Tag Archives: transparency

What Are These Countries Doing Here? Analyzing Transparency in the Current Flag of Convenience Regime and Their Impact on Shipping in the Arctic

One of the shipping industry’s most systemic issues is the lack of regulation regarding Flags of Convenience (FOCs). Ships with FOCs “are ships registered under the maritime laws of a country which is not the home of the country of the ships; owners, because the country of registry offers low tax rates and/or leniency in crew and safety requirements.”[1] This lack of enforcement and regulation is made worse even worse for vulnerable environments such as the Arctic[2] In the Arctic and Sub-Arctic States, the International Maritime Organization and the Arctic Council face the challenge of controlling and regulating these vessels under foreign flags that transit through Arctic routes. According to the United Nations Convention for the Law of the Sea (UNCLOS) Art. 24, para 1(b): “[…] the coastal State shall not: discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State,”[3] meaning all flags shall be accepted unless it is proven that vessels do not comply with the international regulations in force at that time. Furthermore, as States considered FOCs are the largest carriers of gross tonnage in the world,[4] they play a pivotal role in decision-making and the creation of treaties and conventions established under the auspices of the International Maritime Organization (IMO) and other relevant maritime bodies. Therefore, the lack of good governance from these States is translated into the international shipping regulatory framework and then put into practice by the industry.

 

Introduction

Because of FOCs[5] ship owners have the flexibility to choose where to register their vessels based on cost, convenience and the international and domestic regulations that would govern their operations, including those that transit the Arctic.[6] “Nevertheless, this freedom is sometimes abused and somehow ship owners end up in the hands of flag states that are incapable of enforcing international and national jurisdictions over their ships. Once again, these failed flag states are what are referred to as the FOCs.”[7] To show this lack of transparency, the authors set about to register a ship through an FOC for a ship they did not own and also show data showing unregulated, non-transparent behavior via registration already ongoing in the Arctic. This contribution will follow two previous contributions to Nordicum-Mediterraneum as it “will use the definition of transparency provided by Rachael Lorna Johnstone and Hjálti Ómar Ágústsson, as these authors evaluate transparency according to the ease of accessing information and the quality of this information.”[8] Therefore, for the authors’ experiment, “transparency is evaluated according to the ease of accessing information, its quality, and the timeliness of disclosure.”[9] The authors also support the Governance for Sustainable Human Development, the United Nations Development Programme (“UNDP”) definition of good governance, which “defines good governance as, among other things, participatory, transparent and accountable as well as effective, equitable and as promoting the rule of law.”[10]

In Section II, the authors will briefly outline the current regime’s failure in controlling FOCs regarding criminal, environmental and labor standards. In Section III, the authors focus specifically on the good-governance criterion of transparency in three FOC countries when it came to registering a ship called the Stena Nordica:  Liberia, Honduras and Panama. The authors compare these findings to the high-quality vessel registration of the Arctic state of Norway and how that relates to issues within the Arctic such as current violations within the Northern Sea Route (NSR) in Section IV. Section V will briefly consider three policy recommendations for the 8 Artic States of the Arctic Council to consider, and the authors will finish with a short conclusion regarding overall transparency findings.

 

Gaps in the Current Regime

“Use of open registers by the shipping industry is increasingly dominating global trade; over the last 50 years, shipping by vessels from open registers has been growing at more than ten times the general world economic growth rate. In 1970 21.6% of vessels were registered in open registries. By 2015 this had grown to 71.3% of the global fleet.”[11] Lack of safe conditions on board due to low amounts of regulatory policies, poor pay scales for workers and improper work schedules for FOCs allow inexpensive crews to be drawn from a global labor pool. Average annual labor costs aboard German container ships, for example, were reduced by over 74% by flagging out to FOCs in 1997.[12] In the deregulated FOC labor system, the total number of seafarers around the world has fallen as ships have been allowed to become much larger. There has also been a radical change in ocean labor’s ethnic composition, as crew members have been increasingly drawn from countries with relatively low wages and living conditions—leading to massive unemployment among unionized, high-wage seafarers from traditional maritime nations.[13] “Jail with a salary” has become a common figure of speech for work at sea in the FOC system.[14]

Environmental concerns also play a massive role in the current acts of FOCs. For example, the Deepwater Horizon’s registration was under the Marshall Islands,[15] a notorious FOC, causing quite a stir in the United States’ Congress, yet we saw no further restrictions on FOCs from this tragic incident.[16] Furthermore, the illegal nature regarding the activities of Liberia’s warlord and former President, Charles Taylor, was well documented as he was brought before the ICJ for war crimes, using ships on the Liberian Registry to move illegal goods, such as blood diamonds and illegal arms.[17] Even if such a behavior is known, enforcement is nigh impossible. “As is the case with flags of convenience in the mainstream shipping industry, the process of ‘reflagging’ enables a continuous circle of non-compliant behavior, as vessels are able to re-flag to a new register when the conditions imposed by their current flag, or the consequences of non-compliant behavior under that flag, become too onerous or restrictive. Similarly, if a previously non-compliant flag State decides to mend its ways and clean up its register, or to de-register vessels in order to reduce overcapacity, de-registering a vessel can export the problem, as the vessel concerned can simply find a new, less responsible flag State.”[18]

 

Registering of the Stena Nordica[19]

The Stena Nordica was chosen as it is a ship in which Author Thomas Viguier used to work on as a Merchant Marine Officer in 2015 while it was under the French flag. The vessel currently resides under the Bahamian flag, and thus being flagged under an FOC, made an opportune choice for the authors to have conversations about re-flagging without raising any eyebrows. The authors also chose this vessel as the Author knew the exact details of the vessel, allowing more detailed conversations regarding gross tonnage and net tonnage, as well as other important dates regarding flagging history and construction. Furthermore, Mr. Viguier had the chance to assist to the process of re-flagging the vessel from British to French flag, going through procedures, audits and formalities required to issue all the necessary certificates in order to obtain the right to sail the French flag. Furthermore, such procedures are highlighted by the IMO in its website section “Legal Affairs” under the article “Registration of Ships and Fraudulent Registration Matters”.  However, given further considerations of the scope of this paper, the authors decided not to go too far down the path of full re-flagging for legal reasons. However, the countries selected represent an Arctic State, Norway, which is highly respected for its high standards in terms of flag state regulations, and two flags of convenience: Liberia and Honduras, with the second inextricably linked to Panama.

a. Norway

As all States, even if landlocked, have the right to enjoy the freedom of sailing the high seas and the right of innocent passage within territorial waters of foreign States according to UNCLOS,[20] the above considered States may constitute possible flags that may fly in Arctic waters. As will be shown infra, such FOCs are currently engaging in Arctic shipping in the Northern Sea Route (NSR). At the top of the safety rankings, the Norwegian Maritime Authority shows transparency and good governance, providing in their website all the regulations in force (both national and internationally) as well as all the legally required documents.[21] In addition, the following information may be found online: the organizational structure and employees’ contacts;[22] strict rules on the selection of Class Societies are applied, with Norway being the largest and most trusted one;[23]and fees are explicit and classified according to types of vessels, length and gross tonnage, which are fully related to the ship and are realistic according to the economic value of both the ship and the possible economic benefit.[24]Limitations are set clearly by law for trade areas, and the NIS has legal regulations and frameworks that will rule and explicitly designate the use of the registered vessel,[25]and all aspects of a ship’s life are covered, from construction[26] to scrapping[27] were also found online.

Norway’s Maritime Authority has a high level of transparency, given the easy access to all fees, documents, and requirements in a highly navigable website, even in English, therefore satisfying the ease of access and quality our information adopted definition of transparency. Using the definition of transparency as ease of accessing information, its quality, and the timeliness of disclosure,[28] the information was of high quality, immediately available, and available in Norwegian and English. Thus, Norway is one of the most transparent states in providing shipping registration data.

b. Panama and Honduras

Panama and Honduras are interwoven, as Honduras admitted that we would need to register the vessel with Panama Port State Control to have a Honduran flag. Despite this connection, the conversations’ outcomes were very different, and the information provided by both websites was not in accordance with the information provided on the phone.

For Panama, the names, contact information and pictures of the board members can be found, including their organizational structure. However, Panama shows a lack of transparency on the documents required to register a vessel. Point 4 on “Abanderamiento Regular” (Regular flag attribution) states the Dirección General de la Marina Mercante reserves its right to ask for further documents for the flag attribution.[29] On the very short phone call,[30] conducted in Spanish, Thomas Viguier spoke with two persons. The first was a female secretary who transferred our call to a man who spoke incomprehensibly and placed Mr. Viguier on hold. The hold was subsequently cut short. Therefore, we received no information for simply asking, “We would like to register a vessel under the international registry of Panama.” Again, using the authors’ accepted definition from Johnstone and Ágústsson, the authors classify Panama as non-transparent as the website was nearly inoperable, not all information was accessible in English, and even a native speaker could not gather more information on the phone. Furthermore, the authors could not confirm the information on the website provided was accurate, which was an issue for other countries.

On the opposite end of the spectrum of transparency, Honduras had an unwieldy website where very little information regarding the board could be found.[31] There was part labeled “lawyers” with no names in the organizational chart, yet Mr. Viguier learned on the phone call that these lawyers are on standby to sign off on any accepted registration for a low price equivalent to 300 USD.[32] Furthermore, there is a “transparency” box on the website that lead to another complex website where opposite information may be found (e.g., the name of the General Director on the Dirección General de la Marina Mercante is “Roberto E. Cardona”[33] and the name in the Transparency Website is “Juan Carlos Rivera Garcia.”[34] The website itself raised transparency concerns before the call was even commenced.

An additional red flag for transparency was information sharing. When the Authors attempted to share the website’s link on Facebook, they received a message saying the link was violating the Facebook Community Standards:

 

 

 

 

 

Picture 1

 

The three pillars of Facebook’s Community standards are authenticity, safety, and privacy.[35] Therefore, either the website itself was insecure, unauthentic, or was violating unique visitors’ data privacy. The authors’ thoughts are that the site was insecure as it was probably not willfully hiding authentic information or harvesting data but was a result of mere negligence in the website’s maintenance. Either way, that shows a lack of upkeep by the State and allows the system to be infiltrated. In this sense, the transparency was negligible. This negligible transparency has massive repercussions due to the its insecurity as it means that it is highly vulnerable to cyberattacks by individuals or groups, leading to stolen data, deliberate spreading of misinformation, or compromising the security of the ship database itself. All of these outcomes would not only affect the State’s ability to run an efficient shipping registry but could also lead to legal disputes due to lack of privacy concerns.

Thomas Viguier called the phone number provided on the website,[36] and he spoke in Spanish with a person[37] who, within 15 minutes, gave an incredibly cheap fee for a provisional registry of the Stena Nordica,[38] by merely taking the Gross tonnage as stated (usually the Net tonnage is used but requires specific documents to be found that are not publicly available), at around 20,000 GT, as the tonnage for calculations. The person gave us his private phone number to accelerate the process through WhatsApp, and his email. The fee was USD 8013.18 for 6 months. The only required conditions to get the provisional license were:  The owner’s official documents accredited by a lawyer from Honduras (photocopy allowed and lawyer provided) and the Certification from the Class Society.

The representative told Mr. Viguier that the only delay and denial he could get was from checking the arrest file regarding the ship. Furthermore, in the official documents posted online, there is a clause we, as owners, can benefit from in which the owners receive a discount if the vessel is not arrested of up to 40%.[39] The provisional fee is 8013.18 USD, which is half the price to the registration fee of 16,000 USD under the Norwegian International Register (NIS), and is 82.7% cheaper compared to the whole year fee of 46,310 USD under the NIS during year 1. Table 1 illustrates the calculation of both fees for a 20.000 NT vessel.

 

Table 1: Fee Comparisons Between Honduran and Norwegian Registration

 

The calculated fee from Honduras Maritime Authority and the one was given on the phone call aligned. The Net tonnage given on the phone was slightly smaller, justifying the difference. The person also told us that they cooperate with Panama for their international registry, being able to register a vessel in Honduras via Panama’s Maritime Authorities.

There were other concerns on the call since our representative pushed very hard for a deal to get done and did not ask a single question besides the information needed to get the price, such as whether the ship was in working order or it had been arrested. There were no questions about who the caller was, where the ship was currently located or who the owner was. The authors conclude that if they had had the money on hand, they could have registered the ship in a very non-transparent manner given the information requested. Given the above, Honduras had a shocking lack of transparency and may even encourage borderline illegal behavior. While access to information was easy for a Spanish speaker, an English speaker would have struggled, based on the other authors’ attempts.[40] These low prices, the little information provided, as well as inoperable websites and preferential treatment for Spanish-speakers (at least anecdotally) shows that there is little transparency in the process given the adopted definition of transparency by the authors.

c. Liberia

Given that Liberia’s official language is English and provided that author Jonathan Wood is a New York-barred attorney in good standing, he called the Liberian Registry office in New York City,[41] hoping to achieve better results. He announced himself as a researcher for the University of Akureyri, attempting to fight the stigma of the term “Flag of Convenience.” The answerer, Claire Williams, said everyone is busy and would not speak with him, and she referred to their YouTube channel. When further elaborating on the research, she grew slightly warmer and provided her email address to make a formal inquiry. The Author made such an inquiry via email and followed up, yet never received any response. The Author reviewed online material and YouTube videos (which were thinly-veiled propaganda[42] and testimonials), finding accessible information in English; however, the forms such as in the case of Honduras and Panama were lacking. While language was not a concern for transparency, the ease of access of information was difficult, given the many offices Liberia uses, which is 24, and the timelines of information (of which there was none). Therefore, Liberia’s Registry was non-transparent, according to the authors based on their adopted definition given no information was provided, and the website itself provided no valuable information as it was a Kafka-esque experience to find a number to call to even register a vessel.

 

FOCs in the Arctic:  A Growing Concern

The lack of transparency is spilling into the Arctic, as from over 23 commercial vessels that transited through the NSR in 2018, 6 were from flags of convenience (Panama, Saint Kitts and Nevis, Bahamas, Liberia, Antigua and Barbuda), representing 26% of the transit.[43] While these numbers are small, scholars have predicted increased shipping via the NSR in the coming years, as Russia and China collaborate on infrastructure rebuilding.[44] See Table 2, which shows NSR shipping statistics for FOC flag states.

 

 

Table 2: Vessels that Sailed the NSR under a FOC

 

Four vessels are registered under the ice-class “Arc 4,” which is, according to the Russian Maritime Register of Shipping, the lowest legal ice-class for Arctic ships.[45] Moreover, one ship is a tanker registered for ice-class “Ice 3,” which is, again, according to the Russian Maritime Register of Shipping, for non-Arctic ships.[46] Such a ship, which sailed through the Northern Sea Route between October 23, 2018, and October 30, 2018, represented a significant oil-spill threat, given that it was below code and traversing the NSR at a time when sea ice begins to return. Finally, the last of the six ships are registered and approved for ice-class “Ice 1,” the lowest ice-class for non-Arctic ships, and sailed through the Northern Sea Route from October 22, 2018, and October 31, 2018, showing a significant deviation from Russian legal regulations on paper and a lack of enforcement. Such FOC shipping can present danger to the environment due to its fragility and human life, given the lack of search and rescue infrastructure. Given that there is no transparency from the FOC Flag states, how are other States, let alone NGOs and individuals, to monitor the increased shipping and risk in the near future? Overall, six of the seventeen ships were not registered and approved as Arctic ships[47].

Despite being classified as Ice-Class Arc4, vessels may follow navigation conditions depending on the service areas,[48] the conditions varying from Extreme to Easy. However, in the document “Rules for the Classification and Construction of Sea-Going Ships” of the Russian Maritime Register of Shipping,[49] the conditions are not defined per se, showing a lack of good governance, as that leaves open loopholes and lets FOCs off the hook.

Flexibility has always been at the core of maritime regulation, which is reflected in the IMO’s conventions due to the changing nature of sea conditions. One example is Rule 2 of the COLREG 72 Convention,[50] but at what point are conditions to be considered easy for a well-defined ice-class hull and what type of class is meant to handle strictly defined maximum ice conditions? These questions must be resolved before a catastrophic incident in the NSR or elsewhere in the Arctic.

The previous analysis highlights the environmental risk the FOCs represent in the Arctic. Furthermore, following a study carried out by Arctic Council’s PAME Working Group, of over 207 vessels that sailed the NSR from 2011 to 2015, 94 were tankers,[51] representing 45% of the traffic and underlining the environmental risk in terms of oil spills in the Arctic. Based upon the above research, both online and via in-person phone calls, the authors conclude FOCs are not transparent and should be held more accountable.

 

Future Policy Proposals

There are several future policy proposals to improve transparency and accountability among the FOC States. The first future policy proposal is to require transnational corporations to begin doing country-by-country reports. This type of reporting requires companies that engage in international production to name each country the company is operating in as well as all the subsidiaries and affiliates within said country, the performance and tax charge of each subsidiary and affiliate, details of the cost and net book value, gross and net assets of its fixed assets in each country.[52] This type of report was implemented for mineral and energy companies registered with the U.S. Securities and Exchange Commission in July 2010 from the passing of the Dodd-Frank Wall Street Reform and Consumer Protection Act and has been global in its reach, given the participant States in the Leading Group.[53] The reports detailed the payments remitted to countries of corporate origin (home) and countries of investment (host). This type of corporate, country-by-country reporting (CbC) creates a natural, albeit limited, sanction. Corporations eager to annul disclosure are forced to give up locations.

Similarly, the E.U. has already begun to receive CbC corporate records “to help investors to better assess the different national activities of multinational companies; and to enhance transparency about capital flows, for instance, to better enforce tax rules.”[54] This should be broadened to ensure that companies using FOCs to obfuscate dubious activity are brought to account. Implementing country-by-country reports for transnational corporations will create a transparency requirement for these companies, many of which operate shipping vessels engaged in IUU fishing. Often the FOC States do not have protections to ensure full disclosure by the owner of the ship.[55] The owner may be trying to hide this info for financial reasons, such as gaining anonymity using a tax haven. In contrast, others may be conducting illegal activities, such as illegal fishing, money laundering, and human trafficking,[56] and the owner wants not to be directly linked with those activities.

The second future policy proposal would call for upgraded Domestic Port State Controls. Port State Controls refers to “the inspection of foreign ships in national ports to verify that the condition of the ship and its equipment comply with the requirements of international regulations and that the ship is manned and operated in compliance with these rules.”[57] By upgrading those controls, ships can be held more accountable even if the flag of which it flies under is not holding it up to the same standards. One such way is to encourage the signing of the 2017 Paris Memorandum of Understanding, which creates a White, Grey, and Black List, with Ukraine joining the latter in 2019.[58] It has resulted in 3,781 detentions in 2016[59] and is slowing gaining more membership.

This can also be done in creative ways. In the United States on February 19, 1998, RCCL was indicted in Miami on a single count, not for dumping, but for “making” a false statement to the Coast Guard. The Nordic Empress discharged its waste in international waters, but the ship had presented the Coast Guard in Miami with an oil record book that omitted the discharge. While making a false statement to the Coast Guard is a crime in the United States, this was one of the first times the statute was used in this manner.[60] This is an example of upgraded Domestic Port State Controls that can help prevent illegal operations that FOC states otherwise go unchecked.

The final future policy proposal is to enhance regional/international agreements. In addition to cooperative efforts, existing conventions may be strengthened by supporting international agreements, such as MOUs. Fisheries management officials have proposed bilateral agreements between states with adjacent fishing zones or RFMOs that include mutual arrest powers. For example, Australia and France recently agreed to such a treaty, which would allow a French warship, for instance, to enter Australian waters and arrest a pirate FOC-IUU toothfish vessel and allow an Australian boat to do the same in French waters.[61] There are additional agreements regarding regulations on shipping. One such agreement is the Model Agreement on Exchange of Information put out by the Organization for Economic Cooperation and Development’s Committee on Fiscal Affairs.[62] Currently, 33 countries/jurisdictions have made these commitments.[63] This means those countries/jurisdictions will begin implementing the standards laid out in the agreement of transparency and exchange of information, which include measures to ensure transparency of ownership, by allowing agreements such as the Australian and French as well as the Model Agreement on Exchange to be implemented domestically and internationally increases the ability to regulate ships in other ports and policy regarding FOC vessels.

 

Conclusion

The FOCs of Panama, Honduras, and Liberia are uniformly and highly non-transparent based on their adopted definition of transparency, which stands in stark contrast to the transparency of Norway. This is based on the Authors’ personal experiences with live calls and comparing access to information in different jurisdictions, it is clear that FOCs are reticent to give any information over the phone and clam up if approached by any outsider, such as Jonathan Wood’s call with Liberia in English. Thomas Viguier’s call in Spanish to Honduras resulted in disorganized information, yet led to results that one could not call “good governance,” given the pushy attitude of the Honduran representative in trying to make a sale at any cost; however, Mr. Viguier experienced silence in Spanish as well in his Panamanian call. Overall, the authors noted inaccessibility and conflicting information on all of the websites explored, particularly Honduras. The best-run website was Liberia’s, yet it was a labyrinthine experience to find a phone number to call. Even the Spanish countries as their primary language did not provide accurate information, and the translations to English were severely lacking. As to timeliness, we did not receive any calls back or responses to email, yet the authors are confident that they could have registered the Stena Nordica via Honduras. While this contribution focused primarily on transparency, this impinged on multiple levels of good governance and gave the authors a tangible sense of agreement that FOC enforcement’s, or lack thereof, of the status quo and its transparency, as earlier defined, is severely lacking.

This lack of transparency is already having an impact. Given the fact that FOCs are already using the Northern Sea Route, including oil tankers, the risk of an emergency of an oil spill from an FOC-flagged vessel in the Arctic is imminently possible. Therefore, by bringing up the various proposals from Section V, supra, within the auspices of the Arctic Council, the ad hoc meetings of the Coastal Arctic Five, or the International Maritime Organization, there can be a much-needed dialogue on preventing the disasters that have occurred in the global South through lack of transparency and enforcement from happening in the very fragile environment in the Arctic. Given Norway’s membership in all of the above fora, and their transparency in ship registration, perhaps they may play a leadership role for stewardship of Arctic shipping transparency.

 

Endnotes

[1] Jamie Christy, “The Almost Always Forgotten, Yet Essential Part of Our World: An Examination of the Seafarer’s Lack of Legal and Economic Protections on Flag of Convenience Ships,” 32 U.S.F. Mar. L.J. 49, 50–51 (2020).

[2] Protection of the Arctic Marine Environment, “Arctic Marine Strategic Plan 2015-2025,” PAME, available at https://www.pame.is/images/03_Projects/AMSP/AMSP_2015-2025.pdf (Last accessed August 25, 2020).

[3] United Nations Treaty System, “United Nations Convention for the Law of the Sea,” United Nations (1982), at Art. 24, para. 1(b), available at https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (Last accessed August 25, 2020).

[4] Lloyd’s List, “Top 10 Flag States 2018,” Lloyd’s List Maritime Intelligence, (December 10, 2018), available at https://lloydslist.maritimeintelligence.informa.com/LL1125024/Top-10-flag-states-2018 (Last accessed August 25, 2020).

[5] See Christy, supra note 1, at pp. 49-51.

[6] See Goodman, Camille Jean, “The Regime for Flag State Responsibility in International Fisheries Law – Effective Fact, Creative Fiction, or Further Work Required?” Australia & New Zealand Mar. L.J., Vol. 23, pg. 157 (2009), available at https://www.researchgate.net/publication/266440227_The_Regime_for_Flag_State_Responsibility_in_International_Fisheries_Law_-_Effective_Fact_Creative_Fiction_or_Further_Work_Required (Last accessed August 25, 2020).

[7] Hamad, Bakar, “Flag of Convenience Practice: A Threat to Maritime Safety and Security,” IJRDO-Journal of Social Science and Humanities Research, 1:8 at pg. 218(August 2016), available at https://www.researchgate.net/publication/308308749_Flag_of_Convenience_Practice_A_Threat_to_Maritime_Safety_and_Security.

[8] Tiili, Kristin & Ramakers, Annelien, “Rule of Law and Transparency in Modern Norwegian Whaling (2006-2015),” Nordicum-Meditteraneum 12:1 (2017) available at https://nome.unak.is/wordpress/volume-12-no-1-2017/double-blind-peer-reviewed-article/rule-law-transparency-modern-norwegian-whaling-2006-2015. (Last accessed August 25, 2020).

[9] Johnstone, Rachael Lorna & Ágústsson, Hjálti Ómar, “Practicing What They Preach: Did the IMF and Iceland Exercise Good Governance in Their Relations 2008-2011?” Nordicum-Meditteraneum 8:1 (2013) available at https://nome.unak.is/wordpress/08-1/c48-article/practicing-what-they-preach-did-the-imf-and-iceland-exercise-good-governance-in-their-relations-2008-2011/ (Last accessed August 25, 2020) (emphasis in original).

[10] Friedl Weiss & Assisted by Silke Steiner, “Transparency As an Element of Good Governance in the Practice of the EU and the WTO: Overview and Comparison,” 30 Fordham Int’l L.J. 1545, 1549 (2007).

[11] Ford, Jessica & Chris Wilcox, “Shedding Light on the Dark Side of Maritime Trade—A New Approach for Identifying Countries as Flags of Convenience,” Marine Policy, pg. 298, (January 2019).

[12] See Morris, R., & T. Kilkauer, “Crews of Convenience from the Southwest Pacific,” New Zealand Journal of Industrial Relations, 26(2), (2001) at pg. 188.

[13] See Broeze F., The Globalisation of the Ocean: Containerisation from the 1950s to the Present, (St. John’s Newfoundland: International Maritime Economic Historic Association) (2002).

[14] Urbina, Ian, “Stowaways and Crimes Aboard a Scofflaw Ship,” N.Y. Times (July 19, 2015), available at https://www.nytimes.com/2015/07/19/world/stowaway-crime-scofflaw-ship.html (Last accessed August 25, 2020).

[15] Kshetri, Nir, “Marshall Islands,” The Statesman’s Yearbook (Jan. 4. 2020) at pp. 813-815.

[16] See Clark, Andrew, “BP Oil Rig Registration Raised in Congress Over Safety Concerns,” The Guardian, (May 30, 2010), available at https://www.theguardian.com/environment/2010/may/30/oil-spill-deepwater-horizon-marshall-islands (Last accessed August 25, 2020).

[17] See Sharife, Khadija, “Flying a Questionable Flag:  Liberia’s Lucrative Shipping Industry,” Reportage World Policy Journal, (Winter 2010/2011) at pg. 113, available at https://www.jstor.org/stable/pdf/40963779.pdf?refreqid=excelsior%3Af0254f5d81676f199b2878706f9454f9 (last accessed August 25, 2020).

[18] Goodman, note 9 supra, at pg. 164.

[19] The authors may be contacted to provide any more details on the ship, as necessary, to prove their knowledge of this vessel.

[20] See UNCLOS, note 3 supra at Arts. 26, 53.

[21] Norwegian Maritime Authority Website, “Registration of Ship in the NIS,” Sjøfartsdirektoratet, available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-nis/documentation-requirements-nis/ (Last accessed August 25, 2020).

[22] Norwegian Maritime Authority Website, “Organizational Structure and Employees,”  Sjøfartsdirektoratet, available at https://www.sdir.no/en/organization/organizational-structure-and-employees/ (Last accessed August 25, 2020).

[23] See Norwegian Maritime Authority Website at “Recognized Organizations,” supra note 17, available at https://www.sdir.no/en/shipping/vessels/vessel-surveys/approved-classification-societies/ (Last accessed August 25, 2020.)

[24] See id. at “21-December-2009-No.-1738-Tariff-of-Fees,” supra note 17,  available at https://www.sdir.no/contentassets/e7ee839cecce49cb8286b5fba381c841/21-december-2009-no.-1738-tariff-of-fees.pdf?t=1582119505790. (Last accessed August 25, 2020).

[25] See id. at “Trade Areas NIS Ships,” supra note 18, available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-nis/trade-areas-nis-ships/ (Last accessed August 25, 2020).

[26] See id. at “New Registration in the Shipbuilding Register,” supra note 17, available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-the-shipbuilding-register/ (Last accessed August 25, 2020).

[27] See id. at “New Registration in the Shipbuilding Register,” supra note 17 available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-the-shipbuilding-register/ (Last accessed August 25, 2020).

[28] See Johnstone & Ágústsson, supra, note 11.

[29] Autoridad Maritima de Panama, “Servicio Exterior,” Republica de Panama, available at https://amp.gob.pa/servicios/marina-mercante/abanderamiento-de-naves/servicio-exterior/ (Last  accessed August 25, 2020).

[30] All phone call logs were conducted using Jonathan Wood’s phone and logs are available to review upon request.

[31] Dirección General de la Marina Mercante Honduras Website, “Directorio de Contactos,” Dirección General de la Marina Mercante Honduras, available at https://marinamercante.gob.hn/?page_id=2336 (Last accessed August 25, 2020).

[32] Author Jonathan Wood, currently working as an attorney in private practice, can provide insight into the legal market and provide more details, if necessary, as to how out of line that price is with the market.

[33] See note 27 supra.

[34] See id. at “IAIP,” supra note 27, available at https://portalunico.iaip.gob.hn/portal/index.php?portal=343&Itemid=59 (Last accessed April 18, 2020).

[35] See Facebook, “Community Standards,” Facebook, available at https://www.facebook.com/communitystandards/ (Last accessed August 25, 2020).

[36] See  “Registro de Buques,” supra note 24, available at http://marinamercante.gob.hn/?page_id=2342 (Last accessed August 25, 2020).

[37] Information on this individual can be provided privately as the authors found him on LinkedIn but for purposes of this paper, we choose to preserve his anonymity.

[38] Marine Traffic Website, “STENA NORDICA (Ro-Ro/Passenger Ship) Registered in Bahamas,” MarineTraffic, which includes Vessel Details, Current Position and Voyage Information (IMO 9215505, MMSI 311000843, Call Sign C6EB2), available at https://www.marinetraffic.com/en/ais/details/ships/shipid:194642/mmsi:311000843/imo:9215505/vessel:STENA NORDICA (Last accessed August 25, 2020).

[39] See Dirección General de la Marina Mercante Honduras, “Ver Documento 7,” La Gaceta, (May 24, 2018), available at   https://portalunico.iaip.gob.hn/portal/ver_documento.php?uid=MzkyMjU4ODkzNDc2MzQ4NzEyNDYxOTg3MjM0Mg== (Last accessed August 25, 2020).

[40] Furthermore, seeking more information was difficult as the office itself did not know where all of the information was located as while Mr. Viguier was on hold, the initial person on the phone did not place him on hold. He heard shouting from the individual who picked up the phone, asking where certain offices were physically located and who was supposed to handle the topic of international ship registration. An entire discussion, held in Spanish, over the phone about whom to transfer him to before the individual realized his mistake and placed Mr. Viguier on hold. Therefore, Honduran transparency was shockingly low.

[41] See Liberian Registry, “Contacts,” Liberian Registry, available at https://www.liscr.com/liberian-registry#new-york (Last accessed August 25, 2020).

[42] See Liberian Registry, “All Flags Are Not Alike,” YouTube (June 28, 2018), available at https://www.youtube.com/watch?v=AKY3pp6wtUA (Last accessed August 25, 2020).

[43] Arctic-LIO, “Transits 2018,” Northern Sea Route Information, available at https://arctic-lio.com/wp-content/uploads/2019/02/Transits_2018.pdf (Last accessed August 25, 2020).

[44] See generally Tom Røseth, “Russia’s China Policy in the Arctic, Strategic Analysis,” Taylor & Francis, 38:6, pp. 841-859, available at DOI: 10.1080/09700161.2014.952942 (Last accessed August 25, 2020).

[45] See Russian Maritime Register of Ships, “Rules for the Classification and Construction of Sea-Going Ships,” Government of the Russian Federation, at pp. 12–13, (September 9, 2016), available at https://rs-class.org/upload/iblock/ee4/ee42f902bc2f1b2eb2bbeff75efffcee.pdf (Last accessed August 25, 2020).

[46] See id. at pg. 12.

[47] Approved ships included an icebreaker, a harbor tug, a fishing vessel, a bunkering vessel engaged in harbor activity and 2 cargo vessels engaged in short-term cabotage.

[48] See id. at pg. 13.

[49] See id.

[50] United Nations Treaty Series, “Convention on the International Regulations for Preventing Collisions at Sea,” United Nations (1972), available at https://treaties.un.org/doc/Publication/UNTS/Volume%201050/volume-1050-I-15824-English.pdf> (Last accessed August 25 2020).

[51] Protection of the Arctic Marine Environment, “Types of Ships 2011-2015,” PAME (no date given), available at  https://www.pame.is/images/03_Projects/AMSA/NSR/types-of-ships_2011-2015.jpg (Last accessed August 25, 2020).

[52] See Richard Murphy, “Country-by-Country Reporting: Holding Multinational Corporations to Account Wherever They Are,” Task Force for Financial Integrity & Economic Development, (June 2009), available at http://www.financialtransparency.org/wp-content/uploads/2015/04/Final_CbyC_Report_Published.pdf (Last accessed August 25, 2020).

[53] See id. at pg. 2.

[54] European Commission “Commission Staff Working Document Impact Assessment assessing the potential for further transparency on income tax information Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches,” European Commission, SWD/2016/0117 final – 2016/0107 (COD), (April 12, 2016), available at https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX:52016SC0117

(Last accessed August 25, 2020).

[55] See Hamad, Bakar, “Flag of Convenience Practice: A Threat to Maritime Safety and Security,” IJRDO-Jounral of Social Science and Humanities Research, 1:8 at Abstract, (August 2016), available at https://www.researchgate.net/publication/308308749_Flag_of_Convenience_Practice_A_Threat_to_Maritime_Safety_and_Security (Last accessed August 25, 2020).

[56] See Sharife, Khadija, “Flying a Questionable Flag:  Liberia’s Lucrative Shipping Industry,” Reportage World Policy Journal, (Winter 2010/2011) at pg. 115, available at https://www.jstor.org/stable/pdf/40963779.pdf?refreqid=excelsior%3Af0254f5d81676f199b2878706f9454f9 (last accessed August 25, 2020).

[57] Anonymous, “Port State Control,” International Maritme Organization, available at http://www.imo.org/en/OurWork/MSAS/Pages/PortStateControl.aspx (Last accessed August 25, 2020).

[58] See Press Release, “Safeguarding Responsible and Sustainable Shipping,” Paris Memorandum of Understanding, at Executive Summary (2017), available at https://www.parismou.org/2017-paris-mou-annual-report-%E2%80%9Csafeguarding-responsible-and-sustainable-shipping%E2%80%9D (Last accessed August 25, 2020).

[59] See id.

[60] See United States v. Royal Caribbean Cruises, Ltd., 11 F. Supp. 2d 1358, 1365 (S.D. Fla. 1998) (holding “Act to Prevent Pollution from Ships (APPS), as an allegedly more specific ‘false statements’ law regulating cruise ship’s conduct in failing to properly report alleged discharge of oil, did not preclude prosecution under the False Statements Act for false statements allegedly made to Coast Guard upon ship’s arrival in United States port.”)

[61] Australia Country Fact Sheet, “Treaty Between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Islands and the McDonald Islands,” Government of Australia, (Canberra, 24 November 2003), available at www.aphref.aph.gov.au_house_committee_jsct_12may2004_treaties_frnia.pdf (Last accessed August 25, 2020).

[62] See Maritime Transport Committee, “Maritime Security—Ownership and Control of Ships: Options to Improve Transparency,” Organisation for Economic Co-operation and Development, (December 17, 2003), available at http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DSTI/DOT/MTC(2003)61/REV1&docLanguage=En (Last accessed August 25, 2020).

[63] See id. at pg. 22.

Rule of Law and Transparency in Modern Norwegian Whaling (2006-2015)

Introduction

The paper focuses on Norwegian minke whale whaling from 2006 until 2015, and seeks to assess the level of transparency in modern Norwegian whaling. Although Norway has been hunting the common minke whale since medieval times,[1] the timeframe 2006-2015 was chosen in order to be able to include and analyse the latest regulations and information concerning Norwegian whaling, rather than providing a historical account. Furthermore, at first glance the Norwegian Government appears to be very transparent about the whaling practices, and the authors wanted to understand whether it is indeed transparent.

This paper will use the definition of transparency provided by Rachael Lorna Johnstone and Hjálti Ómar Ágústsson, as these authors evaluate transparency according to the ease of accessing information and the quality of this information.[2] This type of evaluation of transparency fits best with the type of research conducted in this paper. Most of the research was conducted by analysing various Norwegian Government websites, documents, and other information available online. Additionally, phone calls to Government officials were made in order to obtain supplementary information that was not readily available online – or proved very problematic to find.

The paper will first provide background information about Norwegian whaling, the minke whale, and its status within various organisations. The second part of the paper will discuss the relevant laws and regulations concerning whaling under Norwegian domestic law. The last part will discuss various levels of transparency. The authors observed three categories of transparency: high, medium, and low. The research was also divided into these three categories. The conclusion will provide a summary of the findings and determine the level of transparency in modern Norwegian whaling from 2006 until 2015.

Background Information Concerning Norwegian Whaling

The common minke whale is a small sized baleen whale that is widely distributed in the world’s oceans, though it is most commonly found in the Atlantic Ocean. The Atlantic Ocean minke whale is divided into four stocks; East Canada, West Greenland, Central-North and Northeast. Norway has hunted all stocks apart from East Canada. Presently, however, Norway mainly whales in the Northeast Atlantic.[3] Norwegian whaling takes place in the Norwegian EEZ, the fisheries zone around Jan Mayen, the fisheries protection zone around Svalbard,[4] and Smutthavet – international waters between Jan Mayen and the Norwegian EEZ.[5]

Minke whale catch area and subdivisions.
(Source: www.projourno.org)

Prior to 2006, the catch area was divided into five zones: ES (Svalbard), EB (Barents Sea), CW (Jan Mayen), EW and EN (Norwegian EEZ). However, due to new regulations in 2006 the quotas were no longer subdivided between the zones. Since 2006 Norway has operated with three main areas as opposed to the five zones, as seen in the map above, but the minke whale quota is no longer divided between the areas. Whaling vessels can catch as many whales as they have the capacity to catch, in any area, as long as the overall annual quota is not exceeded.[6] The season for whaling is from April to September, the most important months being May, June and July. Moreover, whaling is only a small-scale coastal business in Norway, and less than 5 percent of the workforce in Northern Norway works in the fishing and whaling industry. However, in some of the small island communities in Northern Norway fishing and whaling employs as much as 40 percent of the population.

Between 1988 and 1992 Norway ceased its whaling activities. However, it became evident that the minke whale stocks were larger than previously believed, and Norway decided that it was possible to hunt minke whale in the Northeast and Central Atlantic in a sustainable manner.[7] Due to the IWC reservation Norway can set its own national quotas.[8] The last year a quota was fulfilled, and breached by 1%, was 2001; since 2001 the quotas have not been fulfilled.[9]

Due to findings made by Havforskningsinstituttet (Institute of Marine Research) through their DNA database, it was discovered that there are no subpopulations of minke whale in the Norwegian catch area, and consequently, the Norwegian Government saw no need to keep the five zones and divide the catch between the areas, as there were no genetic reasons to continue the practice.[10] Fiskeridirektoratet (Directorate of Fisheries), based on research done by the International Whaling Commission’s (IWC) Scientific Committee and their Revised Management Procedure (RMP), sets the quota for the Norwegian catch zone.[11] The Northeast minke whale stock alone counts more than a hundred thousand whales, and the quota for 2010-2015 was 1286, approximately 1% of the stock.[12] The actual catch from 2006-2015 was lower than the designated quotas.[13]

In addition to the Norwegian research, both the North Atlantic Marine Mammal Commission (NAMMCO) and the IWC conduct research concerning the abundance of minke whale stocks. NAMMCO states that minke whales are the most abundant of the baleen whales; estimated minke whale numbers from NAMMCO date back to 2007 and were set to ca. 112,000 individuals in the Northeast Atlantic; no numbers were available for the Central Atlantic area.[14] The IWC provides stock estimates which lie between 60,000 and 130,000 individuals in the Northeast Atlantic with a median of 90,000; for the Central Atlantic the median lies at 50,000 individuals, with estimates between 30,000 and 85,000.[15]

Norway is a member of the IWC, but when IWC decided on the moratorium in 1982 (enforced from the 1986 season), the Norwegian Government immediately made reservations and objections to Schedule paragraph 10(e) concerning the moratorium.[16]  Due to the reservations, Norway argues that the moratorium does not concern them.[17] In addition to the minke whale being protected by the moratorium, it is also listed in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Appendix I.[18] Norway also made reservations against listing the minke whale in Appendix I by CITES, due to the aforementioned research revealing that the common minke whale is plentiful, with the Northeast stock alone counting more than a hundred thousand individuals.[19]

Domestic Laws and Regulations Concerning Norwegian Whaling

Under Norwegian domestic law, there is one law dealing with marine resources, Havressursloven (law of resources of the sea), and it includes various regulations concerning whaling.[20] Havressursloven was established in 2008 and last amended in 2015 (2008/15). Additionally, there are two laws dealing with the conservation of species, biodiversity and wildlife; Naturmangfoldloven (law on biodiversity), which regulates sustainable use of all wild species, terrestrial and marine,[21] and Viltloven (law regulating hunting of wild animals).[22]  Additionally, there are many other regulations, called j-meldinger. Currently there are 260 valid j-meldinger, all of them regulate fisheries and whaling. A few of these deal with whaling specifically. There are regulations on the use of tachograph and electronic supervision regarding catch (J-28-2015), regulations on electronic position reporting (J-215-2015), regulation on concession and quota (J-262-2015), regulation on participation (J-174-2015), and lastly J-33-2013, which is the Forskrift om utøvelse av fangst av vågehval. J-33-2013 deals solely with the regulation of minke whale whaling.[23] Many of the other j-meldinger deal with fisheries as well as whaling. All regulations, apart from J-174-2015, are pursuant to Havressursloven under various paragraphs.[24] J-174-2015 is not pursuant to Havressursloven because it deals with a separate law, Deltakerloven, regulating who can partake in fishing and whaling.[25]

Some j-meldinger are worth explaining in more detail, for example J-33-2013 Forskrift om utøvelse av fangst av vågehval (2000/13),[26] which sets out clear parameters and requirements for the equipment on whaling vessels as well as dumping of those parts of the whale that are not used for consumption in Norway.[27] This regulation is also regularly updated, albeit not as regularly as the overarching Havressursloven. J-33-2013, in the first paragraph, states that the killing must be done so as not to cause the animal unnecessary suffering.[28] However, what exactly constitutes unnecessary suffering is not explained. Another regulation describes the requirement for the use of the electronic registration system: Forskrift om bruk av ferdskriver for elektronisk overvåking av fangst av hval (2007/13).[29] When at sea, the system must send data to Fiskeridirektoratet every 24 hours. The electronic system has replaced the personal at-sea inspection almost entirely.[30]

 

Fiskeridirektoratet is in charge of the proper implementation of the aforementioned regulations and inspecting its adherence at sea. However, Fiskeridirektoratet has charged Kystvakten (the Norwegian Coastguard) with the inspections and issuing of reports.[31] Regarding whaling permits, Fiskeridirektoratet only provides whaling permits for one year at a time, which means that captains of the whaling vessels must apply for whaling permits anew annually. Fiskeridirektoratet also has the power to retract the whaling permit if the crew or vessel is not compliant with the regulations or fails to pass the training.[32] Despite repeated online searches and requests via e-mail and phone calls, it was difficult to find information concerning training contents and length – which will be discussed in more detail below.

For the chosen timeframe of this paper, only one court case concerning whaling was found. The case concerned a whaler who was caught using so-called non-explosive or ‘cold’ harpoons instead of the obligatory grenade harpoons. Despite the fact that the captain had noted the use of illegal harpoons in his logbook, the whaler was not discovered until after the vessel had been reported to a land-based police station by an inspector, who had become suspicious during a routine inspection and subsequently reported it.[33] Fiskeridirektoratet had not noticed the use of the cold harpoons from the electronic registration system, and apparently not read the logbooks either. The case was dismissed, however, due to technicalities with the charges.[34] The example leads to questions of the effectiveness of the rule of law and consequences for whalers who have been found in breach with the law. The laws and regulations are clear and understandable, but the implementation requires more scrutiny.

Transparency

The following section discusses various topics related to Norwegian whaling. For clarity, this section has been divided into three parts: high transparency, medium transparency, and low transparency. As mentioned in the introduction, we evaluate transparency according to the ease of accessing information and its quality.

High Transparency  

Laws and Regulations and Quota Setting

The investigation concerning transparency in Norwegian whaling commenced by looking into the information provided on the official website of the Norwegian Government.[35] By doing a simple search on whaling, numerous hits directed the authors to laws, regulations, reports and information about biodiversity and sustainability in general, and whaling specifically. Information about the laws mentioned above and regulations are transparent, easily accessible, of good quality, and up to date. Information about the regulations (j-meldinger) pursuant to the laws are provided: when it was last updated, what Government body is authorised, when it was first passed, and of course, the content of the law is given. Furthermore, the Government is transparent concerning their commercial whaling. It is stated on the official websites and documents that the whaling is for commercial purposes purely, and that they whale legally in spite the IWC moratorium due to the reservations concerning the moratorium made from the onset. The Government is also transparent regarding their relationship with the IWC, and their disagreement with the moratorium.[36] Information about why, where, and which species they whale is also transparent,[37] as well as the history of whaling and what happens with the whale meat.[38] Moreover, laws and regulations on the export of minke whale products, mainly meat, is also transparent.[39] However, most of the meat is for domestic consumption.

The transparency in relation to quota setting is also transparent. The Government provides detailed information about the annual quotas and how many animals were taken. Furthermore, the Government is open about the research behind the quota setting and the collaboration with IWC’s Scientific Committee. The division of the quotas among the various areas was transparent as well,[40] although this is no longer relevant due to the aforementioned minke whale DNA research. Havforskningsinstituttet and their research is also transparent: there are numerous links and pdfs one can download, the website and the information is regularly updated, it is easily accessible and the quality of the information is good.[41]

Material about required equipment and crew on whaling vessels is transparent as well, and it is available on the webpage of Fiskeridirektoratet.[42] Links to the laws and regulations dealing with equipment, weapons, enforcement, punishment and crew of whaling vessels, are all available, easily accessible, clear and up to date. Regulation regarding training for whalers and who is entitled to the training are also available and transparent; however, the content of the trainings is less transparent.[43]  This will be discussed in more detail below.

Medium Transparency

Language availability

The authors found that since they are fluent in Norwegian, more information was available to them. Thus, some of the information that is transparent, is only transparent for Norwegian speakers. The official Government websites are available in English as well as in Norwegian, but for example, links to reports to the Government from Nærings- og Fiskeridepartementet (the Norwegian Ministry of Fisheries), called St.meld., are only available in Norwegian. On the website it clearly states that it is not available in English.[44] Thus, some information from Nærings- og fiskeridepartementet and Fiskerdirektoratet, to the Government about the internal affairs regarding whaling, inspections aboard the whaling vessels, and breaches of the laws, are only available in Norwegian. The websites used by the authors for the j-meldinger, are also only available in Norwegian. Information from Lovdata, which was frequently utilized in this article, for information about laws concerning whaling, regulations, training and so forth, is also in Norwegian only. Hence, for a person understanding Norwegian, more information is available and thus, the transparency level is higher in Norwegian than the information that is available in English. The information from the IWC and certain articles are published in English,[45] but the greater percentage of the articles, reports, and website information used for this paper, was read in Norwegian because it was the available language. Consequently, for in depth detail regarding Norwegian whaling, one needs to know Norwegian.

DNA Database

The minke whale DNA database merits closer inspection in terms of transparency. Information about the database (when it was initiated, what can be found, who does the registering of the material and how it works) are available online and are transparent. However, the database itself is not. After numerous attempts to access the online DNA database for minke whales through the webpages of Havforskningsinstituttet, Fiskeridirektoratet and other official websites, the authors decided to contact Havforskningsinstituttet. Tore Haug, the lead scientist, informed the authors that Havforskningsinstituttet merely does the analyses and registers the information in the database; they do not supervise the database itself.[46] Haug also informed the authors that the Government body who manages the database is Fiskeridirektoratet. Hild Ynnesdal at Fiskeridirektoratet could inform the authors that the database is not open and accessible online, but anyone can call or email[47] Fiskeridirektoratet and receive information about the whale meat they purchased, for example.[48] The authors were also informed that the purpose of the database was originally to ensure that all minke whales are caught and sold in compliance with the laws and regulations of domestic Norwegian law. However, the database turned out to yield valuable information about the minke whale stocks, for instance the information that lead to de-zoning the original five whaling zones, as mentioned previously. Though the public can access the information and nothing is confidential or hidden, it is not disclosed openly online and one has to make an extra effort to receive the information. On the one hand one can argue that the DNA database is transparent since none of the information relating to the database is confidential or inaccessible, but on the other hand, transparency, as defined for the purpose of this paper, entails ease of accessing information and disclosure of the information. Hence, the minke whale DNA database does not comply with transparency, but is rather semi-transparent as much information is available, but not all.

Training and Training Contents

Another issue that is not as transparent as it could be is the organisation of the trainings. This aspect is particularly important as the whalers, in particular the captain and the harpoonist, are required to have training on a regular basis to prove they know how to use the cannon and harpoon grenades and know how to kill the whale humanely. Despite requests by e-mail[49] and close examination Fiskeridirektoratet’s website in Norwegian, it remained unclear what constitutes the contents of the training apart from shooting practice, for example whether the shooters learn about minke whale biology and how to separate an adult whale from a youngster.[50] Neither did it become clear if Fiskeridirektoratet does indeed organise trainings every year, as claimed by the official English language website of Nærings- og fiskeridepartementet.[51] However, contacting Nærings- og fiskeridepartementet does open doors. Ms. Ynnesdal could inform the authors that the courses cover basic minke whale anatomy, where to shoot the whale, the angle, and distance. The authors learned that, apart from the basic anatomy, which is required knowledge for the shooting of whales in a manner that provides the least suffering, biology is not a part of the training, and that the whalers can shoot any minke whale they see, regardless of supposed age and size.[52] Furthermore the authors learned that whaling captains and harpoonists have to pass shooting tests annually: harpoon at sea and rifle on land. Additionally, the mandatory basic course is generally only required once, unless new regulations are set forth or new equipment is assigned.[53] There seem to be no online documents offering information about detailed contents of the training. As mentioned earlier, laws and regulations regarding training for whalers are transparent,[54] but the content of the mandatory courses, are not transparent because these do not appear to be accessible. From the above it appears that Fiskeridirektoratet is not actively hiding information about the courses and training whalers have to go through; however, the information is not easily accessible and available online.[55]

Electronic Registration System and Time to Death

The electronic registration system that whaling vessels are required to have on board merits a few questions as well. It is unclear how the system works in the fullest extent. For example, it cannot register whether the whale was shot in a way that did not cause any unnecessary suffering, a requirement by law, and how fast it died.[56] It can only register how many shots were fired. The fact that there are barely any inspections done on at-sea whaling vessels leaves room for bending the truth concerning the actual time between the shooting of the animal and when it died. The Norwegian government declares that currently ca. 80% of the animals die within the timeframe of two minutes, even though Norway continued to cite 2002 data concerning Time to Death (TTD) at IWC meetings in 2009.[57] In order to check whether the claim by the Norwegian government is correct and can be supported by research, the authors decided to contact Fiskeridirektoratet once more. After several attempts the authors received the information that the NAMMCO expert group on “Assessing TTD data from Large Whale Hunts” had published a report concerning TTD in November 2015.[58] In this report the collection of data is explained, and the TTD in all whaling nations and areas are assessed. According to this report the average TTD was reduced from 11.5 minutes in 1981 to 1 min in 2012.[59] The report also explains how TTD can be measured aboard ships, as this is not done by the electronic system mentioned earlier: ‘The electronic system does not record TTD but it records time and position of every whale shot and taken on board for flensing through various movement sensors placed in strategical places on the boat connected to a GPS. This means that data from this system may give an indication as to whether the whale died quickly or slowly.’[60] The report proceeds to discuss the results from the 2011 and 2012 seasons, in which 82% of the whales died instantaneously after being shot. The whales that did not die instantaneously had an average TTD of 6 minutes, one whale only died after 20-25 minutes according to the report.[61] The TTD claim by the Norwegian government mentioned in the beginning of this paragraph can be considered correct and the data to back the claim can be found online. Therefore, the discussion concerning the TTD can be considered transparent, although finding the NAMMCO report was not straightforward to locate online; however, this is not the responsibility of the Norwegian government. Nevertheless, for clarity reasons the government website could also refer to the NAMMCO report, this would show that the government is serious about their claims and can provide scientific evidence for them.

Low Transparency

Confidential Coast Guard Reports

During the time of research concerning transparency in Norwegian whaling, only one area was found not to be transparent as the information is unavailable online, nor is it provided when requested: the reports by Kystvakten and Fiskeridirektoratet from the onboard controls or when landing the catch. After having found information about regulation and enforcement of whaling, mandatory electronic equipment to register catch, and the compliance of whaling vessels with the laws and regulations,[62] no information could be found about the reports. Therefore, the authors called Fiskeridirektoratet once again.[63] From information about controls in the fiske og fangst (fishing and catch) industry, it was the authors’ impression that Kystvakten performed the controls. On Kystvakten’s website, it clearly states that the reports are confidential.[64] However, no reasons for the confidentiality were given.

Nonetheless, the conversation with Janne Andersen at Fiskeridirektoratet Nordland[65] informed the authors that first of all, it is Kystvakten’s regulation that all information of such nature as reports are confidential, because they are part of the Norwegian Navy. Second, Kystvakten very rarely performs control on whaling vessels, as their focus is on controlling fisheries. Fiskeridirektoratet themselves regulates and carries out the controls of whaling vessels through the equipment that is required on board, such as the tachograph, black/blue box and diary of the catch. Occasionally there is an observer from Fiskeridirektoratet aboard the vessels, more often there are controls when the vessels land the whales. Ms. Andersen also informed the authors that the reports are confidential because a report is only made when someone is not in compliance with the laws and regulations. The reason the reports are confidential is because someone is reported to the authorities. Hence, they are confidential on the same grounds that police reports are confidential when someone is reported to the police for breaking the law. In the same manner the public cannot access police reports, the reports from the controls, and thus the breaching of the law, are confidential as well.

Because the reports are confidential, it also seems that information about what yields reporting to Fiskeridirektoratet and/or the police is confidential. The overall idea that being in breach of the regulations and laws will lead to certain consequences is obvious enough, but beyond that it seems that no information is obtainable. Breaking the laws and regulations will have consequences, but what breach will lead to what consequence is not available, at least as far as the authors were able to acquire.

Conclusion

The common minke whale whaling as conducted by Norway, takes place under the reservations made by the Norwegian government concerning the IWC moratorium. According to the IWC and NAMMCO, the common minke whale is the most abundant of the baleen whales and the stock is thought to exceed 100,000 individuals in the North Atlantic. The annual Norwegian whaling quota does not exceed 1-2% of the total minke whale stock, and quotas are rarely fulfilled. The quota setting has a high level of transparency and the research showed that the Norwegian government collaborates with IWC and NAMMCO in order to determine the quotas and are set based on the scientific evidence provided by the organisations mentioned above. Furthermore, the numbers of the caught animals are also readily available online.

Many laws and regulations regulate the whaling activities, one of the most important ones being the J-33-2013 Forskrift om utøvelse av fangst av vågehval (2000/13). These laws and regulations are regularly updated and can easily be found online. Therefore, the laws and regulations as such can be considered transparent as they are easily accessible and understandable. However, as the reports of the Kystvakten are confidential, and the only court case that could be found was dismissed due to technicalities, it cannot be established how effective the rule of law is. The true effectiveness of the rule of law therefore deserves more scrutiny in the opinion of the authors, because rule of law without effectiveness undermines itself.

Several points are at a medium level of transparency. The information concerning training and training contents, as well as the electronic data system and the TTD could be made more accessible. The TTD data required extensive calling with the Fiskeridirektoratet and the research concerning TTD in particular yielded conflicting information in the beginning. It was not until several phone calls were made that the authors were provided with the location of the most recent NAMMCO TTD document. However, once this document was found the questions concerning TTD were answered quickly and satisfactorily. The only non-transparent finding was the reporting system from the Kystvakten, as these were considered to be non-public in the same manner as police reports.

It must be noted that, when asking the Government bodies for more detailed information, it was more readily provided when requested in Norwegian rather than English, and phone calls in Norwegian were most effective during the investigation for this paper. Considering Ms Tiili is a Norwegian native speaker and Ms Ramakers speaks Norwegian at an advanced level, information is easily accessible. However, when Ms Ramakers requested information in English, emails were not answered. Some English language websites are available for non-Norwegian speakers; however, most information by the Norwegian Government was only available in Norwegian. Nevertheless, this enquiry revealed that, in general, the Norwegian Government has a medium to high level of transparency concerning their modern, commercial whaling (2006-2015). This can be concluded since a lot of information is easily accessible, the quality of the information is good, the information is updated and, from what this research could deduce, it does not appear that the Norwegian Government is hiding information regarding their commercial whaling activities.

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Cites and Cites, ‘CITES Appendices I, II, and III’ (2008) 4 Journal of minimal access surgery 85

Det Kongelige Fiskeri- og Kystdepartementet, ‘St.meld. Nr. 46 (2008–2009) Norsk Sjøpattedyrpolitikk’, vol 46 (2009)

Det Kongelige Fiskeri- og Kystdepartementet, ‘Meld. St. 40 (2012–2013)’ (2013) 40

Det Kongelige Fiskeri- og Kystdepartementet, ‘Norsk vågehvalfangst’ (18 December 2013) <https://www.regjeringen.no/no/dokumentarkiv/Regjeringen-Bondevik-II/fkd/Tema-og-redaksjonelt-innhold/Redaksjonelle-artikler/2005/om-norsk-hvalfangst/id437319/> accessed 25 February 2016

Fiskeridirektoratet, ‘Fiskeridirektoratet – Høring Om Forslag Til Forskrift Om Deltakelse I Og Regulering Av Fangst Av Vågehval I 2012’ (2012) <http://www.fiskeridir.no/Yrkesfiske/Dokumenter/Hoeringer/Hoering-om-forslag-til-forskrift-om-deltakelse-i-og-regulering-av-fangst-av-vaagehval-i-2012> accessed 26 February 2016

Fiskerdirektoratet, ‘Posisjonsrapportering’ (2014) <http://www.fiskeridir.no/Yrkesfiske/Rapportering/Fartoey-over-15-meter-med-flere/Posisjonsrapportering> accessed 26 February 2016

Fiskeridirektoratet, ‘Fiskeridirektoratet’ (2016) <http://www.fiskeridir.no/> accessed 26 February 2016

Fiskeridirektoratet, ‘Fiskeridirektoratet J-215-2015’ (2016) <http://www.fiskeridir.no/Yrkesfiske/Regelverk-og-reguleringer/J-meldinger/Gjeldende-J-meldinger/J-215-2015> accessed 26 February 2016

Fiskerdirektotatet, ‘J-Meldinger’ (2016) <http://www.fiskeridir.no/Yrkesfiske/Regelverk-og-reguleringer/J-meldinger?filter=yes&status%255B%255D=Gjeldende&search=hval> accessed 25 February 2016

Fiskeries, ‘Norwegian Whaling – Based on a Balanced Ecosystem’ (2016) <http://www.fisheries.no/ecosystems-and-stocks/marine_stocks/mammals/whales/whaling/> accessed 25 February 2016

Forsvaret, ‘Kystvakta – Forsvaret.no’ <https://forsvaret.no/fakta/organisasjon/Sjoeforsvaret/Kystvakten> accessed 16 February 2016

Havforskningsinstituttet, ‘Havforskningsinstituttet – Unødvendig Med Fem Fangstområder for Vågehval’ (2016) <http://www.imr.no/publikasjoner/andre_publikasjoner/kronikker/2014_1/unodvendig_med_fem_fangstomrader_for_vagehval/nb-no> accessed 25 February 2016

Hjort J, ‘Lover Og Regler – En Historisk Gjennomgang’

International Whaling Commission, ‘An Overview of the Elements/issues Identified as Being of Importance to One or More Contracting Governments in Relation to the Future of the IWC’

IWC, ‘The IWC – Revised Management Procedure (RMP)’ (2016) <https://iwc.int/rmp2> accessed 25 February 2016

Lovdata, ‘Lov Om Forvaltning Av Viltlevande Marine Ressursar (Havressurslova) – Lovdata’ (2008) <https://lovdata.no/dokument/NL/lov/2008-06-06-37> accessed 16 February 2016

Lovdata, ‘Forskrift Om Utøvelse Av Fangst Av Vågehval – Lovdata’ (2013) <https://lovdata.no/dokument/SF/forskrift/2000-03-31-312?q=forskrift om ut%25C3%25B8velse av fangst> accessed 25 February 2016

Fiskeridirektoratet, ‘J-174-2015: Deltakerloven’ (2015) <http://www.fiskeridir.no/Yrkesfiske/Regelverk-og-reguleringer/J-meldinger/Gjeldende-J-meldinger/J-174-2015> accessed 25 February 2016

Lovdata, ‘Lov Om Jakt Og Fangst Av Vilt (Viltloven) – Lovdata’ (2015) <https://lovdata.no/dokument/NL/lov/1981-05-29-38#KAPITTEL_6> accessed 25 February 2016

Miljøvernrepartement DK, ‘Oppdatering Av Forvaltningsplanen for Det Marine Miljø I Barentshavet Og Havområdene Utenfor Lofoten’ (2011) 10 Melding til Stortinget 1

Nærings- og fiskeridepartementet, ‘Meld. St. 40 (2012–2013)’ (regjeringen.no, 2013) <https://www.regjeringen.no/no/dokumenter/meld-st-40-20122013/id729136/> accessed 1 December 2016

Regjeringen, ‘Kvalfangst’ (5 March 2015) <https://www.regjeringen.no/no/tema/mat-fiske-og-landbruk/fiske-og-havbruk/hval-og-sel-listeside/kvalfangst/id2001553/> accessed 16 February 2016

Ómar Ágústsson H and Lorna Johnstone R, ‘Practising What They Preach: Did the IMF and Iceland Exercise Good Governance in Their Relations 2008-2011?’ (2013) 8 Nordicum-Mediterraneum 1

regjeringen.no, ‘regjeringen.no’ (5 January 2015) <https://www.regjeringen.no/no/id4/> accessed 26 February 2016

Statens forvaltningstjeneste, ‘Lov Om Bevaring Av Natur, Landskap Og Biologisk Mangfold (Naturmangfoldloven)’ (2004)

Utenriksdepartementet, ‘Eksport av norske vågehvalprodukter’ (4 October 2006) <https://www.regjeringen.no/no/dokumenter/eksport-av-norske-vagehvalprodukter/id87866/> accessed 26 February 2016

Øien N, ‘Økosystemet Barentshavet’, Havets ressurser og miljø (2006)

Endnotes

[1] Fiskeries, ‘Norwegian Whaling – Based on a Balanced Ecosystem’ (2016) <http://www.fisheries.no/ecosystems-and-stocks/marine_stocks/mammals/whales/whaling/> accessed 25 February 2016.

[2] Hjálti Ómar Ágústsson and Rachael Lorna Johnstone, ‘Practising What They Preach: Did the IMF and Iceland Exercise Good Governance in Their Relations 2008-2011?’ (2013) 8 Nordicum-Mediterraneum 4.

[3] Nils Øien, ‘Økosystemet Barentshavet’, Havets ressurser og miljø (2006); Nærings- og fiskeridepartementet, ‘Kvalfangst’ (5 March 2015) <https://www.regjeringen.no/no/tema/mat-fiske-og-landbruk/fiske-og-havbruk/hval-og-sel-listeside/kvalfangst/id2001553/> accessed 16 February 2016.

[4] 87 percent of the territorial sea around Svalbard protected, and whaling is not permitted in those areas. See Det Kongelige Miljøvernrepartement, ‘Oppdatering Av Forvaltningsplanen for Det Marine Miljø I Barentshavet Og Havområdene Utenfor Lofoten’ (2011) 10 Melding til Stortinget 1 for more information.

[5] Øien; Det Kongelige Fiskeri- og Kystdepartementet, ‘Meld. St. 40 (2012–2013)’ (2013) 40 41.

[6] Hild Ynnesdal at Fiskeridirektoratet informed the authors about this during our phone conversation on February 24th 2016.

[7] Norwegian Ministry of Trade, Industry and Fisheries, ‘Norwegian Whaling – Based on a Balanced Ecosystem’ (2013) fisheries.no <http://www.fisheries.no/ecosystems-and-stocks/marine_stocks/mammals/whales/whaling/> Accessed 6 March 2016.

[8] International Whaling Commission, ‘Catch Limits & Catches Taken’ (2016) < https://iwc.int/catches#comm> Accessed 6 March 2016.

[9] Fiskeridirektoratet, ‘HØRINGSNOTAT – Forslag Til Forskrift Om Deltakelse I Og

Regulering Av Fangst Av Vågehval I 2012’ (2012) <http://www.fiskeridir.no/fiskeridir/Media/Files/yrkesfiske/dokumenter/hoeringer/2012/hoeringsnotat-vagehval-2012> Accessed 6 March 2016.

[10] ibid; Havforskningsinstituttet, ‘Havforskningsinstituttet – Unødvendig Med Fem Fangstområder for Vågehval’ (2016) <http://www.imr.no/publikasjoner/andre_publikasjoner/kronikker/2014_1/unodvendig_med_fem_fangstomrader_for_vagehval/nb-no> accessed 25 February 2016.

[11] Det Kongelige Fiskeri- og Kystdepartementet, ‘St.meld. Nr. 46 (2008–2009) Norsk Sjøpattedyrpolitikk’, vol 46 (2009) 7; International Whaling Commission, ‘An Overview of the Elements/issues Identified as Being of Importance to One or More Contracting Governments in Relation to the Future of the IWC; for more information about RMP, see International Whaling Commission, ‘The IWC – Revised Management Procedure (RMP)’ (2016) <https://iwc.int/rmp2> accessed 25 February 2016.

[12] Nærings- og fiskeridepartementet, ’Kvote for vågehval i 2016’ <https://www.regjeringen.no/no/aktuelt/kvote-for-vagehval-i-2016/id2480554/> accessed 10 August 2016.

[13] Fiskeridirektoratet, ‘HØRINGSNOTAT – Forslag Til Forskrift Om Deltakelse I Og Regulering Av Fangst Av Vågehval I 2012’ (2012).

[14]The North Atlantic Marine Mammal Commission, ‘Minke Whale Stock Status’ (2016) <http://www.nammco.no/marine-mammals/whales-and-dolphins-cetaceans/new-common-minke-whale/stock-status/> Accessed 6 March 2016; The North Atlantic Marine Mammal Commission, ‘Common Minke Whale’ (2016) <http://www.nammco.no/marine-mammals/whales-and-dolphins-cetaceans/new-common-minke-whale/> Accessed 6 March 2016.

[15] International Whaling Commission, ‘Whale Population Estimates’ (2016) <https://iwc.int/estimate> Accessed 6 March 2016.

[16] Johan Hjort, ‘Lover Og Regler – En Historisk Gjennomgang’ 2; International Whaling Commission, ‘An Overview of the Elements/issues Identified as Being of Importance to One or More Contracting Governments in Relation to the Future of the IWC’ 12.

[17] Øien 41; Det Kongelige Fiskeri- og Kystdepartementet, ‘Norsk vågehvalfangst’ (18 December 2013) <https://www.regjeringen.no/no/dokumentarkiv/Regjeringen-Bondevik-II/fkd/Tema-og-redaksjonelt-innhold/Redaksjonelle-artikler/2005/om-norsk-hvalfangst/id437319/> accessed 25 February 2016.

[18] Cites and Cites, ‘CITES Appendices I, II, and III’ (2008) 4 Journal of minimal access surgery 85.

[19] Miljøvernrepartement; Det Kongelige Fiskeri- og Kystdepartementet, ‘St.meld. Nr. 46 (2008–2009) Norsk Sjøpattedyrpolitikk’.

[20] Lovdata, ‘Lov Om Forvaltning Av Viltlevande Marine Ressursar (Havressurslova) – Lovdata’ (2008) <https://lovdata.no/dokument/NL/lov/2008-06-06-37> accessed 16 February 2016.

[21] Statens forvaltningstjeneste, ‘Lov Om Bevaring Av Natur, Landskap Og Biologisk Mangfold (Naturmangfoldloven)’ (2004).

[22]Lovdata, ‘Lov Om Jakt Og Fangst Av Vilt (Viltloven) – Lovdata’ (2015) <https://lovdata.no/dokument/NL/lov/1981-05-29-38#KAPITTEL_6> accessed 25 February 2016.

[23] Fiskeridirektoratet, ‘J-Meldinger’ (2016) <http://www.fiskeridir.no/Yrkesfiske/Regelverk-og-reguleringer/J-meldinger?filter=yes&status%255B%255D=Gjeldende&search=hval> accessed 25 February 2016; Lovdata, ‘Forskrift Om Utøvelse Av Fangst Av Vågehval – Lovdata’ (2013) <https://lovdata.no/dokument/SF/forskrift/2000-03-31-312?q=forskrift om ut%25C3%25B8velse av fangst> accessed 25 February 2016.

[24] Fiskeridirektoratet, ‘J-Meldinger’.

[25] Lovdata, ‘J-174-2015: Deltakerloven’ (2015) <http://www.fiskeridir.no/Yrkesfiske/Regelverk-og-reguleringer/J-meldinger/Gjeldende-J-meldinger/J-174-2015> accessed 25 February 2016.

[26] Forskrift om utøvelse av fangst av vågehval (2000/13)  <https://lovdata.no/dokument/SF/forskrift/2000-03-31-312> Accessed 6 March 2016.

[27] Ibid. §7.

[28] Ibid. §1.

[29] Forskrift om bruk av ferdskriver for elektronisk overvåking av fangst av hval (2007/13) <https://lovdata.no/dokument/SF/forskrift/2007-03-14-297?q=hval> Accessed 6 March 2016.

[30] Economics for the Environment Consultancy Ltd. (eftec), ‘Norwegian Use of Whales: Past, Present and Future Trends, Final Report’ (2011) NOAH, WSPA, Dyrebeskyttelsen          Norge <http://www.dyrebeskyttelsen.no/nyheter/nordmenn-vil-ikke-lenger-ha-hvalkjott> Accessed 6 March 2016.

[31] The Norwegian Ministry of Trade, Industry and Fisheries, ‘Exercising Resource Control’ (2016) <http://www.fisheries.no/resource_management/control_monitoring_surveillance/Exercising_resource_control/> Accessed 6 March 2016.

[32] Fiskeridirektoratet – Høring Om Forslag Til Forskrift Om Deltakelse I Og Regulering Av Fangst Av Vågehval I 2012’ <http://www.fiskeridir.no/Yrkesfiske/Dokumenter/Hoeringer/Hoering-om-forslag-til-forskrift-om-deltakelse-i-og-regulering-av-fangst-av-vaagehval-i-2012> accessed 26 February 2016.

[33] Economics for the Environment Consultancy Ltd. (eftec), ‘Norwegian Use of Whales: Past, Present and Future Trends, Final Report’ (2011) NOAH, WSPA, Dyrebeskyttelsen Norge, 17.

[34] Economics for the Environment Consultancy Ltd. (eftec), ‘Norwegian Use of Whales: Past, Present and Future Trends, Final Report’ (2011) NOAH, WSPA, Dyrebeskyttelsen Norge, 18.

[35] regjeringen.no, ‘regjeringen.no’ (5 January 2015) <https://www.regjeringen.no/no/id4/> accessed 26 February 2016.

[36] Det Kongelige Fiskeri- og Kystdepartementet, ‘St.meld. Nr. 46 (2008–2009) Norsk Sjøpattedyrpolitikk’; Det Kongelige Fiskeri- og Kystdepartementet, ‘Meld. St. 40 (2012–2013)’.

[37]regjeringen.no.

[38] Det Kongelige Fiskeri- og Kystdepartementet, ‘St.meld. Nr. 46 (2008–2009) Norsk Sjøpattedyrpolitikk’; Det Kongelige Fiskeri- og Kystdepartementet, ‘Meld. St. 40 (2012–2013)’.

[39] Utenriksdepartementet, ‘Eksport av norske vågehvalprodukter’ (4 October 2006) <https://www.regjeringen.no/no/dokumenter/eksport-av-norske-vagehvalprodukter/id87866/> accessed 26.

[40] All numbers of the quotas were and am available and also how the quota numbers are reached.

[41] Havforskningsinstituttet.

[42] Fiskeridirektoratet, ‘Fiskeridirektoratet’ (2016) <http://www.fiskeridir.no/> accessed 26 February 2016.

[43] Fiskeridirektoratet, ‘Posisjonsrapportering’ (2014) <http://www.fiskeridir.no/Yrkesfiske/Rapportering/Fartoey-over-15-meter-med-flere/Posisjonsrapportering> accessed 26 February 2016.

[44] Nærings- og fiskeridepartementet, ‘Meld. St. 40 (2012–2013)’ (regjeringen.no, 2013) <https://www.regjeringen.no/no/dokumenter/meld-st-40-20122013/id729136/> accessed 1 December 2016.

[45] Information about the minke whale database, for instance, was found in an article written in English.

[46] Phone call made on February 26th 2016.

[47] postmottak@fiskeridir.no

[48] Phone call made on February 26th 2016.

[49] The request by e-mail to the general e-mail address and was made in English, the Directorate has not responded.

[50] This may be important due to the relative long time that it takes before a minke whale to reach adulthood (7-8 years according to the American Cetacean Society). American Cetacean Society, ‘Minke Whale’ <http://acsonline.org/fact-sheets/minke-whale/> Accessed 6 March 2016.

[51] Fiskeridirektoratet, <http://www.fisheries.no/ecosystems-and stocks/marine_stocks/mammals/whales/whaling/> accessed 6 March 2016.

[52] H. Ynnesdal of the Directorate of Fisheries in Bergen in a phone call with Kristin Tiili.

[53] Information that is available on and through Fiskeridirektoratet’s webpage.

[54] See J-47-2014, J-33-2015, J-28-2013, J-33-2013 at www.fiskeridir.no for more detailed information about the regulations.

[55] Fiskeridirektoratet, ‘Fiskeridirektoratet – Høring Om Forslag Til Forskrift Om Deltakelse I Og Regulering Av Fangst Av Vågehval I 2012’ (2012) <http://www.fiskeridir.no/Yrkesfiske/Dokumenter/Hoeringer/Hoering-om-forslag-til-forskrift-om-deltakelse-i-og-regulering-av-fangst-av-vaagehval-i-2012> accessed 26 February 2016.

[56] Economics for the Environment Consultancy Ltd. (eftec), ‘Norwegian Use of Whales: Past, Present and Future Trends, Final Report’ (2011) NOAH, WSPA, Dyrebeskyttelsen Norge, 17.

[57] Fiskeri- og Kystdepartementet, ‘Norsk vågehvalfangst’ (2013) Regjeringen Bondevik II.< https://www.regjeringen.no/no/dokumentarkiv/Regjeringen-Bondevik-II/fkd/Tema-og-redaksjonelt-innhold/Redaksjonelle-artikler/2005/om-norsk-hvalfangst/id437319/> Accessed 6 March 2016; Eftec (n18) 17.

[58] NAMMCO, Expert Group Meeting on Assessing TTD Data from Large Whale Hunts, Copenhagen, Denmark, 4-5 November 2015.

[59] ibid. 6.

[60] ibid.

[61] ibid.

[62] Particularly J-215-2015 §12, see ‘Fiskeridirektoratet J-215-2015’ <http://www.fiskeridir.no/Yrkesfiske/Regelverk-og-reguleringer/J-meldinger/Gjeldende-J-meldinger/J-215-2015> accessed 26 February 2016 for detailed information.

[63] Phone call made on February 24th.

[64] Forsvaret, ‘Kystvakta – Forsvaret.no’ <https://forsvaret.no/fakta/organisasjon/Sjoeforsvaret/Kystvakten> accessed 16 February 2016.

[65] Fiskeridirektoratet has divided Norway into sections, and Nordland is one of the sections.

Kristina Kappelin, Berlusconi – Italienaren (Stockholm: Brombergs, 2010)

Kappelin knows, and loves, Italy: there is no trace, in her work, of a superiority complex towards Italians – such folkloristic people! ? which is on the contrary a common feature of some foreign media when dealing with Italy. Rather, Kappelin tries to understand how came that a country with a unique cultural and historical heritage has let itself be bluffed by a man who has – perhaps irreparably – compromised Italy’s reputation in the world.

And the book is indeed not only about the founder of “Forza Italia”, but instead, as it is made clear by the meaningful title (Berlusconi. The Italian), about Berlusconi as embodiment of some national peculiarities, so to say.

Italy in the whole have not yet been able to reflect about Berlusconi’s almost twenty-year dominance over the country’s political and economic life, pressed as it is just now (February 2012) by a never-ending emergency – the risk of a financial collapse – which caused, in November 2011, the appointment of a “technical government” (i.e. voted by the Parliament but not resulting from the last general election) being charged with the task of crisis management. Furthermore, although “style” is significant – professor Mario Monti does not “peekaboo” the German chancellor (Kappelin reminds Berlusconi’s blunders in chapter seven, Tittut i världen) and seems not to be used to spend his nights with twenty- to thirty young girls at the same time – the common feeling is that there has not occurred any shift in economic and social policies, which remain unfair and not effective (at least in the view of re-launching the economy and not only balancing public finances). This sense of continuity prevents to look at “Berlusconism” as a close (?) period in Italian history.

What does Berlusconi’s success reveal of Italy, according to Kappelin’s book? Basically, three aspects: the power of organised crime; the Catholic Church’s influence upon domestic politics and culture; the well-grounded male chauvinism.

The first two points (which particularly chapter sex, Maffian, and eight, Klockorna i Peterskyrkan, focuse on, although they are recurring issues all over the book) are frequently cause of embarrassments to Italians when talking with foreigners.

And indeed it would be unthinkable in Sweden – Kappelin is not so explicit, but the starting sentence of her book is: how come that Italians vote for Berlusconi? ? to pervert justice in the way Berlusconi did in Italy (by the notorious ad hoc laws, described in their origin and content in the chapter five, Konflikten med rättväsandet), and to witness powerless to the connivance between politics and criminality. This is due probably to a political tradition in Nordic countries which Henrik Berggren and Lars Trägårdh have described as a high degree of social trust, meant both as trust in other people, including strangers, and confidence in common institutions due to their transparency[1].

However, Kappelin’s thesis is that what explains why  a politician, who from a Swedish point of view is completely incomprehensible, has been so successful is, besides his relationship with organised crime on one hand and with the Catholic Church on the other hand (at least until the last sex affaires), male chauvinism: a key factor, the Swedish journalist stresses already in the Introduction, in understanding Italy’s decline, from the economic stagnation (now recession) to the lack of trust in the future. And in chapter one (Italien och Italienarna. En introduktion) Kappelin points out indeed that the country is like a journey back in time, in a masculine and sensual world, where “l’apparenza” (look)[2] means all and where a downward compromise has been achieved between the individual and the State: as you (State) do not accomplish your duties towards me (citizen), I am not bound to accomplish mine towards you. It is the triumph of the “furbo” (cunning fellow)[3].

With such a background, it is quite obvious that women have no chance, with few exceptions, to establish themselves as political and economic independent actors. Their unhappy fortune in Berlusconi’s Italy is the subject of chapter three (Madonnan, horan och Silvio Berlusconi): those that are good looking are reduced to nothing more than ornamental elements in a society ruled by old and unappeasable men and therefore appointed as parliamentary members and even ministers exactly because of their “apparenza”; the others, the common women, who are not mistresses of some sultan, are mostly doomed to insignificance in the economy and in politics.

Berlusconi, Kappelin insists on this point, has not invented male chauvinism, which on the contrary is well-grounded in the country’s culture; his sin with no redemption is to have turned this national inclination into a rule and the “velina”[4] (young girls almost naked whose only task in Berlusconi’s TV programs is to shake their body in alluring ways) into the ideal model of womanhood.

And thus we come to another valuable contribution of Kappelin’s book, after the effective part on women’s role as mirror of Italy’s decadence (and again here we could remind that on the contrary Nordic countries are on the top in the world’s gender equality ratios): to the huge concentration of media power achieved by Berlusconi much attention is drawn upon (see particularly chapter four, Makten over medierna), but this problem is not presented at all as an Italian peculiarity. Rather, Kappelin warns that also countries which have repeatedly condemned Berlusconi for his conflict of interest have no safe defence against such a risk.

The final part of the book focuses on how Berlusconi has changed Italian political style, turning electoral campaigns into sales where even the promise of one million – and not half a million, as Kappelin writes – new jobs can be sold to people in search of an encouraging fairy-tale, with immigrants welcomed as scapegoats (chapter nine, Dragkampen i Italien – resultat och misslyckanden), and on the dangerous meeting between authoritarian democracy and media populism (chapter ten, Auktoritär demokrati och medial populism). No one before Berlusconi, Kappelin points out, had dared to draw a comparison between Mussolini and himself with a kind of self-congratulation. But what the author argues is not that the founder of “Forza Italia” is the new Mussolini: the difference is that the latter aimed at building a new Italian,  whilst the former is satisfied with the existing one. The point is rather that the centre-right parties, with Berlusconi in the forefront, have taken over and reverted the “cultural hegemony” based since 1945 on antifascism as the key-source of national identity, and have systematically put down liberal institutions (starting from parliamentary and judicial powers) – and politics itself.

In this perspective, Berlusconi’s Italy appears as a political laboratory for the whole Europe. This is the somehow not expected conclusion from a non-Italian author, which enables the book to be not only a commented review of stereotypes about Italians (and about differences between Northern and Southern Europe), but a more demanding reflection about possible future developments of democracy at an international level. Out of Italy many have laughed when seeing Berlusconi’s blunders and listening to his hymn (“Meno male che Silvio c’è”), but – Kappelin warns – his “style” has become a model for a new generation of right-wing politicians, starting from David Cameron in the UK.

Thus it is not easy to get rid of Berlusconism as though it were a mere interlude in Italian history, perhaps cherishing the always comfortable thesis that it has been a further demonstration of the Gattopardo’s core idea: in Italy everything is to be changed so that nothing changes. On the contrary, Berlusconi, this is Kappelin’s conclusion, has substantially changed the way Italians look at themselves – and at the the others – as well as the ways of contemporary politics. And it will take time to go back to previous ones – or to find something new.


[1] See H. Berggren, L. Trägårdh, Social Trust and Radical Individualism. The Paradox at the Heart of Nordic Capitalism, in The Nordic Way, Stockholm, Global Utmaning, 2010, pp. 18-19.

[2] In Italian in the book, see p. 18.

[3] In Italian in the book, see p. 29.

[4] The book has been written before the “Ruby affaire”.