The International Court of Justice’s ruling this week that Japan’s Southern Ocean whaling program is not scientific does not represent an ultimate victory over whaling.

The finer points of the court’s judgement remind us that the 60-year-old International Convention for the Regulation of Whaling, which underpins the International Whaling Commission (IWC), still allows significant whaling operations.

Despite several attempts to give it a stronger conservation focus, the convention still refers to whales as a resource for industry. Notwithstanding the current whaling moratorium, it might struggle to deliver the strong protection much of the world now expects.

Case reveals flaws in convention

The court’s main finding was that Japan’s JARPA II whaling program is unscientific as currently configured.

But balancing that, the court also found that Australia and New Zealand “overstate the legal significance of the (IWC) recommendatory resolutions and guidelines on which they rely”.

A more crucial aspect was noted by Kobe University law professor Akiho Shibata, who told me that the court “even explicitly referred to ‘the possibility of granting any future permit’ to Japan in its decision”. He described this prospect as “a sting for Australia and other anti-whaling countries”.

Meanwhile, as the court also pointed out, the IWC continues to grant five-year permits for “aboriginal subsistence whaling” by indigenous peoples in Greenland, Siberia, the US states of Alaska and Washington, and the Caribbean island of Bequia. These programs include species (such as bowhead whales) more endangered than the whales Japan sampled under JARPA II.

What is the whaling convention for?

The International Convention for the Regulation of Whaling was agreed in 1946, when many countries relied on whale meat for protein, and whale oil for industry.

The convention’s opening text, which was noted in the Australia v. Japan case, explicitly states that its aim is to facilitate “the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”. The word “conservation”, in this context, clearly refers to the idea of ensuring a continuing supply of whales for whaling.

But as sympathies changed, whaling fell out of favour in many countries. In 1986 the IWC member countries agreed (although not universally) to a moratorium on commercial whaling.

These days, Norway has an annual whaling quota, not endorsed by the IWC, of around 1200 North Atlantic minke whales — although it usually catches fewer than 500. Iceland (whose IWC member status is contentious) currently has a five-year target of about 600 fin whales.

And there’s the rub: the convention is open to interpretation both by nations interested in whaling and those interested in conservation. It sorely needs to be modernised.

Led by Mexico, some attempts were made in the 1980s to renegotiate and make conservation (in its 21st century sense) a more explicit focus of the convention, and to de-emphasise (but not remove) the management of whaling and whale stocks. But because revising the convention text was seen to be opening a Pandora’s box by both whaling and conservation nations, these efforts went nowhere.

Six years ago, the respected US Pew Foundation held the Pew Whales Commission, in which it called on conservation and whaling industry experts to look at ways to solve what was becoming an increasingly bitter debate.

Its last meeting (chaired by me) was held in Lisbon in 2009 and made several recommendations to the IWC, including the need to address the question of “scientific” whaling, and speeding up work on a new management plan for commercial whaling, should it ever start again. Most importantly, it called for more transparency and honesty from all sides. The IWC listened politely, but largely ignored the recommendations.

So where are we now?

The upshot is that the whaling convention, and with it the IWC, increasingly looks like it is declining towards irrelevance. Could it yet be re-invigorated?

Although the IWC is rarely out of the headlines, there are other conventions that deal with whales and whaling: specifically the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the Convention on the Conservation of Migratory Species of Wild Animals.

Then there is the question of legitimate ecological research – the nominal justification for Japan’s program. Even though the court found that Japan’s program was not primarily scientific, there was at least some research going on. My own view is that non-lethal means can provide all the information we need about whales. But I also accept (and the court noted) that lethal research can add information not available through non-lethal means – for example on reproductive mechanisms.

One of the IWC’s unsung strengths is its Scientific Committee, which despite all the noise and fury has done sterling work for more than 30 years. As prominent members of that committee, Australia and Japan have an opportunity to work together on a new non-lethal research program, which could draw in other Southern Hemisphere countries and those with Antarctic interests.

At the political level, I hope that the new diplomatic context provided by the court ruling will lead to bilateral discussions between Australia and Japan on a viable future for the whaling convention. And all the commissioners should meet very soon in a neutral place to examine how the rulings affect all IWC work.

If this moment is not seized, it is the beginning of the end for the IWC – and that is not in anyone’s best interests, especially the whales.