Full Title Name:  The Cracking Facade of the International Whaling Commission as an Institution of International Law: Norwegian Small-Type Whaling and the Aboriginal Subsistence Exemption

15 J. Envtl. L. & Litig. 295

Copyright (c) 2000 University of Oregon

Journal of Environmental Law and Litigation

BRIAN TREVOR HODGES*

* Brian Trevor Hodges, J.D. candidate 2001, Seattle University School of Law; M.A. 1998, University of Washington, Department of Scandinavian Studies; B.A. 1996, University of Washington. The author wishes to thank Dr. Christine Ingebritsen for planting the seed of this article.

It seems plausible that treaty regimes are subject to a kind of critical mass phenomenon, so that once defection reaches a certain level, or in the face of particularly egregious violation by a major player, the regime might collapse. 1

Each culture has a dignity and value which must be respected and preserved. Every people has the right and duty to develop its culture. In their rich variety and diversity, and in the reciprocal influence they exert on one another, all cultures form part of the common heritage of belonging to all mankind. 2

[Whales:] Intelligent food for intelligent people. 3

Machiavellism and mysticism alike played their part in the shaping of the [environmentalist] consciousness ... It embodied at times a religious fervor, at other times a ruthlessness that bordered on savagery. 4

Introduction

Neah Bay, a small seaside town on the Olympic Peninsula of Washington State, has become the unlikely crossroads where international law and treaty regimes meet modern ecopolitics. Recently, the Makah, a Native American tribe of the region, has reasserted its right to hunt gray whales as granted under the 1885 Treaty of Neah Bay. 5 The Makah took their first whale in over seventy years in May of 1999, causing a rift in the global community between those who see this event as a return to the Makah's cultural heritage and those who view it as an irreparable tragedy that opens the floodgates to commercial whaling.

The United States government and the Makah have been criticized for their apparent rush to resume the whale hunt, now that the gray whale has been removed from the endangered species list. 6 The Makah ostensibly were granted a gray whale quota under the aboriginal subsistence exemption to the regulatory schedule promulgated by the International Whaling Commission (IWC). 7 However, the IWC has not expressly recognized the Makah's aboriginal subsistence need, and instead has intentionally left the issue ambiguous. Accordingly, the United States' right to grant quotas on gray whales, absent clear IWC recognition, is questionable. The recent Ninth Circuit Court of Appeals decision, Metcalf v. Daley, calls into question the administrative procedures adopted by the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) in promulgating Makah whaling regulations. 8

However questionable, this grant of the right to hunt whales just may save the International Whaling Commission (IWC) from its imminent demise and avoid a seemingly inevitable return to the large-scale, pelagic whale hunts of the early twentieth century. Over the past twenty years, the IWC has drastically changed from an organization whose stated purpose was to sustain and manage whales for the commercial whaling industry into an organization interested primarily in protecting whales from whalers. In 1982, the IWC voted for a moratorium on all whaling activities, with narrow exceptions for aboriginal subsistence and scientific research. 9 Since the passage of the moratorium, both Canada and Iceland have left the IWC and several other states are poised to follow. Contemporaneous to the Makah resuming the whale hunt, Iceland announced that it will also begin whaling again. 10 Norway has resumed limited whaling activities since 1993 and Japan has regularly engaged in commercial whaling activities under the auspices of the scientific research exemption. 11 Frustrated by the moratorium, both Japan and Norway have petitioned the IWC to recognize exceptions for their coastal fishermen, which, considering the IWC's tacit approval of a gray whale quota for the Makah, seems at least arguable. However, they have been repeatedly denied any subsistence quotas.

A closer look at the decision to allow the Makah to resume whaling under the aboriginal subsistence exception will illuminate why this exception has become so broad as to necessitate a similar exemption for Norwegian coastal fishermen. The conclusion reached by this Comment is that, under the current scheme of international law and treaties, a return to commercial whaling is imminent. Any course of action other than allowing for limited and regulated whaling will ultimately fragment the global community regarding whaling. The Makah situation, however, may create an institutional release mechanism that could ultimately shore up the IWC and preserve the global regulatory scheme.

This Comment is divided into three parts. Part I analyzes the law concerning whaling, the history and domestic implementation of the ICW, the aboriginal subsistence exception, the traditional dependence of the Makah on whales, and the promulgation of Makah whaling regulations. Part II analyzes the position of pro-whaling states not exempted from the moratorium, the major actors in the pro-whaling community, the Norwegian claim for traditional and subsistence whaling, the economics of whaling, and the Norwegian claims in light of the modern interpretation of the aboriginal subsistence exemption. Part III concludes the Comment by proposing a solution to remedy the rift in the IWC.

I The Law of Whaling

A. A Brief Note on Lexicon

Throughout this Comment, the terms preservation and conservation are used in their strictest meaning. The distinction between the terms has been muddied by constant reference to Greenpeace, the Sea Shepherd Society, etc., and the entire environmentalist movement itself, as being conservationist. Conservation is the "controlled use and systematic protection of natural resources." 12 Preservation is to keep safe from injury or peril, to maintain unchanged, or to keep or maintain intact. 13 Therefore, as related to the whaling debate, the conservationist states seek to regulate whale stocks for their "controlled use"; whereas the preservationist states seek to continue the moratorium on commercial whaling.

B. Regulation of Whaling: The Current State of the International Law of Whaling

Under both general and customary international law, a state is entitled to harvest whales on the high seas and within its national territory, subject to its international agreements and domestic law. 14 The state has sole authority over the activities of its own nationals within its jurisdiction. 15 The two major international agreements which affect party states' whaling rights are the International Convention for the Regulation of Whaling (ICRW) 16 and the United Nations Convention on the Law of the Sea (UNCLOS). 17 Articles 87(1)(f) and 116 of UNCLOS affirm that the nationals of all states are free to take living resources on the high seas, subject to their treaty obligations. 18 The ICRW unequivocally provides for the sustainable harvest of whales for commercial, scientific, and cultural purposes, subject to the regulatory schedule promulgated by the IWC. 19

Despite a marked shift towards preservation in the international community, the preservationist norm has not risen to customary international law thereby superceding the settled international law reflected by the ICRW. 20 The international community has not articulated preservation as a norm of behavior; rather, it has repeatedly referred to conservation as the norm of state behavior in relation to the environment. Specifically, this norm is memorialized in the 1972 Stockholm and the 1992 Rio Declarations, both of which stress conservation and management of natural resources. 21 Furthermore, even if there were some overriding customary international law, it could not bind the pro-whaling members of the IWC because of another principle of international law: the principle that clear and consistent objections to an emerging custom may prevent application of the custom to the objecting state. 22

The Rio Declaration enunciates a "Precautionary Principle" which, if applied, could require the global community to err on the side of caution and continue the moratorium until scientists prove beyond doubt that resumed whaling would not endanger the species. 23 The Precautionary Principle, however, cannot alter the legal obligations set forth by the ICRW because the principle has not met the requirement of uniform application. This is evidenced by criticism that the Precautionary Principle's "greatest problem, as a policy tool, is its extreme variability in interpretation." 24 One legal analyst has identified fourteen different formulations of the Principle in treaties and non-treaty declarations. 25

Finally, preservationist states and non-governmental organizations (NGOs) argue that whales are property of the world community and cannot be taken by a state acting individually. The suggestion that whales are res communis (also referred to as res omnis), and thus wholly subject to international control, is based on principles arising from natural law and does not reconcile with the objective obligations of treaties and customary international law. 26

C. The IWC and the Whaling Convention Act

The United States became a signatory of the ICRW in 1946 in order "to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry." 27 The ICRW enacted a schedule of whaling regulations (Schedule) and established the IWC, which is composed of one member from each signatory nation. 28 The ICRW gave the IWC the power to amend the Schedule by "adopting regulations with respect to the conservation and utilization of whale resources," including quotas for the maximum number of whales to be taken in any one season. 29 Amendments to the Schedule must pass by a three-fourths majority vote. 30

Upon establishment on December 2, 1946, the IWC took immediate steps to protect the endangered whales. Among other measures, the IWC imposed a complete ban on the taking or killing of gray whales. 31 However, the ban included two exemptions. The first is an exception for scientific research. 32 The second, the aboriginal subsistence exception, allowed for the taking of whales "when the meat and products of such whales are to be used exclusively for local consumption by the aborigines." 33

In 1949, the United States Congress passed the Whaling Convention Act (WCA) to implement the ICRW domestically. 34 The WCA prohibits whaling in violation of the ICRW, the Schedule, or any whaling regulation adopted by the Secretary of Commerce. 35 NOAA and NMFS, both agencies of the Department of Commerce, have the task of promulgating regulations under the WCA. 36

In 1946, the IWC was comprised of fifteen nations, all of which were actively involved in commercial whaling. The stated goal of the IWC since its inception was to manage whale stocks in the interest of commercial whaling. However, with the growth of the environmental movement in the 1970s and 1980s, the IWC expanded to approximately forty signatory states. 37 A vast majority of these states (currently around thirty) have not practiced whaling or used whale products and strongly opposed the killing of a whale. 38

This fundamental shift in the purpose of the IWC has created a rift among the member states. Countries still engaging in commercial whaling fell subject to the majority anti-whaling opinion and the influence of NGOs, whose presence was increasingly felt at the IWC. 39 Pro-whaling states commonly find themselves subject to political actions that, despite the merits of their requests, are not treated reasonably. 40 In 1982, the IWC voted to impose a moratorium on commercial whaling to be implemented by 1986. 41 The original three year moratorium was subsequently extended for an additional ten years; the moratorium is intended to last until "scientific evidence" can show that a return to whaling is feasible while conserving the whale stocks. 42 Iceland, Japan, Norway, Peru, and the Soviet Union lodged objections to the 1985 moratorium under Article 5(3) of the ICRW, and therefore are not bound by the moratorium. 43

D. History of the Aboriginal Subsistence Exception

Whaling for subsistence dates back thousands of years. People throughout the Arctic and sub-Arctic regions have traditionally relied on whales and marine mammals for food and other products. Recognizing this, the 1931 International Convention for the Protection of Whaling, a predecessor of the ICRW, granted an exception from whaling bans for aboriginal subsistence; this exception was subsequently incorporated into the 1946 ICRW. 44 The key distinction employed by the IWC between commercial and subsistence whaling is that the former is conducted for profit, while the latter is for survival and cultural purposes. 45 This distinction is immediately problematic because in the modern world it is virtually impossible to divorce nutritional subsistence from economic subsistence, and because concessions have allowed some who were granted aboriginal subsistence rights to engage in limited commerce with whale products. 46

The phrase "aboriginal subsistence" was not defined by the ICRW; rather, the phrase was left vague due in part to the extremely limited and specific nature of the exemption. 47 The 1946 ICRW speaks only of establishing "catch limits for aboriginal whaling to satisfy aboriginal subsistence need." 48 In 1981, the ad hoc Technical Committee Working Group on Development of Management Principles and Guidelines for Subsistence Catches of Whales by Indigenous (Aboriginal) Peoples promulgated the first working definitions:

Aboriginal subsistence whaling means whaling for the purposes of local aboriginal consumption carried out by or on behalf of aboriginal, indigenous or native peoples who share strong community, familial, social and cultural ties related to a continuing traditional dependence on whaling and the use of whales.

Local aboriginal consumption means the traditional uses of whale products by local aboriginal, indigenous or native communities in meeting their nutritional, subsistence and cultural requirements. The term includes trade in items which are by-products of subsistence catches.

Subsistence catches are catches of whales by aboriginal subsistence whaling operations. 49

Prior to the United States' quota grant to the Makah, the aboriginal subsistence exception had been very narrowly granted to peoples who could show both cultural and nutritional subsistence need. 50 Currently there are only four aboriginal subsistence whaling operations explicitly recognized by the IWC: bowhead whaling off Alaska, humpback and minke whaling off Greenland, gray whaling off Siberia, and humpback whaling in the Caribbean. 51 During the 1990s, the IWC has rejected several applications for subsistence whaling. 52 The Makah grant, however, essentially eliminated the second prong, which required a showing of nutritional subsistence need. 53

E. Historical Notes on the Makah Whaling Tradition

The Makah tribe resides on the northwestern tip of the Olympic Peninsula in Washington State. 54 Members historically have hunted gray whales during the whales' annual migration between the North Pacific Ocean and the coast of Mexico. 55 Archeological evidence on Makah territory dating to as far back as two thousand years includes gray whale bones and barbs from harpoons. 56 Whaling once provided up to eighty percent of the Makah's subsistence needs. 57

In 1885, the United States and the Makah entered into the Treaty of Neah Bay, whereby the Makah ceded most of their land on the Olympic Peninsula to the United States in exchange, in part, for the "right of taking fish and of whaling or sealing at usual and accustomed grounds and stations." 58 Despite their long history of whaling and the codification of this right in the Treaty of Neah Bay, the Makah ceased whaling in 1915 because commercial whaling had reduced the gray whale population to near extinction. 59 The Makah did not whale for the next seventy years, notwithstanding the cultural importance of the practice.

The suspension of whaling has left the Makah with very few economic alternatives, as other traditional income sources, timber and salmon stocks, have substantially declined. 60 Unemployment ranges between fifty and seventy percent, and the Makah's average annual income is $ 7,000 per year. 61 Drug and alcohol abuse are widespread. 62 Makah leaders have claimed that "'re-establishing a ceremonial and subsistence whale hunt would be a catalyst which would allow us to instill in our young people the traditional values which have held our people together over the centuries.'" 63

F. The U.S. Grant of a Gray Whale Quota to the Makah

In addition to its protection under IWC regulations, the gray whale received increased domestic protection in 1970 when the United States designated the species as endangered under the Endangered Species Conservation Act of 1969. 64 However, in 1993, NMFS determined that the Eastern North Pacific stock of gray whales had recovered to near its estimated original population size and was no longer in danger of extinction. 65 The North Pacific gray whale was removed from the endangered species list in 1994. 66 Thereafter, as required by the Endangered Species Act (ESA), NMFS began a five-year monitoring program to document and evaluate the viability of the gray whale stock. 67

The Makah tribal council sought the help of the Department of Commerce, NOAA, and NMFS to assist in petitioning the IWC to grant them an aboriginal subsistence quota. The tribe asked the Department of Commerce to represent it in seeking approval before the IWC for an annual quota of five gray whales. Pursuant to its obligations under the Treaty of Neah Bay, the United States government provided the Makah with the requested assistance. 68

As early as 1995, the United States, via NMFS, agreed to work with the Makah to obtain an aboriginal subsistence quota from the IWC. 69 In May 1995, the United States informed the IWC that the Makah had expressed an interest in hunting five gray whales for ceremonial and subsistence purposes and the United States intended to submit a formal proposal for the hunt. 70

After the 1995 annual meeting of the IWC, NOAA prepared an internal report on the merits of the Makah's proposal in order to determine whether the United States should support the Makah's request for a gray whale quota. The report is somewhat unclear. While on the one hand, the report concludes that the Makah have a well-documented history of dependency on the gray whale and that the hunt could benefit the tribe, the report also found that allowing the hunt to resume could serve as precedent for other tribes who wished to hunt whales. 71 During this period of determination, NOAA did not initiate the National Environmental Policy Act (NEPA) process by publishing a draft of the Environmental Assessment (EA) or Environmental Impact Statement (EIS) for public view. 72

In January 1996, a NOAA representative sent a message to his colleagues informing them that "we now have interagency agreement to support the Makah's application in IWC for a whaling quota of 5 gray whales." 73 In March 1996, NOAA entered into a written agreement with the Makah providing that "after an adequate statement of need is prepared [by the Makah], NOAA, through the U.S. Commissioner to the IWC, will make a formal proposal to the IWC for a quota of gray whales for subsistence and ceremonial use by the Makah Tribe." 74 The agreement also provided for cooperation between NOAA and the Makah Tribal Council (Council) in the management and harvesting of gray whales. NOAA agreed to: (1) monitor the hunt; (2) assist the Council in collecting certain information (e.g., body length and sex of the landed whales, length and sex of any fetus, whether the whale suffered a fatal wound from the bomb or harpoon); and (3) collect specimen material from the whales, including ovaries, ear plugs, baleen plates, stomach contents, and tissue samples. 75

Prior to the 1996 IWC meeting, the United States amended the WCA to require only that an aboriginal people meet a cultural or subsistence need in order to qualify for the exemption. On June 1, 1996, NOAA and NMFS, in response to public comments published a statement that the change in language from requiring "cultural and subsistence need" to "cultural and/or subsistence need" more "accurately reflects the interpretation of the IWC of the requirements for aboriginal whaling." 76

In June 1996, NOAA and NMFS were contacted by environmental groups alleging that the United States had violated NEPA by authorizing and promoting the Makah proposal without preparing an EA or EIS. Thereafter, NOAA prepared a draft EA for public comment on August 22, 1997. In October 1997, the United States entered into a subsequent agreement with the Makah, which was identical to the previous agreement except for a limitation confining hunting to the open waters of the Pacific Ocean outside the Tatoosh-Bonilla Line. 77

The United States delegation presented a formal proposal to the IWC for the Makah gray whale quota at the 1996 annual IWC meeting. Several member states approved of the proposal, while others were opposed and indicated that they would vote against it. 78 The controversial nature of the request was not limited to the IWC. While the IWC meeting was taking place, the U.S. House of Representatives Committee on Resources unanimously passed a resolution opposing the proposal. 79 Facing such opposition, the United States withdrew the proposal from the IWC. 80

Prior to the 1997 IWC meeting, a United States delegation representing the Makah met with the Russian Federation, which was representing the Siberian Inuit people, the Chukchi, to discuss submitting a joint proposal for a gray whale quota. Together, they decided to submit a joint proposal for a five-year block quota of 620 whales, from which the United States would carve out a quota of five gray whales per year for the Makah. 81 Therefore, the issue of the Makah petition for an aboriginal subsistence quota was inextricably bound to the renewal of subsistence rights to the Chukchi.

At the IWC meeting, some delegates expressed doubts concerning whether the Makah qualified for a quota under the aboriginal subsistence exception. 82 These delegates suggested that the joint proposal be amended to allow the quota to be used only by aboriginal groups "whose traditional subsistence and cultural needs have been recognized by the International Whaling Commission." 83 The United States rejected this amendment. 84 The proposal was subsequently amended to allow the quota to be used only by aboriginal groups "whose traditional and cultural needs have been recognized." 85 Thereafter, the language was added to the Schedule by consensus without any express language recognizing the Makah as having aboriginal subsistence need. 86

On April 6, 1998, NOAA issued a notice in the Federal Register setting the domestic subsistence whaling quotas for 1998. 87 The notice stated that both the United States and the IWC recognized the Makah's subsistence and cultural needs. 88 The notice allowed the Makah to engage in whaling pursuant to the IWC-approved quota and WCA regulations. 89 To this day, the IWC has not amended the Schedule to expressly include the Makah, but stands by the ambiguous "[groups] whose traditional and cultural needs have been recognized." 90

II The Pro-Whaling Community

A. International Actors in the Pro-Whaling Community

Unfortunately, most discussions concerning the return to commercial whaling inevitably reduce themselves to a parade of horribles. 91 The pro-whaling nations are usually portrayed as a single-minded bloc. However, the political, cultural, and nutritional needs of each state are very different. Therefore, it is necessary to provide a brief outline of each of the major actors in the international pro-whaling community before beginning an analysis of the Norwegian coastal fishermen's claims.

1. Japan

Perhaps at the forefront of international whaling concerns is Japan, which has the only substantial commercial market for whale meat in the world. 92 Moreover, Japan has been a hallmark of anti-environmental behavior since the 1960s. 93 Japanese whaling in the post-World War II years was enormous in scale. 94 The image of Japanese whalers that endures is one of their huge Antarctic fleet of factory ships, not of the small numbers of coastal fishermen. Since the moratorium, Japan has regularly engaged in whaling activities, ostensibly under the scientific research exemption. 95

Every year since 1987, the Japanese delegation to the IWC has asked for a quota of fifty minke whales for the coastal whaling communities of Taiji, Wadaura, Ayukawa, and Abashiri. 96 The requests are predicated on economic displacement due to the moratorium. Frustrated with the uncompromising stance that the IWC has taken towards Japanese whaling, Japan has announced its intention to circumvent the IWC by taking its requests to the UN. 97 Recently, Japan, Russia, and South Korea have met to discuss establishing a regional whaling organization to regulate commercial whaling in the northwestern Pacific. 98

2. Russia

Although Russia has been alongside Japan as one of the largest pelagic and coastal whalers of this century, Russia is unlikely to return to large-scale commercial whaling. Recent disclosures under perestroika have shown that the reports of whale kills by the Soviets during the Cold War were highly inaccurate and understated the number of whale kills. 99 In actuality, the Soviets harvested enormous numbers of whales. 100 While disclosure of this past activity may lead to a fear that Russia will return to whaling, significant changes in global relations and economic interdependence are likely to hold Russian whaling at bay.

Because of its dependence on international aid and trade, Russia is extremely vulnerable to external pressure. Any backlash from anti-whaling nations or citizens in the form of sanctions, boycotts, or freezing of aid payments could cripple the Russian economy. Therefore, it is easy to presume that Russia's membership in the IWC and compliance (including the disclosure of actual whale kills) with IWC regulations will continue in the foreseeable future.

3. Iceland

Iceland, along with Japan, Norway, and the Soviet Union, objected to the whaling moratorium, and in 1986, engaged in the first "scientific hunt" excepted from the IWC moratorium, in which Iceland took 117 sei and fin whales. 101 The meat from the hunt was sold to Japan. 102 The reaction to this was extreme; in a protest of Iceland's unswerving stance, whaleboats were attacked and sunk in Reykjavik. 103 Also, the IWC condemned Iceland's whaling activities.

In 1992 Iceland withdrew from the IWC and became a member of the North Atlantic Marine Mammal Commission (NAMMCO). NAMMCO was established in 1992 by the Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic, signed by the Faroe Islands, Greenland, Iceland, and Norway. 104 NAMMCO was "borne out of dissatisfaction with the IWC's zero-catch quota, lack of IWC competence to deal with small cetaceans, and the need for an organization to deal with other marine mammals such as seals." 105 NAMMCO has established its own scientific committee and management committees for various species, which propose conservation measures to member states. 106

4. Norway

Norway has a long and established tradition of whaling. The Norwegians have hunted minke whales (v<ring a>gehval) for over 1,500 years. 107 The first Norwegians lived along the coast, where the meat, blubber, and skins of whales and other marine mammals were integral to their subsistence. 108 Minke whales could be speared, netted, or trapped without the aid of a boat. Later, with the advent of boats, minke whales were chased into inlets, where they were killed with arrows or harpoons. 109 The traditional importance of the whale hunt is memorialized in ancient texts. The Anglo-Saxon Chronicle tells the tale of a Norwegian sailor, Ottar, who caught 600 whales in sixty days off the coast of Norway. The Old Norse law texts detail how whales were to be divided among those who took part in the hunt and the owner of the property upon which the whale was landed. 110

During the turn of the century, the Norwegian whaling fleet was among the most efficient and technologically advanced; however, modern Norwegian whaling is limited to small coastal fishing communities hunting minke whales. 111 The annual harvest of whale meat makes up a minimal percentage of the overall harvest from the sea. While the size and scope of Norwegian whaling activities may seem economically insignificant, it is of "great importance to the families and communities directly involved." 112

By 1992, the northeastern Atlantic minke whale stock had grown to approximately 87,000 whales. 113 The Norwegian quota is based on 0.2 percent of the stock with a 2 percent growth rate per year. By 1993, the IWC Scientific Committee unanimously concluded that the minke whale population had recovered to the point that Norway could resume traditional coastal whaling. 114 Yet despite the scientific data available, the ICW decided to continue the moratorium on hunting of all species of whales, even though the ICRW requires that quotas be based on scientific methods. 115

Norway's hunt is not in violation of the ICRW, because Norway officially registered its objection to the moratorium. Moreover, the legality of the hunt was recognized by Under Secretary of Commerce James Baker in 1997. 116 Despite the legality of the hunt, Norway has been condemned by anti-whaling nations, and the United States has threatened sanctions. 117 Furthermore, Norway has become the target of high profile protest groups 118 and unofficial boycotts. 119

Every year since Norway has resumed its whale hunt, the IWC and anti-whaling nations have denounced Norway. 120 At the 1992 IWC annual meeting, the Norwegian representative stated: "[Norway] no longer accepts what she perceives as cultural imperialism imposed by the majority of the members of the IWC on the local communities of the nations and peoples who want to exercise their sovereign cultural right to be different." 121 Additionally, at the 1997 IWC meeting, the Norwegian delegation walked out of one session to protest the politicized decision making process. 122

Norway has consistently lodged complaints with the IWC, claiming that it is not legally competent to make such determinations:

It is very serious that attempts are consistently being made to extend IWC's competence and thereby our treaty obligations beyond the provisions of the Convention. The IWC is not the competent body for trade issues. WTO and CITES are the international organizations recognized in the trade area... . It is also serious for this organization that the majority is trying to introduce responsibilities on all members of a treaty... . It is a well established practice in the U.N. that a majority cannot force a minority to comply with a resolution which that country has voted against. 123

The cultural and political ignorance with which Norway has been condemned in recent years can be illustrated by such unsupported and uninformed statements as the following:

Norway's Brundtland Administration - hoping to reverse its declining popularity in an election year - defied the moratorium and unilaterally allowed Norwegian whalers to take 160 minke whales. The political ploy was successful. 124

The votes of a few subarctic fishermen, their families, and friends could hardly, by themselves, determine the outcome of a national election. 125

It is inevitable that all the pressure on Norway will take its toll... . Although Norway has science on its side, Norwegian officials will eventually realize that all the science in the world is not going to change the public's opinion of whaling... . Norwegian officials will likely decide that the benefits of their limited whaling industry simply do not justify the costs. 126

A foundational principle of Norwegian politics is that the rural and traditional voice bears incredible political weight. For example, in 1972 and 1994 the rural reaction against the European Community swayed the Norwegians away from membership in regional bodies. 127 Furthermore, the decision to return to whaling was the fruit of a concerted effort by Prime Minister Gro Harlem Brundtland's administration, the Minister of State, and the Ministry of Foreign Affairs. 128

The Norwegians believe the IWC has been taken over by non-compromising political bodies, particularly under pressure by the United States. 129 This position is best exemplified by the words that a Norwegian journalist chose to describe the IWC at its inception, fangstorganisasjion (hunting organization), and in its current state, milj<sl o>orginasjion (environmental organization). 130 To Norway, the issue of whaling is one of national sovereignty: "if countries are permitted to force one another to accept rules prohibiting the use of resources without there being a sound basis for this, the very foundation of international cooperation and international agreement on environment and development issues will be endangered." 131 The whaling issue implicates the "right of a nation to utilize available natural resources on a scientific and sustainable basis." 132 Furthermore, whaling is seen as a legitimate commercial activity that should be regulated, not condemned. 133

B. A Pressure Valve for the Whaling States

Since the preservationist shift in the IWC during the 1970s and 1980s, pressure is increasing among the whaling nations either to resume commercial whaling outside of the regulatory Schedule promulgated by the IWC or to take advantage of the loopholes in the Schedule. There are grounds in international law for a mass defection from the IWC. Specifically, Article 65 of UNCLOS reads in pertinent part: "states shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans [whales] shall in particular work through the appropriate international organizations for their conservation, management and study." 134 The IWC is not designated as the sole appropriate international organization, but instead a reference is made to "international organizations." 135 Further, use of the term international does not require a global organization, such as the IWC, because throughout UNCLOS the expression "international organizations, whether global or regional" is used. 136

Under the terms of UNCLOS, any nation that is not a member of the IWC has the right to whale both on the high seas and up to two hundred miles from its own coastline, subject only to international agreements it is a party to or its national regulations. 137 Furthermore, the UN International Covenant on Economic, Social, and Cultural Rights states that:

All people may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based on the principle of mutual benefit, and international law. In no case may a people be deprived of their means of subsistence. 138

All people have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development. 139

[It is the] right of everyone to [enjoy] the highest attainable standard of physical and mental health. 140

[Everyone has] the right to take part in cultural life. 141

Of central importance is Agenda 21, enunciated by the UN Conference on Environment and Development (UNCED), which states:

States recognize the work of other organizations, such as the Inter-American Tropical Tuna Commission and the Agreement on Small Cetaceans in the Baltic and North Seas under the Bonn Convention, in the conservation, management, and study of cetaceans and other marine mammals. 142

... .

States should take measures to increase the availability of marine living resources as human food. 143

... .

Coastal States, individually or through bilateral and/or multilateral cooperation ... should ...

(b) implement strategies for the sustainable use of marine living resources, taking into account the special needs and interests of small-scale artisanal fisheries, local communities and indigenous people to meet human nutritional and other development needs... . 144

[Coastal States should] (g) enhance the productivity and utilization of their marine living resources for food and income. 145

Coastal States should support the sustainability of small-scale artisanal fisheries. To this end, they should, as appropriate: (b) recognize the rights of small-scale fishworkers and the special situation of indigenous people and local communities, including their rights to utilization ... on a sustainable basis. 146

Coastal States should ensure that in the ... implementation of international agreements on the development or conservation of marine living resources, the interests of local communities and indigenous people are taken into account, in particular their right to subsistence. 147

Some argue that international tolerance of Norwegian whaling can be viewed as an institutional release mechanism. 148 However, the continued entrenchment of opposition and constant threats of sanctions and boycotts against Norway cannot constitute "tolerance." Particularly in light of the Makah grant, the Norwegian claims for subsistence quotas deserve attention.

C. The Economics of Whaling in the North Atlantic

From a purely economic perspective, the incentives to engage in whaling are unclear. The heavy political cost of whaling seems to vastly outweigh any economic benefit. As an industry, whaling has declined, mostly because petroleum products have replaced whale oil and because there is currently very little demand for whale meat. Moreover, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) further diminishes the economic benefit of whaling for some states. CITES prohibits the international trade in whale meat and whale products, 149 thereby prohibiting Norway from exporting any of its supply of whale blubber. 150 Iceland has recently become a signatory to CITES, but has filed reservations to the provisions prohibiting the export and trade in whale products. 151 Even so, the export earnings derived from whale products for Iceland amount to only 1-2 percent of foreign export earnings. 152 While packages of whale meat are occasionally confiscated in transit from Norway to Japan, and whale meat from Icelandic scientific research hunts has been sold to Japan, the economic value of this clandestine export market is minimal. 153 Therefore, whaling as an economic venture can only be of supplemental value to coastal fishermen.

The political capital of whaling is more valuable to Norway and Iceland, to whom whaling is a matter of national self-determination. Norwegians and Icelanders believe in the right to "exploit the living, renewable resources of the sea." 154

D. The Comparative Position of Norwegian Coastal Fishermen

It is clear that the Makah tribe has a long and demonstrable tradition of whaling despite the seventy-year self-imposed hiatus from whaling activities. The Makah ceased whaling half a century before the IWC imposed the moratorium. There is no claim in their petition to the IWC that they rely on whale meat for nutritional subsistence needs; rather, their petition focuses on the importance of whaling to their culture and the positive effect that the whale hunt would have on their community's ills. 155

Allowing the Makah to resume whaling under the aboriginal subsistence exemption has expanded the ambiguity of the already ambiguous exemption. The plain text of the exemption grants aboriginal subsistence quotas to peoples who show both cultural and nutritional subsistence need. However, the Makah did not demonstrate the nutritional-subsistence need prong. 156 Moreover, the United States amended the subsistence regulations to allow whaling based on "cultural and/or subsistence" need. 157 The failure of the IWC to seek enforcement of the two-prong subsistence requirements may serve to estop the IWC from requiring that future petitioners demonstrate both prongs. However, two remaining distinctions may still bar small coastal fishing communities from meeting the requirements of the aboriginal subsistence exemption. First, the exemption requires that the whale meat be consumed locally. Second, the exemption is granted to aboriginal communities.

The local consumption requirement may act as a bar to the northwest Pacific whalers. In Japan, whale meat is an item of commerce; the coastal fishermen traditionally relied upon the whale harvest for income, not nutritional subsistence. 158 The Russian whalers, likewise, have demonstrated that whaling is for commercial need. Non-aboriginal Russians have harvested whales under the Chukchi exemption for use as animal feed at fox and mink farms in Siberia. 159 Norwegian coastal whalers, however, do meet the requirement of local consumption. 160

The local consumption language, however, does not bar aboriginal people from selling whale products to supplement their economic need. 161 The Alaskan Inuits and Makah have been allowed to sell non-edible whale products, showing a recognition that mere nutritional subsistence alone does not meet their need, but that economic subsistence is also necessary. 162 Even the regulation promulgated by NOAA in granting the Makah the right to hunt gray whales incorporates language giving portions of the whale carcass to NOAA for research. 163 These uses establish an emerging custom of international law, whereby the petitioning community need only show some local consumption of whale products, and may also use a portion of the whale for economic subsistence.

In light of IWC's tacit approval of subsistence rights for the Makah, the only viable reason for the IWC to deny the Norwegians a quota under the same exemption is the "aboriginal" requirement, a term which has never been defined by the IWC. Aboriginal simply means, "being the first of its kind present in a region." 164 Relying on this definition of "aboriginal," however, would inevitably result in a determination that some peoples, though in the same position vis-a-vis cultural and subsistence need, are worthier than others are. An illustration of this is the argument that where there exists an aboriginal people, the non-aboriginal people cannot be recognized for subsistence need. 165 This simple formula cannot be applied to Norwegian fishermen because the Saami, a Finno-Ugrian aboriginal people who live in northern Scandinavia, are integrated into the Norwegian coastal fishing industry to such an extent that a grant or denial of rights based on race alone would be impossible to implement. Furthermore, such a distinction would contradict peremptory norms of international law, which seek to treat different cultures equally. 166 Therefore, consistent with the Vienna Convention's directive that one should seek to harmonize conflicts in law, 167 a solution which does not violate the prohibition against race based determinations should be found.

Additionally, according to another indicator of international law, evidence of state practice, subsistence quotas have not limited whaling activities to aboriginal peoples. 168 It has been common for states to allow non-aboriginal peoples to engage in whaling activities under the auspices of an aboriginal subsistence grant. 169 Therefore, it is at least arguable that state practice has ignored the restriction of subsistence quotas to aborigines.

Based on the IWC's current interpretation of the Schedule and the principle of harmonization, Norwegian coastal fishermen should be granted subsistence quotas for minke whales. The quota should be granted primarily because their claims fall within the broad parameters of the aboriginal subsistence exemption as applied to the Makah quota, and secondarily to avoid resorting to a race based determination. However, granting a quota to the Norwegians under the aboriginal subsistence exemption would only serve to muddy the already muddied waters of the IWC. Therefore, an alternative plan that clearly states the position of the IWC towards Norwegian coastal whaling must be adopted.

III Saving the IWC

A. An institution on the verge of collapse?

The IWC, and the United States as its prime environmentalist voice, have repeatedly been accused of hypocritical and culturally imperialistic practices. 170 Given the comparisons between the Makah tribe and the Norwegian coastal fishermen, it may be hard for the international community to rebut such allegations, particularly given the numerous violations of IWC regulations by member states and the United States' attempts to impose unilateral sanctions against whaling states. 171 However, there must be some binding force, otherwise, the IWC would already have collapsed due to the mutually exclusive, entrenched positions within the organization.

The essential binding force can be found in ecopolitics, or normative environmental politics, rather than in a traditional interpretation of legal obligations and duties. It is clear from both an analysis of the international law on whaling and the pattern of adherence to that law that the IWC cannot and does not act as an institution of legal enforcement. Rather, it can best be seen as a normative institution. As such, the actions of the IWC do not seem as vicarious as they would if it functioned as a legal institution.

The very essence of a normative institution is that it exerts pressure upon non-adhering states. Thus, the anti-whaling coalition within the IWC is acting as a normative policing power, exerting pressure on the pro-whaling member states. Cultural imperialism is a heavily loaded phrase, but it expresses the nature of normative relations. Essentially, one coalition of states applies pressure on another to change some practice based upon a belief that there is a right and wrong action.

Economic interdependence is the cohesive factor binding states to the IWC despite their different positions regarding whaling. One of the basic principles of post-World War II international relations is that economic interdependence can force cooperation in contested areas. 172 However, the increasing appearance of hypocrisy by the IWC member states has led to an institutional crisis. The grant of a gray whale quota to the Makah and the several unpunished violations of the Schedule have given pro-whaling states greater leeway to either leave the IWC or engage in increased whaling activities, despite the normative pressures. On its present course, the IWC is set for an imminent collapse.

B. How Can We Shore Up the IWC?

As an institution, the IWC plays a very important role in the global arena. The regulation of whaling assures the world that the whale stocks will not be destroyed by excess commercial exploitation. While the tension between the pro-whaling and the anti-whaling nations seems to have abated some in recent years due to the tentative tolerance of Norwegian whaling, this situation cannot be a permanent fix for the IWC. The Japanese and the Norwegians are currently seeking clarification from international bodies regarding the IWC moratorium. Additionally, the pro-whaling states are seeking to form regional organizations outside the IWC to regulate whaling activities. In the face of such pending reorganization of the global regulation of whaling, the international community must turn back to the IWC if there is any hope to regulate the commercial harvesting of whales on the global level.

The IWC is on course to fragment into three separate organizations: the anti-whaling, preservationist IWC; the conservationist NAMMCO; and the pro-whaling northwestern Pacific whaling states. If the IWC is to be saved, it must take immediate action to shore up its ranks. There are two immediately apparent courses of action available to the IWC. First, the IWC should clarify the legal ambiguities regarding the right to harvest whales, and second, it should grant subsistence rights to Norwegian coastal fishermen.

C. Clarification of International Obligations

The IWC needs to act as an international institution in accordance with the terms of its treaty obligations and international law. While the IWC lacks any inherent institutional enforcement powers, member states may seek to bring another member state into compliance with the ICRW and its directives by bringing an action in the International Court of Justice (ICJ). 173 The jurisdiction of the ICJ is based on consent, which may be granted in three ways: by special agreement to refer an actual dispute to the court, by accepting compulsory jurisdiction of the court, or by signing a treaty or convention under which the member states bind themselves to the jurisdiction of the court. 174

Alternatively, the ICJ also has an advisory jurisdiction to give legal opinions at the request of international organizations. 175 An advisory opinion is formally non-binding, and seeks to facilitate disputes between states and international organizations. 176 An opinion from the ICJ, whether advisory or not, can have the effect of defining customary international law, and, therefore, eliminate ambiguities. 177

The Japanese and Norwegian delegations have recently, unsuccessfully, brought the issue of the IWC whaling moratorium before the United Nations CITES conference in Nairobi. 178 They also plan to bring the issue before the World Trade Organization and have threatened to take IWC directives to the International Court of Justice. 179 Given the state of the law concerning whaling, numerous declarations of principles supporting sustainable use of natural resources, and evidence of acts contravening the purpose of the IWC, it would be wise for anti-whaling nations to work compromise into the Schedule. A tribunal could find the anti-whaling states acting contrary to the IWC, a violation of the peremptory norm of pacta sunt servanda. 180 The force of such an opinion would likely erode years of environmental and preservationist regulations, such as those governing the South Antarctic Whale Sanctuary and the commercial moratorium.

D. Subsistence Rights to Norway: A Small-Type Whaling Exemption

As this Comment has argued, the IWC's tacit acceptance of the Makah's aboriginal subsistence rights broadens the scope of the subsistence exception to the point that it overlaps the Norwegian coastal fishermen's claims. Any exclusion of Norwegian fishermen, when compared to the Makah precedent, can only support charges of race-based determinations or cultural imperialism. Furthermore, bringing Norway, which has been a global leader in environmental protection and in compliance with international treaties, laws, and obligations, 181 back into a favored position in the IWC will immediately impact the strength of the IWC and may serve to head off the proliferation of regional whaling organizations.

The framework for a rational solution already exists within the Schedule. The IWC defines three types of whaling: commercial, small-type, and aboriginal. 182 Small-type whaling is defined as "using powered vessels with mounted harpoon guns hunting exclusively for minke, bottlenose, beaked, pilot, or killer whales." 183 For regulatory purposes, small-type whaling is subsumed under the "commercial whaling" rubric. 184 However, as noted above, the aboriginal subsistence exemption has evolved in practice to such an extent that is virtually indistinguishable from small-type whaling. The original restriction to traditional hunting methods has been changed to allow for modern whaling vessels and the use of high-caliber guns or harpoons. 185 The restriction on local consumption has not been enforced; in contrast, general state practice has been to allow some economic trade in whale products.

Norwegian coastal fishermen are few in number and remote from urban centers; have traditionally relied on marine resources for subsistence; have very few land-based alternative resources available; engage in a broad pattern of marine resource harvesting; and have a cultural, familial, and societal connection with whaling. Furthermore, the methods used to harvest minke whales are identical to those used by Greenlanders. 186 Both use small to medium sized fishing vessels equipped with harpoon guns. 187 The crews of these vessels are made up of family and friends; there is involvement of the coastal community in the harvesting, flensing, and distribution process. 188 One commentator stated that the "combination of technology and resources, personnel organization, distribution patterns and local cultural practices based on whales and whaling contributes towards the establishment and maintenance of community identity." 189 Because of the similarity between Norwegian small-type whaling and aboriginal whaling in its modern form, and the importance of preservation of and respect for culture, it seems imperative that Norway be granted an exemption by the IWC. The small-type whaling category has already been recognized by the IWC as both distinctive and operationally useful for the regulation of whaling; therefore, the IWC should separate small-type whaling from commercial whaling and grant appropriate quotas.

Conclusion

International institutional mechanisms are not necessarily a reflection of globally shared norms. They can also reflect self-interest on the part of actors who find they must engage in cooperation if they wish to come to terms with the challenges of the postindustrial order. If the underpinnings of a genuine global culture are to evolve, there must be a sharing of basic values pertaining to how conflicting loyalties are managed. 190

The incredible normative power asserted by the IWC during the past twenty years serves as clear evidence of the importance of the IWC as an international institution. However, changes in the environment have put new pressure on the IWC to change from its current preservationist course. At present, the IWC seems powerless to prevent any nation's deviation from its directives. Failing to make concessions to the needs of its pro-whaling states will fragment the IWC into regional, self-regulating whaling organizations.

The most logical path for the IWC to preserve itself as whaling's global regulatory body and at the same time to conserve whale stocks is one allowing limited and regulated whaling by pro-whaling member states. The framework for a small-type whaling exemption is already present in the ICRW. Adopting the regulatory scheme of NAMMCO for small-type whaling could keep the pro-whaling states within the control of the IWC, and also could preempt the trend towards regional regulatory organizations.

FOOTNOTES:

n1. A. Chayes & A.H. Chayes, On Compliance, 47 Int'l Org. 175, 204 (1993).

n2. UNESCO Declaration of the Principles of International Cultural Co-operation, Art. I.

n3. Norwegian Tee-Shirt Logo cited in Christine Ingebritsen, The Politics of Whaling in Norway and Iceland, 85 Scandinavian Rev. 9, 14 (Winter 1997/1998).

n4. Leslie Spencer, et al., The Not So Peaceful World of Greenpeace, Forbes, Nov. 11, 1991, at 180 (quoting Robert Hunter's chronicle of Greenpeace, Warriors of the Rainbow).

n5. Leesteffy Jenkins & Cara Romanzo, Makah Whaling: Aboriginal Subsistence or a Stepping Stone to Undermining the Commercial Whaling Moratorium?, 9 Colo. J. Int'l Envtl. L. & Pol'y 71, 72 (1998). The Makah are part of the thirteenth American and Canadian Nuu-Chah-Nulth tribal groups who traditionally engaged in whaling and hunting marine mammals as part of their subsistence activities. Id.

n6. Endangered Fish and Wildlife, 58 Fed. Reg. 3121, 3135 (1998).

n7. The aboriginal subsistence exemption is an exception from the whaling regulations promulgated by the IWC, whereby the IWC can grant limited quotas to qualifying peoples. The exemption is discussed in detail below.

n8. Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000). The Ninth Circuit Court of Appeals reversed the district court's grant of summary judgment in favor of the governmental agencies, finding that when NOAA and NMFS propounded the Makah whaling regulations they did not follow proper administrative procedure. The Ninth Circuit Court of Appeals has ordered NOAA and NFMS to independently research and publish a new Environmental Assessment. Id. at 1146.

n9. IWC Schedule, para. 10(a), Feb. 1983.

n10. Iceland's Parliament Votes to Resume Whaling by 2000, Orange County Register, March 13, 1999, at A20; Jerrold Kessel, Celebrity Killer Whale Doesn't Impress Icelandic Fishermen (CNN television broadcast, March 2, 2000). Ironically, despite Iceland's withdrawal from the IWC and announcement of its intent to resume whaling, the United States spent an enormous sum of money to rehabilitate Keiko ("Free Willy") and eventually release him to the waters of Iceland, where killer whales directly compete with the fishing community for fish stocks. Id.

n11. See William C. Burns, The International Whaling Commission and the Future of Cetaceans: Problems and Prospects, 8 Colo. J. Envtl. L. & Pol'y 31, 46-51 (1997).

n12. Webster's 2d New Riverside University Dictionary 301 (1988).

n13. Webster's 2d New Riverside University Dictionary 931 (1988).

n14. William T. Burke, Whaling and International Law (March 1, 1997), in Whaling in the North Atlantic (Gudrun Petursdottir ed. 1997) <http://www. highnorth.no/Library/Publications/Iceland/ic-wh-in.htm>.

n15. Id.

n16. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716.

n17. U.N. Convention on the Law of the Sea (UNCLOS), December 10, 1982, 21 I.L.M. 1261. UNCLOS entered into force in December, 1998.

n18. Id. Article 87(1)(e) assures nations the freedom of fishing, subject to other states' interests; Article 116 reasserts this right to fish subject to treaty obligations. Id.

n19. Id. Article 65 limits states or international organizations from restricting other states from exploiting marine mammals, subject to the limitations provided in the provisions of the UNCLOS. Article 65 also declares that the regulation of whales "shall in particular work through the appropriate international organizations for their conservation, management and study." Id. at Art. 65.

n20. See generally Burke, supra note 14.

n21. Declaration of the United Nations Conference on the Human Environment, June 16, 1972, 11 I.L.M. 1418 [hereinafter Stockholm Declaration]. Principle 4 of the Stockholm Declaration reads in pertinent part: "man has a special responsibility to safeguard and wisely manage the heritage of wildlife ... Nature conservation... must therefore receive importance in planning for economic development." Id. at Principle 4.

The Rio Declaration on Environment and Development, Adopted by the United Nations Conference on Environment and Development (UNCED), June 14, 1992, 31 I.L.M. 874 [hereinafter Rio Declaration]. Principle 12 speaks to states' rights to economic growth and sustainable development without restrictions imposed by other nations. Id. at Principle 12.

n22. See The Anglo-Norwegian Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116; see also Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. Int'l L. J. 457 (1985).

n23. Rio Declaration, supra note 21, Principle 15. "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Id.

n24. Kenneth R. Foster et al., Policy Forum: Risk Management - Science and the Precautionary Principle, 288 Sci. 979 (2000).

n25. Id.

n26. William C. Burns, The International Whaling Commission and the Future of the Cetaceans: Problems and Perspectives 8 Colo. J. Int'l Envt. L. & Pol'y 31, 81-86 (1997).

n27. ICRW, supra note 16, Preamble.

n28. ICRW, supra note 16, at Art. III.

n29. ICRW, supra note 16, at Art. V.

n30. ICRW, supra note 16, at Art. III(2).

n31. See ICRW, supra note 16, at 62 Stat. 1723.

n32. ICRW, supra note 16, at 62 Stat. 1719-20.

n33. ICRW, supra note 16, at 62 Stat. 1723.

n34. Whaling Convention Act of 1949, 16 U.S.C. 916-9161 (1994).

n35. 16 U.S.C. 916c(a).

n36. 16 U.S.C. 916k; 50 C.F.R. 230.1 (1998).

n37. Peter J. Stoett, The International Politics of Whaling 67 (1997) (membership in the International Whaling Commission, 1972-1992):

Year IWC Quota No. Members Members [table omitted] 1972-3 42,500 14 USA, Britain, Mexico, France, Argentina, Australia, Canada, Panama, Denmark, Japan, USSR, Norway, Iceland, South Africa 1973-4 40,979 1974-5 39,864 15 Brazil joins 1975-6 32,578 1976-7 28,050 16 New Zealand joins 1977-8 23,520 17 Netherlands joins 1978-9 20,428 1979-80 15,653 23 Seychelles, Sweden, Chile, Peru, Spain, Korea join 1980-1 14,523 24 Switzerland and Oman join; Panama withdraws 1981-2 14,233 32 Jamaica, St. Lucia, Dominica, Costa Rica, Uruguay, China, St. Vincent, India, Philippines join; Canada withdraws 1982-3 12,263 37 Egypt, Kenya, Senegal, Belize, Antigua, Monaco, Germany join; Jamaica, Dominica withdraw 1983-4 9,393 39 Finland, Mauritius join 1984-5 6,623 1985-6 41 Ireland, Solomon Islands join 1986-92 36 Ecuador, Venezuela join; Solomon Islands, Mauritius, Belize, Egypt, Philippines, Uruguay, Dominica, Jamaica, Iceland withdraw 1994 35 Seychelles withdraws

n38. Alf Hakon Hoel, The International Whaling Commission 1972-1984: New Members, New Concerns 8 (1985). "The early seventies onwards more than twenty nations having no tangible whaling interests have entered the [IWC], bringing with them a range of concerns of an ecological, economic and political-legal nature, pushing the membership profile in a conservationist direction." Id.

n39. Spencer, supra note 4. NGOs increasingly affect international norms. Greenpeace alone has funded several states to join and be present at the IWC. Greenpeace arranged and funded commissioners from St. Lucia (Mr. Palacio, a Columbian citizen living in Miami), Antigua (Mr. Baron, Mr. Palacio's friend and lawyer, also living in Miami), and Panama (Mr. Gouin, a friend of Greenpeace's director, a Moroccan born French expatriate, living in the Bahamas). The three commissioners were paid $ 300 per diem by Greenpeace to attend IWC meetings. Spencer, supra note 4, at 177.

n40. Milton M. R. Freeman, et al., Inuit, Whaling, and Sustainability 110 (1998).

n41. IWC Schedule, as amended by the 35th Annual Meeting, July 1983, para. 10(e). The vote was 25 to 7 with 5 abstentions. The nations voting for a moratorium were 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 nations voting against the moratorium were Brazil, Iceland, Japan, Norway, Peru, South Korea, and the USSR. The five abstaining nations were Chile, China, the Philippines, South Africa, and Switzerland. Id.

n42. Id.

n43. ICRW, supra note 16, at Art. V(3). Consistent with the procedure set forth in Article V, an amendment "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." ICRW, supra note 13, at Art. V(3). Japan withdrew its official objection to the moratorium in 1987 to stave off threats of a U.S. Packwood-Magnuson action against Japanese fisheries. Japan Whaling Association, Subsistance Whaling and Research Whaling (1988).

n44. International Convention for the Regulation of Whaling, September 24, 1931, Art. III, 155 L.N.T.S. 357. The original grant of aboriginal subsistence whaling provided that the provisions of the ICRW did not apply to coastal dwelling aborigines, provided that they used canoes, pirogues or other exclusively native craft propelled by oars or sail; they did not carry firearms; and the products were for their own use. Id.

n45. Freeman, supra note 40, at 100.

n46. Freeman, supra note 40, at 100. United States regulations allowing subsistence whaling among Inuit tribes have recognized that economic subsistence from whale products is important; therefore, the limited sale of whale products is allowed. Freeman, supra note 40, at 100.

n47. See generally Jenkins & Romanzo, supra note 5.

n48. ICRW, supra note 16.

n49. G.P. Donovan, The Ad Hoc Committee Working Group on Development of Management Principles and Guidelines for Subsistence Catches of Whales by Indigenous (aboriginal) Peoples, International Whaling Commission and Aboriginal/Subsistence Whaling: April 1979 to July 1981, Special Issue 4 (1981).

n50. Jenkins & Romanzo, supra note 5, at 77.

n51. Ray Gambell, Recent Developments in the IWC Aboriginal Subsistence Whaling Category (March 1, 1997), in Whaling in the North Atlantic (Gudrun Petursdottir ed. 1997) <http://www.highnorth.no/Library/PublicationsIceland/ic-wh-in. htm>.

n52. Id.

n53. Jenkins & Romanzo, supra note 5, at 86-87. The Makah cannot show nutritional subsistence need because they have not engaged in whaling for over seventy years and have successfully relied on other means for subsistence, including fishing, logging, tourism, and U.S. government funding. The Makah tribe did not allege that whaling was necessary as a matter of survival; rather, in 1996, the Makah were in the midst of an economic upswing. Jenkins & Romanzo, supra note 5, at 86-87.

n54. Metcalf v. Daley, 214 F.3d 1135, 1137 (9th Cir. 2000).

n55. Id.

n56. Lawrence Watters & Connie Dugger, The Hunt for Gray Whales: the Dilemma of Native American Treay Rights and the International Moratorium on Whaling, 22 Colum. J. Envtl. L. 319, 323 (1997).

n57. Id.

n58. Treaty with the Makah, Jan. 31, 1855, art. 4, U.S-Makah, 12 Stat. 939, 940.

n59. Watters & Dugger, supra note 56, at 323.

n60. Watters & Dugger, supra note 56, at 324.

n61. Watters & Dugger, supra note 56, at 324.

n62. Watters & Dugger, supra note 56, at 324.

n63. Timothy Egan, Makah Tribe Seeks Return to Tradition of Whaling, The Seattle Times, June 4, 1995, at A1 (quoting Hubert Markishtum, tribal chairman in a letter to the State Department).

n64. Endangered Species Conservation Act of 1969, Pub. L. No. 89-669, 1-3, 80 Stat. 926 (1966) and Pub. L. No. 91-135, 1-5, 83 Stat. 275 (1969).

n65. Endangered Fish and Wildlife, 58 Fed. Reg. 3121, 3135 (1993).

n66. Id.

n67. Endangered Species Act of 1973, 16 U.S.C. 1531-1544 (1994).

n68. Watters & Dugger, supra note 56. The United States government is in a fiduciary relationship with Native American tribes to uphold and forward the interests of their treaty rights.

n69. Metcalf v. Daley, 214 F.3d 1135, 1138 (9th Cir. 2000).

n70. Id.

n71. Id. (summarizing 1995 NOAA internal report).

n72. National Environmental Policy Act of 1969, 42 U.S.C.A. 4321-4347.

n73. Metcalf v. Daley, 214 F.3d at 1139.

n74. Id.

n75. Id.

n76. Department of Commerce Whaling Provisions, Aboriginal Subsistence Whaling Quotas, 50 C.F.R. 230.2 (1999).

n77. Metcalf v. Daley, 214 F.3d 1135, 1140 (9th Cir. 2000). The Tatoosh-Bonilla Line was chosen to restrict the Makah whaling activities to the waters of the Pacific Ocean in order to decrease the likelihood that resident gray whales would be taken. Id.

n78. Watters & Dugger, supra note 56, at 333.

n79. Watters & Dugger, supra note 56, at 334.

n80. Metcalf v. Daley, 214 F.3d at 1139.

n81. IWC, Depletion of Native Exemption for the Subsistence Harvest of Bowhead Whales, October 1997, Vol. 1: Final Environmental Impact Statement (1997). At this same meeting, the IWC continued the Alaskan subsistence hunt because "whaling is still a central subsistence activity - a medium for weaving modern life and traditional existence... . It is most necessary and an important food source... . It determines the social and political organizations." And, Inuits have a "strong resistance to change from subsistence life to an non-native cash economy world." Id.

n82. Jenkins & Romanzo, supra note 5, at 113-14. Twelve states voted against IWC recognition of the Makah's subsistence need (Australia, the Netherlands, Switzerland, Spain, the United Kingdom, Finland, Chile, New Zealand, Brazil, Mexico, Argentina, and Japan). Three states expressly stated that they did not recognize the Makah as having any subsistence need (Denmark, Monaco, and the Solomon Islands). Jenkins & Romanzo, supra note 5, at 113-14. The Makah could not have gained a three-fourths majority vote without joining the Russian petition.

n83. Department of Commerce Whaling Provisions, Aboriginal Subsistence Whaling Quotas, 50 C.F.R. 230.2 (1999).

n84. Id.

n85. Id.

n86. IWC Schedule, supra note 41, at para. 10(e).

n87. Notice of Aboriginal Subsistence Whaling Quotas, 63 Fed. Reg. 16,701 (1998).

n88. Id. at 16,704.

n89. Id.

n90. DOC Whaling Provisions, 50 C.F.R. 230.2.

n91. J. Baird Callicott, Whaling in Sand County: A Dialectical Hunt for Land Ethical Answers to Questions about the Morality of Norwegian Minke Whale Catching, 8 Colo. J. Int'l Envt'l L. & Pol'y 1, 21 (1997). "If ... the Norwegian government feels justified in flouting international agreements and allowing its citizens to kill the number of minke whales that it believes to be sustainable, surely the governments of Iceland, Russia, Portugal, Brazil, South Africa, Japan, and all the other countries with a whaling 'tradition' will soon feel equally justified in doing the same thing." Id.

n92. See generally Stoett, supra note 37, at 74-78.

n93. Stoett, supra note 37, at 74-75. Among notable occurrences: the Minamata Bay mercury contamination, the post-Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) trade in elephant products, the trade of gall bladders from North American and Asian black bears, the trade of kangaroo skins, and the trade of hawks-bill turtle. Stoett, supra note 37, at 74-75.

n94. Stoett, supra note 37, at 75-76.

n95. Sarah Suhre, Misguided Morality: The Repercussions of the International Whaling Commission's Shift from a Policy of Regulation to One of Preservation, 12 Geo. Int'l Envtl. L. Rev. 305, 313 (1999).

n96. See International Whaling Commission on Verge of Breakup on 50th Anniversary, U.S. Newswire, May 4, 1998 available in 1998 WL 5685413. While the IWC passed a resolution to recognize the extreme distress of the coastal villages due to their dependence on whaling and resolved to relieve it, the IWC refused to grant an exemption to the moratorium. Id.

n97. See World Whaling Commission Endangered? Japan Threatens to Undermine Group's Authority by Taking Request to UN, L.A. Times, June 2, 1999 available in 1999 WL 3364194.

n98. See U.S. Newswire, supra note 96.

n99. See Stoett, supra note 37, at 83; Burns, supra note 26, at 63.

n100. Stoett, supra note 37, at 83. During the 1960s, the KGB reported that one factory ship killed 152 humpbacks and 156 blue whales; the ship actually killed 7,207 humpbacks, 1,433 blue whales, and illegally killed 717 right whales. Stoett, supra note 37, at 83.

n101. Stoett, supra note 37.

n102. Stoett, supra note 37. At the time of this incident, Iceland was not a signatory of CITES, and therefore was not restrained from the international sale of whale products.

n103. Stoett, supra note 37. The Sea Shepherd Society is rumored to have attacked and sunk ships.

n104. The Faroe Islands, Greenland, Iceland, and Norway formed NAMMCO by signing the Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic in Nuuk, Greenland on April 9, 1992.

n105. David D. Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 Am. J. Int'l L. 154, 164 (1995) (quoting Gudmundur Eiriksson).

n106. David D. Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 Am. J. Int'l L. 154, 163-64 (1995).

n107. Callicott, supra note 91, at 22 (citing an interview with Lars Walloe, chief scientific advisor to Gro Harlem Brundtland).

n108. The High North Alliance, Whaling in the Old Days, in Living Off the Sea, Minke Whaling in the North East Atlantic (1994) available at <www. highnorth.uo/library/hunts/norway/wh-in-th.htm> (last visited March 8, 2001).

n109. Id.

n110. Id.

n111. Id. The Norwegians invented the harpoon-grenade tipped gun, the use of attached cables to keep the whale from sinking, and the stern-slip factory ship. Id.

n112. Norwegian Minke Whaling: Coastal Livelihood and Natural Resource Management, Norway Info. 1 (Norwegian Ministry of Foreign Affairs 1993).

n113. IWC, Whale Population Assessments (1992).

n114. IWC, Whaling after the 1993 Meeting of the IWC (1993).

n115. ICRW, supra note 38, at para. 10(e).

Catch 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 modification of this provision and the establishment of other catch limits.

n116. ICRW, supra note 44, at para. 10(e).

Christine Ingebritsen, The Politics of Whaling in Norway and Iceland, Scandinavian Rev. 9, at 11 (Winter 1997/1998).

n117. Clinton to Delay Sanctions on Norwegians for Whaling, N.Y. Times, October 6, 1993 at A9. In 1993, President Clinton decided to postpone sanctions under the Pelly Amendment, hoping that good faith negotiations would "persuade Norway to follow agreed conservation measures." Id. See, e.g., Fishermen's Protective Act of 1967, 22 U.S.C. 1976 (1994).

n118. Among the protest activities undertaken by these groups are drilling holes in the hulls of whaling ships and forcefully entering and filming families and personnel of companies associated with whaling in their private residences for an American documentary.

n119. See Norwegian Decision to Hunt Whales Sparks Boycott, Could Affect U.S. Trade, Int'l Trade Daily, May 28, 1993; Zenjiro Doi, Whaling in Norway, Asahi Shimbun (1993); Boycott of Norwegian Exports Continues over Whaling Controversy, Europe Environment, July 6, 1996 (the unofficial boycott includes major German supermarkets, British seafood importers, and Burger King).

http://www.lexis.com/research/ - r120n120. Suhre, supra note 95, at 317.

n121. IWC, Chairman's Report of the 44th Annual Meeting of the International Whaling Commission 11 (1992).

n122. Ingebritsen, supra note 116, at 11.

n123. IWC, Chairman's Report of the 48th Annual Meeting of the International Whaling Commission (1996) (quoting Norwegian Commissioner to the IWC).

n124. Callicott, supra note 91, at 1.

n125. Callicott, supra note 91, at 2.

n126 Clay Erik Hawes, Norwegian Whaling and the Pelly Amendment: A Misguided Attempt at Conservation, 3 Minn. J. of Global Trade 97, 128 (1994). This kind of cookie cutter normative argument led multitudes of political analysts to the belief that Norway had no choice but to join the European Union. However, the subtleties of Norwegian politics were revealed by the EU referendum. Norway has an acute sense of national sovereignty that must be taken into consideration in any political analysis.

n127. Stella Bugge, Norway Offers Little in Fisheries Talks, Reuter European Community Report, November 12, 1993. "Opinion polls show that a wide majority of Norwegians oppose [EC] membership, partly due to worries about losing national control over resources such as fish." Id. For a full discussion of Norwegian politics in relation to European regionalization, see Christine Ingebritsen, The Nordic States and European Unity (Cornell Univ. Press 2000).

n128. Steinar Andersen, Hvalfangstens fortid og framtid [The history and future of whaling], Dagbladet, May 28, 1998.

n129. Id.

n130. Id.

n131. Johan J<sl o>rgen Holst, Statement to the Storting, May 18, 1993.

n132. Id.; see also Andersen, supra note 128; Ingebritsen, supra note 116, at 14-15.

n133. Ingebritsen, supra note 116, at 12.

n134. UNCLOS, supra note 17, at Art. 65.

n135. UNCLOS, supra note 17, at Art. 65.

n136. UNCLOS, supra note 17, at Art. 65.

n137. UNCLOS, supra note 17, at Arts. 87, 116.

n138. International Covenant on Economic, Social and Cultural Rights, December 19, 1966, Art. 1(2), 993 U.N.T.S. 4.

n139. Id. at Art. 1(1).

n140. Id. at Art. 12(1).

n141. Id. at Art. 15(1)(a).

n142. Report of the United Nations Conference on Environment and Development, 1992, U.N. Doc. A/CONF. 151/26, ch. 17 (1992), Agenda 21 P 17.62(c).

n143. Id. at P 17.56.

n144. Id. at P 17.80(b).

n145. Id. at P 17.80(g).

n146. Id. at P 17.82(b).

n147. Id. at P 17.83.

n148. Caron, supra note 105, at 155.

n149. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 12 I.L.M. 1085, Appendices I and II (entered into force July 1, 1975).

n150. Ingebritsen, supra note 116, at 14. "Norwegians have vast supplies of whale blubber that are costly and difficult to store, yet are not permitted to be sold abroad." Ingrebritson, supra note 116, at 14.

n151. Iceland Joins Cites, High North Web News, Jan. 14, 2000 <www. worldcouncilofwhalers.com/News>. Iceland became a signatory of CITES on January 14, 2000, lodging objections to Appendixes I and II, which restrict the trade in whale products.

n152. Ingebritsen, supra note 116, at 14; Iceland's Parliament Votes to Resume Whaling by 2000, Orange County Register, Mar. 13, 1999, available in 1999 WL 4289344. At its peak, whaling accounted for two percent of Iceland's exports. Id.

n153. Ingebritsen, supra note 116, at 14.

n154. Ingebritsen, supra note 116, at 14.

n155. One of the largest concerns about the Makah application for a gray whale quota related to the fact that they had no subsistence need. One commentator stated that granting an aboriginal subsistence quota to the Makah would almost necessarily require that the IWC grant a quota to Norway and would strengthen Japan's applications. Watters & Dugger, supra note 56, at 349-50.

n156. Watters & Dugger, supra note 56, at 349-50; see note 142.

n157. Department of Commer Whaling Provisions, Aboriginal Subsistence Whaling Quotas, 50 C.F.R. 230.2 (1999).

n158. Freeman, supra note 40.

n159. Freeman, supra note 40.

n160. Ingebritsen, supra note 116, at 4.

n161. Freeman, supra note 40.

n162. Department of Commerce Whaling Provisions, Aboriginal Subsistence Whaling Quotas, 50 C.F.R. 230.2 (1999).

n163. NOAA Whaling Provisions, 50 C.F.R. 230.8(b) (1998).

n164. Webster's New Collegiate Dictionary 3 (1981).

n165. See generally, Jenkins & Romanzo, supra note 5.

n166. See, e.g., Universal Declaration of Human Rights, Dec. 10, 1948, U.N.G.A. Res. 217; International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

n167. Vienna Convention on the Law of Treaties, Arts. 51, 71, May 23, 1969, 1155 U.N.T.S. 331.

n168. See generally, J.A. Fall, The Division of Subsistence of the Alaska Department of Fish and Game: An Overview of its Research and Findings: 1980-1990, 27 Arctic Anthropology 68 (1990); Gisli Palsson, Coastal Economies, Cultural Accounts: Human Ecology and Icelandic Discourse (1991); R.J. Wolfe and L.J. Ellanna, eds., Resource Use and Socioeconomic Systems: Case Studies of Fishing and Hunting in Alaskan Communities, in Alaska Department of Fish and Game, Division of Subsistence, Technical Paper Series No. 61 (1983).

n169. Id.

n170. Charles J.L. McKee, Hypocrisy Endangers the IWC's Future, Japan Times, April 22, 1996. Among the incidents cited are:

The enlargement of the IWC to include anti-whaling nations, including Austria and Switzerland, which are landlocked states.

That the moratorium was intended to be temporary with a resumption of commercial whaling "by 1990 at the latest."

The IWC Scientific Committee's finding that a limited harvest of minke whales would leave the populations undisturbed.

The United States rejecting the scientific basis for minke whale hunting, yet insisting that scientific evidence supported the taking of bowhead whales, an endangered species.

The grant of gray whale quota to the Makah.

Threats of United States sanctions under the Pelly Amendment against Norway and Japan. Id.

n171. See generally, Melinda K. Blatt, Woe for the Whales: Japan Whaling Ass'n. v. American Cetacean Soc'y., 106 S. Ct. 2860 (1986), 55 U. Cin. L. Rev. (1987); Clay Erik Hawes, Norwegian Whaling and the Pelly Amendment: A Misguided Attempt at Conservation, 3 Minn. J. Global Trade 97 (1994). Attempts to use the 1971 Pelly Amendment to the Fisherman's Protective Act and the 1979 Packwood-Magnuson Amendment to the Fishery Conservation and Management Act to punish nations not in compliance with the IWC regulations failed. Id.

n172. See, e.g., The European Coal and Steel Community (joined together traditionally hostile nations into economic interdependence).

n173. Statute of the International Court of Justice, 59 Stat. 1055 (June 26, 1945); J.G. Merrills, International Dispute Settlement 109 (1991). The ICJ is the judicial body of the United Nations. All members of the United Nations are also parties to the Statute of the Court.

n174. ICJ Statute, supra note 173, at Arts. 36(1), (2), 37.

n175. ICJ Statute, supra note 173, at Arts. 65-68.

n176. Merrills, International Dispute Settlement 109 (1991).

n177. Id.

n178. Nederlag for Norge p<ring a> Cites-konferanse [Bad news for Norway at the CITES Conference] (CNN Norge television broadcast, April 15, 2000).

n179. Id. Japan and Norway argued before the CITES conference that the IWC moratorium was an illegal restriction on trade. The convention denied the joint proposal by a vote of 69-46-8. Id.

n180. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, Art. 26. "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." Id.

n181. Norwegian Royal Ministry of Foreign Affairs, Environmental Protection and Management of Natural Resources (1993). Norway has led the world in efforts to develop international cooperation to control pollution from industry and shipping, sewage discharge, and the dumping of radioactive and other waste. The 1929 Norwegian Whaling Act set precedent for the IWC. In addition to the Oslo Convention for the prevention of marine pollution by dumping from ships and aircraft, Norway has taken the initiative to conclude many international agreements on the protection of the marine environment, including the London Convention for the prevention of pollution from ships and the Bonn Agreement for cooperation in dealing with pollution of the North Sea by oil. Id.

n182. IWC Schedule, supra note 41, at I.

n183. IWC Schedule, supra note 41, at I(c).

n184. IWC Schedule, supra note 41, at I(c).

n185. Gambell, supra note 51; Patricia W. Birnie, International Regulation of Whaling 681-82 (1985).

n186. Brian Moeran, et al., An International Study Group for Small-Type Whaling, Similarities and Diversity in Coastal Whaling Operations: A Comparison of Small-Scale Whaling Activities in Greenland, Iceland, Japan, and Norway (1992).

n187. Id. Vessels normally range between 20' to 122'. None of the vessels is used solely for whaling, but is also used for other marine harvesting purposes. The vessels are usually equipped with 50mm to 60mm cannons. Id.

n188. Id.

n189. Id.

n190. James Rosenau, Turbulence in World Politics: A Theory of Change and Continuity 422 (1990).