Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

333. Memorandum for the File¹

Washington, July 31, 1987

SUBJECT

• U.S. and Iceland Meetings, July 21 and 22, 1987

On July 21 and 22 discussions were held in Washington, D.C., between the United States (USG) and Iceland (GOI) concerning GOI’s program of whale research and the possibility of USG certification of GOI under the Pelly Amendment. The head of the USG delegation was Anthony J. Calio, Under Secretary of Commerce for Oceans and Atmosphere. Halldor Asgrimsson, Minister of Fisheries, headed the GOI delegation. Other participants in the discussions are named in document A attached hereto.²

The main body of the delegations met in the morning of July 21 and in the morning and afternoon of July 22. A meeting addressing scientific aspects of GOI’s whale research program was held in the afternoon of July 21.

MORNING MEETING, JULY 21, 1987

Halldor Asgrimsson opened the discussions by noting that there is a new government recently elected in Iceland. One of the purposes of the discussions is to ascertain the USG position regarding certification in order to present that position to the new government. Before GOI can commit to any position concerning the taking of whales in a research program, there must be support from all parties in the newly elected parliament. Because of this, Asgrimsson stated that it would be necessary to meet further with USG after presenting the results of these meetings to the new government. He declared that the pause in the taking of whales would continue until all discussions had been completed.

Asgrimsson then offered a brief background of GOI’s whaling research program. He described GOI’s decision to intensify its whaling research program since IWC’s moratorium on commercial whaling. Presently, eight ships involved in whale research are deployed from Norway to Greenland, and almost all of GOI’s whale scientists are involved in this research. In light of this intensified research effort, GOI was very unhappy with the IWC resolution against its research program.

Anthony Calio responded in his opening remarks that he understood GOI’s need to report back to the new government before any definitive decisions are made and that he agreed to continue the meetings at a future date. Calio expressed the desire that at the end of these meeting both sides should be clear on where they stood and what should be done in the interim.

Calio acknowledged GOI’s pause in taking of whales and indicated that as long as the pause was in effect and that discussions between the two countries continued, DOC would not certify GOI. But Calio stated that if GOI decided not to abide by the IWC resolution against Iceland’s research program by taking additional whales, then Secretary Baldrige would have no alternative under U.S. law other than certification. If GOI abides by the IWC resolution and takes no additional whales, then certification can be avoided.

Calio explained that an important reason for USG’s resolution concerning scientific criteria at the IWC meeting was to avoid the need to make an independent judgment regarding the compliance of scientific whaling programs of other countries to the IWC conservation program. He stressed USG policy that it is not necessary to kill whales for research.

GOI stated that the overall philosophy of its research program was to determine the ecosystem impact of whales in Icelandic waters. Asgrimsson specifically said that whaling is not the important factor; rather, the effect of whales on the ecosystem is the primary concern of the research. In this regard, he stated that whales are eating 4% of the food in Icelandic waters, and this is a significant factor to a country so dependent on the ocean.

GOI then explained why it did not abide by the IWC resolution stressing that it was vague as to scientific criteria it should follow and that it was only a majority expression of scientists who have differing views. GOI desires to avoid the taking of whales where possible.

USG responded that the IWC resolution taken in context of the whole record was sufficiently clear in setting forth criteria GOI should be following. USG stated that it has no desire to discuss the scientific aspects of the resolution except within IWC guidelines. USG made clear its position that it will not intervene on behalf of GOI to the IWC to justify the taking of whales in the future.

Both sides agreed that it would be useful to clarify the scientific differences between the two countries concerning the taking of whales under the resolution. It was agreed that delegates representing scientific interests would meet in the afternoon to discuss the meaning of comprehensive assessment, the objectives of GOI’s research, the need to use lethal research techniques, experiment designs, sampling plans, and adverse effects of research on whale populations.

A discussion followed concerning the difference in philosophical approaches of the two countries in undertaking research on whales. GOI emphasized its multi-species, ecosystem approach. USG expressed its understanding of this approach and sympathy to it, but stressed that DOC’s decision about certification is guided in large measure by findings of the IWC Scientific Committee.

GOI attempted to convince USG that in a certification decision, USG should make an independent decision concerning violation of the IWC and not be bound by the resolution. USG answered that it was not bound by the decision but it nevertheless deferred to it until GOI can resolve discrepancies between its behavior and the requirements of the resolution.

GOI shifted discussion to the certification process and its implications. GOI expressed confusion concerning DOC’s role in certifying and the President’s role in imposing sanctions. USG explained DOC’s certification decision is totally separate from the President’s decision to impose sanctions. Examples of certifications involving other countries such as Japan, Korea, Norway and the USSR were cited.³ USG emphasized that certification under the Pelly Amendment does not automatically result in any direct economic sanctions but can result in indirect economic effects if for example Iceland sold whale meat to Japan. In that case Japan could be certified and economic sanctions imposed on Japan.

GOI was interested in whether DOC would recommend sanctions in conjunction with a certification. USG assured GOI that recommendations are not a part of the certification process, but DOC is free to recommend or not recommend sanctions or do nothing at all. Calio at this point stated that NOAA would probably recommend no sanctions against GOI if it is certified.

Despite USG’s explanations of the certification process and its consequences, GOI still harbored some confusion and it was decided that USG would prepare a brief written discussion of the U.S. law and practice concerning certification and sanctions under the Pelly Amendment.

MORNING MEETING, JULY 22, 1987

USG led off the discussions with a response to GOI’s inquiries about the certification process. Copies of a brief description of the Pelly Amendment certification process and the President’s role in sanctioning were distributed. (See document B attached).⁴ Calio reviewed the document and asked for questions. GOI desired clarification about the use of the terms “some or all” in the first and last bullets of page 2 because the wording seemed to indicate that the President’s only options were between prohibiting some or all fish products. GOI was assured that the President had discretion not to impose any prohibitions and that “some or all” should be replaced by “any.”

GOI also asked about the use of the term “unlimited discretion” in the second bullet on page 2 since the President may be constrained by factors such as GATT. USG responded that the President can only exercise discretion within legal limits and that this was implied. It was suggested that “unlimited” should be replaced by “wide” to avoid any unreasonable interpretation.

After further discussion concerning the process, GOI delegates indicated their understanding of the certification/sanction process.

GOI inquired about the reasons the President offers to Congress in not imposing sanctions. USG explained that the President will not say sanctions should not be imposed because DOC recommended it but rather will give substantive reasons.

Dean Swanson, Office of International Affairs, NMFS, was called on to review the history of Pelly Amendment certifications of other countries. An affidavit and addendum thereto (see document C attached) was distributed which summarized this history.⁵ Swanson briefly reviewed the contents of the affidavit and addendum.

After this review, GOI asked whether a certification of Iceland would be the first one based on a violation of a resolution as opposed to the Convention or Schedule. USG expressed its belief that it would be the first time, noting, however, that certification had been considered in the late 1970’s in relation to repeated IWC resolutions urging member countries not to import whale meat from non-members. In that instance, the problem was resolved without resort to certification. USG emphasized that a certification based on the violation of a resolution is in keeping with Pelly Amendment language which refers to diminishing the effectiveness of a conservation “program.” USG’s interpretation of the term “program” is that it includes all elements of IWC actions and is not confined to the Convention or the Schedule. When asked if there are any affirmative statements to this effect in legal documents, USG offered to research the matter and pass on its conclusions.

To further clarify the certification/sanction process, USG distributed copies of letters from DOC to the President relating to the certification of Norway and a copy of the President’s statement to Congress concerning his decision not to impose sanctions. (See attached document D).⁶ GOI wanted to know if the President’s decision not to sanction Norway was based on Norway’s decision to abide by the IWC, and if the President’s decisions not to sanction in other cases were likewise based on the certified countries promise to cease their objectionable activities. USG responded that it believed this has always been the case although the President is not required by law to base a no sanction decision on the certified country’s remedial actions. USG stated that a primary purpose of the Pelly Amendment is to influence certified countries to cease their objectionable activities by promising not to impose sanctions.

GOI then asked that if a certified country did not cease objectionable activities could the President still decide not to impose sanctions. USG responded that hypothetically this is possible, but it would be presumptuous to speak for the President.

The so called “box score” of past Pelly and Packwood Amendment certifications and their results was distributed and briefly discussed. (See attached document E).⁷ GOI was concerned with why the USSR had not been sanctioned under a Pelly Amendment certification.⁸ Although no USG delegate could recall precise reasons, it was speculated that no sanctions were imposed because the USSR’s fish allocation had been reduced under the Packwood Amendment. USG explained about the continuing nature of a certification and the formal requirement of decertification.

After a break, the delegates reconvened and the first topic introduced by USG was a report from the preceding afternoon’s scientific meeting. William Evans, Assistant Administrator of Fisheries, NOAA, briefly reviewed major points of the meeting emphasizing Calio’s charge to explore GOI’s justification of lethal techniques and the differences in philosophical approaches between the two country’s scientific programs regarding whales. Evans then called on Michael Tillman, Office of Protected Resources, NOAA, to summarize in more detail the results of the meeting. Tillman characterized the meeting as involving broad discussions that were very useful. He stressed that both sides explored philosophical differences in scientific research on whales. U.S. law allows the killing of whales for purposes of scientific research, but only after setting forth a carefully prepared rationale that considers population size and trends, sample size, and impact on the population. This approach is then carried over in implementing U.S. policies and objectives at HWB. Tillman stated that one of the biggest problems with GOI’s scientific approach is its failure to offer an adequate rational for its proposed killings. According to Tillman, USG scientists are satisfied that non-lethal techniques could be substituted for lethal techniques. USG recognizes that non-lethal techniques may be more time consuming and costly, but such an approach is preferable to GOI’s approach and more in keeping with IWC requirements.

Tillman also recognized an understanding from the meeting that GOI was combining lethal and non-lethal techniques in order to precipitate the collection of data so as to meet the IWC 1990 date for “undertaking” a comprehensive assessment of whale populations.⁹ Tillman explained that USG does not interpret use of the term “undertake” to mean that the comprehensive assessment is to be completed by 1990, as does GOI. It is USG’s interpretation that “undertake” means that the comprehensive assessment must be initiated in 1990.

Tillman summarized USG whale research program as one that focuses on questions in which there is a national interest. He stated that USG and GOI explored possible joint research interests. Tillman concluded his remarks by saying that no major conclusions were reached in the meeting and that further talks may prove useful.

Evans capsulized the meeting by stating that GOI’s research program must justify the sample numbers being taken and put forth a scientifically acceptable assessment of the population being affected.

GOI agreed that the scientific meeting was useful. GOI then referenced a 1985 press release concerning GOI’s research program as setting forth GOI’s rationale for its philosophical approach to research. (Copies of the press release and another similar document are attached as F and G).¹⁰ The essence of the press release and GOI’s explanation of it is that GOI is under a tighter timeframe than USG in collecting data for the 1990 comprehensive assessment and that this timeframe does not allow use of non-lethal techniques in all instances because such techniques are too costly and time consuming.

USG stated that its approach to whale research is conditioned by the requirements and limitations of the Marine Mammal Protection Act (MMPA) which requires permits for any taking of whales including harassment. If the use of non-lethal techniques is more time consuming and costly but will yield the same results as lethal techniques, then, according to USG philosophy, the non-lethal techniques must generally be developed and used.

USG emphasized its interpretation of the 1990 date for the comprehensive assessment as only the beginning of what is necessarily a long process due to the need to analyze environmental changes and their biological effects on whales.

GOI reiterated its justification for a combined use of non-lethal and lethal techniques based on its intensified attempt to collect as much data as possible before 1990. The statement was made that this approach does not diminish the effectiveness of the IWC but does the opposite because GOI is interested in finding out as much as possible about whales.

GOI’s scientist, Johann Sigurjonsson, participated in this portion of the discussions and gave his assessment of the scientific meeting of the previous day. He expressed that his understanding of the USG position regarding justified killing of whales was that there must be an adequate understanding of the the state of the stock, the whale must not be endangered, only the minimum possible take will occur, and non-lethal means must be used as much as possible. Sigurjonsson said that GOI had clearly shown that these prerequisites had been met in GOI’s research proposals. He stated that lethal takes are necessary in an ecosystem approach and that for some scientific inquiries there is no non-lethal technique available.

USG stated that it is not opposed to the ecosystem approach and in fact has adopted such an approach for its National Marine Fisheries Service. However, other constraints of the IWC and Marine Mammal Protections Act do not permit the type of lethal takings GOI is pursuing.

GOI suggested that the meeting break and reconvene in the afternoon to summarize the discussions and make plans for future discussions. USG agreed and expressed the desire to jointly draft a brief, general press release in the afternoon meeting.¹¹ GOI at first balked at this idea but then consented to it. Before the meeting adjourned, a copy of the President’s statement to Congress concerning the certification of USSR and the imposition of sanctions was distributed. (See attached document H).¹²

AFTERNOON MEETING, JULY 22, 1987 (FINAL SESSION)

Calio initiated this session of the meetings by stating that USG had tried to answer the preceding day’s questions concerning the certification process. He stated that he felt both sides had reached an understanding about their different backgrounds and approaches concerning whale research. Calio expressed his understanding that GOI must now go back to Iceland to present the results of these meetings, and that he assumed GOI will meet again with USG to discuss GOI’s intentions for the rest of the year and in the future regarding the IWC recommendations. Calio stated that as long as future discussions are planned and GOI does not take any more whales, then DOC can probably hold its position not to certify for one month to 5 weeks.

Asgrimsson committed to continue the pause in whaling until consultations are over. He stated that the delegation will return to Iceland to present the results of the meetings. He expressed GOI’s desire to have good relations with USG, but he said that GOI also wants to have the freedom to conduct research as it sees fit in its own waters. This freedom to conduct research, according to Asgrimsson, is the most important aspect of GOI’s concerns because Iceland is living off its waters. Therefore, the necessary decisions will be difficult.

Calio echoed GOI’s desire to continue good relations with each other and committed the USG not to do anything precipitous to affect this relationship. But USG will eventually have to do something by law if it has to in reaction to GOI’s whale research.

At this time, selected members of the two delegations met to draft a press release which is attached hereto as document I.¹³

After the press release was approved by both delegations, Calio stated that he looked forward to reconvening the discussions and USG would be prepared to go to Iceland for them, if necessary.

Asgrimsson said the next meetings would be arranged through the two embassies.

The meeting was then adjourned.

SCIENTIFIC MEETING, JULY 21, 1987

Present:

From USG: William Evans, Michael Tillman, Claudia Kendrew (DOS), Howard Perlow (DOS), Gene Martin (GCF)

From GOI: Arni Kolbeinsson, Johann Sigurjonsson, Kjartan Juliusson, Hordur Bjarnason

William Evans opened the discussion with a background of the USG philosophical approach to whale research. He discussed the requirements of the MMPA and how this act determines the conditions under which permits for the taking of whales are issued. Evans stressed the need under U.S. law to have an adequate assessment of a stock before any takings are allowed. He referenced the Marine Mammal Commission report concerning GOI’s research proposal and the report’s conclusion that GOI had not adequately assessed the stocks from which it was proposing to take whales.

Evans recognized the need to study the ecosystem effect of whales and to some degree USG is sympathetic to this approach. However, he pointed out that the USG is proscribed legally by the MMPA from utilizing lethal techniques in many research applications.

In response to GOI’s question about the motivation of the MMPA, Evans stated that the Act was not just an environmental statement but it represented a valid scientific shift to the need to carefully assess the impact of research and interaction with marine mammals.

GOI put forth some of its justifications for the lethal taking of whales. GOI recognized that the MMPA has resulted in the development of non-lethal techniques for the study of whales. But, according to GOI, killing of some whales is necessary for certain scientific inquiries and GOI is not bound by a law such as the MMPA. Nevertheless, GOI is sensitive to the effects of killing on stock size because Iceland is so dependent on the ocean.

GOI stated that it has good knowledge of minke and fin whale stocks but not sei whales. When asked about the status of these stocks, GOI estimated that there are 7000 fin whales, and 15,000 minke whales. The fin whale estimate is based on a Catch per Unit of effort study in 1970.

USG responded to these data by stating that these estimates have not been generally accepted by the IWC Scientific Committee. USG also expressed concern with the sample size by pointing out that if sample size is too small then all of the taking is unnecessary because it will not yield statistically valid results.

USG emphasized that the IWC Scientific Committee found that there was inadequate rationale for the sample size proposed. GOI explained that the rationale was justified so that it could monitor catch per unit of effort, age, sex and maturity, and annual variations, among other things. USG commented that much of this research could be done through non-lethal methods and suggested alternative approaches.

USG then inquired about Asgrimsson’s statement in the morning meeting that GOI research philosophy is to determine the role of whales in the ecosystem. GOI responded that this is a dual purpose with other research objectives that had been mentioned. USG pointed out that the ecosystem research does not parallel the research needs of the IWC’s comprehensive assessment.

A discussion followed concerning the fact that the USG is not opposed to killing of whales per se for scientific purposes but in order to justify the killing there must be an adequate rationale. Japan’s research proposal at the last IWC meeting was cited as an example where the Scientific Committee did not object per se to the proposed killing of 825 whales but rather objected to the sampling design.¹⁴ Japan was able to provide a good rationale for its proposed killings.

GOI argued that it was necessary to conduct some killing to study hormone levels, energy systems, tissues for electrophoretic analysis, pregnancy rates and weights of whales. GOI recognized the usefulness of non-lethal techniques, but felt that their use was often too time-consuming and expensive.

USG responded that even if lethal techniques can be justified, there is still a need for adequate stock assessment. USG reiterated the fact that GOI’s research program needs to be examined in light of IWC criteria which focuses on the comprehensive assessment of all whale stocks.

GOI expressed its view that the practicality of a non-lethal approach only has too often been left out of discussions concerning research. GOI’s approach is based on its interpretation of the 1990 date to “undertake” the comprehensive assessment of whales. The combination of lethal and non-lethal techniques will most likely ensure that important data are collected before 1990.

USG responded that it interprets the 1990 date to mean that the comprehensive assessment is only to be initiated by that date and the time limits GOI places on its research are not shared by USG. GOI clarified its interpretation of the date to mean that all data shall have been contributed by 1990 in order that the IWC can assess the status of whale stocks to determine whether any modifications of the moratorium are appropriate.

GOI shifted the discussion by inquiring whether the USG has an overall plan with regards to its whale research program. USG responded with a brief discussion of some of the ongoing research at this time and by emphasizing that the USG approach focuses on whales in which there is a national interest. Much of the research concerns the assessment of whale populations in and around USG waters.

GOI asked if USG could share its research plan with GOI. USG stated that there is not a single plan, but it could provide GOI with the annual report on marine mammals that is submitted to Congress. USG also estimated that NMFS is spending around 2½ million dollars on whale research.

A discussion followed concerning the possibility of USG assisting GOI with the synoptic survey of whales in the North Atlantic. USG expressed little interest in contributing to a survey off the U.S. Coast because previous U.S. research had shown that whales were in Canadian waters during the period of the synoptic survey.

In the concluding moments of the discussion, USG emphasized that it is not opposed to lethal techniques per se but before such techniques are used certain criteria must be met including the collection of adequate data concerning the affected stocks, knowledge of the impact of the lethal takings on the stocks, and an acceptable statistical and biological rationale for the number of proposed lethal takings.

GOI reiterated its position that it has met all of these criteria and that the lethal takings will not harm the existing stock of whales. GOI wants quicker answers because of the 1990 date and it wants answers that can only be obtained through lethal techniques.

Both sides agreed that they had discussed the important differences between the philosophies of research of the two countries and that they understood better each other’s positions.

1. Source: Department of State, Dumping; Arctic; Whaling; Antarctic; Scientific Research, 1976–1987, Lot 94D419, Whaling Iceland Aug–Sept ’87. Drafted by Martin of the Office of the General Counsel, NOAA. No classification marking.
2. Not attached.
3. See Document 312 and footnote 4, Document 323.
4. Not attached.
5. Not attached.
6. Not attached. For text of Reagan’s statement, see Public Papers: Reagan, 1986, Book II, p. 105.
7. Not attached.
8. See Document 312.
9. In telegram 72204 to multiple diplomatic posts, March 12, the Department described the Icelandic proposal. (Department of State, Central Foreign Policy File, D870190–0536)
10. Neither attached.
11. In telegram 227373 to Reykjavik, July 24, the Department transmitted the text of the press release. (Department of State, Central Foreign Policy File, D870587–0060)
12. Not attached. For text of Reagan’s statement see Public Papers: Reagan, 1985, Book I, pp. 704–705.
13. Not attached. See footnote 11, above.
14. In telegram 204498 to multiple diplomatic posts, July 2, the Department provided a summary of the June 1987 IWC meeting and reported that new estimates for whale populations had been calculated and that Japanese and Korean scientific proposals had been rejected. (Department of State, Central Foreign Policy File, D870523–0696)