Source: "Whaling in the North Atlantic - Economic and Political Perspectives," Ed. Gudrun Petursdottir, University of Iceland, 1997, ISBN 9979-54-213-6. Proceedings of a conference held in Reykjavik on March 1st, 1997, organized by the Fisheries Research Institute and the High North Alliance.
Author: Robert Friedheim Professor of International Relations, School of International Relations, University of Southern Californa,

Fostering a negotiated outcome in the IWC

THE NATURE OF THE PROBLEM

If one wished to succeed in bargaining in the International Whaling Commission (IWC) one would have to bargain smarter, not harder. But the strategy and tactics used by both pro- and anti-whaling states, state coalitions, and nongovernmental organizations has produced stalemate, and unless some of the major players break from their long-held positions, stalemate will be the best that can be hoped for in the foreseeable future.

This is not to say that the major actors are happy with the present stalemate, but they fear they will be worse off if they shift their position or take another approach to the problem. After all, the major players have some of what they want under the present arrangement.

The issue is not ripe for resolution by negotiation. As noted, the majority hopes to impose an essentially legislative outcome on the minority. If they continue on this path, they will succeed either by outlasting the minority, or by coercing it. But thus far the minority has been obdurate — they will not concede. While the stalemate may last for some time into the future, it is unlikely to last forever. But someday the specter of defection or leaving the negotiation will loom large, because some of the participating states will believe that they will be better off with no agreement than an unacceptable agreement.

Ripeness as a concept: Its Application to IWC Bargaining

“Ripeness” is a negotiating state that many experienced diplomats recognize when it happens, but few are in a position to force it. It is defined as a “moment of seriousness,” a turning point where all stakeholders recognize that it is actually possible to arrive at a solution to the problem by a joint decision. Another way of putting it is that the parties realize they will be better off by agreement than disagreement and therefore cooperate in shaping a joint outcome. But it often comes about because of shift in factors over which the negotiators have little control. Therefore it is quite difficult to predict when it will happen, or what might be done to cause it to happen. In the IWC, negotiators face a situation of “positional” bargaining, where the stakeholders insist on the inviolability of the principles which undergird their positions, are are therefore unwilling to look at a proposed solution unless it fits squarely within their conceptual framework. This creates stasis.

But stasis does not last forever. Historical observation shows shifts on many issues under negotiation that result from changes in exogenous factors. More often than not, stasis collapses of its own weight. The “real world” problem under negotiation has changed while the proposed solutions have remained fixed. At some point the parties recognize that what they are doing by sticking to their position is irrelevant. A new solution is needed.

Sometimes ripeness occurs out of sheer exhaustion. All sides are tired and want to end the constant contentiousness. They become more “reasonable.” But I think that reasonableness can be fostered if the parties, reaching a state of fatigue, have available a set of ideas that look at the problem in the light of new circumstances. In short, they see a way out of the present dilemma.

In the meantime, despite pessimism that more appropriate tactics alone can turn the situation around, I offer below some observations on the nature of the bargaining problem and some recommendations concerning tactics useful to the circumstances. Strategy, tactics, and leadership count. It might be possible to get a better outcome by bargaining smarter. I will borrow freely from a large literature and show how the ideas I adapt can illuminate IWC discourse. We will begin by looking at the IWC as a bargaining arena that creates both constraints on the bargainors and opportunities for creative resolutions.

THE IWC as a Bargaining Arena

The International Whaling Commission, meeting annually, and making decisions binding upon most of its members, is an arena for large-scale, multilateral negotiations. It is arguably a real negotiating venue, since decisions can be taken only with the consent of the affected parties. If they do not consent, a party feeling itself to be made worse off by a joint decision can leave the organization, enter an objection to a decision to which it refuses to be bound, or partially avoid being bound by using a right (e.g., to conduct scientific whaling and continue to use the whales caught for human consumption) to avoid an obligation, such as a moratorium on commercial whaling. Negotiations occur at many levels within the IWC. These negotiations range from cooperative to very adversarial.

The IWC shares with other large-scale multilateral negotiations a number of common characteristics. But it also has a number of distinctive attributes of its own which very importantly affect the outcomes of its proceedings. Most of the major common attributes of multilateral negotiation have been summarized by I. William Zartman: (1) multiple parties, (2) multiple issues, (3) multiple roles played by participants, (4) its purpose is rule-making, and (5) decision process dominated by coalition formation. However, the IWC is an “outlier” to other major multilateral negotiations because its decision process is not consensus-driven (defined as a coalescing around a preferred outcome of a dominant coalition with dissenters — if any —acquiescing by going silent; thus unanimity is not required). In addition, even where it shares general characteristics with other multilateral negotiations, it has shaped some of these characteristics in a way quite different from other negotiating venues.

All the attributes of multilateral negotiations add up to a whole noted most for its complexity. Many negotiators, many stakeholders (those who have a “stake” in the outcome), many issues, often technically complex, and the difficulty of integrating the preferences of multiple actors into a commonly accepted outcome, continuous negotiations over a prolonged period of time, and preparatory work performed by an international organization. These force the use of simplifying mechanisms for gaining outcomes such as coalition. They also can limit the scope of outcomes, since often it is the “least common denominator” outcome that can gain support under a consensus requirement.

The IWC has all of these attributes. State participants are quite asymmetric in terms of the usual attributes of political power, including the remaining hegemon, the United States, as well as Japan, the major European states such as the Russia, United Kingdom, France, Germany, a number of middle powers, and a number of small countries. As a result, important roles are often delimited by the power of the participating state. Nevertheless, since all have a right to participate, be heard, and vote, and all have to be accounted for in the decision process, decision-making is cumbersome. Even more telling in recent years, the nongovernmental stakeholders also have to be heard, and indeed, have a right to participate in virtually all phases of IWC’s business.

The IWC also seemingly deals with many issues, or at least deals with one issue with many manifestations. There are numerous working groups, workshops, and committees dealing with a revised management program and scheme, catch limits, moratoria, sanctuaries, humane killing, management of small cetaceans, aboriginal subsistence whaling, whale watching, and data collection and analysis. Sessions of the IWC are busy times. But because all IWC’s issues are highly interrelated, it is difficult to promote inter-issue tradeoffs, and in this regard, the IWC is different from many other multilateral negotiations that try to resolve a wider variety of issues.

The IWC deals with issues that require specialized knowledge. Therefore persons with specialized knowledge have always played an important role in IWC decision-making. But lately there is tension between key groups. In an earlier period it was whaling industry managers who controlled the data on whale catches and industry profitability that often moved decisions. More recently, it has been scientists who have not only provided technical expertise concerning the nature of the problem, but also provided recommendations concerning its solution. Scientists expect that their recommendations will be taken seriously and translated into authoritative decisions. When they are not, some important scientists become frustrated.
Recent social science scholarship on international environmental decision-making has pointed out, in the cases studied, that when scientists form a consensus on the cause and solution of a problem, they participate in an “epistemic community” and their unified view drives the outcome. However, other cases, including the present one, limit the “generalizability” of this observation. Based on the whaling case, Ronald Mitchell, suggested that a scientific consensus demonstrating an activity’s instrumental harm strengthens support for environmental measures, while a scientific consensus demonstrating the absence of harm will weaken support for environmental protection. Organized environmental groups and governments committed to a “moral” solution pay attention to concerns about harm and ignore observations showing no harm, as they did on the question of establishing a Southern Ocean Sanctuary.

As in many other multilateral negotiations, the interactions of its participants is on a periodic basis. Since it is not a one-time meeting of the parties there is a “shadow of the future.” Because they may meet again, although the future is discounted relative to the present, no governmental negotiator wants a reputation based on present tactics which might impair his/her ability to function effectively in the future. Therefore deceptive tactics, bold threats, personal attacks, etc., are rarely used by governmental representatives. This observation does not apply to representatives of some NGOs who do not seem to worry about the shadow of the future.

There is a good deal of continuity of people and issues year-to-year. Thus the IWC has some internal stability, and there is substantial momentum to lines of policy development put in motion. But the flip side is also present — there is little urgency to resolve a problem in the short run since everyone knows it can be considered next year. The internal atmosphere of the IWC is a curious blend of the stable and unstable, the orderly movement of business through the agenda, and a three-ring circus.

The meetings are well served by a small Secretariat that is technically competent and adroit at being able to get along with the contending parties. However, the overall organization is quite fragile from a financial point of view. It depends upon the assessments of a limited number of states, some of whom claim to be damaged by the decisions of the majority. If the minority were to withdraw their financial support, the IWC would be badly damaged. There is no way of knowing whether the majority would make up a short fall, but some observers doubt that they would in the light of major developed states’ demands to make international organizations leaner.

The decisions sought are rule-making decisions concerning access, allocation, use of a scarce natural resource, or as others see it, a unique world treasure. But in practice, the core of the IWC’s business is amending a “Schedule” in which whale stocks are classified, making rules concerning whether a stock can be exploited and to what extent (a quota), and if it can be captured by what capture rules, and how the entire process can be supervised and controlled. In addition, an increasingly important part of its annual business is passing resolutions concerning all aspects of whales and whaling in order to provide guidance (if one wishes to be polite) or to put pressure on (not polite) the parties to conform their behavior to the resolution’s demands. These resolutions have no formal standing in international law, and in theory are not binding upon the parties. But those who endorse many of the resolutions hope they will become part of “soft law” and, since they claim they reflect commonly accepted norms, will be obeyed.

The principal difference between the IWC and many other international organizations is the fact that the IWC’s dominant decision system is parliamentary while the others rely upon consensus rather than votes for decision. Decisions in the IWC are by majority positive vote. In the strictest sense, one might characterize the IWC as legislative rather than a negotiating system.

The underlying problem is state sovereignty. Even if the world political system is considered less than anarchic, political entities called nation-states still believe they have an attribute called sovereignty so that on important issues they are bound only by those measures to which they consent. Consensus-based international organizations or conferences are a concession to that perception of sovereignty. The IWC’s founding fathers in 1946 also made their bow to sovereignty, but in a different way. They created Article V(3), which allowed a member state to file an “objection” to a Schedule amendment so that it can opt out from a rule accepted by a majority. Article VIII also gives member states an absolute right to conduct scientific whaling under special permits and to process the whales caught. Further, Article VIII states that “the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.”

Representatives of a majority in the IWC have either overlooked the underlying sovereignty problems, or have a “hidden agenda” and are using the IWC as a venue for attacking sovereignty. For some stakeholders, saving whales is the objective, for others reducing sovereignty is what they are after, and for still some others, these ideas reinforce each other and form what has been called an “overlapping cleavage.” As a result of this buttressing, no compromise is possible. IWC politic has evolved toward the parliamentary with states behaving like political parties in a domestic legislature, but not having the underlying social compact which assures that the minority will bow to majority policy demands. Behavior is crudely majoritarian. An anti-whaling majority has controlled the general policy direction of the whaling regime, but has not been able to control the behavior of some important dissenters. It is clear that an anti-whaling majority sets the agenda, does not allow its opponents any victories, and indeed, harasses them through resolutions to give up their sovereign rights. Since they have not acquiesced completely in the face of this assault, it can be said that the present whaling regime is not a negotiated regime.

The present whaling regime is a coercive regime depending upon enforcement measures not agreed to by the minority. The chief public enforcer is the United States through the Pelly Amendment to the U.S. Fisherman’s Protective Act. It authorizes the President to certify any state as being in noncompliance with the Act whose actions diminish the effectiveness of international environmental agreements. Miscreants can, in the first place, have their fishing rights in the U.S. Exclusive Economic Zone cut or eliminated, and if that is not enough, they can be subject to unilateral trade sanctions. The former threat has been hollow for some years, since foreign fishing quotas in the U.S. 200-mile EEZ have been eliminated for other policy reasons, but any real imposition of trade sanctions may well place U.S. sanctions squarely in the sights of the World Trade Organization dispute-resolution procedures. But thus far the Pelly Amendment has served as deterrent even though actual punishments meted out have been mostly slaps on the wrist. On the other hand, private coercion through consumer boycotts perhaps have had more impact.

A critical feature of all multilateral negotiation is its dependence upon the formation of winning coalitions to mold outcomes. This is especially true of the IWC, where the process more nearly resembles legislative than bargaining behavior. But in any organization in which three or more parties are trying to devise an outcome acceptable to all, the first task is to persuade one other party that you should create a common position because it advances your common interests. Then you can go into the next phase. If the second phase is legislative, you outvote the third party. If it is a bargaining phase, you try to create a consensus based upon the formula you already worked out to persuade the third party to join the other two.

Coalition opens up a rich lode of tactical maneuvers. The purpose of all of these is to build and defend a winning coalition that unites around a particular substantive formula. To do so, since about the middle of the 1970s, key members of a group of states opposed to all forms of whaling, used a bandwagon effect, logrolling, and other such measures. It is now a dominant coalition and has changed little in composition since it was formed. It has held together in all the various sub-issues relating to whales and whaling — unlike coalitions in many other multilateral negotiations.

A coalition must have a “formula” idea to back; a principle of justice, a set of referents or underlying values that give meaning to the items under discussion. This is discovered in a diagnostic phase, it moves through establishing the formula phase, and culminates when all details are worked out in a final phase. Ending whaling is the formula idea that has appealed to the broadest number of members of the IWC. It clearly purports to be a principle of justice, and it was established as the formula idea of the majority in a second phase before the 1982 moratorium vote, and it has been subsequently refined in a third phase that culminated in the Southern Ocean Sanctuary vote.

The coalition backing the no-whaling formula has shown no willingness to accept anything but its maximum demands. If a negotiating party disagrees with the dominant coalition’s formula, it has only two choices if it chooses to remain in the negotiating arena and not defect: (1) try to break up the dominant coalition; that is, replace it with its own new, dominant coalition espousing a different formula idea, or (2) try to get the dominant coalition to mitigate its demands, that is, accept less than a maximum version of its policy idea. Both are difficult and usually costly strategies, but the attempt to form a new dominant coalition is the more costly. But it might be possible. The other alternative is less costly, but it remains to be seen if it is any more feasible than smashing the dominant coalition. Mitigation efforts begin with naysayers recognizing that the dominant formula notion will represent the main policy thrust in the issue area. But if the majority is willing to mitigate, minority participants willing to accept the formula might ask the majority for vaguer language under which the minority can still maneuver, exceptions to the rule, application of the formula notion only to specific geographic regions, extensions of time for application, different language which makes it at least appear that they have not surrendered, or some form of compensation for acquiescing.

These are much easier in a multilateral negotiation with a variety of issues. As noted, IWC negotiations are characterized by a limited range of issues — all relating to whales and whaling. In many other multilateral negotiations the major effort goes toward constructing a grand package which includes tradeoffs within it. There is no grand package in the IWC. As far as I can tell, there are no major tradeoffs. There is an expectation of “sincere” rather than strategic voting. A sincere vote is one where the voter makes his/her choice on the merits of the issue regardless of how it might affect other interests. Strategic voting is when the voter votes not on the merits of the issue but on the basis of whether the measure’s supporters in turn support or oppose the strategic voter on his/her salient issues. Despite the lack of variety in issues, issue linking may be possible.
Not unique but quite distinctive to the IWC is the degree of participation of NGOs in the decision process. One side perceives that the issues are largely moral and the other side that the preferences of the majority would unfairly destroy cultures and livelihoods. This accounts for much of the bitterness of participants on all sides. Whaling is an extremely divisive issue. It has resulted in a situation of close to zero trust. As a result, at this stage, it is virtually impossible to counsel that the parties try to move the discussions from the strictly distributive (wherein dividing a “pie” one side’s gains add up to the other side’s losses) to the integrative (where both sides cooperate to increase the pie before it is divided). Each sees the other as immoral and untrustworthy.

The anti-whalers are viewed by the pro-whalers as racists and madmen. They are seen as trying to impose as a universal standard a set of “ethical” requirements based on western urban values. Anti-whaling spokespersons are not seen as “responsible”; they are viewed as fringe members of western urbanized societies. The rhetoric of the pro-whalers is filled with the hope that some day important developed countries will “wake up” and sweep aside the lunatic fringe members of their societies who have captured that county’s position on whaling.

On the opposite side, the anti-whalers combine several major viewpoints which allow all the subgroups of the anti-whaler coalition to come together to attempt to ban all whaling forever. Many non-normative radical observers of whaling view the prowhalers as untrustworthy predators with no sense of limit. They cannot be trusted not to overreach because they have a “bad” history. They should not be allowed to begin the cycle again by permitting commercial whaling to resume. They may be amenable to nonadversarial discussions of the issues, but their suspicions make genuine negotiations that might lead to a bargained outcome very difficult. But their coalition partners are much more difficult to bring to the bargaining table. They are true believers who might be characterized as a religious left who insists that there is a new moral standard, applicable to all. Compromise is not the way to bring the dissenters around. They must be coerced into conceding that whales are sentient beings with rights. As with all true believers, tolerance for the position of others is in short supply.

I do not mean to imply that the pro-whalers have been especially tolerant, or that whalers in the past did not get out of control, but the situation today is a product of history. That history changed fundamentally after the structure of the bargaining arena changed. In 1978, the United States proposed that all IWC sessions and not just plenary sessions be opened to participation by NGOs. With a right to participate assured, it was worthwhile for numerous NGOs to join. More states also joined and it has been said that some were provided inducements to join, or once members, were provided further inducements to assure their votes. It is difficult to negotiate in a bargaining arena with over 90 NGOs intervening in all parts of the process; with over 35 states that have to be brought to consensus if there is to be a negotiated outcome.

The above description should demonstrate what the IWC is not — it is not a perfect democratic meeting place. There is very little effort to persuade, only to outvote. There is very little effort to listen, only to repeat arguments.

Advice to the Princes

What can be done to bargain smarter? Can outsiders come up with a fresh approach? I think so, even if some of the points raised dismay some present negotiators. There are few new ideas that will not raise the price of solution for some stakeholders — states and NGOs. Indeed, an “advisor” would have to be Machiavellian in approach, prescriptive rather than descriptive; the bold advisor would have to offer advice to the “Princes.” Note the plural. I believe both sides would benefit by rethinking the problem if there is to be a negotiated solution, although obviously the losing side would gain more from movement away from the present situation than the winning side.

Twelve points will be made below to provide some ideas about how to break the stalemate. These categories are for the convenience of presentation. Many of the points overlap, so theoretical neatness is lacking, but they may provoke some of the stakeholders to rethink a situation described by David G. Victor and Julian E. Salt as “empty law.”

Salience

There will be no movement until the salience of the whaling issue changes among the stakeholders. By salience, I mean a preference for achieving a favorable outcome on one issue as compared to a favorable outcome on other issues valued by a stakeholder. Salience is always a comparative notion; it is a measure of relative importance. Almost all individuals and collectivities have multiple objectives in the world they face. Except in the rare instances where they value each of their objectives equally, they usually favor one or some over others. When stakeholders discover they cannot win favorable outcomes on all issues, they are forced to accept a tradeoff — a less favorable outcome on an issue of lesser salience in return for a more favorable outcome on the issue of higher salience. While there is some hope of persuading another that your preferred outcome is substantively superior there is a better chance of changing their perception of how much it will cost to achieve a particular objective. Salience can be manipulated. But it may be even more important —albeit difficult — to reexamine how much one is willing to pay to achieve one’s own objectives. In effect, one must demand that other internal stakeholders accept a tradeoff of some of what they value so that you have a better chance of gaining what you value. In many cases, domestic discussions and negotiations to change national salience must be concluded successfully before one can negotiate externally to change others’ salience, but such internal negotiations can be especially painful.

As it stands, the stalemate on whaling reflects both normative notions of the correctness of allowing or preventing whaling and notions of how much it would cost the antagonists to prevent or restore whaling. Until these perceptions are changed, the protagonists’ policies and their bargaining stances will not change. Norway and Japan have said that whaling is an important issue but have not demonstrated a willingness to pay a higher price than they presently pay to achieve it. Conversely, major antiwhaling states claim that ending whaling is a matter of great substance to themselves. But they pay a low price to achieve it. One may speculate on how much they would be willing to pay if others raised the costs to them. They have no whaling industries, few internal pressure groups that could influence them to change. They have to consider only external costs, and these have proved to be low. They can avoid being forced into a legal solution by denying jurisdiction. With the exception of New Zealand, the only way to change their salience is externally .

Pro-whaling states must increase the risks inherent in tougher policies. They must create a sense of urgency for compliance with their demand. If done properly, there should be positive as well as negative inducements (to be discussed in several other categories). One need not threaten war, a breaking off of relations, etc., only that the other party will have to pay a higher price to achieve their objective at your expense. There are multiple objectives even in the whaling negotiations. The anti-whaling coalition must be reminded that the price of obduracy may be dissolution of the IWC. The destruction of the IWC would be a very bad precedent for other international environmental negotiations, a demonstration of where “empty law” could lead. Unless the present winning coalition sees that some losses are possible, they have no reason to give up their gains.

Leadership

The IWC sorely lacks leadership. I do not mean that competent persons have not led their delegations or NGO participants in efforts to fulfill their mandates, or competent international civil servants from the IWC or other participating intergovernmental organizations have not done their duty well. They have; they have pushed for, and some have achieved, the outcomes consistent with their instructions — but at the expense of finding a negotiated solution. One or more persons must emerge who attempt to bring the parties together to accept a solution that makes them all better off by agreement than by disagreement. To do this, they must go beyond the narrow mandate of the stakeholder organization that provides them official credentials.

Several types of leadership in institutional bargaining have been identified. Oran Young and Gail Oshrenko note three: (1) structural; (2) entrepreneurial; and (3) intellectual leaders. Arild Underdahl adds three others: (1) unilateral; (2) coercive; and (3) instrumental leaders. While the overlap is not perfect, it can be argued that there is a substantial similarity between structural and unilateral leaders and between entrepreneurial and instrumental leaders.

I think in recent years in the IWC, structural leadership by the major developed states of North America, Europe, and middle states of Oceania have been exercised to use their material advantage to crush the pro-whalers, who, with the exception of Japan, are smaller or materially weaker states. This has been combined with important intellectual leadership provided by, for example, Dr. Sidney Holt and the spokespersons of such organizations as Greenpeace, who claim they have moved world opinion to the side of no whaling by the quality of their arguments.

The ideas of the anti-whalers are not the only ideas. If the pro-whaling hope to have any chance of working out a negotiated solution, they must provide stronger intellectual leadership. They must have ideas — ideas about both the substance and process of solution. They must produce individuals who can create a sense of trust in their ideas. Without that sense of trust, ideas are just ideas. But more is necessary. If there is an attempt to lead, some coercive leaders will have to emerge. By coercive leadership, Underdahl does not mean threats to mobilize one’s army over an issue, but threats and rewards, carrots and sticks. It seems to me that relatively few carrots and sticks have been displayed in the IWC.

I hope entrepreneurial (or instrumental) leaders will emerge. But I cannot suggest how how to bring one or more of them forth. Clearly, the IWC would benefit from the emergence of someone trusted by all sides, who had convinced others that he/she had “found the way,”,who had good ideas, and who had both the substantive and political skills to the bridge the gap between the protagonists. Such persons have emerged in some important previous environmental negotiations, but not in the IWC. Perhaps someone outside the negotiations might be tapped to help break the stalemate.

Intervenor or Mediator

What might help break the deadlock is a person or persons who could act as an informal mediator, a facilitator, a point of contact; someone who all sides could agree has good ideas, is fair-minded, and is an authority figure; someone whose behavior is “reflective” and therefore can act confidentially, and is nonjudgmental. Unfortunately, if the IWC situation is not ripe for a negotiated agreement, it is also not ripe for formal, binding mediation or arbitration. Establishing the worth of a mediatory figure would probably be slow and painful before it promises the possibility of success.

Finding a mediatory leader or leaders outside of a negotiation is not mandatory, but it will be very difficult finding one within. A cornerstone of Canadian and Norwegian foreign policies has been determination to play the role of intermediary during the Cold War between the superpowers, and between the United States and the Third World in many international organizations. Alas, while trusted to be fair-minded in these other situations, they would not be so regarded in the IWC.

But there are rich possibilities for transforming a “dyad” into a triangle — that is, add a third party to the two antagonists, someone(s) who can help restore communications, formulate new ideas for resolution, and even manipulate the situation. Individuals of international prestige might be asked to act as facilitator, perhaps Tommy Koh, president of both UNCLOS III and the Rio Earth Summit, or Maurice Strong (though a Canadian), or Elliott Richardson of the United States. There is no one more trusted than Dr. Arvid Pardo, the “Father of the Law of the Sea negotiations,” and winner of the Third World Prize. If one wishes to be puckish, one could suggested Boutros Boutros-Ghali, now that he is unemployed. I’m sure there are others whose reputations for probity were earned outside the ocean or environment nexus who would also be suitable. Finally, if the parties at issue do not want to trust an individual to provide a path out of the thicket, it might be possible to form an “Eminent Persons Group” to suggest ways out.

Civility and Trust

It might seem contradictory to suggest that the pro-whalers become “tougher” while acknowledging that a major deterrent to resolution is existing incivility and distrust. Toughness often exacerbates human feelings and could make personal relationships worse, but relations are so bad now that I’m not sure they could deteriorate further. But, it is possible to be both firm and fair-minded; to have a reputation for “good faith.” It is important to have a reputation for a willingness to listen to others.

Too often interactions are merely occasions to restate one’s own position. Too often the parties to the quarrels in the IWC sponsor meetings or seminars that preach to the converted. It is now time to ask oneself: what in others’ positions is a legitimate demand to which I could accommodate myself? What do we have in common? Can we hold a discussion which starts from common ground and works outward until we reach that border area where discussions slip from agreement to disagreement so that we can narrow the range of disagreement? After all, no one in the current whaling debate begins from the position that unrestricted whaling should be restored. Perhaps a series of unofficial seminars, symposia, or workshops could bring together individuals representing both governments and NGOs to explore common positions or develop new common positions. It should be possible to borrow from environmental mediation efforts or arms control confidence rebuilding techniques methods for bringing the parties closer together.

To be blunt, the anti-whalers are in the saddle, therefore the pro-whalers must do more than try to meet them halfway. Anti-whaler governments and NGOs have no reason to change their position other than fearing that if they press too hard the whole system might collapse. They know they are in a superior bargaining position. I suggest they have some legitimate concerns that must be assuaged. The problem must be approached from the perspective of what can be done to foster the breakup of the anti-whaling coalition. Not all anti-whalers are amenable to a reasoned interaction on the issues; those whose position is primarily normative are likely to remain obdurate. Those whose concerns about whales and whaling are based on utilitarian considerations or the historical record might be willing to listen. It might be insulting to be regarded as unreformed predators but pro-whalers must recognize that they will never get whaling in any form reauthorized internationally until they provide ironclad assurances that whaling will never again get out of control. Such assurances cannot come from the pro-whalers without consultation with the anti-whalers.

Although I think the burden of proof in demonstrating the sustainability of whaling rests on the shoulders of whaling proponents, they have legitimate concerns to which the anti-whalers must also be responsive. Anti-whalers should try to understand the impact of a rigid anti-whaling position on smallholders, indigenous and non-indigenous alike, who are attempting to work out a painful compromise between sustaining their cultures and lifestyles and living in a world system of urbanized values; of the arrogance of assuming that one set of “moral” requirements fits all. Civility is a two-way street.

Complete the RMP and RMS

In recent IWC meetings, the major pro-whaling states have played “after-you Alphonse-Gaston”, on completing the Revised Management Procedure and the Revised Management Scheme — each waiting for the other to introduce something new leading toward completion of the necessary formal revisions to be entered into the Schedule. While the Procedure is largely complete, there may be refinements not considered part of the Scheme that could be introduced. They should be evaluated, and if they are a measurable improvement, submitted. While some pro-whalers believe that the Scheme is “overkill,” they must submit some of their own ideas to complete the Scheme. Not doing so will lead to a “Catch-22.” Anti-whaling forces will submit nothing and claim that pro-whalers also submitted nothing and are not cooperating, so it is appropriate to not approve whaling. Or the anti-whalers will submit proposals that are so unrealistic and expensive that the pro-whalers will have no choice but to reject them.

Quiet Diplomacy

Since it is so difficult to resolve the fundamental splits on the floor of the IWC´s annual meetings, perhaps the concerned governments should expend more effort at finding a resolution off the floor. Open covenants, openly arrived at often means no covenants arrived at.

Some types of interactions already take place off the floor, but they are used mainly to firm up positions on specific issues already on the IWC agenda. These are visits by Commissioners or delegation members to the national capitals of other states, including allied and opposing states. Coalition meetings occur. What is needed is not just intersessional firming up of positions, but an opportunity to get the major protagonists together to rethink the overall fate of the IWC on an informal basis, to mull over what can be done to assure the future of the IWC and the viability of a universal regime for whales. When matters have reached an impasse, it is time to think big.

These remarks may trigger in some readers the reaction: here goes another attempt to write a new constitution for the IWC, a new treaty. This type of effort failed before. Would it fail again? Perhaps, but the situation is close to 20 years further down the road, it is even more gridlocked, and unless someone blinks, it won’t change. With each passing year, there is a greater chance of defection. A well planned informal session of senior officials away from the direct pressure of NGOs (althought their ideas must be solicited) need not result in a new treaty. There are ways that fundamental changes can be made other than a formal rewriting, resigning, and reratification of a convention.

There are hints that some governments are thinking along these lines, a rumor that some governments would be interested in hosting/participating in an informal session that could announce major changes in the IWC to coincide with the 50th anniversary of the Commission’s founding. The changes would not require a formal renegotiation of the treaty. There are also rumors that some pro-whaling governments have dismissed such a notion, fearing that it is a device to strengthen the IWC mandate. Perhaps such a meeting would be a trap. But the participants would be sovereign states. If they did not agree, they could walk out. I don’t think that any signal that some of the major players might want to try to untangle the standoff should be dismissed out of hand.

Rethinking National Position

Creative new ideas are unlikely to emerge from the business-as-usual way of thinking that has dominated the current interaction. Often there are alternative ways of achieving an outcome that protects fundamental interests if the focus is trying to understand the interest, rather than worrying about whether varying one´s present position ever so slightly would be perceived as retreat. To be most effective, those making suggestions must ask not only “what do our sponsors care about, but what do others care about.” Can they invent options that would provide for mutual gains? This could be done informally by, as appropriate to each national situation, appointing agency or interagency study groups within governments with a mandate of providing a fresh look, commissioning outsider studies to seek new concepts, new language, asking intergovernmental organizations with expert knowledge but no direct interest at stake. It might help if some of these groups include not only “neutrals” but also individuals from committed groups with a personal reputation for fair-mindedness and a willingness to listen and contribute. Again, there are many possible permutations, as long as the stakeholders do not, as the police chief in the movie Casablanca orders, “round up the usual suspects.”

If by some stroke of good sense stakeholders are willing to look to the premises that underlie their positions and see that there are other ways of expressing their interests, it also might be possible to adopt new negotiating tactics that could contribute importantly to a positive sum outcome. For many years Roger Fisher and associates of the Harvard Negotiating Project proposed a method called “principled negotiation.” Many of the ideas expressed above are drawn from their publications: separate people from the problem, focus on interests, not positions, and invent options for mutual gain. They claim that their methods are neither hard nor soft but oriented toward finding efficient ways of reaching consensus on mutual gains. Below, I will outline some “hard” positions. If Fisher is correct, his bargaining methods can still be useful even if it becomes necessary to follow “tougher” tactics. In any case, all parties would benefit if they got away from defending positions and if in so doing, they found a jointly acceptable outcome.

Distributional vs. Integrative Negotiations

If the delegates and NGO representatives to IWC were to develop a set of principled strategies, it is likely that the IWC negotiation would move from a zero-sum distributive to positive-sum integrative outcome. There would be more to share, although there will always be some distributive elements, even in an integrative outcome. I bring the discussion back to the distributive-integrative distinction for several reasons. First, even if an outcome is largely integrative, there will always be distributive elements. In practice this could mean that, under the best possible alternative, the minority may have to give up more, and the majority less to come to a positive-sum outcome. Second, the conversion does not happen by itself. Good tactics will be necessary. I. William Zartman notes that there are only three known ways to foster the conversion: expanding the common pie, establishing trade-offs between differently-valued articles, or producing side-payments. These tactics can succeed only if parties concede that the “other” has legitimate interests and concerns. Finally, I return to distributive-integrative because, if by a stroke of luck or genius, it is possible to make the transition, all parties must recognize that a transition is taking place. The opportunity should not be wasted.

Act Strategically

Until it is clear that the anti-whalers are interested in an integrative outcome, pro-whaling states and coalition should act strategically: use tactics most likely to lead to the goal, even if they require that pro-whalers violate some of their substantive values. To this point, the anti-whalers have counted on the “sincere” behavior of the pro-whalers; that is, they expect that pro-whalers will make and execute their decisions based on the merit of the proposal. Strategic behavior calls for judging the issue on whether a positive vote will further your goals regardless of merit. So, if the United States proposes a quota for its Alaskan native whalers, strategically your vote would depend upon what promises/actions the U.S. makes in relation to issues highly salient to you. It need not even be directly tied to a specific issue. To make their point about their interests being ignored, a dissident group can vote no on everything, substantive or procedural. They can tie up the meeting if they are clever in manipulating the rules of procedure. They can refuse to or delay paying their dues until a new formula is developed that puts the IWC support burden on anti-whaling states, since the only income under the conditions of no whaling is from whale watching. Or propose a international tax on whale watching, etc. Again, hopefully, it need not come to Commission breakdown, but demonstrating that minority needs must be considered could have a salutary effect.

Strategic behavior also calls for treating the IWC meetings as bargaining, not problem- solving sessions. Bargaining is a combination of offers and threats. There have been precious few offers or threats made by the pro-whalers.

What kind of threat could be made that would be meaningful to anti-whalers? Obviously, the threat of pro-whaler withdrawing from the IWC is always there. Unrestricted whaling is not a credible threat, but the creation of a rival organization might be. The North Atlantic Marine Mammal Commission (NAMMCO) was created partially as a threat, but it has been held on a very tight leash. It is possible to loosen the leash. Again, creative moves could potentially raise the cost of gaining all anti-whalers’ goals.

IWC politics are based on coalition. As noted, the anti-whaling coalition is very stable. If the pro-whalers are to get anti-whaling states to listen to their arguments, key members must see the pro-whaler coalition as a bit shaky and subject to possible defections. It is difficult and costly to break up a successful coalition, but it has been done. In the case of the IWC, it might be possible to “repack” the membership, that is, bring in enough new states favorable to one’s position to form a new majority. There are many more potential whaling “stakeholders.” A 1977 IWC study showed that 102 countries had whale stocks off their coasts. Since their interests are not being represented, it would be “democratic” as well as self-interested to solicit their participation. Many are Middle Developing States (formerly called Third World) who have a strong interest in protecting their right to exploit their natural resources. While whale resources are “common property” in areas beyond national jurisdiction, the Middle Developed States, and their U.N. caucusing group — the Group of 77 — might view the push toward imposing western urbanized values re whaling as a bad precedent and potential threat to their interests. This would be a very large Genii if let out of the bottle.

Promoting/Relying upon External or Exogenous Change

Lobbying by representatives of one government before the administrative agencies, legislature, or public of another government was considered by traditional diplomats to be a grave violation of their proper role as diplomats. Monsieur De Callieres would never approve, but it is much done in our own age. The object of such efforts is to put pressure on the government under assault to take measures favorable to the lobbying government, or if it has not, to change its position. Promoting change in another government’s policy is common today, but convincing another government to reverse a set position is quite difficult, costly, and risky. It should be approached with caution.

This leaves the waiting game — relying upon the weight of time to induce position change because the problem has changed, the personnel have changed, etc. Relying upon a process over which one does not control is accepting the weakness of one’s position. This seems to me to be the present situation. I doubt if internal change due to changing values will make any difference in the preferences of anti-whaling state officials or public in the foreseeable future. But just hanging on and hoping to wait out one’s opponents appears to be a low cost option. Thus far, it has not worked, and I doubt if it will.

Relying on the United States

The United States should not be relied upon to salvage the situation, much less provide entrepreneurial leadership, in future whaling negotiations. In discussions with pro-whaling leaders, I detect both a lingering hope that it might, and exasperation that the U.S. so often takes contradictory positions. The hopeful point to the U.S. as the remaining hegemon, with a stake in assuring a positive outcome for whaling, and also that whaling does not put further pressure on the fragile political/economic alliance structures of the Cold War that the U.S. would now like to transform to fit the needs of a post-Cold War world. In this environment, the U.S. ability to command the loyalty of others is shakier than in the Cold War past. Conversely, so is the ability of its allies to put pressure on the U.S. to look favorably on their interests.

The main reason not to rely on the United States is because it is seriously cross-pressured. It has within its voting public large lobbying organizations with a commitment to end whaling and a community and state delegation (Alaska) that insists that the United States accommodate their needs. Since an exception to the no-whaling rule is available under the Whaling Convention, the United States uses it. But some raise the question how the U.S. can in good conscience lead the effort to end whaling and at the same time preserve whaling for some of its citizens privileged by an exception already written into the Schedule? Or expand that to other of its citizens — the Makah Tribe of Washington state — who have treaty-based whaling rights?

Unfortunately the United States has a long record of establishing a principle and then either seeking exceptions from the principle for itself and its citizens or ignoring the substance of the principle when it does not suit it. But advising not to rely upon the U.S. to salvage the negotiations does not mean the U.S. can be ignored. Perhaps because it must protect the rights of some of its citizens to continue to take whales, it can be brought to realize that others have needs as well.

Preparing a BATNA

Most negotiation theorists emphasize the need for preparing a BATNA or Best Alternative To a Negotiated Agreement. As Fisher and Ury note: “If you have not thought carefully about what you will do if you fail to reach an agreement, you are negotiating with your eyes closed.” [1] A negotiator must know whether what is on the table will make their principals better or worse off. If worse off, they must look to other options. Moreover, it is important to convey to those on the other side of the table that you have options. Such recognition may help to soften an opponent’s position. While the development of NAMMCO was motivated partly to demonstrate that its members have a BATNA, more must be done to show anti-whaling forces how they might lose control of the situation unless they are willing to negotiate seriously. Indeed, exercising some of the preliminary steps (hopefully reversible if appropriate) of a BATNA may be called for, such as having NAMMCO “authorize” controlled whaling. This might be combined with publicly available plans showing how NAMMCO could be the operating arm of a regional organization whose activities can be coordinated with the IWC. In any case, more detailed planning on BATNA options is now appropriate both for its own sake and as a bargaining tool.

Conclusion

I wish I could promise that, if followed carefully, this advice to the Princes would guarantee a successful conclusion to the effort to manage whales and whaling into the 21st century. Alas, I can only hope it has been helpful. At least, considering one or more measures recommended could not make matters worse.