Oceans & Coastal Resources:
A Briefing Book
Congressional Research Service Report 97-588 ENR
Redistributed as a service of the National Library for the Environment

Whale Conservation and Whaling

Prepared by Eugene H. Buck,

Senior Analyst in Natural Resources Policy,
Environment and Natural Resources Policy Division

Issue Definition
Background and Analysis
Status of the Issue
Continuing Concerns
Sources and References for Further Information

Issue Definition

The United States is a member of the International Whaling Commission (IWC), within which strong U.S. advocacy for whale conservation often conflicts with several nations' desires to harvest whales commercially. Most recently, evaluation by IWC scientists indicates that several whale populations are of sufficient size that limited commercial harvest could be sustained. The United States has relied upon the threat of unilateral sanctions to induce whaling nations to give greater consideration to whale conservation. Because of larger whale population estimates, however, the issue is how to shape U.S. whale policy now that foreign demands for limited harvesting can no longer be countered by scientific arguments that harvesting will compromise whale population recovery. If the United States argues for continuing the moratorium on commercial whaling, it may have to rely increasingly on moral and philosophical appeals. A second concern is whether, when other nations choose to harvest whales, the currently available options for United States' response are appropriate.

Background and Analysis 5

Due to their wide-ranging migratory habits, whales have a unique political status and are managed by international agreement. Under the auspices of the International Whaling Commission (IWC), the United States and other whaling nations cooperatively allocated whale harvesting quotas as provided for under the 1946 International Convention for the Regulation of Whaling. In 1972, the United States enacted the Marine Mammal Protection Act (MMPA) and prohibited commercial whaling by U.S. citizens. During the 1970s, U.S. efforts in international bodies shifted to advocacy for whale conservation, and other non-whaling nations joined the IWC to support these conservation efforts. To encourage international fish and wildlife conservation, the United States enacted two measures providing for possible unilateral economic sanctions -- the 1971 Pelly Amendment (22 U.S.C. 1978) to the 1954 Fishermen's Protective Act, which allows fishery product imports to be prohibited from nations acting to diminish the effectiveness of international fishery (including whaling) agreements; and the 1979 Packwood-Magnuson Amendment (16 U.S.C. 1821) to the Fishery Conservation and Management Act of 1976, which allows the United States to reduce or suspend fishing privileges in U.S. waters for nations acting contrary to IWC guidelines. The threat of Packwood-Magnuson sanctions is no longer influential, since no foreign whaling nation currently fishes in U.S. waters.

Early U.S. whale conservation policy was based on scientific uncertainty concerning whale populations, whose estimation determined the rate at which whale populations might be recovering from earlier exploitation. Subsequent research has' decreased, but not eliminated, scientific uncertainty about whale abundance. Beginning in 1935 with bowhead, right, and gray whales, the predecessor to the IWC prohibited the harvest of large whale species. By 1980, harvesting focused primarily on the smaller minke whale, which had previously not been extensively exploited; a lesser number of sperm, Bryde's, and fin whales were also killed. Notably, the Indian Ocean was proclaimed a whale sanctuary where all harvesting was prohibited.

As more non-whaling nations joined the IWC, the proportion of members supporting whale conservation increased steadily until 1982, when this organization proclaimed a moratorium on all commercial whaling, to become effective in 1986. The IWC was to begin a comprehensive review of the effects of the moratorium by 1990 and to consider whether to modify the moratorium and re-establish harvest quotas for some species or populations. Concurrently, new management procedures were to be developed that would guard against future over-exploitation.

The IWC has no power to force nations to abide by its regulations, and the United States has repeatedly initiated action under the authority of the Pelly Amendment threatening unilateral economic sanctions against nations which acted contrary to IWC rules. In the 102nd Congress, §201 of P.L. 102-582 expanded presidential authority under the Pelly Amendment to impose sanctions against non-fishery imports from nations acting contrary to IWC guidelines. Although Pelly Amendment sanctions have never been imposed for whaling, the United States has used its certification process to obtain some concessions from offending nations to improve whale conservation and has influenced whaling nations to join the IWC.

Most recently, environmental interests have sought to broaden U.S. policy on whale conservation to include moral and ethical reasons for extending the current moratorium on commercial harvesting, and to more fully recognize the ecological and other non-consumptive values (i.e., non-lethal scientific research, whale watching, tourism) of whales (57 Federal Register 4603, February 6, 1992). Two distinct philosophies have been argued as the moral and ethical basis for not killing whales -- a conservationist philosophy that whales not be allowed to become extinct, and an animal protection philosophy that killing whales is unnecessary and a priori reprehensible.

The IWC Convention contains a provision allowing member nations to self-issue permits to kill whales for scientific research. When the commercial whaling moratorium took effect, Japan, Iceland, and more recently Norway self-issued lethal research permits. Conservationists have attacked this research as a means of circumventing the intent of the moratorium and, because these research programs did not fully satisfy the IWC-established standards for such research, the Commission has repeatedly asked these nations to reconsider their research plans and to use non-lethal means instead.

Japan conducts a research program on minke whales in the Antarctic, killing about 300 whales annually. In addition, Japan has initiated a program in the western north Pacific, annually killing 100 minke whales for research. Norway resumed scientific research on whales in 1992, killing 94 northeast Atlantic minke whales, and continued this research program in 1993, killing 66 minke whales. Norway's 1994 research program killed 73 minke whales in the northeast Atlantic Ocean.

Annual IWC meetings during the early 1990s focused on crafting an acceptable revised management procedure (RMP) to provide the basis for the resumption of limited commercial whaling, as well as on status reviews of populations which some nations sought to resume harvesting commercially. The 1992 IWC meeting was particularly contentious as the Commission took the first steps to end the 6-year moratorium and permit a limited resumption of commercial whaling on biologically healthy whale populations. In 1994, IWC commissioners adopted the RMP, but noted that specification of an inspection and observer system and attention to several other issues would be necessary before resumption of any commercial whaling could be approved. The IWC also established a circumpolar Southern Ocean (Antarctic) Whale Sanctuary, accommodating sovereignty concerns of some countries by avoiding South American waters. At 1995 IWC meeting, Investigative Network, Earthtrust, and various scientists from Hawaii and New Zealand presented a report, entitled "Tracking the Pirates: New DNA Results and Undercover Research Expose the Illegal Whalemeat Trade," detailing recently completed DNA tests revealing new information about illegal trading in whalemeat, including sale of illegal meat in Japan and South Korea, involvement of criminal groups in Japan, South Korea, and Taiwan, and illegal laundering of smuggled whalemeat in Japan. In response, the IWC voted 21-3 (Norway, Japan, and the Solomon Islands voting in opposition) to impose random DNA testing on all whalemeat stocks to deter illegal trade.

Citing the IWC's slow action on resumption of commercial whaling, Iceland withdrew from IWC membership in 1992, and Norway resumed commercial harvesting of northeast Atlantic minke whales with 157 whales taken in 1993, 206 in 1994, 218 in 1995, and 388 in 1996. On August 5, 1993, Secretary of Commerce Brown certified Norway under the Pelly Amendment, but President Clinton postponed imposing sanctions. Both Japan and Norway believed their estimates of minke whale population abundance (760,000 in the Antarctic and 118,000 in the northeast Atlantic, respectively) indicated that these populations could sustain a limited commercial harvest. Japanese officials cite the traditional importance of whale products in Japanese culture as reason for continued interest in resuming commercial whale harvesting, while Norway believes whaling provides important economic alternatives for northern coastal communities.

Status of the Issues6

At its June 1996 meeting in Aberdeen, Scotland, the IWC approved as adequate Norway's estimate of 118,000 minke whales in the Northeast Atlantic. After this meeting began, the United States announced that it was withdrawing a request for an annual aboriginal whaling quota of five gray whales for the Makah tribe in Washington state. In addition, the IWC approved a resolution against a Canadian plan to permit indigenous Nunaviut of the Northwest Territories to kill one bowhead whale annually. The IWC approved a resolution calling on Norway to reconsider its objection to the moratorium on commercial whaling, to halt all whaling under its jurisdiction, to enforce measures to prevent whalemeat smuggling, and to provide information on its whale product stockpiles. The IWC also approved a resolution urging Norway to maintain its ban on exporting whale products. Norwegian delegates protested that the IWC was overstepping its jurisdiction.

In September 1996, Japanese vessels returned from the northwest Pacific after killing 77 minke whales for research. In November 1996, the Japanese research whaling fleet departed for the Antarctic, proposing to take a self-issued quota of 400 minke whales. In November 1996, Norwegian officials announced a quota of 580 whales for their 1997 commercial harvest. In December 1996, the United States certified Canada under the Pelly Amendment for allowing Inuit Natives to kill two bowhead whales; Canada had left the IWC in 1982, so their aboriginal whaling had not been considered by the IWC. However, President Clinton decided in early February 1997 to forego economic sanctions for Canada.

Observers anticipate another contentious meeting by the IWC in Monaco in October 1997. Environmental groups charge that Japan is pressuring trading partners who are also IWC members to support the resumption of commercial whaling. In addition, Iceland could follow Norway's lead and resume commercial whaling. The United States has its own difficult decision on aboriginal whaling wherein it must consider whether to honor Treaty rights by Washington state's Makah Tribe in the face of possible IWC denial of an aboriginal quota. Meanwhile, Norway is preparing a petition to change the status of minke whales under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to permit international trade in minke whale products.

The U.S. Congress took no legislative action prior to the 1996 IWC meeting on whale conservation. In the 104th Congress, §510 of P.L. 104-333 established the New Bedford Whaling National Historic Park in New Bedford, MA. As of April 1997, no bills relating to whale conservation have been introduced in the 105th Congress. However, companion measures, H.R. 1267 and S. 379, have been introduced, proposing to modify how certain expenses for aboriginal whaling in Alaska are treated by the Internal Revenue Service.

Continuing Concerns

These concerns and questions are provided to stimulate further discussion of the issues noted above.

  1. The Japanese and Norwegians clearly have different views about whale conservation, viewing exploitation as little different from cattle consumed by U.S. citizens. How do they respond to international expressions of moral and philosophical concerns for whale conservation?
  2. How should the United States respond to Japanese and Norwegian actions that whales are a resource to be exploited? The U.S. position -- that whales are different -- reflects a pollitically correct peccadillo or cultural bias. Is it feasible, and appropriate, to impose our cultural bias on other Nations? What is the strength of U.S. public support for whale conservation based on moral concerns compared to a policy based on sustainable management of whale populations? To what extent might U.S. pressure for whale conservation objectives based on moral and philosophical grounds adverse]y affects relations with important allies?
  3. Should the International Whaling Commission's decisions be based solely on biological considerations, or should factors related to politics or moral and philosophical appeals also be considered? In assessing whether whale populations can sustain exploitation, how should the cumulative effects of various other anthropogenic factors pollution, entanglement in fishing gear, etc. -- be considered? Are the Whaling Convention and the IWC the appropriate regime for pursuing whale conservation based on moral and and philosophical grounds?
  4. Lethal research, particularly by the Japanese and the Norwegians, has continued under the Whaling Convention. To what extent, and by what means should the United States discourage lethal research on whales or encourage benign non-lethal research? Should the United States press for research standards that ensure any lethal research is not merely an attempt to circumvent a moratorium?

Sources and References for Further Information

Davies, Peter G. G. "Legality of Norwegian Commercial Whaling Under the Whaling Convention and its Compatibility with European Community Law." International and Comparative Law Quarterly, 1994.43(2): 270-295.

Sumi, Kazuo. "The "Whale War" Between Japan and the United States: Problems and Prospects." Denver Journal of International Law and Policy, 1989.17(2): 317-372.

U.S. Library of Congress. Congressional Research Service. Norwegian Commercial Whaling: Issues for Congress. CRS Report 97-55 F, by Carl Ek and Eugene H. Buck. Washington, Dec.30, 1996. 11 p.
---------- Whale Conservation. CRS Report 90-283 ENR, by Eugene H. Buck. Washington, Aug.30, 1990. 18 p.

U.S. Marine Mammal Commission. Annual Report to Congress, 1996. Washington, Jan.31, 1997.247 p.

U.S. President (1993-: Clinton). Whaling Activities of Canada; Message. Washington, U.S. Govt. Print. Off., 1997. 2 p. (Document, House, 105th Cong., 1st Sess., House Doc. 105-45)

ENDNOTES

5 Data for this history is drawn primarily from annual reports prepared by the U.S. Marine Mammal Commission

6 Recent history is drawn for a collection of Associated Press and Reuters newswire accounts.


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