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The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures

Published online by Cambridge University Press:  27 February 2017

David D. Caron
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American Journal of International Law , Volume 89 , Issue 1 , January 1995 , pp. 154 - 174
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Copyright © American Society of International Law 1995

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References

1 Whaling: Jnt’l Commission Approves Antarctic Sanctuary, Greenwire, May 27, 1994.

The following newswire services were used for this note: Agence France Presse, CNN News, EC News in the European Press, Gannett News Service, Greenwire, Inter Press Service, Japan Econ. Newswire, Reuter Eur. Bus. Rep., Reuter Eur. Community Rep. and Reuter Lib. Rep. All citations to these services may be found in the appropriate file of the LEXIS, Nexis Library.

2 International Convention for the Regulation of Whaling, with Schedule of Whaling Regulations, Dec. 2, 1946, 62 Stat. 1716, 161 UNTS 72 [hereinafter ICRW]. The Convention was implemented in United States law by the Whaling Convention Act of 1949, 16 U.S.C. §916 (1988).

3 See Protocol to the International Convention for the Regulation of Whaling, Nov. 19, 1956, 10 UST 952, 338 UNTS 366; Circular Communication to All Contracting Governments, June 30, 1972, 23 UST 2820 (eliminating blue whale unit system and substituting individual species quotas). As to the “blue whale unit” system and the danger it posed especially for the larger whales, see R. Michael M’Gonigle, The “Economizing” of Ecology: Why Big Rare Whales Still Die, 9 Ecology L.Q. 119, 137–41 (1980).

4 See generally 1 Patricia Birnie, International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale-Watching (1985). A personal account of the role of nongovernmental organizations in the shift in the IWC is found in David Day, The Whale War (1987), and is discussed in J. A. Gulland, Whaling Mythology, 12 Marine Pol’y 77 (1988), and Sidney Holt, The Whale War, id. at 410. For an excellent general work on the conservation of whales, see James E. Scarff, The International Management of Whales, Dolphins and Porpoises: An Interdisciplinary Assessment, 6 Ecology L.Q. 323 (pt. I), 574 (pt. II) (1977). For a comprehensive historical work, see J. N. Tonnessen & A. O. Johnsen, The History of Modern Whaling (1982). A recent work of particular value is M.J. Peterson, Whalers, cetologists, environmentalists, and the international management of whaling, 46 Int’l Org. 149 (1992).

5 See, e.g., Peterson, supra note 4, at 149.

6 The moratorium, which passed by a 25 to 7 vote with 5 abstentions, provided:

[C]atch limits for all the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review based upon the best scientific advice, and by 1990, at the latest, the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modifications of this provision and the establishment of other catch limits.

2 Birnie, supra note 4, at 615 (quoting International Whaling Commission Schedule, para. 10(e)). The countries voting in favor of the moratorium included Antigua, Australia, Belize, Costa Rica, Denmark, Egypt, France, Germany, India, Kenya, Mexico, New Zealand, Oman, St. Lucia, St. Vincent, Senegal, the Seychelles, Spain, Sweden, the United Kingdom and the United States. The seven countries voting against the measure were Brazil, Iceland, Japan, Norway, Peru, South Korea and the USSR. Chile, China, the Philippines, South Africa and Switzerland abstained. Id. at 614.

As to the crucial role of developing countries, see Patricia Birnie, The Role of Developing Countries in Nudging the International Whaling Commission from Regulating Whaling to Encouraging Noncon-sumptive Uses of Whales, 12 Ecology L.Q. 937 (1985) [hereinafter Developing Countries].

7 See supra note 1.

8 See ICRW, supra note 2, Art. V. The quotas are, effectively, guidelines.

[They] shall be such as are necessary to carry out the objectives and purposes of this Convention and to provide for the conservation, development, and optimum utilization of the whale resources; … shall be based on scientific findings; … and … shall take into consideration the interests of the consumers of whale products and the whaling industry.

Id., para. 2.

9 “[Any] amendment [to the ICRW] shall become effective with respect to all Contracting Governments which have not presented objection but shall not become effective with respect to any Government which has so objected until such date as the objection is withdrawn.” Id., para. 3. Contracting states also may withdraw from the organization. Id., Art. XI.

10 For further discussion of the relationship between power within an organization and power in the environment in which the organization functions, see David D. Caron, Governance and Collective Legitimation in the New World Order, Hague Y.B. Int’l L. 29, 36 (1994).

11 The United States promotes the IWC’s goals in other ways. For example, the United States prohibits the importation into the country of whale products. Endangered Species Act, 16 U.S.C. §1538(a)(1)(A) (1988). Further, in adopting a 200-mile fishing conservation zone in 1976, the United States also extended the coverage of the Marine Mammal Protection Act (MMPA). Consequently, the United States prohibits whaling in its 200-mile zone. See Scarff, supra note 5, at 614–18; see also George Cameron Coggins, Legal Protection for Marine Mammals: An Overview of Innovative Resource Conservation Legislation, 6 Envtl. L. 1 (1975) (describing the MMPA).

12 Pub. L. No. 92-219, 85 Stat. 786 (codified as amended at 22 U.S.C. §1978 (1988)). For the legislative history, see H.R. Rep. No. 468, 92d Cong., 1st Sess. (1971), reprinted in 1971 U.S.C.C.A.N. 2409.

The Pelly Amendment provides that, when the Secretary of Commerce determines that the nationals of a foreign country are diminishing the effectiveness of an international fishery conservation program (including the IWC’s program), the Secretary shall certify this fact to the President. The President then has the discretion to ban importation of fishing products from the offending country. This provision was amended in 1978 to extend the Secretary’s scrutiny to actions that diminish the effectiveness of international programs to protect endangered species (such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 UST 1087, 993 UNTS 243). Pub. L. No. 95-376, §2, 92 Stat. 714 (codified at 16 U.S.C. §1978(a)(2) (1988)).

13 22 U.S.C. §§1979–1980 (1988).

14 Pub. L. No. 96-61, §3(a), 93 Stat. 407 (codified at 16 U.S.C. §1821 (e)(2) (1988)). The amendment provides that, when the Secretary of Commerce certifies that a country is diminishing the effectiveness of the work of the IWC, the Secretary of State must reduce that country’s fishing allocation in U.S. waters by at least 50%. Certification under the Packwood-Magnuson Amendment also serves as certification under the Pelly Amendment. 16 U.S.C. §1821(e)(2)(A).

15 16 U.S.C. §§1801–1882 (1988).

16 See David D. Caron, International Sanctions, Ocean Management and the Law of the Sea: A Study of Denial of Access to Fishing, 16 Ecology L.Q. 311 (1989).

17 Before the passage of the Packwood-Magnuson Amendment in 1979, the United States threatened sanctions under the Pelly Amendment alone in a number of instances. Thus, on November 12, 1974, the Secretary of Commerce certified the USSR and Japan because both had objected to and exceeded the 1973–1974 minke whale quota. After negotiations including discussion of Pelly Amendment sanctions, both countries agreed to abide by the 1974–1975 quotas. See Not Saving the Whales: President Ford Refuses to Ban Fish Imports from Nations Which Have Violated International Whaling Quotas, 5 Envtl. L. Rep. (Envtl. L. Inst.) 10,044–47 (1975). Similarly, on December 14, 1978, the Secretary of Commerce threatened to certify Chile, South Korea and Peru if they did not accede to the IWC by the next annual meeting. The three nonmember countries joined. Finally, the threatened certification of Spain in 1979 led that country to observe a fin whale quota to which it had objected. See Preparations for the 34th International Whaling Commission Meeting: Hearings Before the Sub-comm. on Human Rights and International Organizations of the House Comm. on Foreign Affairs, 97th Cong., 2d Sess. 11 (1982) [hereinafter Whaling Report].

Such use of bans on imports has been more questioned internationally since the Tuna-Dolphin dispute under GATT. For an extensive discussion of that conflict and an analysis of the legality of such sanctions under the 1982 Law of the Sea Convention also, see Richard MacLaughlin, UNCLOS and the Demise of the United States' Use of Trade Sanctions to Protect Dolphins, Sea Turtles, Whales, and Other International Marine Living Resources, 21 Ecology L.Q. 14 (1994).

18 See text at notes 19–21 infra.

19 Whaling Report, supra note 17, at 11; see also Marine Mammal Commission, Annual Report, Calendar Year 1980, at 81 (1981).

20 Whaling Report, supra note 17, at 11.

21 See Caron, supra note 16.

22 As to the history of Japan’s resistance to compliance with the moratorium, see Caron, supra note 16, at 320–26.

23 IWC Annual Meeting Heightens Tensions Over Commercial Whaling, Agence Fr. Presse, May 16, 1993.

Just as a three-quarters vote of the membership is required to adopt a quota (i.e., an amendment to the Schedule), three-quarters is required also to repeal it. Consequently, once the moratorium was adopted in terms that called for its reassessment after five years but did not require its reapproval, the high threshold of a three-quarters vote calling for its removal was structurally present.

24 Norway Foresees No Major U.S. or E.C. Retaliation over Whaling, Agence Fr. Presse, June 15, 1993 (quoting Norwegian Fisheries Minister Jan Henry Olsen and Japanese Fisheries Minister Masami Tanabu).

25 For example, Canada withdrew from the IWC after the vote to impose the moratorium, claiming that “[t]he ban was inconsistent with measures that had just been adopted by the IWC that were designed to allow harvests of stocks at safe levels.” Patricia Chisholm, Prince of the Tides, Maclean’s, June 14, 1993, Wildlife, at 50. Although Canada had stopped commercial whaling in 1972, Chisholm claims that Canada withdrew from the IWC both because it wished to avoid public disfavor for voting with whaling states and because it was worried that the IWC would eventually extend its reach to smaller cetaceans such as narwhals and beluga whales, which Canada currently harvests. Id.

26 ICRW, supra note 2, Art. V(2).

27 See Peterson, supra note 4.

28 Debate was especially strong over the validity of lethal research conducted by Japan, Norway and other countries under the “scientific research” exception of the ICRW. See, e.g., Makiko Shinohara, Scientists Clash Over Whaling, Christian Sci. Monitor, Feb. 27, 1992, Habitat, at 10.

29 Id.

30 As to the extent of the rights argument, see, e.g., Anthony D’Amato & Sudhir K. Chopra, Whales: Their Emerging Right, to Life, 85 AJIL 21 (1991).

31 Japan Will Not Leave Whaling Commission, Reuter Eur. Bus. Rep., May 24, 1993.

32 Shinohara, supra note 28; and Keep Whaling Commission Intact, Christian Sci. Monitor, May 14, 1993, at 20 (editorial).

33 Japan and Iceland had proposed a formula two years earlier, but the Scientific Committee decided it was important to consider an alternative formula proposed by nonwhaling countries. Shinohara, supra note 28. Kazumi Sakuramoto, an assistant professor at the Tokyo Fisheries University and one of the developers of the Japanese formula, commenting on the alternate proposal, said: “It’s rather ironic. Being scientists themselves … they were no longer able to win their argument merely by repeating that resource management cannot be done. So, they came up with their own version [of a management formula].” Id. (omission in original) (alteration added).

34 Id. (alteration in original).

35 See, e.g., Whale Plan Shelved, Newsday, July 2, 1992, at 14.

36 Jeremy Cherfas, Whalers win the numbers game, New Scientist, July 11, 1992, at 12.

37 Id.

38 Keith Bradsher, Japan Won’t Hunt Whales, Miyazawa Says, N.Y. Times, July 3, 1992, at D14. However, Iceland did not announce any plans to resume whaling. Id.

39 Whaling Ban Panned, Atlanta J. & Const., Apr. 22, 1993, at A7.

40 Bradsher, supra note 38. Japan decided shortly thereafter to remain in the IWC. Id.

41 Id.

42 Id. See also Debora MacKenzie, Norway declares war on the Minke whale, New Scientist, Feb. 13, 1993, at 9; and Debora MacKenzie, Norway threatened with sanctions over whales, id., Aug. 28, 1993, at 4.

43 Andrew Pollack, They Eat Whales Don’t They? Fight Over the Hunt Resumes, N.Y. Times, May 3, 1993, at A5.

44 Andrew Pollack, Japan Offers Whaling Compromise But Suffers Rejection Again, Houston Chron., May 14, 1993, at A22.

45 The campaign included protesters with whale-shaped balloons, Japanese Rally for Hunting of Whales, N.Y. Times, Apr. 20, 1993, at C4, Pollack, supra note 43, and a banquet featuring whale-meat cuisine for IWC delegates, Pro-whaling Japan Aims Pitch at Belly, Atlanta J. & Const., May 13, 1993, at A8.

As to the cultural aspect, Jay Hastings, speaking on behalf of the Japan Fisheries Association, for example, argued that “[i]t’s true most Japanese don’t eat whale meat …. But for certain coastal communities, whales and whaling have been part of the culture for 1,000 years.” Ross Anderson, Cultural Racism and the Ban on Whaling, Seattle Times, May 14, 1993, at A8 (editorial). But see Japanese Town Wary of Bid to Resume Whaling, L.A. Times, May 10, 1993, at D3. The residents of a coastal whaling village in Japan wondered whether, “[i]f the hunt is restarted, would it really be to preserve our whale culture, or would it be for a profit motive?” They noted that at present the whales caught under scientific permits end up at expensive restaurants in Tokyo, not in the village. Id.

46 Pollack, supra note 44.

47 Rebuffed, Japan threatens to quit Whaling Commission, Chicago Trib., May 14, 1993, News, at 6 [hereinafter Rebuffed]; and Charles Higginson, International Whaling Commission, Ocean Pol’y News, May 1993, at 1. The IWC did resolve to work to alleviate the situation of such coastal communities over the year to come. Id.

48 Pollack, supra note 44.

49 Colin Nickerson, Commission Endorses Concept of Whale Sanctuary, Boston Globe, May 15, 1993, at 2.

50 Higginson, supra note 47. See also Jeremy Cherfas, Whaling ban stays in place—for now, New Scientist, May 22, 1993, at 5; and Peter Hadfield, Whaling report ‘open to interpretation,’ id., May 15, 1993, at 5.

51 Referring to the IWC’s continued refusal to act on the Scientific Committee’s findings that the minke whale population could sustain resumed commercial whaling, Kazuo Shima, Japan’s commissioner on the IWC and deputy director of Japan’s fisheries agency, proclaimed, “We believe science and we believe scientists. We should not permit religious arguments in this field.” Pollack, supra note 44. On another occasion, Shima similarly criticized the Commission for its decision, saying, “these environmental extremists want to make marine mammals into seagoing sacred cows.” Nickerson, supra note 49. Threatening once again that Japan would have to reevaluate remaining in the IWC, Shima stated, “I can’t help feeling anger and anguish that our request has again been defeated.” Rebuffed, supra note 47. Criticizing the proposed sanctuary, Noboyasu Abe, a member of the Japanese delegation to the IWC and a spokesperson for the Foreign Ministry, said, “We appreciate environmental concerns, but a reasonable balance with rational utilization of resources has to be struck.” Whale Sanctuary Idea Survives Vote, Chicago Trib., May 15, 1993, at 1. The sentiment was echoed by Japan’s ambassador for global environmental affairs, Nobutoshi Akao, who pointed out that the catching of a nonthreatened species of whale, such as the minke, was consistent with the idea of sustainable development promoted by the UN-sponsored Earth Summit in Rio de Janeiro in June 1992. Japanese Envoy Defends Whaling Policy, Japan Econ. Newswire, July 7, 1993. See also Patricia Birnie, UNCED and Marine Mammals, 17 Marine Pol’y 501 (1993). On science and decision making in the IWC, see M. J. Peterson, The International Management of Whaling Today: Institutions and Scientific Advice in a Situation of Stalemate (paper presented to Harvard-MIT Seminar on International Environmental Cooperation, Apr. 28, 1994).

52 IWC Annual Meeting Heightens Tensions Over Commercial Whaling, supra note 23 (quoting Bjorn Blokhus). Japanese Commissioner Shima echoed Blokhus’s sentiment: “There must be some benefit for Japan to remain in the commission. … We still have a slight hope it will come back to its original purpose.” Id.

53 T. R. Reid, World Whaling Body Riven by Dispute; Norway Threatens to End Moratorium, Wash. Post, May 15, 1993, at A17 (alteration in original).

54 Minister Backs IWC Scientist’s Decision to Quit, Japan Econ. Newswire, June 8, 1993.

55 Mari Skare, Whaling: The Position of the Norwegian Government, Environment, Sept. 1994, at 12. Hammond was reported also to have said that “[i]t is unacceptable for an international organization with a mandate to manage whaling not to have a workable procedure on its books.” Panel Ex-chief Blasts IWCfor Rejecting Management Plan, Japan Econ. Newswire, June 12, 1993. Japanese farm minister Masami Tanabu, commenting on Hammond’s decision, stated: “He must wonder why the IWC exists. It’s no wonder he stepped down.” Minister Backs IWC Scientist’s Decision to Quit, supra note 54.

56 Norway Threatens to Resume Whaling at End of World Meet, Houston Chron., May 15, 1993, at A22.

57 Norway Plans to Kill 296 Minke Whales This Year, Reuter Lib. Rep., May 18, 1993. See also A Misguided Policy on Whaling, Chicago Trib., May 24, 1993, at 12 (editorial).

58 Norway: Fisheries Minister Defends Minke Whale Decision, Greenwire, May 21, 1993.

59 Norway Plans to Kill 296 Minke Whales This Year, supra note 57.

60 Panel Ex-chief Blasts IWC for Rejecting Management Plan, supra note 55. Masami Tanabu, Japanese Minister of Fisheries, also expressed support for Norway’s decision to resume whaling. Japanese Fishery Chief Backs Norway in Resuming Whaling, Japan Econ. Newswire, June 14, 1993. Swedish Foreign Minister Margaretha af Ugglas backed Norway’s decision, saying, “We hold that limited whaling which does not wipe out the whales in question … is something which Sweden can accept.” Sweden Says It Supports Limited Whaling, Reuter Lib. Rep., June 7, 1993 (omission in original).

61 Panel Ex-chief Blasts IWC for Rejecting Management Plan, supra note 55.

62 Hillary Bowker, Norway Planning to Ignore Global Ban on Whaling, CNN News (interview transcript), June 3, 1993.

63 Gudmundur Eiriksson, Ambassador of Iceland, The Legal and Political Position of NAMMCO, in Report of the Inaugural Meeting of the Council of NAMMCO, App. III (Sept. 10, 1992) [hereinafter Report] (on file with author).

64 This Agreement was the formalization of cooperation begun among the states under a memorandum of understanding signed in Tromso in 1990. The Agreement, pursuant to Article 10, entered into force 90 days after its signature on April 9, 1992 (and is on file with author).

65 Gudmundur Eiriksson, The Legal and Political Position of NAMMCO (lecture to Inaugural Meeting of the Council of NAMMCO, Torshavn, Sept. 10, 1992), reprinted in Report, supra note 63, App. III.

66 Agreement, supra note 64, Art. 3.

67 Id., Art. 4.

68 It is unclear whether the committees will be constructed around management themes, particular species or particular geographic areas, although the article’s language suggests that the jurisdiction of individual committees might be species-defined. Article 5 reads in part: “Management Committees shall with respect to stocks of marine mammals within their respective mandates ….”

69 Agreement, supra note 64, Art. 6. It is unclear whether all parties are expected to appoint experts and thereby participate in the committee. Assuming the Agreement to be well drafted—and omissions therefore intentional—the lack of a provision parallel to that defining Council membership (Article 4: “Each Party shall be a member of the Council”) suggests that not all parties are to be represented on the Scientific Committee.

70 Id., Art. 7.

71 Id., Art. 4. Although the provision is clumsily worded, presumably “an affirmative vote” is here synonymous with “a vote,” and a party’s abstention would not act as a veto (otherwise, the second phrase is redundant). The decision-making processes of the Scientific Committee and the secretariat are unspecified.

72 As to the shifts in membership in the IWC, see Birnie, Developing Countries, supra note 6.

73 Agreement, supra note 64, Preamble.

74 Id., Art. 10.

75 Id.

76 Iceland’s Ambassador Eiriksson has argued that NAMMCO is consistent with Agenda 21’s emphasis on “sustainable use,” and with the respect for the sovereignty of coastal states over the living resources of their economic zones under the 1982 Convention on the Law of the Sea. Eiriksson, supra note 65.

77 Iceland, in stating that it hopes to resume commercial whaling in 1995, has indicated that, like Norway, it will rejoin the IWC prior to doing so. More whale hunts, New Scientist, June 25, 1994, at 11. Presumably, Iceland would object out of the obligations that would be incumbent upon it under the moratorium.

78 On the legality of Norway’s commercial whaling, particularly under European Community law and the Convention on International Trade in Endangered Species, see Peter G. G. Davies, Legality of Norwegian Commercial Whaling under the Whaling Convention and its Compatibility with European Community Law, 43 Int’l & Comp. L.Q. 270 (1994).

79 On July 2, 1993, NAMMCO announced that it would begin surveys of minke and other small whales in the North Atlantic in 1994 or 1995. Whaling: N. Atlantic Nations to Launch Species Survey, Greenwire, July 7, 1993.

80 Inuit Circumpolar Conference, Resolution Regarding I.C.C. Whaling Commission (July 1992) (unpublished, on file with author). It is unclear whether this resolution was adopted or merely proposed.

81 See, e.g., Whaling: Boycott Spurs Fears in Norway, Greenwire, May 28, 1993; EC News in the European Press on Tuesday, Reuter Eur. Community Rep., June 22, 1993 (“Ireland’s Green party has called for the Irish people to boycott products of the Norwegian-owned company Statoil in order to put pressure on Norway to stop whaling …”).

82 See, e.g., Norway Sets Quota for Commercial Whaling, Agence Fr. Presse, May 18, 1993; EC News in the European Press, Reuter Eur. Community Rep., June 9, 1993.

83 See, e.g., Norwegian Olympic Chiefs Fear Boycott of Games Over Whaling, Reuter Lib. Rep., May 27, 1993.

84 Ken Miller, Conservationists Demand Actions Against Norway for Whale Kill, Gannett News Service, June 18, 1993 (quoting Norwegian Minister of Economic Affairs Per Kristian Pedersen).

85 Norway took its first whale on June 17, 1993. Tamara Jones, Rough Seas for Defiant Whalers, L.A. Times, July 6, 1993, at Al. See also Norway Whalers Catch Most of 1993 Commercial Quota, Reuter Eur. Bus. Rep., July 2, 1993.

86 For particulars, see Debora MacKenzie, Norway threatened with sanctions over whales, New Scientist, Aug. 28, 1993, at 4.

87 Id.

88 Norway Whalers Catch Most of 1993 Commercial Quota, supra note 85.

89 Miller, supra note 84.

90 Whaling: EC Offers Compromise for Norway to Join Union, Greenwire, Feb. 16, 1994.

91 EC News in the European Press, Reuter Eur. Community Rep., June 29, 1993.

92 John Darnton, Vote in Norway Blocks Joining Europe’s Union, N.Y. Times, Nov. 29, 1994, at A1.

93 Miller, supra note 84.

94 Bowker, supra note 62. See also Cherfas, supra note 50 (quoting a Norwegian Foreign Ministry official as stating, “There are hundreds of boycott actions underway in the United States at any given time, and most have a negligible effect.”).

95 Miller, supra note 84.

96 See MacKenzie, supra note 86. See also Iceland to Follow Norway in Resuming Whaling Next Year, Japan Econ. Newswire, July 2, 1993.

97 See, e.g., Miller, supra note 84.

98 Alister Doyle, Norwegian Support for Whaling May Be Cracking, Reuter Eur. Community Rep., May 28, 1993.

99 See MacKenzie, supra note 86.

100 Id. See also Caron, supra note 16, for a methodology for assessing sanctions and for discussion of the decreasing significance of the Packwood-Magnuson Amendment. There have been private efforts to effect a U.S.-led fast-food restaurant boycott of Norwegian fish products and a boycott against other Norwegian products and cruise ships, but the magnitude of their economic effects is uncertain. Miller, supra note 84.

101 Oran R. Young, Milton M. R. Freeman, Gail Osherenko, Raoul R. Anderson, Richard A. Caul-field, Robert L. Friedheim, Steve J. Langdon, Mats Ris & Peter J. Usher, Subsistence, Sustainability, and Sea Mammals: Reconstructing the International Whaling Regime, 23 Ocean & Coastal Mgmt. 117, 119 (1994).

102 Id. at 124.

103 Id. at 120.

104 Id. at 122. As to whether artisanal communities are more likely to have internalized sustainability values, see the discussion of conditions for long-enduring communal use of resources in Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990).

Similarly, Kaye Anable argues that “the mere creation of a rival organization creates a risk for the IWC” because of NAMMCO’s implicit threat to control other stocks if the IWC does not come up with a solution satisfactory to whaling and nonwhaling nations. Kaye Anable, NAMMCO Defies the International Whaling Commission’s Ban on Commercial Whaling: Are Whales in Danger Once Again?, 6 Transnat’l Law. 647 (1993). Anable suggests that if the IWC continues the moratorium, it will delight conservationists; it may push some IWC members toward endorsing or joining NAMMCO; and it will increase the likelihood of Japan’s acting on its threat to form a Pacific Rim whaling organization. For Anable, it is essential that the IWC recognize that such action will ultimately undermine the moratorium and the organization. Id. at 648–69.

Anable argues that a centralized management organization is preferable to regionally based management, both because whales are migratory and because only a centralized organization can effectively coordinate the actions of all nations. Patricia Birnie also has written that a single organization is better than a multiplicity of regional organizations for purposes of compliance with international law and treaties, not just for ecological reasons. “[The IWC] is the most competent organization for purposes of the LOS Convention, UNCED and the Biological Diversity Convention (Article 5) …. Regional organizations are not excluded from playing a role, but this should be subject to IWC guidelines and overview.” Birnie, supra note 51, at 514.

Anable suggests that a politically “workable compromise”—less nuanced than that offered by Young et al.—would be for the IWC to “allow a gradual, controlled resumption of whaling in return for an agreement to follow the mandates of the IWC to avoid the risks of extinction.” In exchange, the IWC could “impose stricter inspection and observer schemes to assure that the management scheme is being followed.” Anable, supra, at 650–51.

105 Debora MacKenzie, Whales win southern sanctuary, New Scientist, June 4, 1994, at 7.

106 Id. The sanctuary’s boundary is complex, but essentially runs along 40° south latitude, dipping south to 60° south latitude off the coast of Chile, and running adjacent to the Indian Ocean sanctuary at 55° south latitude.

107 It earlier had been asserted by some that Japan, the only state voting against the sanctuary in Puerto Vallarta, would have enough votes to deny passage by the required three-quarters of the votes of the 36 IWC members then eligible to vote. From February 21 to 25, 1994, a 26-member working group of the IWC held a technical intersessional meeting at Norfolk Island, Australia, to discuss establishment of a Southern Ocean sanctuary. Japan’s ability to block the sanctuary was weakened almost immediately when the Solomon Islands, which did not send a delegate to the session, announced that it would not attend the May IWC meeting in Mexico, either. The Solomon Islands had been one of the few IWC members to vote against the sanctuary proposal at the IWC meeting in Tokyo. Solomon Islands Prime Minister Billy Hilly acknowledged that he had since received “numerous impolite letters from Australian and New Zealand citizens” on the issue. David Williams, Legal Issues Figure Strongly in Whale Sanctuary Talks, Agence Fr. Presse, Feb. 22, 1994; Ally of Japan Won’t Attend Whale Forum, CHICAGO Trib., Feb. 22, 1994. Although the IWC working group in Norfolk Island produced a statement indicating that “[t]here are no irreconcilable objections to establishing a sanctuary in conformity with Article 5 of the 1946 Convention,” after the meeting both environmentalists and prowhaling nations stated that Japan had enough votes to block the sanctuary’s approval at the May meeting. Japan Has Numbers to Block Whale Sanctuary Vote, Japan Econ. News-wire, Feb. 24, 1994. Looking back, such statements were clearly intended to keep supporters of the sanctuary initiative working hard on its behalf.

108 Resolution entitled “A Southern Ocean Whale Sanctuary” (May 22, 1994) (on file with author) (emphasis added).

109 See, e.g., Chairman’s Report of the 45th Annual Meeting of the IWC 8–10 (Nov. 8, 1993) (on file with author).

110 See, e.g., statements of Justin Cook, quoted in MacKenzie, supra note 105 (arguing that Norway did not adequately correct for possible double assignment of “missed whales” in statistical adjustment of observer counts). See also Hadfield, supra note 50.

111 A third argument involved allegations of vote buying. Norway, Japan and four Caribbean countries—Grenada, St. Lucia, Dominica, and St. Vincent and the Grenadines—voted against the sanctuary proposal at the 1994 intersessional meeting in Norfolk Island. All four Caribbean nations receive large-scale Japanese aid. Paul Brown, Sanctuary for Whales Proposal Gets Support, Gazette (Montreal), Feb. 28, 1993, at B8. Outside the meeting, environmental groups in Sydney condemned Japan for allegedly bribing developing countries by offering foreign aid in return for assistance in blocking the proposed sanctuary. A Japanese media report stated that the country’s whaling industry had spent $300 million to buy votes in anticipation of the IWC’s consideration of the Southern Ocean sanctuary. Green groups issued a background paper called “Japan’s Vote Consolidation Operation” naming Grenada, Dominica, St. Lucia, and St. Vincent in the Caribbean, the Solomon Islands, Papua New Guinea, Kiribati and Tonga in the Pacific, and the Philippines, Indonesia and Thailand as countries offered aid in exchange for pro-Japan votes. Kalinga Seneviratne, Antarctica—Environment: Whale Sanctuary Approved, Inter Press Service, Feb. 24, 1994. IWC Vice Chairman Peter Bridgewater reportedly acknowledged in a meeting with environmental groups that Japan’s vote buying was “transparent,” but said that because there was no documentary evidence, there was nothing that could be done about this “remarkably shabby” practice. Environment Groups Accuse Japan of Buying Whale Votes, Agence Fr. Presse, Feb. 16, 1994. Japan denied the charges. Whaling: Antarctic Haven Has ‘Good Chance,’ Delegate Says, Greenwire, Feb. 17, 1994.

This argument is undercut by the fact that the attempts to influence voting were not limited to Japan. The International Wildlife Coalition stated, for example, that it was contemplating tourist boycotts against prowhaling Caribbean states unless these nations “change their policy of blatant support of Japanese whaling officials.” International Wildlife Coalition President Daniel Morast, quoted in Marva Cossy & Terry Ally, Caribbean—Year Ahead: Tough Decisions Hanging in the Air, Inter Press Service, Dec. 14, 1993. But Greenpeace stated it would not target a country’s only means of economic survival. Greenpeace whale campaigner Majolaine Souquet, quoted in id. Moreover, much of the history of the IWC has seen efforts by both pro- and antiwhaling interests to influence membership and voting. See, e.g., Peterson, supra note 4; and Birnie, Developing Countries, supra note 6.

112 Natalie Angier, DNA Tests Find Meat of Endangered Whales for Sale in Japan, N.Y. Times, Sept. 13, 1994, at C4.

113 David Hearst, Soviet Files Hid Systematic Slaughter of World Whale Herds, Gazette (Montreal), Feb. 12, 1994, at D9.

114 Id.

115 David Williams, We Didn’t Know About the Whale Slaughter, Agence Fr. Presse, Feb. 23, 1994.

116 Hearst, supra note 113. The French delegate to the Norfolk Island meeting said reports of Russia’s previously unknown whale kills would also strengthen the case for a sanctuary. David Williams, Tough Battle Looms Over Whale Sanctuary Plan, Agence Fr. Press, Feb. 20, 1994.

117 Angier, supra note 112 (quoting Dr. Stephen Palumbi of the University of Hawaii).

118 Williams, supra note 107.

119 Michael Szabo, DNA test traps whale traders, New Scientist, May 28, 1994, at 4. The testing is also reported in Angier, supra note 112. The scientific findings are set out in full in C. Scott Baker & Stephen R. Palumbi, Which Whales are Hunted? A Molecular Genetic Approach to Monitoring Whaling, Science, Sept. 9, 1994, at 1538.

120 Angier, supra note 112.

121 Id.