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Monday, January 7, 2013

The International Whaling Convention and Legal Issues Related to Aboriginal Rights

Kristina Alexander
Legislative Attorney

The International Whaling Commission (IWC) has 89 members divided almost evenly between countries that condone whaling and those that favor whale conservation. This situation leads to contentious votes and accusations that decisions are not based on science but on politics, in particular, whether or not a country favors whaling. Members of Congress have introduced measures to advance U.S. policy within the Commission to respond to IWC actions. One area of contention is the right of aboriginal groups to hunt whales (sometimes referred to as indigenous whaling). Aboriginal subsistence whaling catch limits are set by the IWC for aboriginal peoples in four countries: the United States (bowhead and gray); Denmark (Greenland) (fin, minke, bowhead, and humpback); Saint Vincent and the Grenadines (humpback); and Russia (gray and bowhead).

The International Convention for the Regulation of Whaling (the Convention) has addressed aboriginal whaling since it was signed on December 2, 1946, by the United States and 14 other countries. The Convention limits how many bowhead or gray whales U.S. aboriginal groups may harvest by setting catch limits for five-year periods. The current period is from 2008 through 2012.

Whaling also is restricted in the United States by three domestic laws: the Marine Mammal Protection Act (MMPA); the Endangered Species Act (ESA); and the Whaling Convention Act (WCA). The MMPA prohibits all whaling except for subsistence use by Alaska Natives. Similarly, the ESA prohibits taking listed whales except for subsistence use by Alaska Natives. The WCA, the enabling act for the Convention, allows whaling by aboriginal peoples to the extent it does not conflict with the Convention. Despite these statutory exceptions allowing aboriginal whaling, the Secretary of Commerce can restrict such whaling by adopting specific regulations under either the MMPA or the ESA. Currently, only the Cook Inlet stock of beluga whales is protected under such regulation. The Makah Tribe (in the state of Washington) is the only non-Alaska indigenous group in the United States with the legal right to kill whales. This right is based on treaty, but the Makah must still comply with the MMPA by receiving a permit that allows whale harvest. Compliance with U.S. law and the Convention determines the types and numbers of whales and where and when they are killed.

More recent legislation regarding whaling typically is done by resolution. Legislation proposed in the 111th and 112th Congresses addressed ending all nonaboriginal whaling, including scientific whaling (H.Res. 714 (112th); H.R. 2455, S. 3116 (111th)), and would have made the U.S. representative to the IWC a federal employee (H.R. 2955 (111th)). Previous Congresses have addressed whaling in general, and aboriginal whaling in particular. Legislative measures, primarily in the form of concurrent resolutions, have been proposed in four categories: protesting commercial, scientific, or community (nonaboriginal) whaling; ensuring aboriginal whaling rights; providing a tax break for aboriginal whaling captains; and addressing the United States’ policy at the annual meetings of the IWC.

Date of Report: January 2, 2013
Number of Pages: 20
Order Number: R40571
Price: $29.95

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