Dealing in Whales: an Aide Memoir aboutrestoring th Functionality of the IWC
Current back-room talks about what might be conceded to Japan if its Government would agree to rein in whaling – especially in the Southern Ocean Whale Sanctuary (SOWS) through award of Special Permits under Article VIII of the ICRW 1946, resemble in some respects similar negotiations between the United States and Norway in 1983. It is perhaps worth recalling those now, and their context as a guide to current action, and especially to note both the similarities and the differences.
The delegation of the United States to the IWC is currently leading an effort to find an acceptable way for whaling countries, particularly Japan, to evade the consequences of important IWC decisions, namely the declaration of an indefinite moratorium on commercial whaling (1982) and the designation of the entire Southern Ocean as a sanctuary for whales (1994). Although the US was not the originator or main initial driving force behind those actions (they were the Republic of Seychelles and France, respectively) it did play the crucial political role in securing their acceptance by most Members states of the IWC. In particular support by the then-Vice-President, Mr Al Gore, for the Southern Ocean sanctuary was probably decisive.
The role now being played by the US is similar to that which it played in 1983-84 when it sought to help Norway to continue profitable minke whaling in the North Atlantic in the face of evidence that the whale stock was in continuous decline, so much so, in fact, that it was in 1985 classified as a Protection Stock with zero catch limit, regardless of the moratorium that came into effect that year. Again, the proposals to sharply reduce minke catches in the Northeast Atlantic, and eventually to rein-in and then close down the industry, were initiated by others than the US, which nevertheless voted in favour of them at the end.
The 1982 moratorium and the 1994 sanctuary designation were entirely different kinds of action, particularly with respect to their time-frames and conditions. The sanctuary decision was designed as a long-term action, to permit the shattered Antarctic marine ecosystem to restore itself to something perhaps not far from its pristine state, in a situation where it was believed that individual species would increase under protection but where is was – and still is – quite unsure whether the changes brought about by a century of baleen whaling would prove to be reversible. There was explicit provision for a review of the decision every ten years after its adoption, and only at those times could consideration be given to amending the provision. Opening the sanctuary now to legitimized whaling, after only 16 years. (i.e. less than one whale generation) would certainly jeopardise that intention, no matter how intense the permitted whaling would be, and especially if – as some are apparently proposing – with entirely arbitrary catch limits. The moratorium, on the other hand, was never intended to be permanent, no matter how much that might have been desired – at the time, and since – by some stake-holders. Not only is that clear in the Verbatim Records of Plenary Sessions of the IWC in which the proposal was debated, but its temporary nature is explicit in the wording of Para. 10(e) of the Schedule to the International Convention for the regulation of Whaling 1946 under which the IWC operates, which requires that the decision be kept [continuously] under review, based on the best scientific advice, and can be changed at any time when conditions change. The relevant conditions, which are clear in the record, were that stocks show evidence of recovery, and that a new, efficient and precautionary management procedure would be adopted.
These conditions have now been met, partially. There is clear evidence of some stocks increasing, though not yet of the fin whale, which historically has been by far the most important baleen whale in terms of biomass removals for commerce- Historically, catches of fin whales have been almost as high – by biomass and cumulative weight and value of products – as catches of all other baleen whales together. A tested management procedure at least for baleen whales on their feeding grounds has been agreed, though not yet implemented for essentially political reasons – failure of Member States to agree on instruments to ensure compliance with regulations. If there were to be profit from baleen whaling in the medium-term future it would almost certainly come from renewed “mining” of recovered or recovering fin whales.
It is remarkable to see the new US Administration continuing the effort of the previous Administration to unravel the neat whale conservation knots that the Reagan and Clinton Administrations did so much to tie.
The history and background
The IWC had decided in 1982 to set all catch limits for commercial whaling to zero, starting in 1985(86 and 1986 (the so-called commercial whaling moratorium), but Norway, among others, had lodged an Objection to that decision so was not bound by it. Until and including the 1982 whaling season in the Northern hemisphere, the catch limit for minke whales in the North east Atlantic (Norway’s main area of whaling) had been set by a rule adopted in 1975 (in the so-called new management Procedure) that if no trend could be detected in whale abundance through an extended time series of catch and whaling effort data, then the stock would be classified “provisionally” as if it was in “Sustained management” staus and the catch limit set at the average level of previous catches. In this case that was 1790 minke whales. It had been agreed in 1976 that this arrangement would hold while critical analyses were made of the catch and effort data.
Six years later such an analysis had been made and the 1982 meeting of the IWC’s Scientific Committee threw doubt on the assumption that this stock had not been affected by whaling. So the SC recommended, and the Commission agreed, that this stock should now be listed as “Unclassified”. However, the Commission could not agree on a catch limit so the situation reverted to the pre-1974 condition and the 1983 season was unregulated. Between the 1982 and 1983 meetings the Norwegian scientists collaborated with some of the other members of the SC (including the writer) to produce revised data series which showed that the Northeastern stock had been declining by nearly 2% annually for several years. There was still no estimate of the size of the Northeastern stock relative to its pre-exploitation level – which would be needed for classification – so the SC proposed, by consensus including specifically the Norwegian scientists, that it be unclassified with a catch limit equal to the estimated upper limit of the replacement yield, 635. The Norwegian response in the 1983 Commission meeting was to seek agreement, in the Technical Committee, on a staged transition to the new, lower catch limit, citing the principle stated in the ICRW 1946 regarding orderly change, and suggested that the Scientific Committee be asked to evaluate the effects of a transition scenario. The Technical Committee, however, recommended immediate adoption of the scientific advice. In the Plenary Norway, supported by Japan and Iceland, proposed a transitional catch limit of 885 for the 1984 season. This amendment, supported by the other Nordic countries – Sweden, Denmark and Finland, and by some other European Members, was put to a vote and received a simple majority (15 for, 7 against, but 13 abstentions, including the USA). The original SC/TC proposal was then adopted by consensus and Norway did not subsequently lodge an objection to it.
Two new catch and effort data series allowed the Scientific Committee, in 1984, to calculate, and propose, a catch limit based on estimates of replacement yield ranging from 200 to 747. Norway accepted that the science was now improved and proposed – seconded by Japan – a catch limit of 637, being 90% of an intermediate RY estimate of 708. Other countries favoured caution proposed a towards the lower end of the RY range – 300. This received a simple majority in the technical Committee and thus became that Committee’s recommendation to Plenary. In the Plenary the Federal Republic of Germany and USA proposed a compromise number: 525. This was not acceptable to Norway and being put to the vote received only 11 in favour, 7 against, with 17 abstentions, and thus did not attract the three-fourths majority needed for a binding decision. The contrary votes included those that were pressing for a higher figure and those pressing for a lower one. The TC recommendation of 300 was then voted upon; it did better than the suggested compromise but still did not secure three-fourths (15, 7, 14; the shifts were some previous abstentions becoming in favour, and some opponents moving to abstentions.) Norway then suggested that the previous year’s limit of 635 be retained so that there should be no vacuum. This was, with considerable reluctance of several countries, adopted by consensus, but with a reservation by Sweden.
In 1985 a full analysis of the data was presented to the Scientific Committee and discussed in detail. The conclusion of the committee was that the Northeast Atlantic minke stock was depleted, having been reduced by Norwegian whaling to between 20 and 30% of its pre-exploitation size,and should be classified as a Protection Stock with zero catch limit. This generated prolonged and heated procedural debates in both the Technical Committee and the Plenary, including strong pressure from Norway that the vote be put off until next year, an idea supported by the USA. Eventually it was decided to adopt the recommendation of the Technical Committee, seconded by Finland, that this stock be immediately classified as PS; the vote was 21 in favour, 1 against (Iceland) with 10 abstentions. In addition the Norwegian Commissioner announced that his country would not participate in the vote (How this differed from an Abstention was never explained). Norway lodged an objection to that decision.
Iceland’s opposition surprised no-one; Iceland was well known to have opposed practically every conservation initiative by the IWC. The US, which had strongly supported Norway’s efforts to delay action, nevertheless voted in favour, but Japan, USSR and Mexico abstained. Japan’s vote revealed a crack in the Norwegian-Japanese alliance. The speculation at the time was that this was because Norway had long been the whaling country that repeatedly spoke in favour of following scientific advice but would not do so when the discussion was about its own whaling activities. Unusually, the Commissioner for Japan took the floor to explain his vote – before he made it! He said he supported Norway’s request for postponement but in view of the fact that there was to be no procedural vote he would abstain on the decisive vote (Iceland clearly followed a different logic). This vote also fragmented the Nordic Group who were trying hard to pull together in the IWC; now it was Norway and Iceland on one side and Finland, Sweden and Denmark strongly on the other.
So, what was the nature of the procedural disagreement? It began with the wording of the Scientific Committee’s report, which said that “Most members believed that the stock should now be classified as PS but noted the Norwegian commitment to review and extend the cpue series on which this conclusion depends in part; they therefore suggested postponing a decision on classification until next year, whilst urging that the catch in 1986 [in presumed continuation of Norwegian whaling under its objection to the moratorium] does not exceed the lowest estimate of the replacement yield i.e. 360 whales”.The Norwegian delegation did not, as promised, come forward in 1986 with a new data set or any new assessments.
A Third Type of Whaling
One tactic to avoid the protection of depleted stocks, as provided by the 1975 NMP,, which was launched by the Norwegian delegation, and later followed-up by Japan, was to exclude some or all “small-type whaling” as defined in Paragraph 1C of the Schedule to the ICRW 1946 (that is for minke and also for bottlenose, beaked and pilot whales and orcas, using powered vessels and mounted harpoon guns ) from decisions concerning zero catch limits for depleted whale populations, or other rigorous conservation measures such as the 1982 moratorium applied to commercial whaling. Subsistence whaling by or on behalf of aborigines was already excluding by procedures which permitted catches from depleted stocks so long as they did not threaten the survival of such stocks. The idea was to define a third category of whaling, referred to in some documents as “non-commercial whaling”. This idea was put forward by the US Commissioner after consultations with Norway in a memorandum circulated to some other Commissioners a few months after the 1983 IWC meeting. This idea was not well-received by other Commissioners because, among other reasons it would open the way to exclusion of other, then existing, land-based whaling operations by, for example Brazil, Iceland, Japan and Korea, from regulations intended to protect stocks of the smaller whale species and to ensure their maintenance at or recovery to high productive levels. The idea thus did not surface, as had been intended, at the 1984 IWC meeting. However, at a meeting of the IWC’s Working group on the Future of the Commission, in February 1985, the same idea was put forward jointly by Norway and Japan. Later that year Japan also made a specific proposal regarding its own “small-type coastal whaling” operations to the IWC’s Aboriginal Whaling Sub-Committee; and in 1987 Japan proposed an amendment to the Schedule that would have basically the same effect. Iceland continued for a while to advocate the “third type of whaling” scheme, but Norway apparently lost interest. Considering that both Norwegian and Icelandic minke whaling was mainly for production of a frozen commodity for export, as well as for sale in domestic super-markets, the attempt to define it as “non-commercial” was somewhat ridiculous.
The cable of 16 November 1983
A cable from the US Depertment of State to the US Embassy in Oslo described discussions between US and Norwegian officials in Washington, 24 October 1983 and proposal to extend these by consultations between the US Commissioner to the IWC (Mr John Byrne) and the Norwegian Commissioner (Mr Per Tresselt) in Oslow, preferably in mid-January 1984. This followed informal discussions in late September 1983 between US and Norwegian officials, on Tresselt’s initiative, regarding “the implications of the IWC decision to suspend commercial whaling as from 1985/86”. Mr Bryne, had more or less simultaneously, had informal consultations with the Commissioners for Argentina, Australia, Denmark, Federal Republic of Germany, Japan, Netherlands and New Zealand. Bryne wrote that Tresselt had had similar discussions with the Commissioners for Finland, Iceland, Sweden and UK.
The US Commissioner describes the basis for these discussions as “Norway’s interest in exploring the possibility of withdrawing its objection [to the 1982 moratorium decision] if the distinctive characteristics of traditional Norwegian whaling could be recognized in a manner permitting some limited continued whaling under its authority and management in addition to the requirement of its acceptability to the IWC. ” Mr Byrne continues: “We discussed a number of limiting provisions to such recognition: 1. That any continued whaling must be subject to existing IWC management procedures based on scientific advice: and 2. that it be based not on an exception to Schedule Para.10(e) but on similarity to whaling currently outside the purview of 10(e), e.g. essential to the subsistence of individuals who depend on fishing [Note, not on “whaling” sjh] for at least half of their incomes, boats are owner-operated and limited in size, whaling is ‘small-type’, no international trade in resulting whale products is allowed, etc.”
The cable then refers to problems raised by others in the informal discussions to date. These were:
1 The applicability to other whaling countries of any recognition extended to Norway;
2. concern that such recognition might be perceived as undermining the IWC [moratorium] decision:
3. the incorporation of some time limitation into the recognition.
The cable ends with the statement that “the United States does recognize certain distinctive elements of Norwegian whaling as compared with commercial whaling as that term is used in the IWC decision.” It is further stated that “it appears there is now a willingness [presumably among the other commissioners consulted] to consider further the possibility outlined”..
The 1983-1984 consultations (which, as we have noted, eventually came to nothing) do not refer explicitly to any particular quid pro quo but simply expressed the willingness (for, we must presume, “Reasons of State”) to assist the Government of Norway to evade the moratorium decision without international embarrassment. If it had gone ahead Norway would have continued its minke whaling, but with catch limits decided by the IWC – on a scientific basis – and not be viewed as a pariah for excessive and long-term use of the objection loophole in the ICRW 1946. The problem was, of course, that the New Management Procedure (Schedule Para. 10(a), (b), (c )) under which catch limits had been set previously had been discredited insofar as it was applied to situations where data were inadequate (which played a significant part in the voting on the moratorium proposal in 1982) but that the best available science showed that the Northeast Atlantic minke stock had been steadily declining for decades. The scientific work and consequent classification decisions of 1985 showed that even a flawed management procedure could nevertheless lead to a conclusion to close down an operation, just as it had with respect to the blue, fin, sei and humpback whales in the Southern Ocean in the 1970s.
Certain of the considerations regarding the special character of Norwegian minke whaling might apply to Japanese small-type coastal minke whaling in the Northwest pacific. Another common feature, now rarely mentioned, is that these operations were for many years (and the Japanese operations still are) mixed species whaling for minke whales and bottlenose whales – the North Atlantic bottlenose for Norway and Baird’s beaked whale for Japan. (The Atlantic bottlenose has for some time been protected but the Baird’s beaked whale has not, for reasons detailed in another review.)
The various proposals aimed at allowing Japan to continue commercial whaling while avoiding the stigma of long term abusive use of Article VIII of the ICRW 1946 all presumably involve some arrangement that would either limit, reduce or eliminate “scientific whaling”, particularly in the Southern Ocean, the quid pro quo being to treat Japan’s small-type coastal minke whaling in the North Pacific as a third type of “pseudo-non-commercial” whaling. Some of the concerns expressed in 1983-1984 are the same: what would be the effect on whaling by other nations, now at least Norway and Iceland? But there are, obviously, important differences. First, although the New Management Procedure is still in the Schedule, a Revised Procedure has been devised by the Scientific Committee and accepted by the Commission. Second the Article VIII whaling in the southern hemisphere is in a sanctuary the existence of which, at the time of its declaration in 1994, was almost uncontroversial; no objections to it were made except that by Japan, and even that was only to the inclusion of the minke whale in the list of species covered by the decision. The Sanctuary decision prohibits “commercial whaling”, as does the corresponding 1979 decision to designate the Indian Ocean as a sanctuary, but those words are there only to make it clear that any recognized aboriginal subsistence whaling in the regions by IWC Members is excluded. Any “deal” that would allow whaling in the Southern Ocean would require amendment of Article 7(b) of the Schedule, calling for consensus or at least a three-fourths majority vote, which at this moment looks highly improbable. Engagement in small-type whaling in that region (if some form of that were to be defined as “non-commercial”) would appear to be impracticable; Norway tried to do that for two years in the 1970s and failed.
Thus the only arrangement that could perhaps satisfy those countries (Governments and Civil Society) must, it seems, involve the ending of Article VIII whaling in the SOWS either immediately or after a reasonable phase-out and -down period, in return for modifying the moratorium to allow some minke whaling in the northern hemisphere. To pretend that such whaling would not be commercial is absurd. In that case, and keeping to the principle that any catch limits must take account of or – better – be in accord with scientific advice, the catch limits would necessarily be set by the accepted Revised Management Procedure, not by the NMP. This presents two problems. First, the Commission has been unable to agree on instruments to ensure compliance with regulations. Given the long history of Governments and whalers cheating on reported statistics – by many countries, including Japan as documented – even when national inspectors are engaged – widespread skepticism as to honest implementation is to be expected. A second is that the status of at least one of the minke stocks in the Northwest Pacific is such that the RMP might give a tiny catch limit or even zero. The temptation to try to evade such restriction will be so great that there will probably be strong pressure for setting entirely arbitrary catch limits that will satisfy the industry and the authorities. Such a development would take the IWC back to the dark days when huge catch limits were set completely arbitrarily – as for all baleen whales in the Antarctic from 1949 through the 1960s. Such a move would completely destroy the residual credibility of the IWC as a management organization, and would leave it unqualified as the intergovernmental body entrusted to conserve cetaceans and manage their use, a provided in UNCLOS. An additional problem with the “Third type of whaling” idea – whether used to justify arbitrary, non-subsistence catch limits, or to justify continued exploitation of depleted, even perhaps threatened, stocks, is that it would appear to violate the explicit provisions in the UN Law of the Sea Convention, and the related concept in the documents of the UN conferences on environment (Rio de Janeiro and Johannesburg) that exploitation of living marine resources must be managed so as to maintain them at, or permit their restoration to, optimal population levels, and certainly not merely reduce them close to levels where their very existence would be threatened.
 Another aspect of this is described in Holt, S. J. (2010) Norwegian minke whaling in the North Atlantic: a Memoir. 5th version, 13 February 2010 Available from the author.
 More details of this history, and references, are given in my “Norwegian Minke Whaling in the North Atlantic: a Memoir” 12pp available on line from the author.
 Japan’s STCW has little connection with the IWC’s STW. The similarity of terms confuses many people, and sometimes seems intended to do so. STCW is an administrative category in which operations are generally limited to day trips within a specified coastal area.. One point of confusion is that both Norwegian minke whaling in the North Atlantic and Japan’s STCW in the Northwest Pacific include some pelagic operations in which minke whales are flensed onboard factory-catcher boats. All pelagic whaling has been prohibited by the IWC since 1980 except for minke whales (Para 10(d) of the Schedule); unlike the general moratorium of Para. 10(e) the prohibition is not limited to “commercial whaling”.
 This diversion from the core business of the IWC is described in Busby, L. and Holt, S. J. (2008 “Annotated Guide to the Schedule of the ICRW”. 32pp, IFAW, London. A parallel with this history might be drawn with the “deal” currently being brokered especially by the US delegation, through the IWC’s ad hoc “Support Group” which, while perhaps tending to curb “scientific” commercial whaling, might legitimize some more “real” commercial whaling notwithstanding the continuation of the moratorium. This has, however, become complicated by Japan’s expressed intention to hunt, pelagicly, fin and humpback whales as well as minke “for scientific purposes” as well as Iceland’s recent re-launch of “large-type” land-based hunting of fin whales.