1 Introduction
The International Convention for the Regulation of Whaling, 1946, (ICRW or Convention) is a long-standing international wildlife treaty.1 The Convention established and empowered the International Whaling Commission (IWC or Commission) to operate as the primary venue for international whale conservation and management through the maintenance of the ICRW’s legally binding regulatory Schedule and non-binding resolutions.2 The ICRW/IWC regime is premised on dual, but interconnected, purposes: to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”.3 Unfortunately, the ICRW/IWC has rarely achieved either objective.4
The Convention/IWC’s history can be divided into two phases: (1) market control (1946–1982); and (2) non-use (1982–present).5 The catch-restriction period encompasses the IWC’s efforts to steward the commercial whaling industry by preventing overexploitation through regulatory market-based use measures (eg catch quotas and associated mechanisms), as informed by the technical work of the IWC’s Scientific Committee.6 The transition from market control to non-use was actualised by the passage of a legally binding non-use measure in the form of the commercial whaling moratorium in 1982, which
The IWC’s commercial moratorium stands as one of the most prominent examples of a non-use measure in international environmental law. It is remarkable for the dramatic shift in whaling policy it achieved and for its embodiment of the evolving norms of precaution, sustainability, and wildlife stewardship.9 Moreover, it remains one of most polarising actions taken by the IWC in its 76-year history. Whaling, which is an extractive practice can, at least in theory, be sustainably continued so long as catch limits and associated monitoring and enforcement procedures are developed and applied. The IWC’s decision to eliminate commercial hunting was a reaction to decades – if not centuries – of unsustainable use. In addition to the commercial moratorium, the IWC has also utilised Whale Sanctuaries, which are ocean spaces dedicated to whale conservation and preservation, as another non-use measure to aid species recovery and to backstop the commercial moratorium by prohibiting whaling within defined regions. While this chapter focuses on the commercial moratorium, Whale Sanctuaries will be discussed as appropriate.
Our contribution to this volume offers an assessment of the legal and socio-political conditions that made it possible for the IWC to pass the commercial moratorium. The goal is to offer a concise history of the commercial moratorium that can be used when considering the role of non-use measures in other legal forums. Specifically, this chapter focuses on the ICRW’s legal framework, the negotiating and voting preferences for key ICRW Contracting Governments, and the impact that the moratorium has had on the ICRW/IWC’s subsequent implementation. This chapter adds to the ongoing debate regarding the IWC’s utility by examining the ICRW/IWC’s functionality, situated
The analysis proceeds in sections. Following this introduction, section 2 introduces the IWC’s political and legal history. Next, section 3 presents the 1970–1982 transitional period at the IWC, within some of its Member States, and in other international forums, when concerns about whaling moved further towards conservation. In section 4, we examine the circumstances leading up to and including the vote to set zero catch quotas for commercial whaling at the IWC in 1982 and work to unpack the various and competing justifications that were presented for and against the adoption of this non-use measure. Finally, in section 5, we consider the commercial moratorium’s impact on the IWC and its utility as a model for future non-use measures.
2 The IWC – History, Socio-Political Perspectives, and Legal Framework
2.1 Pre-IWC Efforts to Manage Whaling
Whales have been utilised as an important natural resource for millennia. Modern industrial whaling, which began in earnest in the 19th century, fell under the “doctrine of freedom of the high seas”10 and whales were an open-access resource, free for all States to hunt.11 Uncontrolled access to whales and twentieth-century mechanised whaling meant that the major whaling States’ pursuit of oil, baleen, meat and blubber exploited various whale populations to near collapse.12 The decline in whale populations precipitated some cooperative effort to manage whaling for the purposes of safeguarding the whaling industry in the 1920s and 1930s,13 including the 1931 Convention for the Regulation of Whaling and the 1937 International Agreement on the Regulation of
In 1938, the Whaling Committee of the International Council for the Exploration of the Sea “recommended a limit on the allowable amount of oil produced by whaling”, with a particular focus on Antarctic whaling.15 Initially hindered by global conflict, the Whaling Committee acted aggressively in 1944 to “set a maximum catch limit well below the pre-war catch level”.16 However, even these actions were insufficient to halt whale stock decline.
2.2 Establishment of the ICRW and the IWC
Post-World War II, and recognising the “need for proper and effective conservation and development of whaling stocks” and the whaling industry, fifteen whaling States concluded the International Convention for the Regulation of Whaling and, thus, constituted the International Whaling Commission.17 The Convention’s original focus and work has been critiqued as a “club for whaling and industries they supported”,18 with the majority of Contracting Governments participating to ensure or preserve their commercial whaling interests.19 The drafters, who were mindful of global fat and oil shortages and post-World War II economic recovery, sought to meet “the need to avoid economic and nutritional distress in the regulation of the whaling industry” while simultaneously “regulating catches in various ways to restore the depleted stocks to full productivity and to prevent overfishing of other stocks”.20 This statement captures the Convention’s internal tension – balancing of whale conservation with short-term economic goals and the long-term orderly industrial development.21
The Convention is widely available for State participation owing to an open accession clause that does not require any “actual involvement in whaling” to become a Contracting Government and voting member of the IWC.24 Pursuant to Article II.4, a State must simply deposit an instrument of ratification or give notice of adherence. Additionally, the IWC’s Rules of Procedures, section E has a “relatively low financial assessment of the regime, establishing no threshold for most states”.25 Together, these features have facilitated a fluctuating membership over the past eight decades, which has had particular ramifications for setting or implementing the IWC’s regulatory trajectory, in particular with non-whaling States wielding considerable influence.
2.3 The ICRW/IWC’s Legal Framework and Functionality
2.3.1 Decision-Making at the IWC
Decisions of the IWC, including proposed Schedule amendment, are made through consensus or by vote and any proposal for a Schedule amendment must contain the text of the proposed regulatory action.26 Proposals to amend the Schedule require a three-quarter voting majority of those casting an affirmative or negative vote to effect an amendment.27 Despite the requirement of a three-quarter majority vote, the Schedule has been amended many times.28
Each Contracting Government, as per Article III.1, can issue one vote, which is taken by a show of hands or roll call.30 The IWC’s Rule of Procedures requires the attendance of the majority of the members of the Commission to constitute a voting quorum.31 This requirement has allowed delegations to block amendments simply by breaking the quorum rule. For example, at the 68th meeting of the IWC in 2022, 14 Contracting Governments coordinated walkouts to ensure that the vote to approve the creation of a new South Atlantic Whale Sanctuary could not proceed.32 This has some Contracting Governments calling for a clear definition of attendance to ensure that quorum blocking does not become a recurring issue.33
2.3.2 Regulatory Authority and Schedule Amendments
The ICRW is a short convention, with only eleven articles that establish the relevant legal framework.34 Much of the heavy lifting is achieved through the legally binding regulatory Schedule that sets the parameters for legal whaling and serves as the chief mechanism available to the IWC to manage whale conservation through evolving circumstances.35 The Schedule is regularly updated and, prior to the commercial whaling moratorium, was used to set commercial whaling quotas.36
IWC regulations, which are found in the Schedule, as amended, must relate to the “conservation and utilization of whale resources”,37 be based on scientific findings,38 and relate to one of the enumerated subjects in Article V.1 of the Convention: (1) designating protected species; (2) designating whaling seasons; (3) designating open and closed waters, including sanctuaries;
Article V.3(a) of the Convention allows Contracting Governments to opt out of any Schedule amendment by presenting their objection within ninety days of the vote. The Commission then notifies each Contracting Government and an additional ninety-day period commences wherein any other Contracting Government may object.39 After the second period passes, the amendment becomes effective on all non-objecting Contracting Governments.40 This opt-out system is a significant concession that limits the Schedule’s regulatory impact.41 Using the opt-out clause, Contracting Governments can avoid decisions detrimental to their interests even if their actions work against the Convention’s purposes. Conversely, failure to “include any such mechanism could have reasonably led to the alienation of some states, thus undermining whatever chances for interstate cooperation and action may have existed at the time”.42
2.3.3 Enforcement and Compliance
The IWC’s legal authority is limited in that the Convention does not establish enforceable penalties or provide recourse to dispute resolution.43 The ICRW’s enforcement provision, Art. IX, leaves Contracting Governments to take “appropriate measures to ensure the application and provisions of this convention”.44 Accordingly, Contracting Governments are to take the necessary legislative and prosecutorial actions to prohibit and penalise Convention infringements.45
Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study. (emphasis added)
The scope of Article 65 is broadened by Article 120, which expands its application to the high seas, and its content is considered to reflect customary international law.48 While true that the word ‘cooperate’ is ambiguous, McDorman argues that it is the duty to cooperate in ‘good faith’.49 Young and Sullivan argue that the ICJ’s endorsement of a “reasonableness standard” in the Whaling in the Antarctic decision is “very much like a good faith standard”.50 This good faith standard applies not only to the application of member States’ obligations under the IWC but also to the obligations owed by non-member States to the ICRW.51 If this interpretation is correct, even States that object to any Schedule amendment or are not Contracting Governments to the Convention have an obligation to cooperate and cannot take any actions “that undermine their obligation to work through appropriate international organizations in good faith”.52
3.1 A Changing Seascape
By the late 1960s, the IWC was in crisis as it struggled to implement sustainable catch limits and manage the whaling operations.53 The IWC’s management challenges were exacerbated by the declining value – and utility – of whale oil that was being replaced by reliable fossil fuels and by the increasing difficulty that whalers experienced in finding and catching whales.54 With the economic justification for industrial whaling dwindling, the stage was set for conservation to emerge as the IWC’s top priority.55
A temporary whaling moratorium was proposed at numerous IWC meetings throughout the 1970s but “whaling nations were sufficient in number to block the [three-quarter] majority required to adopt the [necessary] resolution”.56 This would soon change as an aggressive recruitment campaign, led by the United States using diplomatic pressure and buttressed by the United Nations Secretary General urging all UN members to adhere to the ICRW, attracted new Contracting Governments.57 This period of recruitment would have a significant effect on the IWC’s trajectory and voting outcomes. Our examination of the IWC’s meetings in the decade leading up to the 1982 vote on a commercial whaling moratorium demonstrates a significant shift in the IWC’s activity and a transformation in its functionality. This section explores these developments, chronologically and thematically, to isolate the key moments that helped actualise the enactment of the moratorium.
3.2 The Rise of Environmentalism and ‘Save the Whales’
On April 22nd, 1970, 20 million people marched in protest of environmental destruction on what is now marked annually as Earth Day. The event evidenced a shift in attitudes, values and beliefs of citizens around the world,
The impact of this citizens and environmental group pressure was multifaceted and significant, as New Zealand’s experience usefully illustrates. New Zealand’s withdrawal from the IWC in 1968 received minimal domestic consideration. But, by 1973, New Zealand’s government was being pressured by citizens to return to the IWC in order to pursue the end of whaling.62 By 1974, the government reported that such requests “began pouring in” and that they presented “a wide range of arguments against whaling”.63 New Zealand re-joined the IWC in 1976 and, in its introductory remarks, echoed their citizens’ public sentiment by urging Contracting Governments to use their influence to preserve whales.64 New Zealand’s experience was not unique; the anti-whaling movement reached global impact65 and countries such as Argentina, the United Kingdom, and the United States began to address the IWC about the institution’s responsibility to conserve dwindling whale populations.
3.3 Domestic Legal Action and Political Pressure in the United States
By the start of the 1970s, the United States had protected all commercially hunted whale species under the Endangered Species Act, effectively banning
to initiate bilateral and multilateral agreements to protect and conserve all marine mammals, to amend the existing international treaties to which the United States was a party to make such treaties consistent with the purpose and policies of the MMPA, and to endeavour to convene a ministerial meeting on marine mammals to negotiate a binding international convention that would ensure comprehensive protection for various species.72
when a nation was certified as conducting fishing operations or engaging in trade or taking that diminished the effectiveness of the ICRW, the president was required to cut its fishery allocation in United States waters by at least 50 per cent.77
The Packwood Amendment directly supported the United States’ proposed commercial whaling moratorium and the mere threat of certification was enough to persuade “nonmember IWC states to join the IWC, and discouraged IWC members from resorting to procedural objections to defeat conservatory amendments”.78 This legislation proved particularly persuasive for Latin American countries such as Chile and Peru, that joined the IWC after the threat of certification by the United States. Furthermore, other whaling States including Spain and South Korea joined the IWC in the late 1970s as a result of US pressure.79 Slowly but surely, the United States government and other key States leveraged their political power to transform the IWC’s membership from
3.4 Activity at the IWC and at Other International Legal Forums
The 1972 United Nations Conference on the Human Environment (UNHE) produced three whale conservation proposals targeted at the IWC: (1) a recommendation to strengthen the Commission, which spurred an increase in IWC membership by non-whaling States; (2) a call to increase international whale research efforts; (3) a recommendation for a ten-year commercial whaling moratorium to facilitate population recovery. The vote amongst UNHE participating States on the commercial moratorium passed 56 to 0 (12 abstentions).81 Although not enforceable, it was a demonstrable show of strength by non-whaling States that applied political pressure to the IWC.
Following the UNHE, the United States advanced the first proposed moratorium on commercial whaling before the IWC in 1972. This proposal was premised on the existence of scientific uncertainty, in particular in light of the complexity of the marine ecosystem. The United States asserted that the need for a moratorium “happens to be the view of most of the countries in the world”.82 Japan responded that whaling provided Japan with the most important means of protein and was a significant industry valued at US$110 million.83 It expressed concern about the socio-economic impact of a moratorium.84 Japan also reminded the IWC that the Convention’s object and purpose was to “make possible the orderly development of the whaling industry”, and that a moratorium was not “compatible with the intent in the spirit of the convention”.85 The USSR echoed these concerns, pointing to insufficient scientific data to justify a moratorium.86 Denmark suggested that the IWC was making progress in the right direction using existing management measures, and that they would not support a moratorium at this time.87 The United States’ proposal ultimately failed with 4 yes votes, 6 no votes, and 4 abstentions.
In 1974, a commercial moratorium was once again proposed by the United States and defeated. Alternatively, the IWC adopted Australia’s proposed New Management Procedure, which set a new quota setting mechanism that would serve as a ‘selective moratorium’ for species too depleted to sustain a hunt.90 Using improved biological knowledge and scientific data, whale stocks would be managed with the concept of the maximum sustainable yield. The goal was to reduce the level of captured whales to a level that would ensure their conservation. This effort, however, did little to improve the status of stocks. In 1978, Panama advanced two separate commercial whaling moratorium proposals.91 The verbatim records for the 1978 IWC meeting evidence the continued clash between conservation and economic concerns. Ultimately these proposals failed.
Frustration continued to mount at the IWC meetings, which featured “inconclusive blockages leading to unsatisfactory compromises” with “little attention paid to quotas and other important issues”.92 Accordingly, Contracting Governments and environmental groups increasingly focussed their efforts on the growing IWC membership for the purposes of influencing voting outcomes.93 At this point all but one of the world’s whaling States – Portugal – were Contracting Governments, and the recruitment effort to defeat the whaling State contingent with the necessary three-quarters majority vote focused on developing States and pro-conservation States that did not have a history of whaling.94 Sweden, for example, became the first State whose main motivation in joining the IWC was to oppose commercial whaling. The Seychelles, which also joined in 1979, was motivated primarily by an interest in creating
In parallel, discussion about whale conservation was pursued in a new forum – the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES, which was concluded in 1973 and entered into force two years later, requires species to be listed in appendices according to their conservation status. Under CITES, the international trade of listed species is more or less strongly restricted, depending on their appendix designation. Trade in Appendix II species, which are less threatened, only requires an import permit, while both import and export permits are needed for Appendix I species. Importantly, CITES parties have to demand non-parties they might be trading with to produce similar documentation as that required under the treaty. Some whale species were listed on CITES Appendices at the first Conference of the Parties in 1976 and, by 1979, all great whale species were listed on CITES appendices. This placed additional legal and economic pressure on those States that were still trading in whale products. The IWC followed suit, recommending that its Contracting Governments refrain from supplying whales and whale products to non-Contracting Governments. This policy further prompted South Korea to join the IWC in 1979 so that they could trade whale products with Japan.96
The final major legal development that occurred through the 1970s and into the 1980s was the Third United Nations Conference on the Law of the Sea (UNCLOS III, 1973–1982), which ultimately produced UNCLOS. Somewhat surprisingly given the politically charged nature of whale conservation and whaling, marine mammals were singled out “as a special resource deserving additional consideration”97 during UNCLOS III. The result was Article 65, which is extended to the high sea by Article 120.
In 1980, when the first draft of Article 65 was proposed by the United States delegation, Ambassador Elliot Richardson opined that “the new provision establishes a sound framework for the protection of whales and other marine mammals” through which “States and international organizations may pursue
The developments between 1970–1982 dramatically altered the international whale management dynamic, both within the IWC and outside of it. Governments then faced considerable public and political pressure to act to protect whales. Also, the efforts of environmental groups and conservation-focused Contracting Governments to recruit non-whaling and pro-conservation States to the IWC now bore fruit. From 1974–1982, twenty-four new Contracting Governments joined the IWC, increasing membership from fourteen nations to thirty-nine in 1982 (Table 7.1).101 The intense recruitment efforts resulted in an IWC membership overwhelmingly comprised of non-whaling States, which tilted the balance of power. The stage was set for a dramatic shift in international whale management at the IWC’s 34th annual meeting in 1982.
4 The IWC Enters the Non-use Era
4.1 Review of the 34th International Whaling Commission Meeting: July 1982, Brighton, UK
4.1.1 Technical Committee Consideration
Five Contracting Governments advanced commercial moratoria proposals at IWC34 under Agenda Item 6 ‘Ending of Commercial Whaling’: “Seychelles – A Negotiated End to Commercial Whaling; United Kingdom – Cessation of All Commercial Whaling; US – Indefinite Moratorium on Commercial Whaling; France – Suspension of Commercial Whaling of Great Cetaceans and Australia – Cessation of Commercial Whaling”.102 In advance of the meeting,
While introducing their proposal to the Technical Committee, the Seychelles stressed the need for the IWC’s Contracting Governments to find a workable compromise that would take a “gradual approach towards ending commercial whaling” while allowing for a “reorientation of the whaling industry”.103 The Seychelles proposal was framed as zero catch limits for all stocks for the 1986 coastal and 1985/86 pelagic seasons; the term ‘moratorium’ was notably absent. This is pure semantics, in our opinion, since the effect – eliminating all commercial whaling on each specific hunted species – accords with a traditional view of what constitutes a moratorium at international law: “a postponement or suspension of an activity” that is a “deviation from the proper or expected course” to “serve certain purposes” or represent “an exception to normal practice”.104 The proposal also shifted the burden of proof to whaling States to propose non-zero catch quotas on a species-by-species basis if they intended to return to commercial whaling under the auspices of the IWC.105 This reduced the ability of whaling States to overturn the decision to establish a moratorium, as there would need to be a three-quarter majority vote in favour of restoring the quotas at the individual species level.106 The Seychelles’ proposal picked a gradual phase to a zero catch limit starting in 1985 because the majority of the existing whaling quotas would have ended at that time.107 The Seychelles’ proposal passed through the Technical Committee, easily surpassing the simple majority requirement. In fact, the proposal passed with one vote over the three-quarter majority that would be required at the Plenary.108
Notwithstanding the other provisions of paragraph 10, catch limits for 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 modification of this provision and the establishment of other catch limits.109
The Contracting Governments agreed to a four-year grace period to allow time for whaling States to adjust to the economic impact of zero catch quotas, which is why zero catch quotas did not take effect until 1985/86. The zero catch quotas were also expressly contemplated as being temporary, with the possibility of commercial whaling resuming when stocks had sufficiently recovered.110
The complete voting record is presented in Table 7.1 at the end of this chapter, which also identifies whether the Contracting Government had joined the IWC within the IWC’s transitional period (1970–1982), as explored in section 3. Many of the votes are as expected (eg United States, United Kingdom, Australia, New Zealand voted yes while Iceland, Japan, and Norway voted no).
4.2 Multicausal Explanation for the Commercial Moratorium
To understand how the zero-catch quota passed by three-quarters of the IWC membership at the Plenary, it is appropriate to analyse the meetings’ verbatim record.112 The verbatim record clearly reveals a multicausal explanation for why the moratorium passed and indicates that neither the ‘yes’ vote or the ‘no’ vote was motivated by a unified perspective. Our review of the record has organised these motivations into seven categories, which are canvassed below: (1) the object and purpose of the Convention; (2) the need for precautionary decision-making and scientific uncertainty; (3) the requirement of science-based decision-making; (4) the implications for sovereignty and sovereign rights; (5) the humaneness of whaling; (6) the economic and social impact of a commercial whaling cessation upon whaling States; and (7) the future of the IWC. The complete voting record is presented in Table 7.1 at the end of this chapter, which also assigns each motivation to the Contracting Government that expressly or implicitly invoked it during debate and discussion.
4.2.1 Object and Purpose of the Convention
Several Contracting Governments queried whether the proposed moratorium was consistent with the object and purpose of the Convention. The Convention, as previously introduced, was established to create a system of international regulation for whale fisheries “to ensure proper and effective conservation and development of whale stocks […] and thus make possible the orderly development of the whaling industry”.113
A number of Contracting Governments asserted that the proposed zero catch limit aligned with the object and purpose of the Convention. For example, Australia asserted that owing to steep declines in whale populations, the ICRW’s conservation objective must, at this time, become the “over-riding
Several States, however, disagreed. Norway stated that “the intention to end whaling is not in the purpose of the IWC for rational management of renewable living resources”116 and went so far as to say that the proposal was deplorable and incompatible with the purpose of the IWC. Spain also asserted that the proposal was incompatible with the Convention’s core objective.117 South Korea agreed with Spain and Norway, stating that the moratorium was “in contradiction with the Convention’s objectives”.118 Iceland argued that the “adoption of a moratorium on all commercial whaling based on the strength of votes but not on scientific findings nor recommendations of the Scientific Committee […] is in our opinion most certainly contrary to the fundamental objectives and purposes of the Commission”.119 Japan stated that the proposal violated the Convention and that the fundamental duties and rights of the Convention could not be changed in this way.120
4.2.2 Precautionary Decision-Making and Uncertainty
The verbatim record reveals that several countries stated that the lack of scientific certainty and the current management system were unable to give whales the required protection they deserved and asserted that this uncertainty justified precautionary action. St. Lucia drew attention to this uncertainty, observing that “the scientific uncertainty as to the rationale behind the exploitation of most stocks of whales has led us to believe that we are in a state of grave doubt”.121
Several Contracting Governments made statements that aligned with precautionary thinking. The Netherlands commented that the history of “the IWC management has shown that a serious decline in stocks has occurred, which must not occur again”, stating that the “benefit of the doubt must be given to the whales”.122 This was echoed by the delegation from the United Kingdom, which stated that there is a “possibility of changes in scientific advice in future
4.2.3 The Requirement of Science-Based Decision-Making
In opposition to some State’s arguments based on a precautionary approach in light of scientific uncertainty, several other countries however believed that the lack of scientific knowledge was the reason the moratorium should not be supported.126
Spain asked for the members to consider the Scientific Committee report, which stated that there is no scientific justification for a zero catch limit.127 Japan opined that the present management procedures did not threaten whale stocks and that the collection of additional scientific data collection – which relied on the examination of dead whales – would be hampered by a moratorium.128 Japan pointed to the Scientific Committee’s continued position that a zero catch limit was not necessary and highlighted that not a single scientist had claimed that a moratorium was the “only means, to achieve the conservation of the whales”.129 Japan pointed to the Scientific Committee’s estimate of over 300,000 mature minke whales in the Southern Ocean to bolster the position that some stocks could sustain a hunt.130 South Korea stressed that the proposal, which “defies the basic objective of the IWC”, lacked scientific support.131 Iceland stated that adopting the moratorium based on votes instead of scientific findings is contrary to the fundamental purpose of the Commission, which demands science-based decision-making. Norway echoed this and opined that the absence of a recommendation by the Scientific Committee
4.2.4 Sovereignty and Sovereign Rights
Several States opposed the moratorium on the basis that it would not be consistent with coastal States’ rights in their EEZs.
Latin American countries were particularly focused on preserving sovereignty and sovereign rights. Uruguay was the first country to raise the issue of sovereignty/sovereign rights within the 200-mile EEZ of coastal States at the IWC. The EEZ, which was contemporaneously being negotiated at UNCLOS III, allows coastal States to claim management jurisdiction over marine resources which were historically accessible for all States to exploit. Uruguay stated that they agreed with the moratorium but that it would not apply within their EEZ.133 Uruguay’s position was supported by Mexico, Peru, Brazil, Argentina, Costa Rica, and Chile. Costa Rica, however, added that this position should not “diminish the proposal put forward by the Seychelles”.134 France’s verbatim record shows that they too declared sovereign rights over the resources in their EEZ, but that they had chosen to apply a moratorium to all their waters.135
Japan and the USSR spoke to the implications of the moratorium vote as being “crucial to the future of the Commission, including resource utilization within the 200 miles zone and the sovereign rights issues”.136 Japan’s delegation pointed out that the proposal for a moratorium which would “prevent member countries from utilizing whale stocks in their coastal waters represents a flagrant infringement of the sovereign rights of those countries” and concluded that the moratorium was inconsistent with the “practice and customary law” of the EEZ.137
4.2.5 Humaneness
Several countries including the United Kingdom and Antigua and Barbuda questioned the humaneness of whaling and offered this consideration as
4.2.6 Economic and Social Impact of a Commercial Whaling Cessation upon Whaling Countries
Considerations related to the socio-economic impacts of a moratorium were addressed by both proponents and opponents of this non-use measures. The Seychelles, who proposed the moratorium, spoke of the need for “sufficient time to wind down [whaling] without undue hardship”.140 They proposed three years as a reasonable amount of time for countries to shift their industries and Australia supported this phasing out approach.141
However, several States expressed strong arguments against the moratorium because of its envisaged socio-economic impacts. To India and Costa Rica’s argument that whale stock recovery through conservation efforts was essential in order to facilitate future utilisation,142 Iceland responded that the moratorium had no regard for the economic or social importance of whaling.143 Spain echoed that view, “as a fishing and whaling nation especially concerned about the economic and social implications that this measure implied and the effort that the governments [would] have to make to overcome these problems”.144 They stated that their firm position was that whales should be “managed in such a way that consideration such as the further use of them or the reasons or means for their capture should not be taken into consideration”.145
A final consideration that warrants attention, but is less explicit than those canvassed above, is the broader impact of the moratorium vote on the IWC’s future; such argument was generally brought up by States supporting the moratorium. For example, St. Lucia recognised that, when the ICRW was signed in 1946, whale stocks were not depleted – or at least not regarded as such – and that the Convention, as drafted, did not anticipate overexploitation or the need to pause commercial whaling.146 In support of the moratorium, St. Lucia pointed to shifting public opinion and international conservation efforts, evidenced for example by the World Conservation Strategy and the work of CITES, as signs that the IWC needed to evolve.147 The United Kingdom spoke to the need to consider the future of the IWC at the time of this vote, which, in this context, is an acknowledgement that this vote represented not only a decision on the appropriateness of instituting a non-use measure but would also demark a shift in the Commission’s future work as stewards of the world’s great whale species.
However, States opposing the moratorium also referred to the future of the IWC, in particular by arguing that the adoption of such a measure, by going against the object and purpose of the Convention, would be fatal for the regime. Japan, for example, stated that they believed that the proposed moratorium would result in the eventual collapse of the IWC.148
4.3 Reactions to the Moratorium
States that had voted against the whaling moratorium reacted in different ways. Brazil, for example, accepted the majority decision and did not take any additional action. Iceland, at first, did not object to the moratorium, but it subsequently withdrew from the IWC in 1992. When it later re-adhered to the ICRW in 2002, it did so with a reservation to the commercial moratorium and resumed commercial whaling in 2006.149
Several others States that had opposed the moratorium, Norway, the USSR, Peru, and Japan, made timely objections pursuant to Article V of the Convention. This allowed them to continue commercial whaling.150 From there, their paths differed. While Japan had initially objected, it then withdrew its objection under political pressure from the United States.151 Peru and the USSR also
5 The Current State of the Moratorium and Concluding Thoughts
After the moratorium came into effect, whaling continued in a number of forms, including commercial whaling by those States that had objected (eg Norway) and also under the auspices of Special Permit scientific whaling pursuant to Article VIII of the Convention (eg Japan). Japan’s reliance on Article VIII resulted in many years of “heated and destructive debates at the IWC”153 and, ultimately, in Australia seeking relief before the International Court of Justice in 2010. In 2014, in Whaling in the Antarctic, Australia and New Zealand (intervening) v Japan,154 the ICJ held that Japan’s scientific whaling program in the Southern Ocean did not properly fall within the scope of Article VIII and thus violated the commercial moratorium.
The ICJ’s decision further escalated tension at the IWC as pro-sustainable use Contracting Governments urged the IWC to return to regulated commercial activities while a strong majority urged maintenance of the moratorium and a bolstered preservationist agenda. For example, at the 67th meeting of the IWC in 2018, Japan submitted a package of documents called “The Way Forward of the IWC – IWC Reform Proposal including a draft Resolution and proposed Schedule Amendment”, which “represented an attempt to restore the function of the IWC as a resource management organization”.155 The package proposal, which was initially supported by 16 Contracting Governments, was subsequently revised and submitted as a proposal to, inter alia, establish a Sustainable Whaling Committee, move forward with calculating catch limits of abundant stocks through the Schedule, and to amend the Convention to require a simple majority rather than a three-quarter super majority for future Schedule amendments.156 The proposal, which would have required consensus to pass owing to the proposed Convention amendment, was not adopted with a final vote of 27 in favour, 41 against, and 2 abstentions.157 In stark contrast to Japan’s proposal, the Commission then proceeded to adopt the Florianópolis Declaration as introduced by Brazil, which reaffirmed a
The commercial moratorium has arguably become a “law in a state of suspension” that is moving towards “permanent postponement” of whaling.159 In this form, the moratorium is representative of a preservationist approach to whale conservation that has effectively displaced the sustainable use approach to whale management. The strongest arguments advanced during the debate at the IWC before the moratorium vote in favour of the moratorium were premised on scientific uncertainty regarding population assessment and the need for precautionary action.160 These arguments do not carry as much weight today as increased scientific evidence suggests that some species such as the minke whale can sustain a hunt. Nonetheless, and as observed by Epstein, “the whaling ban, and the convergence of state and nonstate action that enabled it, entrenched endangered species protection as the first global environmental norm, both in the IWC and beyond” and it “remains a defining paradigm for global environmental action”.161 The whaling moratorium demonstrated the potential for strong prohibitions and arguably paved the way for other international non-use measures, including the 1989 CITES Ivory Ban.162 It has more generally been important as a point of comparison for other non-use measures.163 It is the product of a convergence of factors – legal, political, and scientific – at a moment in time when the balance of power at the IWC tipped sufficiently in favour of a conservationist movement that the super-majority needed to amend the Schedule was possible. In this way, the whaling moratorium serves as a model for future non-use measures in various international legal venues.
Voting data from the 1982 IWC commercial moratorium vote
| Contracting government | 1982 moratorium vote | Objection status to vote | Joined between 1970–1982? | Stated reasons for or against moratorium | |
|---|---|---|---|---|---|
| Countries voting ‘YES’ on 1982 moratorium | |||||
| Antigua and Barbuda | YES | N/A | YES | 1982 | Humaneness, Science |
| Argentina | YES | N/A | NO | 1960 | Rational exploitation, Economic and social impact |
| Australia | YES | N/A | NO | 1947 | Humaneness, Precaution, Conservation, Economic and social impact |
| Belize | YES | N/A | YES | 1982 | No record available |
| Costa Rica | YES | N/A | YES | 1981 | Precaution, Sovereign rights, Conservation |
| Denmark | YES | N/A | NO | 1950 | No record available |
| Egypt | YES | N/A | YES | 1981 | No record available |
| Federal Republic of Germany | YES | N/A | YES | 1982 | No record available |
| France | YES | N/A | NO | 1948 | Sovereign rights |
| India | YES | N/A | YES | 1981 | No record available |
| Kenya | YES | N/A | YES | 1981 | No record available |
| Mexico | YES | N/A | NO | 1949 | Sovereign rights |
| Monaco | YES | N/A | YES | 1982 | No record available |
| Netherlands | YES | N/A | YES | 1977 | Precaution, Conservation |
| New Zealand | YES | N/A | YES | 1976 | Science, Purpose of the IWC |
| Oman | YES | N/A | YES | 1980 | No record available |
| Senegal | YES | N/A | YES | 1982 | No record available |
| Seychelles | YES | N/A | YES | 1979 | Precaution, Science |
| Spain | YES | N/A | YES | 1979 | Science, Purpose of the IWC |
| St. Lucia | YES | N/A | YES | 1981 | Precaution, Science, Future of the IWC |
| St. Vincent & the Grenadines | YES | N/A | YES | 1981 | No record available |
| Sweden | YES | N/A | YES | 1979 | No record available |
| United Kingdom | YES | N/A | NO | 1947 | Humaneness, Science, Future of the IWC |
| Uruguay | YES | N/A | NO | 1981 | Sovereign rights |
| United States of America | YES | N/A | NO | 1947 | Precaution, Science, Conservation, Rational exploitation, Economic and social impact |
| Countries voting ‘NO’ on 1982 moratorium | |||||
| Brazil | NO | N/A | YES | 1974 | Sovereign rights |
| Iceland | NO | Reserved in 2002 | NO | 2002 | Science, Purpose of the IWC, Rational exploitation, Economic and social impact |
| Japan | NO | Objected, but later withdrawn | NO | 1951 | Science, Sovereign rights, Purpose of the IWC |
| Norway | NO | Objected | NO | 1960 | Purpose of the IWC |
| Peru | NO | Objected, but later withdrawn | YES | 1979 | Sovereign rights |
| South Korea | NO | N/A | YES | 1978 | Science, Purpose of the IWC |
| Soviet Union | NO | Objected, but not formalized | NO | 1948 | No record available |
| Countries abstaining from vote on 1982 Moratorium | |||||
| Chile | ABSTAIN | N/A | YES | 1979 | Sovereign rights |
| China | ABSTAIN | N/A | YES | 1980 | No record available |
| Philippines | ABSTAIN | N/A | YES | 1981 | No record available |
| South Africa | ABSTAIN | N/A | NO | 1948 | No record available |
| Switzerland | ABSTAIN | N/A | YES | 1980 | Science |
| Dominica | ABSENT/INELIGIBLE | N/A | YES | 1981 | N/A |
| Jamaica | ABSENT/INELIGIBLE | N/A | YES | 1981 | N/A |
Table prepared by the authors
C. Jefferies and H. Stock, “As one door closes, does another open? Assessing the future of the protectionist agenda at the International Whaling Commission post-Japan’s withdrawal” in N. Sellheim and J. Morishita (eds), Japan’s Withdrawal from International Whaling Regulation (1st ed, Routledge 2024) 43.
ibid.
International Convention for the Regulation of Whaling (ICRW) (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72.
Jefferies and Stock (n 1).
ICRW.
ibid.
A. M. Ruffle, “Resurrecting the International Whaling Commission: Suggestions to Strengthen the Conservation Effort” (2002) 27(2) Brooklyn Journal of International Law 639.
I. Hurd, “Almost Saving the Whales: The Ambiguity of Success at the International Whaling Commission” (2012) 25(1) Ethics and International Affairs 104, 104.
See eg A. Peez and L. Zimmerman, “Contestation and norm change in whale and elephant conservation: Non-use or sustainable use?” (2021) 57(2) Cooperation and Conflict 113, 226.
L. Viikari, “International Whaling Commission as a Natural Resource Management Regime: Quest for Balance Between Western Science, State Governance and Indigenous Self-Determination” (2023) 30(2) International Journal on Minority and Group Rights 1, 6. See also V. Schneider and D. Pearce, “What Saved the Whales an Economic Analysis of 20th Century Whaling” (2004) 13 Biodiversity Conservation 543, 544.
ibid 6.
Jefferies and Stock (n 1) 46.
G. Smith, “The International Whaling Commission: An Analysis of the Past and Reflections on the Future” (1984) 16(4) Natural Resources Lawyer 543, 545.
S. T. Latson, “United States Whale Policy: The Judiciary Casts Its Vote in Favor of a Moderate Approach” (1987) 20(1) Vanderbilt Journal of Transnational Law 123, 127.
Jefferies and Stock (n 1) 46.
R. Gambell, “International Management of Whales and Whaling: An Historical Review of the Regulation of Commercial and Aboriginal Subsistence Whaling” (1993) 46(2) The Arctic Institute of North America 97, 98.
C. Jefferies, Marine Mammal Conservation and the Law of the Sea (1st ed, OUP 2016) 42.
Jefferies and Stock (n 1), 46. See also M. Kolmaš, “International pressure and Japanese withdrawal from the International Whaling Commission: when shaming fails” (2021) 75(2) Australian Journal of International Affairs 197.
S. Geha, “International Regulation of Whaling: The United States’ Compromise” (1987) 27 Natural Resources Journal 931.
R. Gambell, “Whale Conservation: Role of the International Whaling Commission Whale conservation: Role of the International Whaling Commission” (1977) 1(4) Marine Policy 301, 303.
ibid 302.
M. Fitzmaurice, “International Convention on the Regulation of Whaling” (2017) United Nations Audiovisual Library of International Law, available at <https://legal.un.org/avl/pdf/ha/icrw/icrw_e.pdf> accessed 17 February 2023.
ICRW, art VIII.
Viikari (n 10) 10.
ibid. The IWC assesses countries’ financial contributions based on membership, the user-pays principle, and delegation size at meetings.
IWC Rules of Procedure and Financial Regulations, ICRW 68th meeting, (amended 26 October 22), E.3(b) (Rules of Procedure). For all other proposals that do not amend the Schedule only a simple majority for those casting votes or consensus.
ibid E.3(a). For all other proposals that do not amend the Schedule only a simple majority for those casting votes or consensus.
ibid art. III (2) in conjunction with art V.
A. Peters, “The International Convention for the Regulation of Whaling: Dead or Alive?” (2021) 45 Animals in International Law 134, 153.
Rules of Procedure (n 26) E.3(d).
ibid B.1.
L. Kyzer, “Iceland Among Nation to Boycott Vote on South Atlantic Whale Sanctuary” (2023) Iceland Review, available at <www.icelandreview.com/politics/iceland-among-nations-to-boycott-vote-on-south-atlantic-whale-sanctuary/> accessed 17 February 2023.
ibid.
ICRW, art III.
Peters (n 29) 152.
Viikari (n 10) 7.
Peters (n 29), 151. See also Rules of Procedure (n 26), art V(1).
ICRW, art V(1)(a-h). When the moratorium on whaling was introduced by way of a Regulation, one of the main criticisms of the moratorium was that it lacked scientific findings.
ICRW, art V(2)(b).
ibid, art V(2)(c).
Fitzmaurice (n 22) 2.
ibid.
Gambell (n 20) 303.
Peters (n 29) 154.
ibid.
Whaling in the Antarctic (Australia and New Zealand (intervening) v Japan) (2014) ICJ Rep 226.
United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.
R. Steenkamp and C. Jefferies, “In Pursuit of the White Whale of Cooperation: The Ability of UNCLOS to Steer the Trajectory of (Future) Commercial Japanese Whaling Operations” (2020) 5(2) Asia-Pacific Journal of Ocean Law and Policy 245, 261.
T. McDorman, “Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention” (1998) 29 Ocean Development and International Law 179, 181.
Steenkamp and Jefferies (n 48) 268. See also M. Young and S. Sullivan, “Evolution Through the Duty to Cooperate: Implications of the Whaling Case at the International Court of Justice” (2015) 16 Melbourne Journal of International Law 311, 335.
Steenkamp and Jefferies (n 48) 268.
ibid.
Viikari (n 10) 8.
K. Dorsey, “National Sovereignty, the International Whaling Commission, and the Save the Whales Movement” in E. M. Bsumek, D. Kinkela, M. A. Laurence (eds), Nation-State and the Global Government: New Approaches to International Environmental History (OUP 2013) 43, 51.
L. Kobayashi, “Lifting the International Whaling Moratorium” (2006) 29(2) Environs 177, 198, available at <https://environs.law.ucdavis.edu/volumes/29/2/kobayashi.pdf> accessed 28 August 2022.
ibid 193.
P. Birnie, “The Role of Developing Countries in Nudging the International Whaling Commission From Regulating Whaling to Encouraging Nonconsumption Uses of Whales” (1985) 12(4) Ecology Law Quarterly 937, 952.
Dorsey (n 54) 51.
B. van Drimmelen, “The International Mismanagement of Whaling” (1991) 10(1) Pacific Basin Law Journal 240, 249.
Dorsey (n 54) 51.
Viikari (n 10) 9.
ibid 52.
ibid.
ibid.
International Whaling Commission, “Twenty-Eighth Meeting” (21–25 June 1976) IWC/28/16, 10–11 (Verbatim, 1976).
Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (adopted 28 December 1973, as amended), 87 Stat 884; “Humpback Whale” (NOAA Fisheries), available at <https://www.fisheries.noaa.gov/species/humpback-whale > accessed 1 May 2025.
Smith (n 13) 554.
Birnie (n 57) 946.
ibid; E. Couzens, Whales and Elephants in International Conservation Law and Politics: A Comparative Study (Routledge 2014) 26–27.
Birnie (n 57) 946; Marine Mammal Protection Act of 1972, Pub. L. No 92–522, § 107, 86 Stat. 1027 (1972) (codified at 16 U.S.C. §§ 1361–1407 (1982)).
ibid 947. See also the MMPA (n 70) s 2(6).
ibid.
P. Forkan, “A World Order for Whales” (Humane Society of the United States, mimeographed article published in 1979 by Project Interspeak) 77, 80.
S. Scott, “Intergovernmental Organizations as Disseminators, Legitimators, and Disguisers of Hegemonic Policy Preferences: The United States, the International Whaling Commission, and the Introduction of a Moratorium on Commercial Whaling” (2008) 23(8) Leiden Journal of International Law 581, 593.
ibid.
ibid.
ibid.
Birnie (n 57) 948–950.
Scott (n 74) 595. Australia is another State that transformed its domestic approach to whaling and whale conservation in the 1970s to emerge as a pro-conservation State by 1977.
Birnie (n 57) 953.
United Nations, “Report of the United Nations Conference on the Human Environment” (5–16 June 1972) UN Doc A/CONF.48/14/REV.1, Recommendation No 33.
International Whaling Commission, “Twenty-Fourth Meeting” (London, 26 June 1972) IWC/24/10, 52.
ibid 55.
ibid.
ibid.
ibid 54.
ibid 55.
International Whaling Commission, “Twenty-Fifth Meeting” (London 25 June 1973) IWC/25/13.
“Whale imports banned” (1973) 242 Nature 220.
Smith (n 13) 555.
International Whaling Commission, “Thirteenth Meeting” (26–30 June 1978) IWC/13 6.
Birnie (n 57) 961.
ibid.
ibid 962.
ibid 957.
ibid.
H. S. Schiffman, “The International Whaling Commission: Challenges from within and without” (2004) 10(2) Journal of International and Comparative Law 367, 369.
Forkan (n 73).
UNCLOS, art 65.
Schiffman (n 97) 370.
Kobayashi (n 55) 198.
Subcommittee on Human Rights and International Organizations, “Review of the 34th International Whaling Commission Meeting” (2nd session, Washington, 16 September 1982), available at <https://li.proquest.com/elhpdf/histcontext/HRG-1982-FOA-0050.pdf> accessed 28 August 2023. The Technical Committee is a distinct advisory Committee to the IWC. It has not, however, convened in recent years as its work has been taken on by other administrative structures.
ibid.
W. Yin, “Moratorium in International Law” (2012) 11(2) Chinese Journal of International Law 321, 321.
Subcommittee on Human Rights and International Organizations (n 102).
ibid 7.
ibid.
ibid 8.
ICRW, Schedule s.10(e).
Once the moratorium came into effect, the IWC tasked its Scientific and Technical Committees with producing a “Revised Management Procedure” (to generate a method of setting sustainable catch limits) and a “Revised Management Scheme” (for inspection, observation and enforcement of said catch limits). While a Revised Management Procedure was developed, a Revised Management Scheme has never been developed and this is one reason the moratorium remains in effect today.
International Whaling Commission, “34th Annual Meeting” (Brighton, 19–24 June 1982) OSC/33 72 (Verbatim, 1982).
Before beginning this analysis, it is interesting to note which States chose not to comment during the decision-making process. The USSR, for example, was the only Contracting Government that voted no who did not take part in a commentary.
ICRW, preamble.
Verbatim, 1982 (n 111) 72.
ibid 73.
ibid 72.
ibid 73.
ibid.
ibid 79.
ibid 77.
ibid 78.
ibid.
ibid 82.
ibid.
ibid 73.
ibid.
ibid.
ibid.
ibid 76.
ibid 77.
ibid 83.
ibid 78.
ibid.
ibid 84.
ibid 81.
ibid 74.
ibid 77. It is notable that the Convention itself, in Article I(2), provides that it applies within “all waters in which whaling is prosecuted by such factory ships, land stations, and whale catchers”, which, in our view, clearly establishes the IWC’s authority within all coastal waters, including what we now recognise as the Territorial Sea and the EEZ, so long as whaling occurs there.
ibid.
ibid 77.
ibid 75.
ibid 81.
ibid 72–74; Opening Statement Costa Rica, IWC Doc. OS/33, Costa Rica; Opening statement by India, IWC Doc. OS/33.
ibid 79.
ibid 82.
ibid.
ibid 78.
ibid 81.
ibid 77.
International Whaling Commission, “Iceland”, available at <https://iwc.int/iceland> accessed 3 March 2024.
Peru ultimately did not formalise their objection.
Kobayashi (n 55) 199.
ibid.
ibid.
Whaling in the Antarctic (n 46).
International Whaling Commission, “Chair’s Report of the 67th Meeting” (Florianópolis, 10–14 September 2014) IWC/67/08 28.
ibid Rev1.
ibid 29.
International Whaling Commission, “The Florianopolis Declaration on the Role of the International Whaling Commission in the Conservation and Management of Whales in the 21st Century” (2018) Resolution 2018–5.
Schiffman (n 97) 386.
ibid.
C. Epstein, “The Making of Global Environmental Norms: Endangered Species Protection” (2006) 6(2) Global Environmental Politics 32.
Peez and Zimmerman (n 9) 226.
See eg S. Lieberman, T. Gray and A. J. R. Groom, “Moratoria in International Politics: A Comparative analysis of the Moratoria on Genetically Modified Products and Commercial Whaling” (2011) 14(4) The British Journal on Politics and International Relations 518.
I. Hurd, “Almost Saving the Whales: The Ambiguity of Success at the International Whaling Commission” (2012) 25(1) Ethics Int aff 104, 104.
ibid.
See N. Sellheim, “Spill-over? The Convention on International Trade in Endangered Species after Japan’s Withdrawal from the Whaling Convention” in N. Sellheim and J. Morishita (eds), Japan’s Withdrawal from International Whaling Regulation (1st ed, Routledge 2024), 95. Here, Sellheim (n 166) notes that “From the very early days on, those whales that have been under the ambit of the IWC were automatically listed under Appendix II of the Convention. In the late 1970s, when the IWC placed more and more whale species under full protection from commercial whaling, also CITES responded by placing those species onto Appendix I. When the full moratorium on commercial whaling was adopted by the IWC, it was these species for which no export or import permits were issued anymore, essentially placing them on Appendix I as well”.
Hurd (n 164) 110.
ibid 104.