the iwc moratorium on commercial whaling was not a value
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ARTICLE
The IWC moratorium on commercial whalingwas not a value judgment and was not intendedas a permanent prohibition
Joji Morishita • Dan Goodman
Published online: 10 August 2011
� Aegean Institute of the Law of the Sea and Maritime Law 2011
Abstract A review of the International Whaling Commission’s institutional dis-
course related to the ‘‘moratorium’’ as reflected in the Commission’s documents
together with a literal reading of Schedule paragraph 10(e) of the International
Convention for the Regulation of Whaling (ICRW) shows that the moratorium does
not include language which permanently prohibits commercial whaling, does not
include any expression which demonizes whaling, does not label the killing for
commercial purposes as criminal as opposed to catching for indigenous purposes,
and does not reflect any value judgments about whales and whaling. Rather, this
paper shows that with only few exceptions these documents together with the
language of paragraph 10(e) clearly demonstrate that the moratorium was intended
as a temporary conservation and management measure related to uncertainties of
scientific information. Notwithstanding this, anti-whaling NGOs have mischarac-
terized the moratorium as a permanent prohibition or ban on commercial whaling.
This mischaracterization was a major factor in the failure of the ‘‘Future of IWC’’
process which was aimed at getting compromises from both pro-whaling and anti-
whaling members to resolve the bipolar, conflictive and dysfunctional nature of the
organization. Finally, it is concluded that the moratorium as a permanent prohibition
The views expressed in this paper are those of the authors and do not necessarily represent the positions
of the Government of Japan.
J. Morishita (&)
Fisheries Agency of Japan, 1-2-1 Kasumigaseki, Chiyoda-ku, Tokyo 100-8907, Japan
e-mail: [email protected]
D. Goodman
The Institute of Cetacean Research, 4-5, Toyomi-cho, Chuo-ku, Tokyo 104-0055, Japan
e-mail: [email protected]
123
Aegean Rev Law Sea (2011) 1:301–311
DOI 10.1007/s12180-011-0020-z
would be inconsistent with the purpose of the ICRW and that science related to the
management of whales and international law, in this case the literal interpretation
and implementation of the Schedule paragraph 10(e), provide the only possible
means to resolve the controversy concerning whaling.
Keywords Moratorium � Whaling � International Whaling Commission (IWC) �International Convention for the Regulation of Whaling (ICRW) �Scientific uncertainty � Conservation and management measures �Future of IWC
1 Introduction
In 1972, the United Nations Conference on the Human Environment (the Stockholm
Conference) adopted an action plan that included an urgent call for a 10-year
moratorium on commercial whaling (UNEP 1972). Recommendation 33 of the
Action Plan for the Human Environment states:
It is recommended that Governments agree to strengthen the International
Whaling Commission, to increase international research efforts, and as a
matter of urgency to call for an international agreement, under the auspices of
the International Whaling Commission and involving all Governments
concerned, for a 10-year moratorium on commercial whaling.
However, the International Whaling Commission (IWC) rejected proposals from
the United States for zero quotas for commercial whaling at its Annual Meeting in
1972 and a 10-year moratorium on commercial whaling at its Annual Meetings in
1973 and 1974.
Following several similar unsuccessful attempts, with the recruitment of
additional anti-whaling members, in 1982 the Commission adopted an amendment
to the Schedule to the International Convention for the Regulation of Whaling
(ICRW) that set zero catch limits for the killing for commercial purposes of whales
from all stocks for the 1986 coastal and 1985/1986 pelagic seasons and thereafter.
The amendment also included a provision for review of the effects of the decision
by 1990 and the possible establishment of other catch limits.1 Technically, this was
the addition of paragraph 10(e) to the Schedule of the ICRW.
Commonly, paragraph 10 (e) is referred to as the ‘‘IWC moratorium on
commercial whaling’’ and, while anti-whaling NGOs, others opposed to whaling
and the media frequently call it ‘‘the ban on commercial whaling’’ implying or
stating that it is a permanent prohibition of something evil or even criminal,
examination of the discourse used in presenting and supporting moratorium
proposals including the IWC’s verbatim records of its annual meetings, written
opening statements and the Chairman’s reports of the annual meetings clearly shows
1 Descriptions of the moratorium proposals and the voting outcomes are recorded in the Chairman’s
reports of the meetings available from the IWC Secretariat, Cambridge, UK.
302 J. Morishita, D. Goodman
123
that this is not the case. Rather, this paper shows that with only few exceptions,2,3
these documents together with the language of paragraph 10(e) clearly demonstrate
that the moratorium was intended as a temporary conservation and management
measure related to uncertainties of scientific information without categorically
denying whaling as a legitimate activity and without passing moral or value
judgments. The negotiation history of paragraph 10(e) confirms that the moratorium
was simply an ordinary resource conservation and management measure to
temporarily suspend whaling operations while conducting a comprehensive assess-
ment of whale populations. This interpretation was also expressed by FAO’s long-
time participant in the work of the IWC who wrote that ‘‘as presented to the IWC, and
as the term implies, the moratorium was to be a temporary measure, to be reviewed
not later than 1990. It was intended to give scientists time to remove doubts about
figures of sustainable yields, numbers of whales and so on.’’ (Gulland 1988).
2 Plain meaning/straight reading of Schedule 10(e)
The ‘‘Schedule’’ of the ICRW is the means for adopting legally binding
‘‘...regulations with respect to the conservation and utilization of whale resources...’’
(Article V.1., ICRW) and, as noted above, the so-called moratorium on commercial
whaling was established by the addition of paragraph 10(e) to the Schedule in 1982.
Paragraph 10(e) of the Schedule reads as follows:
(e) Notwithstanding the other provisions of paragraph 10, catch limits for the
killing for commercial purposes of whales from all stocks for the 1986 coastal
and the 1985/86 pelagic seasons and thereafter shall be zero. This provision
will be kept under review, based upon the best scientific advice, and by 1990
at the latest the Commission will undertake a comprehensive assessment of the
effects of this decision on whale stocks and consider modification of this
provision and the establishment of other catch limits.
The plain meaning of this provision is that when a comprehensive scientific
assessment on a whale stock is completed and a sustainable catch quota calculated, a
non-zero catch limit can be established for the stock. Therefore, it is perfectly
appropriate to establish a whaling quota under this ‘‘moratorium’’ language. Such
action does not violate the moratorium or ‘‘lift’’ it. It should be emphasized that the
language of paragraph 10(e) does not introduce a permanent ban on commercial
whaling nor establish any value judgement to the effect commercial whaling is
2 For example, the statement by the US Commissioner in support of its 1973 proposal for a 10-year
moratorium: ‘‘Support for the moratorium comes from the very deep-rooted feeling of the people of the
United States that the time has come to stop killing whales.’’ Verbatim record of the 1973 Annual
Meeting available from the IWC Secretariat, Cambridge, UK.3 The written opening statement of New Zealand on rejoining the Commission for its 1976 Annual
Meeting refers to environmental issues having ‘‘caught the popular imagination’’ and that this was
‘‘particularly true of the plight of the whales’’. Statement available from the IWC Secretariat, Cambridge,
UK.
The IWC moratorium on commercial whaling was not a value judgment 303
123
wrong or illegal. It is true that anti-whaling interests had tried to establish a
permanent ban on whaling in the course of the negotiation of this provision but the
fact that the Schedule language is formulated as a temporary suspension of whaling
while a comprehensive assessment is undertaken for the possible establishment of
non-zero catch quotas indicates the attempt was not successful.
Further, while Japan’s research whaling has been criticized as ‘‘disguised
commercial whaling’’ the research was initiated for the purpose of contributing to
the comprehensive scientific assessment demanded by paragraph 10(e).
3 Discourse in presenting and supporting moratorium proposals leadingup to 1982
In presenting its proposal for zero quotas for commercial whaling at the 1972
Annual Meeting the United States delegation said that the state of knowledge of the
whale stocks was so inadequate that it was only common prudence to suspend(emphasis added) whaling so that scientific efforts could be redoubled (IWC 1972).
Similarly, in support of its proposal for a 10-year moratorium at the 1974 Annual
Meeting the Commissioner for the United States said ‘‘we are seeking a ten year
moratorium based on continuing decrease in catch per unit effort of fin whales and
FAO’s recognition of the gross uncertainties in the data and questionable
assumptions on which present management schemes are based’’ (IWC 1974).
Further statements supporting the argument that the moratorium was intended as a
conservation and management measure rather than a permanent prohibition include
statements at the 1979 meeting by the UK Minister that ‘‘there should be a
moratorium on commercial whaling in order to allow a thorough assessment of
whale numbers and of their biology’’ and that ‘‘resumption of whaling should only
be considered if evidence of recovery of stocks and improvement in methods of
killing justify it.’’ and by Sweden that ‘‘we strongly favor a moratorium because
there are too many gaps in the science but we are prepared to discuss opening of
whaling after the moratorium based on scientific results.’’ (IWC 1979), as well as
the statement from France at the 1980 meeting that the ‘‘moratorium is a method of
managing whales to be applied at this time to allow their recovery’’ (IWC 1980).
Finally, at the 1981 Annual Meeting Mr. Wiggin, Parliamentary Secretary to the
Ministry of Agriculture, Fisheries and Food of the UK said ‘‘we recognize that other
countries have a legitimate commercial interest in whaling and if in the future, it
could be shown beyond a reasonable doubt that some exploitation of stocks might
be safely resumed and that satisfactory methods of killing were available, the lifting
of the ban might be considered’’. In clarifying their proposal the UK delegation also
said ‘‘what we had in mind is a moratorium and not a permanent ban.’’ (IWC 1981).
4 1982 moratorium negotiations
At the meeting of the IWC’s Technical Committee prior to the plenary sessions the
Seychelles proposed a 3-year phase out of commercial whaling. This was amended
304 J. Morishita, D. Goodman
123
by Costa Rica to a 2-year phase out which was recommended by the Technical
Committee to the plenary. At plenary, the Seychelles proposed an amendment to the
Costa Rica proposal to return to the 3-year phase out of its original proposal and to
add the additional clause ‘‘This provision shall be kept under review, based on the
best scientific advice, and by 1990 at the latest the Commission shall 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.’’
In proposing this amendment the Commissioner for the Seychelles stated; ‘‘We
have also taken into account opinions which have been expressed amongst member
states here which suggest that it is necessary to provide also for the possibility of
review and reassessment and, if the scientific information should so suggest in the
interim, perhaps even a resumption of some form of commercial activity.’’ (IWC
1982). He also had said in the Technical Committee that; ‘‘I would repeat and
remind you that this is a catch limit proposal not a ban or a moratorium’’. Spain
commented that ‘‘First of all let me advance that I don’t consider this as a total ban
… but just a temporary interruption of the activity.’’ (IWC 1982). The Commis-
sioner from St. Lucia who had supported the ‘‘moratorium’’ proposal also stated; ‘‘It
is with deep regret that I note that there has been a misunderstanding on the proposal
of the distinguished delegate from the Seychelles. It is not a proposal for a total ban
for commercial whaling, but rather a proposal on catch limits’’ (IWC 1982).
Notwithstanding these statements, some members including Japan still opposed
the proposal as they regarded it as ‘‘in substance a total moratorium’’ noting that
‘‘the Scientific Committee ruled many times in the past that there is no scientific
justification or biological need for a total or blanket moratorium’’ (IWC 1982). The
vote on the proposal received the required � majority vote (25 votes in favor, with 7
against and 5 abstentions) (IWC 1983). The clause which the Seychelles added to
account for opinions ‘‘expressed amongst member states’’ was necessary because a
permanent prohibition would not have been accepted by the Commission.
5 Revised management procedure and the Scientific Committee
Many species and stocks of whales are abundant, increasing and recovering from past
over-harvesting. The IWC’s website (http://www.iwcoffice.org/), which provides
population figures agreed by its Scientific Committee through the ‘‘comprehensive
assessment (CA)’’ process as required by Schedule 10(e), confirms this. Past com-
mercial whaling did result in over-harvesting. However, much has been learnt about
the science of whales and the science of resource management since that time. The
IWC’s Scientific Committee has also developed a risk-averse method of calculating
catch quotas and this was adopted by the IWC in 1994. This method called the
‘‘revised management procedure’’ (RMP) together with a monitoring and inspection
scheme would provide a regime to ensure that commercial whaling would be sus-
tainable and that regulations are followed. The RMP is regarded as one of the most
precautionary tools for calculating catch quotas which includes built-in safety factors
to address possible substantial misreporting of past catches, environmental disasters
which could reduce whale stocks by half, miss-estimation of vital biological
The IWC moratorium on commercial whaling was not a value judgment 305
123
parameters, and other scientific uncertainties. If the RMP were applied to commer-
cial fisheries, many, if not all, would have to be closed (Butterworth 1992).
The fact that the IWC Scientific Committee has been involved in the
comprehensive assessment and the development of the revised management
procedure (RMP)4 since the adoption of the moratorium also shows that paragraph
10(e) has prescribed the IWC to manage commercial whaling rather than
permanently prohibit it. The perception of the moratorium as a permanent
prohibition fostered by the intense campaigns of anti-whaling NGOs and the press
is inconsistent with the language of Schedule 10(e) and contradicts the engagement
of the Scientific Committee in the RMP process.
In fact, the Scientific Committee has completed the application of RMP to
several whale stocks including the northwestern Pacific minke, the northwestern
Bryde’s, and the north Atlantic minke. In accordance with the unambiguous
language of paragraph 10(e), the IWC should now be ready to establish harvesting
quotas for these stocks.
6 IWC resolutions
While the anti-whaling campaigns and their media coverage following the adoption
of paragraph 10(e) have, using the word ‘‘ban’’, established the public perception
that the moratorium is, or at least should be, a permanent prohibition and a
criminalization of both commercial whaling and Japan’s research whaling such
evolutionary interpretations are without legal foundation. Both the purpose and
meaning of paragraph 10(e) remain unchanged until such time as the IWC decides
by at least a � majority to change it.
The anti-whaling interests would argue that the interpretation of the 10(e) has
been ‘‘evolved’’ and the Schedule language is now understood as a ban on
commercial whaling (IFAW 2006). Adoption of several non-binding IWC resolu-
tions that oppose whaling, scientific or commercial, could be used as supporting
evidence of the ‘‘evolution’’. However, the legal language of the Schedule 10(e) can
not be changed by resolution and it remains the same and unambiguous (Greenberg
et al. 2002). In fact, the IWC has not even adopted any resolution urging or offering
such interpretation. Without an amendment to the language, no such ‘‘evolution’’ can
happen and the Vienna Convention on the Law of Treaties confirms this:
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.
On the other hand, at its meeting in 2006, the Commission adopted the St. Kitts
and Nevis Declaration which noted ‘‘that the moratorium which was clearly
4 http://www.iwcoffice.org/conservation/rmp.htm. Last accessed 17 Nov 2010.
306 J. Morishita, D. Goodman
123
intended as a temporary measure is no longer necessary’’ and that ‘‘the position of
some members that are opposed to the resumption of commercial whaling on a
sustainable basis irrespective of the status of whale stocks is contrary to the object
and purpose of the International Convention for the Regulation of Whaling.’’5 IWC
resolutions only require a simple majority for adoption. At best they are a reflection
of the political positions of the majority of members present at the time, either anti-
whaling or pro-whaling. They can not change the legally binding language of the
Schedule.
7 Paragraph 10(e) compared with the Southern Ocean Sanctuary
Additional support for the case that paragraph 10(e) was designed as a science-
based management measure rather than a ‘‘ban’’ or a permanent prohibition comes
from comparing paragraph 10(e) with the Schedule provision that established the
Southern Ocean Sanctuary, that is, paragraph 7(b) adopted in 1994.
7(b) In accordance with Article V(1)(c) of the Convention, commercial
whaling, whether by pelagic operations or from land stations, is prohibited in a
region designated as the Southern Ocean Sanctuary. This Sanctuary comprises
the waters of the Southern Hemisphere southwards of the following line:
starting from 40 degrees S, 50 degrees W; thence due east to 20 degrees E;
thence due south to 55 degrees S; thence due east to 130 degrees E; thence due
north to 40 degrees S; thence due east to 130 degrees W; thence due south to
60 degrees S; thence due east to 50 degrees W; thence due north to the point of
beginning. This prohibition applies irrespective of the conservation status of
baleen and toothed whale stocks in this Sanctuary, as may from time to time
be determined by the Commission. However, this prohibition shall be
reviewed ten years after its initial adoption and at succeeding ten year
intervals, and could be revised at such times by the Commission. Nothing in
this sub-paragraph is intended to prejudice the special legal and political status
of Antarctica.
Noteworthy are the words that ‘‘This prohibition applies irrespective of the
conservation status of baleen and toothed whale stocks in this Sanctuary...’’. Unlike
paragraph 10(e), this is not a science-based measure but a declaration of a value
judgment about whaling; even if the conservation status of a whale stock is abundant
and robust, whaling is prohibited. Further, if paragraph 10(e) was intended as a
permanent prohibition, a sanctuary to prohibit whaling in the southern ocean would
have been unnecessary even from the point of view of those opposed to whaling.
The lack of science in relation to the Southern Ocean Sanctuary was confirmed
by an expert review commissioned by the IWC Scientific Committee in 2004. The
review concluded that:
5 The St. Kitts and Nevis Declaration http://www.iwcoffice.org/meetings/resolutions/resolution2006.
htm#1. Last accessed 17 Nov 2010.
The IWC moratorium on commercial whaling was not a value judgment 307
123
‘‘Overall, the SOS – and IWC Sanctuaries in general – are not ecologically
justified’’, that ‘‘the SOS represents a ‘shotgun’ approach to conservation, whereby a
large area is protected with little apparent rationale for boundary selection and
management prescriptions within the sanctuary’’ and that ‘‘while a vast array of
ecosystem-level and precautionary conservation benefits have been invoked for the
establishment of the SOS, in reality this large-scale sanctuary does little more than
provide a false sense of security by assuming that protections for whale populations
are in place’’ (IWC 2004).
8 Paragraph 10(e) and the ‘‘Future of IWC’’ process
At its 59th Annual Meeting in 2007, the International Whaling Commission
initiated a process called the ‘‘Future of the IWC.’’ (Iliff 2010). The process which
was aimed at getting compromises from both pro-whaling and anti-whaling
members to resolve the bipolar, conflictive and dysfunctional nature of the
organization came to an unsuccessful end at the 62nd Annual Meeting in 2010. One
of the major reasons that the process failed is that anti-whaling NGOs (Centro de
Conservacion Cetacea 2010) and some members of the IWC (EU 2010) wrongly
interpreted the moratorium as a permanent prohibition that would be lifted if quotas
were established for commercial whaling.
In fact, the aim was to bring all existing whaling activities under the control of
the IWC while maintaining the moratorium in accordance with the language of
paragraph 10(e) which allows for quotas other than zero as described above (IWC
2010).
It is perfectly logical to keep the moratorium while allowing controlled whaling
with observation and enforcement measures to ensure quotas are not exceeded
because the moratorium was NOT intended as a permanent ban. To characterise this
issue as ‘‘the moratorium vs quota allocation’’ is wrong, but it was the perception
actively promoted by anti-whaling NGOs in order to destroy the Future of the IWC
process (IFAW 2010).
IWC members had to choose one of the following options at the 62nd Annual
Meeting in Agadir; (a) To keep status quo. No agreement. The moratorium remains
but no control over the existing whaling and even possibilities of future expanded
whaling or, (b) To accept the Chair and Vice-chair’s proposed compromise.
Contrary to the characterization of the proposal by anti-whaling NGOs, portrayal by
the press and the public perception, the moratorium remains. All whaling would be
under the IWC control. However, anti-whaling members would have to face public
criticism that ‘‘the moratorium is lifted!’’ and, ‘‘Whaling will be resumed!’’
Apparently, the pressure from NGOS was too strong for many anti-whaling
members of the IWC to accept the proposed compromise (Goodman 2011). Unless
this situation changes, it will be very difficult, if not impossible, to expect a similar
proposal to be accepted by the IWC. Whaling will therefore likely continue outside
of the control of IWC and the IWC will remain polarized and institutionally
irrelevant in relation to its purpose of managing whaling to ensure that it is
sustainable.
308 J. Morishita, D. Goodman
123
9 Conclusion
In summary, discourse in the IWC as reflected in the Commission’s documents and
a literal reading of paragraph 10(e) shows that the moratorium does not include
language which permanently prohibits commercial whaling, does not include any
expression which demonizes whaling, does not label the killing for commercial
purposes as criminal as opposed to catches for indigenous purposes, and does not
reflect any value judgments about whales and whaling. Resumption of commercial
whaling is perfectly consistent with the language of Schedule 10(e) when the
whaling is properly managed.
The IWC is dysfunctional because of the polarized positions about whales and
whaling held by its members. The contradiction in the so-called moratorium,
formulated as a management measure for whaling but perceived as a total ban or
permanent prohibition of whaling, makes the controversy further confused and
misguided. This contradiction also partly explains why, after almost 40 years since
the Stockholm conference, the anti-whaling movement has still failed to establish
that commercial whaling is no longer acceptable as a new world norm (Bailey
2008). The IWC is still spending its time and energy on construction of a science-
based management system for whaling, even though several members have been
trying to deny whaling. In opposing a whaling proposal, the anti-whaling members
argue that they opposed it because the proposed whaling has commercial elements
and is therefore against the moratorium. This logic is bankrupt because Schedule
10(e) does not deny commercial whaling, rather it establishes a system to allow
commercial whaling to resume when the scientific comprehensive assessment
proves there are enough whales to be utilized. Their main reason for opposing
whaling, i.e. commercial elements, is not denied in the language of paragraph 10(e).
For the IWC to survive as a relevant organization responsible for the
conservation of whales and management of whaling, it should implement the
literal language of Schedule paragraph 10(e). The RMP is available as a
precautionary scientific tool for the calculation of risk-averse catch quotas for
abundant whale stocks.6 Whaling countries are ready to accept strengthened
observation and enforcement measures including deployment of satellite-based
vessel tracking systems, registers and market monitoring with DNA ‘‘finger prints’’,
among others. They do not ask for unregulated and free-for-all whaling. Whaling
countries support internationally controlled sustainable whaling for abundant stocks
while fully committed to conservation and the protection of endangered species.
This is the purpose of the ICRW.
The whaling controversy is not about saving endangered species although anti-
whaling NGOs and the media often intentionally confound the issue by arguing that
conservation of whales is at stake. In reality, the controversy is about strongly held
different philosophical or ethical views about the use of whales with anti-whaling
NGOs trying to impose their views by demonizing whaling. Science can not resolve
6 IWC Scientific Committee agreed population estimates http://www.iwcoffice.org/conservation/
estimate.htm. Last accessed 18 Nov 2010.
The IWC moratorium on commercial whaling was not a value judgment 309
123
the difference of views about whether or not whales should be treated as any other
living marine resources but exactly because of this difference, science related to the
management of whales and international law, in this case the literal interpretation
and implementation of the Schedule paragraph 10(e) provide the only possible
means to resolve the controversy. The context for any such resolution must be the
ICRW as a whole including its purpose which is ‘‘to provide for the proper
conservation of whale stocks and thus make possible the orderly development of the
whaling industry’’ (the final paragraph of the preamble to the ICRW). To be
consistent with this purpose, the moratorium must be a temporary conservation and
management measure.
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