Thursday, August 25, 2011

Let's take a look at ASW

Dr. Sidney Holt is ASOC's representative at meetings of the International Whaling Commission (IWC) and has decades of IWC experience. The following guest blog by Dr. Holt analyzes aboriginal subsistence whaling (ASW) in the context of the IWC. 

The IWC gathering in Panama next June is likely to be dominated by consideration of so-called aboriginal subsistence catch and strike limits for Denmark, Russia, St Vincent and Grenadines and the United States., even though for most of us the agenda items on the participation of civil society and the South Atlantic Sanctuary are far more important (Thank goodness we don’t have to deal with any pretence by Iceland that its illegal hunt for fin whales is for ‘subsistence’, though its whalers are at least ‘aboriginal’ in the sense that the place is thought to have been uninhabited before the Norsemen colonised it). Japan will surely, as usual, try to use this farce to squeeze ‘concessions’ especially from the US, and if by chance it decides – for economic, logistic and political reasons not to go down to the Antarctic this coming season to collect scientific samples then we can be sure it will demand a quid pro quo for making such a sacrifice – probably the long-sought legitimization of coastal minke hunts in the Northwest Pacific.

We must hope that the inter-governmental consultations to take place before the Panama meeting to decide what is a quorum in the IWC will have been fruitful, but I wouldn’t bet on it. One legalistic point of practical interest is that in agreeing to a Convention parts of which can be amended by vote of members participating in a meeting, and without specifying in the primary text a quorum, the negotiators opened a way in which a formal treaty can be modified by a minority of the Parties to it. In the early days of the IWC, even when there were far fewer member states than now, several Parties failed to turn up at some annual meetings. Although in browsing through old Verbatim Records of Plenary Sessions (after they became available; for many years they were ‘classified’) I did not find challenges to the Chairman’s call to vote regarding a quorum, but some successful binding votes were surely taken by a minority of Parties.

As I noted in a previous blog the existence of aboriginal subsistence whaling was explicitly recognized – and permitted by being exempted - in Article 3 of the 1931 Convention for the Regulation of Whaling, but limited to operations using neither powered vessels nor firearms, and from which products could not be transferred to ‘third persons’. This exemption disappeared from the 1937 International Agreement for the Regulation of Whaling. That Agreement is applicable, however, only to factory ships, land stations and catchers, and ‘catchers’ are defined specified types of ‘ships’. But the subsistence whaling that anybody knew about was carried out by boats, not ships, even though by then there were aboriginals with powered boats and firearms.  So an upgraded form of ASW was not regulated by that Agreement and aborigines were not prohibited from killing grey and right whales and their calves and lactating females.

The 1946 ICRW had the same lack of specific reference to ASW, and the same protective regulations, but – crucially – now, in the new part of the instrument – the Schedule – which could be amended by the IWC rather than by a diplomatic conference of all Parties as before. However, at the very end of the 1946 negotiating conference the Soviet delegate, Dr Alex Bogdanov, reminded everyone that grey whales were being caught off eastern Siberia by a catcher – a ship - on behalf of the aboriginals, since they used to catch right whales until European and American whaling fleets massacred them, and greys were too dangerous to hunt with local boats. Thus that subsistence whaling for aboriginals would be prohibited by the new convention. The solution was to insert a special provision, an exemption, in the launch Schedule. And there it remained. Aboriginals elsewhere continued unhindered to kill whales for subsistence from boats. Alex later became a good friend during the UN Technical Conference on the Law of the Sea held at FAO HQ in Rome in 1955, at which I was a member of the Secretariat and he one of the two in the USSR delegation. My wife Judy, who liked giving parties for visiting diplomats and scientists, persuaded Alex and his co-Delegate, Dr Peter Moiseev, to teach us all how to perform ‘Cossack’ dances; I remember that the Japanese delegation, practiced in the kind of dancing geishas do with their customers, were quite good at that. Although I was not dragged into the whaling issue until five years later, I learned from him a lot about Soviet attitudes towards inter-governmental fisheries research and management organisations. I was also intrigued to learn that the huge Soviet fisheries research organisation, VNIRO, headquartered in Moscow, was managed by two co-Directors (then Bogdanov and Moiseev, both eminent internationally respected marine scientists) who alternated administrative responsibility and research time. That seemed an admirable arrangement.

But I digress. The mess that began in the mid-1970s arose directly from the adoption of the New Management Procedure (NMP), in 1975. All whale ‘stocks’ and species had to be classified and awarded either a positive or a zero catch limit. One right whale, the bowhead, was still being hunted by US nationals, aborigines in Alaska. The IWC Scientific Committee, assessing that stock and concluding it was depleted under the NMP rules, and proposed – as they had to - a zero catch limit which, if applied, would end American subsistence whaling in the Arctic. Some participants thought the simple solution would be to ignore this and simply let the US Government act by setting a catch limit for its nationals. That would, however, have opened the door to other IWC Members unilaterally giving their nations special catch limits, possibly with other rationales than preserving aboriginal rights. Since hardly any delegations wanted the NMP to bring to an end at least that particular subsistence whaling the solution would be to relax the NMP provision that the limit would be zero if the stock was assessed to be below its original number, whatever that might have been. (A side-show was that the SC had under-estimated the current numbers. The Alaskan whalers pointed out that many of the bowheads spent time under the ice, unseen by scientists – they knew that from the bumps in the ice surface caused by the re-freezing of breathing.holes made by the submerged whales bumping their hard heads).

Unfortunately this ‘solution’ had other, maybe unforeseen, consequences, as is the way of the world. No one thought much anymore about the means by which subsistence whaling was carried out, nor try to legislate that the products would not enter commerce;  all the attention was given to the meaning of ‘local consumption’, the unfortunate, undefined phrase slipped into the 1946 Schedule – hopefully to keep a check on the USSR. Later, Greenpeace and others revealed that at least some of the products –‘only the offal’, the Russians said – were being consumed locally, by captive foxes) Some whaling countries argued that the phrase meant ‘within the national territory’. Denmark went a bit further, justifying the export of ‘subsistence’ products to the mainland from Greenland on the grounds that Greenlanders attending college in Copenhagen ‘needed’ their normal diet. ’Need’ was a key word in deciding, in cases qualifying for the aboriginal relaxation of the NMP, just what the catch limit would be – and, later, what species would be included. I remember in those days being served a fine minke steak in a Copenhagen restaurant, and I swear I could not have been mistaken for a hungry Greenlandic student even if I had been wearing a seal-skin jacket.

Unfortunately the implementation of the decision to replace the NMP by something better – as was sorely needed by the 1980s – made matters worse. The aboriginal subsistence exemptions could not easily be fitted into the new rules, and the Commission did not even instruct the Scientific Committee, in developing those, to try to do so. Instead the Committee was told to embark on specifying an entirely new procedure just for subsistence whaling, and that has since then taken up a great deal of scientists’ time. In the meanwhile the Commission abandoned the pretence that these engaged in ‘subsistence whaling’ were necessarily ‘aboriginals – the whalers in St Vincent and Grenadines killing humpback whales are descendents of the colonists who exterminated the aborigines!

The Kingdom of Tonga gives me a nice example with which to end this little history. I visited the islands years ago with Dr Paul Spong to present to the King a painting of a humpback whale by Larry Foster, a well-known artist in California; I hope it’s still hanging in the Royal Palace. The monarch wanted an end to humpback whaling in his realm.  The whaling was conducted by men in the Cook family, descendents of a cabin boy who absconded from a British sperm and right whaler in the nineteenth century. Paul and I drank a fiery coconut liqueur with these nice people, whose front door was framed by the jaw-bones – or maybe it was the ribs - of a very large humpback. Tonga was not then a Party to the ICRW 1946. They have since stopped and their ‘whaling’ now is running one of several whale-watching enterprises for tourists.  The family cannot, of course, be pure aboriginals. Now I would wonder if it would be appropriate for someone in the IWC to propose that DNA swabs be taken to determine true aboriginality: the IWC could maintain a database of those who are allowed to kill whales for subsistence, local consumption, etc...

The US Federal Government spends quite a lot of money on scientific research on Arctic whales the results of which are used to justify whatever are deemed to be subsistence ‘needs’, but which are valuable in themselves. The Danish Government, on the other hand does very little. The shame of the essential irrationality of discussions about the regulation of subsistence whaling is that they are surrounded and contaminated by other considerations that have little if anything to do with either whaling or subsistence. By far the worst case is that of Greenland where it is now permissible to kill minke, fin and humpback whales (I doubt that any real subsistence whaler would be able successfully to hunt, in Arctic waters, the huge, nimble and negatively buoyant fin whales, by ‘traditional’ methods, although a few islanders in Indonesia (not a Party to the ICRW 1946) still know how to do it, in the tropics from motor-less, gun-free catamarans. But then some of the Greenlanders are using ships for their hunts rather than the skin kayaks shown in the tourist brochures.

One problem we now face has almost nothing directly to do with whaling but a lot to do with Denmark’s relationship with its partially-self-governing colony. Denmark needs Greenland as an extremely important window to the warming, eventually largely ice-free, Arctic Ocean, as well as some control over the newly opening Northwest Passage. The European Union needs Denmark as its window to the Arctic, because the one Sweden offers is narrow and inconvenient. The European Union countries Parties to the ICRW 1946 have for years had problems with Denmark’s pro-whaling policy, which has gone far beyond merely upholding the interests of Greenlanders. For the moment I’ll keep to myself my guesses as to how the new developments will affect the positions of the EU members as a putative bloc in the IWC.

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