case are emphasising different elements of the 1946 International Convention on the Regulation of Whaling and the subsequent resolutions that the IWC has passed.

If the case goes Japan’s way, it will bring into question whether the International Whaling Commission is sufficiently empowered to enforce the will of the international community to protect whales. The IWC is constrained within a framework that was set up to conserve whales only to the extent that they could continue to be used by humans.

Fifteen whaling nations formed the IWC after whale populations collapsed. The language in the convention enshrines an exploiter/exploited relationship between humans and whales, referring to whale populations as ‘stock’ and ‘natural resources’. It was written at a time when whales were only thought of in relation to their usefulness to humans and their conservation only intended to extend the longevity of that utility.

But the IWC now has 89 member countries and its purpose has shifted from these early days.

Japan’s case continually points back to selected wording in the 1946 Convention to justify whaling, despite a moratorium on all commercial whaling since 1986. The convention states that it was set up to ‘provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry’.

The other part of the convention relied upon by Japan is Article VIII, which allows member governments to issue themselves special permits for whaling for scientific research. Article VIII also allows for the commercial sale of the whales caught under these special permits. Tellingly, Japan’s ‘research whaling’ began the year after the ban on commercial whaling came into effect.

Australia’s case has successfully demolished Japan’s claim that they are undertaking necessary scientific research. Australia has given evidence that there is no testable hypothesis behind the so-called research, that the catch limits are driven by commercial objectives, not scientific ones and lethal methods aren’t necessary for the stated scientific goals. One of the more bizarre arguments for killing the whales in order to research them emerged when Japan’s counsel Alan Boyle said: ‘Obtaining biopsy samples or attaching satellite tags for minke whales in the Antarctic, it’s not impossible, but the Japanese scientists have found that it has a very low success rate because the whales are swift and agile and the waters of the Antarctic ocean are far from calm.’

But the outcome of the case isn’t a forgone conclusion.

Australia has pointed to the emphasis in the convention on conservation and the protection of ‘all species of whales from further over-fishing’ and its intention to be ‘a system of international regulation’ undertaken collectively by IWC member nations. Japan continues to act unilaterally, ignoring resolutions made against the ‘research’ whaling programs, JARPA and JARPA II.

Australia has highlighted a number of resolutions which Japan is contravening. For example, the IWC noted in resolution 2003–1 that: ‘Through the adoption of more than a hundred conservation-oriented resolutions, as well as through various Schedule amendments, the Commission has evolved into an organisation internationally recognised, among other things, for its meaningful contributions to the conservation of great whales; furthering that conservation work through those Resolutions and Schedule amendments, the Commission has gradually developed an extensive conservation-oriented agenda.’

Also, in 2003 the IWC strongly urged Japan to withdraw its JARPA II proposal and in 2005 reaffirmed that the commission is of the opinion that Special Permit whaling should be terminated and scientific research be limited to non-lethal methods only. Japan refuses to abide by the IWC’s authority as a collective regulatory body.

Japan is doggedly holding onto its whaling program, citing culture, tradition, reliance on the sea for protein and a desire to see the ban on commercial whaling lifted. Japan’s deputy foreign affairs minister, Koji Tsuruoka told the ICJ that Japan’s goal is the resumption of commercial whaling. If the case falls in their favour it will have dire consequences for the future of the great whales. Japan has applied a conveniently broad brush to Article VIII of the convention and, if this isn’t shut down by the International Court of Justice, Japan will continue to whale in an internationally established whale sanctuary, while pushing to lift the moratorium on commercial whaling.

It is the nomadic sailor Ishmael who survives after that ill-fated hunt for Moby Dick. Unlike Ahab, he comes to see the great whales as symbols of inner peace. He finds serenity in observing the gentleness of their interactions, describing the way that ‘though surrounded by circle upon circle of consternations and affrights, did these inscrutable creatures [mother whales and their babies] at the centre freely and fearlessly indulge in all peaceful concernments; yea, serenely reveled in dalliance and delight.’

Japan has killed over 10,000 whales under JARPA and JARPA II. It’s time it was forced to abide by the will of the international community to stop turning the pristine waters of Antarctica red and let the great whales revel safely in dalliance and delight in the Southern Ocean Whale Sanctuary.