Nuuk, Greenland (c) 2012 Anthony Speca

In the belly of the whaling commission

Decisions at the upcoming meeting of the International Whaling Commission might increase pressure on Canada to give the international community a say over the Inuit whale hunt.

Originally published in Northern Public Affairs, 18 June 2012
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In about two weeks’ time, the International Whaling Commission (IWC) will convene in Panama for its 64th annual meeting since the International Convention for the Regulation of Whaling (ICRW) was signed in 1946.  The IWC’s Scientific Committee, an international board of whale biologists who advise Commissioners on the status and sustainable management of whale stocks, is already in session.

The IWC is best known for its controversial decision in 1982 to impose an indefinite global moratorium on commercial whaling.  Its original—and still official—mission, however, is “to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.”  The practical contradiction between moratorium and mission has become a huge bone of contention between IWC member states, which disagree as to whether scientific evidence supports—or has ever supported—a blanket moratorium on commercial whaling, especially for more abundant species such as the minke whale.

The IWC is now a broken organization, split into diametrically opposed pro- and anti-whaling factions that dispute the IWC’s very purpose and future.  Is it to be a conservationist organization regulating a sustainable commercial harvest of whales, or a protectionist organization enforcing a global ban on commercial whaling?  IWC members have thus far failed to find any room for compromise on this question, but they will attempt to answer it again this year.

Northern Canadians—and especially Inuit—should pay close attention.  Canada presently manages its own whaling regime outside the IWC, and it guarantees Inuit aboriginal whaling rights under modern treaties such as the Inuvialuit Final Agreement and the Nunavut Land Claims Agreement.  But if the IWC is able to mend itself, pressure could increase on Canada to give the international community a say on whether Inuit should be permitted to hunt whales—and if so, how many.

It wouldn’t be the first time.  In 1977, as the IWC swung towards protectionism, it reversed an earlier policy permitting aboriginal peoples to hunt bowhead whales by special exemption.  Canada, then an IWC member, wasn’t immune from the general shift in sentiment.  Having already prohibited all commercial whaling from its ports in 1972, it went on to prohibit Inuit from hunting bowhead whales without a license in 1979, and then briefly banned the hunt altogether in 1980.  With their traditional practice made illegal both domestically and internationally, Inuit responded by lobbying the federal government against both bans.  Their efforts contributed to Canada’s decision to leave the IWC in 1982 and, eventually, to recognize by formal treaty the Inuit right to hunt whales.

Since the first treaty-based bowhead whale hunts, conducted in 1991 in the Western Arctic and 1996 in the Eastern Arctic, the IWC has repeatedly criticized Canada for permitting whaling outside the international regime.  The IWC lacks any enforcement powers, however, and it can do little more than that.  A rather more serious threat comes from the USA, which is still an IWC member committed to the international regulation of all forms of whaling.

In 1997, citing the early Inuit hunts, the USA certified Canada under the Pelly Amendment, a federal law that grants the US President the power to impose trade sanctions on the fisheries of any state deemed to have undermined the IWC’s whaling regime.  In the event, President Clinton took no stronger action than to refuse to consider Canada’s request for a special waiver from the US ban on the trade in seal products.  But with the USA accounting for nearly two-thirds of Canada’s $4 billion in seafood exports, Pelly Amendment sanctions could have very sharp teeth.

Clinton also made clear that the USA considers Canada obligated by the UN Convention on the Law of the Sea (UNCLOS) to work within the IWC on whaling issues—a view the IWC shares.  This interpretation of UNCLOS isn’t crystal clear, but it does provide the USA and the IWC further leverage over Canada.  For its part, the IWC has revamped its earlier approach to what it calls “subsistence whaling,” and it now allocates quotas to the USA and Denmark for Inuit bowhead hunts in Alaska and Greenland.  Greenlandic Inuit also receive quotas for fin, humpback and minke whales.  Anti-whaling IWC members must surely wonder—why not Canadian Inuit as well?

That isn’t to say that Canadian Inuit would be happy if Canada rejoined—or were pushed back into—the IWC.  Any IWC member that wishes to permit subsistence whaling must first submit a “needs statement” on behalf of its aboriginal peoples, who do not themselves have representation on the IWC.  If the needs statement demonstrates to the IWC’s satisfaction that whaling still fulfils a subsistence role, the applicant state will receive whaling quotas, based on advice from the whale biologists on the IWC’s Scientific Committee.  These quotas are valid for five years only—and each approval requires a three-quarters vote, which is no small hurdle when anti-whaling states form a majority.

The whole process is steeped in politics.  In 2002, the IWC was forced to call a special session to approve aboriginal whaling quotas after failing to do so at its regular meeting.  Ironically, it was the pro-whaling state of Japan and its allies that obstructed the normal procedure that year, refusing to approve quotas for whaling by any aboriginal peoples while anti-whaling IWC members rejected subsistence whaling by a handful of Japanese coastal communities with old ties to the industry.

The IWC process is also incompatible, to say the least, with the constitutionally protected right that Canadian Inuit have to hunt whales.  Not that this would necessarily give the IWC any pause.  The Makah of Washington State, for instance, whose 1855 treaty with the USA specifically protects their own right to hunt grey whales, must wonder what their treaty is worth when the USA defers to the IWC for approval of their hunts.  The Alaskan government is so suspicious of the IWC that its Congressional representatives have just introduced bills to force the USA to set its own bowhead whale quota for Alaskan Inuit if the IWC doesn’t.

But why hasn’t the international anti-whaling community taken stronger action against Canada, and tried to force it to rejoin the IWC?  There is probably more than one factor at play, but it seems likely that the strident discord within the IWC over the commercial whaling moratorium has helped to shield Canada from much of the anti-whaling fervour so far.

At present, three members of the IWC—Iceland, Japan and Norway—conduct whaling in defiance of the moratorium.  Iceland and Norway both unilaterally run full-blown commercial whaling industries under a special “opt-out” mechanism in the ICRW.  Japan, and to a much lesser extent Iceland, harvest whales for scientific purposes under a self-managed ICRW exemption for research.  Japan’s practice of issuing permits for scientific whaling within the limits of the IWC’s Southern Ocean Sanctuary—a no-whaling zone surrounding Antarctica that the IWC established in 1994—is a particular irritant, especially to anti-whaling states such as Australia and New Zealand.

Iceland, Japan and Norway together take many hundreds of times more whales each year than Canadian Inuit have ever taken since their first treaty-based hunts.  All three consider whaling integral to their traditional national cultures, as well as a sustainable and economic industry in its own right, and none seems willing to give it up even after nearly 30 years of moratorium.  This puts the IWC in a quandary.  Either it remains a protectionist organization but admits that its moratorium has failed, or reverts to its conservationist origins and officially permits at least some commercial whaling.

Thus far, the IWC has tried—and failed—to navigate a path between these two unpalatable options.  Recent negotiations have involved a small commercial hunt for Japan in its coastal waters, in exchange for an end to scientific whaling and the establishment of a whale sanctuary in the South Atlantic Ocean.  Iceland and Norway would also be allocated commercial quotas—but no other IWC member would be permitted to begin whaling at all.  Something similar may be floated again at this year’s meeting.

If so, and if the IWC is able to bring Iceland, Japan and Norway back into compliance with its rules, then it may be less willing to tolerate non-compliance from Canada.  IWC members would find it very difficult to understand why Canada should remain the only major state outside a whaling regime that satisfies even the likes of Japan—especially simply for the sake of jurisdiction over a tiny aboriginal hunt that IWC rules could in principle accommodate.  Pelly Amendment sanctions, UNCLOS challenges and activist campaigns could help the IWC make that point strongly.  How much economic and diplomatic pressure would Canada and Canadians be willing to bear so that Inuit can hunt whales without the international community’s blessing?

Inuit may take heart from the fact that IWC members have long proven themselves more adept at contention than compromise, and that they may well not reach any grand bargain this year.  But that’s no reason to dismiss the possibility that the IWC will find some way to drag Canada into the debate.  At this year’s meeting, Monaco will table a resolution asking for the UN General Assembly to take charge of the issue—and not only on behalf of the “great whales” on which the IWC traditionally focuses, but also species such as beluga and narwhal, which Canadian Inuit hunt in far larger numbers than they do bowhead whales.

Monaco’s resolution apparently has the support of many anti-whaling IWC members, and it stands a decent chance of passing.  But if the UN itself were at some point to decide that there should be no whaling except in accordance with IWC rules, then it would be very much harder for Canada to refuse to play by them anymore.