By Dr. Sidney Holt

On 15 September, 2010, the Japanese daily newspaper Asahi Shimbun, published an article based on an interview with Sir Geoffrey Palmer, entitled “Point of View: Japan missed the boat on coastal whaling.” Palmer was the originator of a proposal described as a compromise to open an escape route from the impasse reached in the International Whaling Commission (IWC) regarding the future of commercial whaling.  The impasse has arisen from the continuation of whaling by Japanese vessels in the Antarctic notwithstanding the facts that in 1982 the IWC set all commercial catch limits for all large whale species in zero, as from 1986, for an indefinite period, and also declared, in 1994, the entire Southern Ocean as a whale sanctuary wherein whaling is prohibited.

Japan’s actions are justified by its Government through two loopholes in the 1946 treaty from which the IWC derives its existence and authority: one of those allows any Member country to issue as many special permits as it likes, to its nationals, provided the declared purpose is to kill whales for scientific purposes; the other allows a country to exclude itself from the implementation of any IWC decision by lodging an “objection” with the IWC Secretary within about three months of the decision being taken. The Japanese Government did not object to the Southern Ocean Sanctuary decision as such but did object to the inclusion in its provisions of the minke whales that feed in the Antarctic and on which its current whaling depends. That is the species that has been caught in large numbers every year since 1986/87 under Special Permits. It is widely considered that this minke whaling is in fact commercial because the products from it are marketed and the proceeds used to partially fund the whaling operations. It is claimed that these operations are on such a relatively small scale that the “scientific” catches are sustainable, but after two decades of surveys, and tens of millions of dollars (and billions of Yen) spent on research, the IWC’s Scientific Committee cannot agree on a ball-park figure for how many of them there are.

The Governments of Norway and Iceland also allow their nationals to conduct commercial whaling. The former engages in minke whale hunting in the Northeast and Central Atlantic under its objections both to the 1982 zero catch limit decision, and the classification by the IWC, in 1985, of the minkes in the Northeast Atlantic as severely depleted and therefore to be classed as a Protection Stock. Iceland, which did not object to the 1982 decision and paused whaling for a few years, recently resumed commercial whaling under what it called a post-facto “reservation” to the 1982 “moratorium”.  There is no authority in the 1946 treaty regarding reservations, and lodging “objections” after the initial three-month period is specifically prohibited by the treaty. Consequently about half of the Member states of the IWC regard the Icelandic “reservation” as invalid.

All three whaling countries wish the 1982 decision to be nullified or at least substantially modified. A small majority of IWC members oppose such a change, which could only be made by a three-fourths majority vote. The conditions to be met for modification to be considered were not specified in the 1982 decision but it is understood that there must at least be evidence of the recovery of depleted whale populations and the existence of a new, more effective and precautionary management procedure, including rigorous compliance arrangements. Neither condition has yet been fulfilled, although stocks of some species appear at least to be increasing in numbers from having been brought close to extinction by whaling. However, a sufficient number of Members support the whaling countries in pressing for the moratorium to be lifted immediately and they can and do prevent the majority from taking further action towards whale conservation through their control of, more than a quarter of the votes; hence the long-standing impasse.

The “compromise” floated by Geoffrey Palmer, with the support of the Chair and Vice-Chair of the Commission, the whaling Governments and their supporters, and the USA, with the intention that some version of it would be adopted by consensus by the IWC at its 2010 annual meeting in Agadir, Morocco, would have involved acceptance of Norwegian and Icelandic whaling (the former for minke whales, the latter for minkes and fin whales), and allowing Japan to resume commercial whaling for minke and Bryde’s whales in waters close to Japan (something the Government of Japan has been pressing for annually for more than twenty years) in return for some reduction in the number of minke whales being caught in the Southern Ocean sanctuary. The justification offered for such concessions was that catch numbers would be agreed such that the global total of whales killed each year would be fewer than had been killed in recent years, and that the actual numbers authorized to be killed would become again the responsibility of the IWC.

Palmer presents this as a reasonable proposition in his Asahi Shimbun interview, but unfortunately omits all reference to many other provisions in the draft compromise that were found to be unacceptable by most members but especially by the Latin Americans and Europeans, Australia, South Africa, and India among others. In fact, the published account of Palmer’s Asahi Shimbun interview presents a thoroughly “whitewashed” version of the suggested compromise, and here I hope to set that straight. A difficulty is that negotiations throughout the IWC’s Morocco meeting, at which various modifications of the original draft compromise were considered, were all held in camera and the final version that still did not attract consensus has not been published. However, sufficient information has been “leaked” to make an appraisal possible.

The suggested compromise, which many participants considered really to be a capitulation to the whalers and a Trojan Horse trundled into the conference room, was intended to fix things for ten years. Lip service was paid to the possibility of making revisions in that period, on a scientific basis, to the largely arbitrary initial catch limits, but it is well-known that never in the history of the IWC has any whaling nation voted in favour of a proposal that would substantially reduce its catches, although the norm has been for them to approve of lowered catches by others.

So let us look at some of the unacceptable features of the “deal”. First, to count and add together whales of different species and hugely different unit values was highly misleading. The infamous Table 4 of the proposed deal, which listed the numbers of each species in each area that the whaling nations would like to take or that the non-whaling dealers thought they might accept, included, for example, many fin whales, each worth ten times that of a minke whale. By juggling these one could keep the total value of the catch – which meant the tonnage of meat that would nearly all arrive, eventually, in Japan – higher than before while appearing to reduce numbers. Then, the original numbers were generally what the whalers had awarded themselves as self-quotas, not what they had actually caught, which in some cases was considerably fewer, partly because of the harassment of Japan’s pelagic fleet by campaigners from Greenpeace and Sea Shepherd. No attention was paid at all to the fact that the whaling countries, especially Japan, have large unsold stockpiles of frozen whale meat

In the last days of the Morocco meeting there were secret discussions among the whaling countries and a very few privileged delegations, especially the US, New Zealand, and Antigua & Barbuda (the seat of the Vice-Chairman of the IWC and one of the countries that accepts financial “persuasion” from Japan) from which it was leaked that Japan had finally offered to reduce its Antarctic minke catch to 150 or less. Most countries, which want whaling to be properly regulated if it is resumed – few or them are actually “anti-whalers, as commonly portrayed – hold that a sanctuary is a sanctuary; you can’t call a region a sanctuary then authorize whaling in it. The number of whales allowed to be killed is irrelevant if it is not <zero. But also, at the same time, the Japanese delegation had met with the Latin Americans and told them they would not reduce their “scientific” catch, and that if they didn’t agree to the proposed resumption of whaling in the NW Pacific they would have to increase the Antarctic catch of minke whales and also implement their earlier threat to begin killing humpback whales as well as continuing to kill fin whales – which are listed as endangered species. What are we to believe? Incidentally, the offer to reduce the Antarctic minke catch to 150, if it was in fact made (and I know of no European delegation that was informed of that), was a contradiction of Japan’s repeated assertion over the years that the number of permits issued for minke whales was determined by scientific considerations – sample sizes and geographic distributions, etc. No one outside Japan has ever believed that but it was nice to have skepticism confirmed. The number has always been mainly determined by a calculation of the market value of products from a season’s catch of a certain size, the projected cost of taking it, and the size of the subsidy that the State would be prepared to pay to offset losses, which in recent years are said to have been about 50%

Aside from the numbers game on which nearly everyone was focused, to the exclusion of care and questioning the rest of the proposed deal, the Trojan Horse had a cunning and obscure provision that the proposal for circumventing the 1982-86 moratorium and the 1994 Southern ocean sanctuary decisions would, if adopted into the Schedule of the 1946 Treaty (that is the amendable part that specifies all regulations), “prevail” over all the rest of the Schedule, which contains the results of 70 years of IWC decisions, regarding, for example, minimum size limits, whaling seasons, closed areas (apart from sanctuaries), protection of mothers and their calves, and so on. And in particular would dispense with the New Management Procedure adopted by the IWC in 1974 which - although it proved to be flawed – led to the protection of all species and stocks shown to be depleted, and in particular to the protection of all the southern hemisphere baleen whales except the minke and Bryde’s.  (It is a common illusion, fostered by the whaling countries, that it was the 1982-86 moratorium that protected the baleen whales and the sperm whale, but that is not so)

The proposed deal also went so far as to attempt to circumvent basic provisions of the 1946 treaty. The treaty specifically prohibits the award of catch limits or selective application of any regulations to particular countries or fleets. Yet the authors of the deal tried to insist that only Japan, Norway, and Iceland could go whaling commercially, at least for the next ten years. Obviously South Korea, which is considering resuming whaling, could not accept that. But it was also an insult to those countries that decided to stop their operations from 1986. Those whaling countries that did not object to the 1982 decision – Spain, Brazil, Chile, Peru – while agreeing to abide by the new law, had no intention to permanently give up their legal right to resume whaling at some time in the future in response to changes in the regulations, markets, and perceived national needs; formally the 1982 so-called “moratorium” decision was for a pause. (Iceland also did not object, paused whaling for several years, left the IWC, and later re-joined and re-asserted its right.)

In these and so many other ways the deal was ill conceived and doomed from the start; no adjustments of numbers were ever likely to make it acceptable to a majority, let alone lead to consensus. And some of the ploys to convince the skeptics were almost unbelievably crude: it was asserted that the moratorium and the designations of sanctuaries would remain unaffected while both were shamelessly circumvented by inserting the “the deal will prevail” phrase. Another was an offer to the Latin Americans that their long campaign to have the South Atlantic declared as a sanctuary would be met – just that they would have to give away their very strong support for the much more important Southern Ocean protection.

It is a pity that Sir Geoffrey still thinks there was a chance for some version of his deal, and that he could have brought it off, with the help of the Obama Administration – were it not for those pesky Latin Americans and Europeans. It is a shame, too, that a few of the biggest and most influential NGOs, such as Pew Charitable Trust, the Worldwide Fund for Nature, and Greenpeace, that are generally opposed to commercial whaling, took ambiguous and, indeed, equivocal positions during the Morocco and pre-Morocco consultations, hoping – it must be presumed - that substantial changes in the original draft might make it acceptable, and good for whales as well as some people.

Unfortunately the desire of the US delegation to look good to whalers led to the adoption, at the end, of a proposal by Denmark that Greenlanders be allowed to kill humpback whales, supposedly for subsistence purposes, despite the fact that at least two NGOs had produced conclusive evidence that meat from Greenlanders’ “subsistence” catches of other baleen whale species is sold in super-markets, to tourists, and even served on visiting cruise ships. These humpbacks are the animals that have been photographed, catalogued, named, radio-tagged by scientists, and watched by thousands of people visiting the Caribbean and the migration routes. Such dreadful decisions are not likely to enhance the status of the IWC, or the credibility of some supposedly pro-whale governments.