Reforming the International Whaling Commission: Indigenous Peoples, the Canadian Problem and the Road Ahead

In: International Community Law Review
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  • 1 Queen Mary, University of London

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The International Whaling Commission (iwc) conceals within its history a perennial battle between nations. Since the moratorium on commercial whaling took effect in 1986 both sides of the whaling debate have been unable to substantively advance their cause. This has led many commentators to question its purpose and ability to adapt to issues of modern significance. Given the interdisciplinary breadth of the debate at hand, this article primarily focuses on place of Indigenous peoples within the history of whaling and what role, if any, they will play in the future relevance of the iwc. It is argued that Canada’s withdrawal from the iwc, in the interest of its Indigenous peoples, should generally be regarded as a domestic regulatory success. Nevertheless, the time is ripe for Canada to re-establish itself at the international level with the goal of reforming the state of the Aboriginal Subsistence Whaling exception and perhaps the iwc itself.

  • 3

    2 December 1946, 161 unts 72 (hereinafter: icrw).

  • 4

    Fitzmaurice, p. 4.

  • 6

    Fitzmaurice, p. 4.

  • 8

    Gambell, p. 97.

  • 10

    Nagtzaam, p. 18.

  • 12

    Nagtzaam, p. 19.

  • 14

    Nagtzaam, p. 19.

  • 15

    Fitzmaurice, p. 9.

  • 18

    Kobayashi, p. 184.

  • 19

    24 September 1931, 155 lnts 349 (hereinafter: 1931 Convention).

  • 20

    Gambell, p. 98.

  • 22

    Kobayashi, p. 185.

  • 23

    D’Amato and Chopra, p. 31.

  • 28

    Fitzmaurice, p. 16.

  • 29

    Nagtzaam, p. 24.

  • 31

    8 June 1937, 190 lnts 79 (hereinafter: 1937 Agreement).

  • 34

    Fitzmaurice, p. 26 references the hunting of Right whales who were pregnant. See also Kobayashi, p. 187 who cites this pre-Second World War era as one without comprehensive adherence and where non-parties were able to indiscriminately undermine any positive progress.

  • 40

    Doubleday, p. 373.

  • 41

    Gupta, p. 1741.

  • 42

    Doubleday, p. 376.

  • 43

    Ibid., p. 375 specifically cites the effects of a winter with no sunlight and summer with only sunlight.

  • 44

    Ibid., p. 376.

  • 45

    Gupta, p. 1745.

  • 46

    Fitzmaurice, p. 237.

  • 47

    Doubleday, pp. 376–377.

  • 53

    Ibid., p. 28.

  • 55

    Doubleday, p. 378.

  • 56

    Gupta, p. 1750.

  • 57

    Doubleday, p. 379. Note, it was not uncommon for like relationships to endure, but the seasonality and commercial nature of the hunt often meant that women were abandoned with the children of their European partners. The imbalances in labour and workload that resulted threatened the Inuit way of life further as more mouths to feed and broken communities made survival less attainable.

  • 59

    Doubleday, p. 379.

  • 60

    Gupta, p. 1748.

  • 61

    Doubleday, p. 379.

  • 62

    Nagtzaam, p. 27.

  • 65

    Lyster, p. 25 also cites a number of other decisive amendments, particularly those relating to the calculation of whale stocks and resulting quotas. The abandonment of the antiquated Blue Whale Unit (bwu) in favour of more modern approaches has allowed the iwc to more accurately assess the current state of the whaling ecosystem.

  • 66

    Nagtzaam, p. 48.

  • 68

    Lyster, p. 20.

  • 70

    Fitzmaurice, p. 34.

  • 71

    Bright, p. 816. See also Kobayashi, p. 200.

  • 72

    Nagtzaam, p. 29.

  • 74

    Nagtzaam, p. 29.

  • 76

    Nagtzaam, p. 31 describes this race to beat the competition, beginning before the iwc’s creation, as the ‘Whaling Olympics’.

  • 77

    D’Amato and Chopra, p. 34.

  • 78

    Jordan, p. 839.

  • 79

    Fitzmaurice, p. 34 notes that the commercial practicality of whaling was also affected by the shift to hydrocarbon-based economies. Whale oil was no longer a commodity at the scale it once was and even whale meat had reduced in popularity. See also the Rupert Wingfield-Hayes, “Japan and the Whale” (bbc News, 8 February 2016) <http://www.bbc.co.uk/news/world-asia-35397749> accessed 1 March 2016 which discusses the dwindling market for whaling products in Japan, despite its enduring cultural significance connected to the Second World War.

  • 80

    Kobayashi, p. 195.

  • 81

    Gambell, p. 99.

  • 82

    Ibid., p. 100.

  • 83

    Fitzmaurice, p. 60.

  • 85

    Nagtzaam, p. 51.

  • 86

    3 March 1973, 983 unts 243 (hereinafter: cites).

  • 88

    10 December 1982, 1833 unts 396 (hereinafter: unclos).

  • 89

    Matanich, p. 64.

  • 90

    Nagtzaam, p. 36 notes that it is not easy to pinpoint a clear point of ideological transition, but undoubtedly external forces were working hard to effect change.

  • 91

    Fitzmaurice, p. 248 explains that some evolution has taken place within the Schedule since 1946. While ‘aborigines’ were exempted for the purposes of local consumption, this has now changed. See also icrw, schedule 13 for modern restrictions on Baleen catches.

  • 92

    Nagtzaam, p. 70 qualifies this by adding that such regulation is predicated on asw not threatening the survival of whale species. See also International Whaling Commission, “Aboriginal Subsistence Whaling” (2016) <https://iwc.int/aboriginal> accessed 1 March 2016.

  • 95

    Gambell, p. 102 also cites a very high strike rate in comparison to the catch totals which may have further reduced populations in that area.

  • 98

    Fitzmaurice, pp. 248–249.

  • 99

    See Walters, pp. 31–32 who discussed the Canadian Governments imposition of assimilationist practices to solidify its legal authority.

  • 101

    Ibid., p. 86.

  • 102

    See Gambell, p. 103 citing the United States’ national management plan, agreed to with the Alaskan communities, which allowed for the block quota system to be implemented under a ‘dual system’. Such a response was necessary in light of the dire conclusions drawn by the Technical Committee in relation to the Bowhead population.

  • 105

    See Dupuy and Viñuales, pp. 77–78 for a discussion of its definition and context within the icrw.

  • 108

    Nagtzaam, p. 28.

  • 110

    Lyster, p. 20.

  • 111

    Nagtzaam, p. 28.

  • 112

    Matanich, p. 65.

  • 113

    Jordan, p. 854.

  • 114

    Nagtzaam, p. 55 notes that the slim margins on each side, which split the votes of the iwc 50/50, are threatened by new tactics from Japan which resemble those used by ngos to achieve the moratorium in the first place.

  • 115

    Kobayashi, p. 208.

  • 116

    Jordan, p. 836.

  • 117

    Bright, p. 822.

  • 118

    Fitzmaurice, p. 38.

  • 119

    Ruffle, p. 659.

  • 121

    Ruffle, p. 653.

  • 122

    Fitzmaurice, p. 38.

  • 123

    Lyster, p. 31.

  • 124

    See ibid., p. 34 for a detailed discussion of these enforcement mechanisms.

  • 125

    Gambell, p. 105.

  • 126

    Nagtzaam, p. 45 suggests that by enforcing in his way the United States has pushed whalers to hide their catches and seek more immature prey. See also Ruffle at 663 who asserts that the iwc is weakened by the pawns of the United States who do not have a vested interest in whaling at all.

  • 127

    Bright, p. 834 notes that the United States has been reluctant to impose such sanctions on Japan as they are a valuable trading partner. This has made this form of enforcement toothless.

  • 128

    Ruffle, p. 668.

  • 129

    Ibid., p. 669.

  • 130

    Lyster, p. 859.

  • 131

    See Fitzmaurice, p. 41 who cites the use of compliance bodies in other international legal agreements including the Basle and Aarhus Conventions.

  • 133

    Fitzmaurice, p. 32.

  • 134

    Ibid., p. 64.

  • 136

    See ibid., p. 348 where these objections are laid out in more detail. It is worth noting that only Norway and the ussr (now the Russian Federation) have maintained their original objection.

  • 137

    Gambell, p. 99.

  • 138

    Fitzmaurice, p. 64.

  • 139

    Matanich, p. 56.

  • 141

    Matanich, p. 42.

  • 142

    Reeves, p. 90.

  • 146

    Reeves, p. 90.

  • 147

    Fitzmaurice, p. 263.

  • 148

    Ibid., p. 243.

  • 151

    See ibid., p. 217.

  • 152

    Fitzmaurice, p. 248.

  • 154

    Doubleday, p. 852.

  • 156

    Gupta, pp. 1766–1767.

  • 158

    Fitzmaurice, p. 263.

  • 159

    Walters, p. 34.

  • 162

    Ibid., 135.

  • 163

    Ibid., 137.

  • 165

    See Fitzmaurice, p. 263 for a detailed discussion of these structures.

  • 167

    Fitzmaurice, p. 263.

  • 169

    Reeves, p. 92. See also Nunavut Land Claims Agreement, part v.

  • 170

    See Fitzmaurice, p. 263 citing Section 446 of the Canadian Criminal Code which regulates annual welfare standards.

  • 174

    Fitzmaurice, pp. 309–310.

  • 175

    Ibid., p. 307 notes the different purposes of whaling as “commercial, cultural, scientific, and varying combinations of these three”.

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