Vol. 3, No. 2, July 2019, pp. 184-203
Available at: https://ojs.unud.ac.id/index.php/UJLC/issue/view/3223
E-ISSN 2549-0680
184
Indigenous Whaling Tradition in Faroe Islands under
International Law
Olivia Martha Setyonugroho
Faculty of Law Udayana University, Bali-Indonesia
I Gede Pasek Eka Wisanjaya
Faculty of Law Udayana University, Bali-Indonesia
Made Maharta Yasa
Faculty of Law Udayana University, Bali-Indonesia
Article Received: 14th May 2019; Accepted: 27th July 2019; Published: 31st July 2019
Abstract
The issue of whaling has been extensively debated on various international occasions since it
causes a decline in many of the world’s whale population. Presently, Faroe Islands is one of
the few regions in Denmark that still adamantly practiced whaling for traditional purposes,
even though Denmark itself has prohibited it. This writing aims to analyze the whaling
tradition in Faroe Islands from the International Law perspective. Further, to examine whether
Denmark has an international obligation to end whaling activities in Faroe Islands. The
method that is used in this writing is the normative legal research. The result of this analysis
shows that the tradition in Faroe Islands is consistent with International Law, thus Denmark
has no international obligation to end the tradition.
Keywords: Whaling Tradition; Faroe Islands; International Law
How to cite (Chicago 16th): Setyonugroho, Olivia Martha, I Gede Pasek Eka Wisanjaya,
and Made Maharta Yasa. "Indigenous Whaling Tradition in Faroe Islands under International
Law." Udayana Journal of Law and Culture 3, no. 2 (2019): 184-203.
https://doi.org/10.24843/UJLC.2019.v03.i02.p04.
:doi: https://doi.org/10.24843/UJLC.2019.v03.i02.p04
Email/Corresponding Author: oliviamarthau@gmail.com
Email: eka_wisanjaya@unud.ac.id
Email: maharta_yasa@unud.ac.id
https://doi.org/10.24843/UJLC.2019.v03.i02.p04
mailto:oliviamarthau@gmail.com
mailto:eka_wisanjaya@unud.ac.id
mailto:maharta_yasa@unud.ac.id
Indigenous Whaling Tradition
in Faroe Islands under International Law
Olivia Martha Setyonugroho,
I Gede Pasek Eka Wisanjaya, and Made Maharta Yasa
185
1. Introduction
1.1. Background
According to the research published by International Whaling
Commission (IWC) the populations of several species of whales, such as
Minke Whales, Blue Whales, Fin Whales, Gray Whales, Bowhead Whales,
Humpback Whales, Right Whales, Bryde’s Whales, Pilot Whales, Balin
Whales, and Sei Whales, had declined precipitously. 1 The main factor
contributing to the decline in whale stock is overexploitation.
Nations have exploited whales for hundreds of years.2 Many people in
several regions of the world hunted whales for their meat and blubber were
able to fulfill their basic survival needs, such as food and lamp oil. Most
whale hunters are “indigenous peoples”,3 such as the Ainu of Japan, the
Inuit of the Arctic regions (Russia, Canada, USA, and Greenland), the Maori
of New Zealand, the Basques of the Northwest Spain and Southwest France,
the Makah of the Northwestern Coastal region of the USA and Canada, and
the Faroese of Denmark. 4 Indigenous whaling peoples, often living in
isolated communities in the high Arctic with no agriculture were seen to
have limited opportunities to supplement local food production such as
whale meat and blubber, with imported alternatives. Moreover, they have
made repeated calls for the protection of their lives, their cultures, their
lands, and, ultimately, for the recognition of their right to self-
determination.5
Faroese lived in the Faroe Islands. The Faroe Islands are part of the
Kingdom of Denmark, but are geographically isolated and culturally distinct.
They are a self-governing archipelago of eighteen small islands in the North
Atlantic Ocean, with a population of just 50,000 people.6 The Faroese have
control of most of their domestic affairs. Those that are the responsibility of
Denmark include military defense, policing and the justice department,
currency, and foreign affairs. Since 1000 years ago, the People of Faroe
1 “Estimates: Whales Populations Estimates, The International Whaling Commission's most
recent information on estimated abundance”. https://iwc.int/estimate#table
2 Benjamin van Drimmelen. The International Mismanagement of Whaling." UCLA Pac.
Basin LJ 10 (1991): 240-259.
3 The term indigenous peoples will be used for similar meaning as aborigines. Indigenous
peoples is the term normally used in international context while aborigines is
normally used in domestic context.
4 Sean Patrick Kerins, “Whaling in the Faroese.” (Thesis, Griffith School of Environment,
2008), 6.
5 Catherine J. Iorns. “Indigenous Peoples and Self Determination: Challenging State
Sovereignty.” 24 Case W. Res. J. Int'l L. 199, (1992): 201-202.
6 Faroeisland.fo. The Official Gateway to the Faroe Islands.
https://www.faroeislands.fo/people-society/people-of-the-faroe-islands/population/
https://iwc.int/estimate#table
https://www.faroeislands.fo/people-society/people-of-the-faroe-islands/population/
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Islands have counted on the ocean, and especially pilot whales, for food,
blubber, and other biomaterials.7
The Faroe Islands pilot whaling tradition known as the “Grindadrap”
is highly controversial. Grindadrap is an annual event that sees the Faroese
hunt long-finned pilot whales.8 It happens between June to August. It has
been occurring since the 9th century when Norse settlers brought with them
practices for driving the pilot whales ashore where they slaughtered, hauled
up, assessed, flensed, and then divided freely amongst the community to be
used as food.9 As stated by the North Atlantic Marine Mammal Conservation
Organization (NAMMCO) each year the slaughter is estimated to take less
than 0.1% of the pilot whales population. 10 Most Faroese consider the
grindadrap an important part of their culture and history. It has become an
example of an important subsistence practice which demands cooperation
between villages and survival through cooperation.11
In the 1980s the world at large became aware of the grindradrap
tradition. A number of animal-rights group and environmental organizations
starting to protest and criticize against the practice since 1985 with
occasional campaigns occurring since. They claim the hunt as being cruel
and unnecessary. These campaigns involved letter writing, sporadic
sabotage efforts and attempts to enact an economic boycott of Faroese
product. Since the 1980s the Sea Shepherd Conservation Society (SSCS) has
become one of a group of organizations protesting against grindadrap
tradition.12 SSCS was one of the first animal rights groups to target Faroese
whaling. As such, SSCS has periodically campaigned in the Faroe Islands
prior to Grindstop 2014, where their actions were broadcast as part of the
television series Whale Wars.13
7 Lucas Isacowitz. “Culture or Cruelty: why the Faore Islands still Kills Hundreds of Whales
Every Year”. http://projectearth.us/on-the-faroe-islands-killing-hundreds-of-
whales-every-1796848516
8 Phillip Budgen. News. “What is Grindadrap and Why is Whaling in the Faroe Islands so
Controversial”. https://www.lifegate.com/people/news/what-is-grindadrap-why-is-
it-controversial; O'Barry, Helene Hesselager. "HEART of Darkness." Earth Island
Journal 27, no. 4 (2013): 18-23.
9 Sean Patrick Kerins, op.cit, 1.
10 Tim Ecott. “Why we should let Faroe Islanders Hunt Whales”.
http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-hunt-
whales/
11 Ragnheiður Bogadóttir and Elisabeth Skarðhamar Olsen. "Making Degrowth Locally
Meaningful: The Case of the Faroese Grindadráp." Journal of Political Ecology 24, no.
1 (2017): 504-518
12 E. B. Heinesen. “Cultural Clashes Make Sea Shepherd Campaign Counterproductive”, The
Arctic Journal 67 (2014); SSCS, About the Campaign, GrindStop 2014: Defending
Dolphins in the Faroe Islands. http://www.seashepherd.global/grindstop/about-
campaign/about-the-campaign.html
13 Benedict E. Singleton. "Love-iathan, the Meat-Whale and Hidden People: Ordering
Faroese Pilot Whaling." Journal of Political Ecology 23, no. 1 (2016): 26-48.
http://projectearth.us/on-the-faroe-islands-killing-hundreds-of-whales-every-1796848516
http://projectearth.us/on-the-faroe-islands-killing-hundreds-of-whales-every-1796848516
https://www.lifegate.com/people/news/what-is-grindradap-why-is-it-controversial
https://www.lifegate.com/people/news/what-is-grindradap-why-is-it-controversial
http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-hunt-whales/
http://www.spectator.co.uk/2014/02/why-we-should-let-faroe-islanders-hunt-whales/
http://www.seashepherd.global/grindstop/about-campaign/about-the-campaign.html
http://www.seashepherd.global/grindstop/about-campaign/about-the-campaign.html
Indigenous Whaling Tradition
in Faroe Islands under International Law
Olivia Martha Setyonugroho,
I Gede Pasek Eka Wisanjaya, and Made Maharta Yasa
187
However, according to the Fisheries Minister of Faroe Islands, Hogni
Hoydal, the practice by the people of Faroe Islands is a key part of the
Faroese tradition of living in a sustainable way off their marine resources.14
Moreover, a spokesman for the Faroese government, Pall Nolse, stated that
whaling is a natural part of Faroese life and it is conducted in accordance
with International Law.15 This statement shows that they will continue such
hunting, even if there is a large protest regarding their whaling tradition.
Based on those concerns, it is needed to analyze whether the grindadrap in
Faroe Islands is lawful under the International Law.
1.2. Purpose
This paper addresses two main legal issues: firstly, what is the legal
status of grindadrap under International Law, and secondly, does Denmark
have an international legal obligation to end grindadrap in Faroe Islands.
This paper aims to analyze how does the existing legal framework of whaling
for aboriginal subsistence in International Law.
1.3. Research Method and Article Outline
The research method applied in this paper is normative legal research,
using a combination of comparative, statutory, analytical and conceptual
approaches. The analysis is focused on primary sources of law contained in
international instruments and statutes, as well as secondary sources (the
concept of laws provided in journals, books, and the internet).16 Perspectives
in this paper are enriched by statute, comparative, and fact-based
approaches concerning whaling in general, as well as aboriginal whaling
subsistence in particular.
Section 2.1. of this writing will assess the legal status of indigenous
rights in international law, followed by international law regulating whaling
in Section 2.2. Finally, Section 2.3. will provide an analysis regarding
Denmark’s international obligation regarding the grindadrap in Faroe
Islands.
1.4. Literature Review
Whaling has been carried out by man for thousands of years and
records show that the first whaling expeditions were carried out by
14 phys.org. Ecology. “Pilot whale meal poses health hazard, Faroese warned”.
http://phys.org/news/2018-06-whale-meat-poses-health-hazard.html
15 phys.org. Ecology. “Up to 50 Pilot Whales killed in Faroese: Activists”.
http://phys.org/news/2016-07-whales-faroes-activists.html
16 Laire De Marco. “Legal Research Strategy.”
http://guides.library.harvard.edu/law/researchstrategy/primarysources; I Made
Pasek Diantha, “Metodologi Penelitian Hukum Normatif dalam Justifikasi Teori
Hukum.” Jakarta: Prenada Media Group, (2016): 149-151.
http://phys.org/news/2018-06-whale-meat-poses-health-hazard.html
http://phys.org/news/2016-07-whales-faroes-activists.html
http://guides.library.harvard.edu/law/researchstrategy/primarysources
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Norsemen and polar Eskimos four thousand years ago. 17 Whaling for
aboriginal subsistence has been previously studied by scholars. Jeremy
Firestone and Jonathan Lilley18 wrote an article concerning whaling by the
Makah Indian Nation. The studies show that whale hunting is Makah
Peoples’ cultural heritage and state recognize their dependence as
indigenous people on marine wildlife. They state that toward recognition of
indigenous peoples’ self-determination and sovereignty will provide more
principled models of how a pluralistic society and the norm of cultural
diversity should accommodate indigenous culture, rights, and knowledge.
Another writer, Sean Patrick Kerins 19 analyze whaling activities in
Faroe Islands and demonstrate that the grindadrap provides resource users
with significant incentives, through the provision of locally produced meat
and blubber, so that they continue to commit themselves to conform to its
operational rules, to monitor each other’s compliance, and continue to
replicate the common property resource institution across generational
boundaries.
Furthermore, he finds that grindadrap is an example of community-
based resource management at its best. One where the users themselves are
provided with the opportunity and responsibility to manage their own
resources; define their needs, goals, and aspirations; and to make decisions
affecting their well-being. The Faroese exhibit a high level of capability,
responsibility and accountability in the management of their common
property resource. The grindadráp is evolutionary, participatory and locale-
specific and considers the technical, ecological, socioeconomic and
environmental issues impinging upon this geographically isolated
community.
Ragnheiður Bogadóttir and Elisabeth Skarðhamar Olsen in their
article have explored the symbolic and material dimensions of the deep-
rooted non-growth oriented practice of grindadráp in Faroe Island. They
suggest a conceptualization of the grindadráp as a “colonial difference” that
renders alternative lifeways and degrowth imaginable and contextually
meaningful. The ongoing debates among and between Faroese, and between
Faroese and protesters of pilot whaling have led Faroese people to reflect
upon the relevance and meaning that grindadráp has in their life.
17 William Burns. The Berlin Initiative on Strengthening the Conservation Agenda of the
International Whaling Commission: Toward a New Era for Cetaceans." Rev. Eur.
Comp. & Int'l Envtl. L. 13 (2004): 72-84; Pamela R. Stern. “Historical Dictionary of the
Inuit 2nd Ed.,” The Scarecrow Press Inc., United Kingdom, (2013): xxiii.
18 Jeremy Firestone and Jonathan Lilley. "Aboriginal Subsistence Whaling and the Right to
Practice And Revitalize Cultural Traditions And Customs." Journal of International
Wildlife Law & Policy 8, no. 2-3 (2005): 177-219.
19 Sean Patrick Kerins, op.cit., 237-238.
Indigenous Whaling Tradition
in Faroe Islands under International Law
Olivia Martha Setyonugroho,
I Gede Pasek Eka Wisanjaya, and Made Maharta Yasa
189
2. Result and Analysis
2.1. The Faroese are Indigenous Peoples under International Law
The right of person to freely participate in tradition or cultural life has
shown in numerous international instruments,20 affirmed in declarations of
states,21 and has practiced in several states constitutions.22
According to Lubicon Lake case, indigenous people defined as those
“who have maintained their traditional economy and way of life and have
occupied their traditional territory since time immemorial.”23 Furthermore,
in Awas Tigni case “Indigenous peoples are defined as those social and
human groups, culturally identified and who maintain a historical
continuity with their ancestors…That historical continuity can be seen in
their forms of organization, in their own culture, in their self-identification,
and in the use of a language the origin of which is pre-Hispanic.”24 Awas
Tigni case is an Inter-American Court of Human Rights’ 2001 decision
concerning the communal property rights of indigenous peoples and state’s
obligation to protect those rights. Its decision has helped advance the
development of growing importance of human rights instruments to
indigenous peoples in their efforts to protect their rights.25 Its decision also
holds important lessons for other indigenous communities facing similar
battles for the recognition of their land and natural resource rights.
As stated in Kichwa case26 and Rio Negro case27 indigenous people
also have the rights to self-identify themselves as indigenous people.
Several international law instruments, such as Universal Declaration
of Human Rights (UDHR), International Covenant on Economic, Social, and
Cultural Rights (ICESCR), International Covenant on Civil and Political
Rights (ICCPR), Indigenous and Tribal Peoples Convention of 1989 and the
20 Universal Declaration of Human Rights, Art. 27; International Covenant on Economic,
Social, and Cultural Rights, Art. 15(1)(a), Art. 17; International Covenant on Civil
and Political rights, Art. 27; International Convention on Elimination of All Forms of
Racial Discrimination, Art. 5.
21 Declaration on the Rights of Persons Belonging to National or Etnich, Religious and
Linguistic Minorities, Art. 2(1), Art. 2(2); Declaration of the Principles of
International Cultural Co-operation, Art. 4.
22 Constitution of Indonesia 1945, Art. 28C(1); Constitution of China 1982, Art. 22;
Constitution of Croatia 1990, Art. 68; Constitution of the Slovak Republic 1992, Art.
42(3); Constitution of South Africa 1996, Art. 30.
23 Chief Bernanrd Ominyak and Lubicon Lake Band v. Canada, Merits, HRC,
Communication No. 167/1984, 26 March 1990, para. 7.
24 Case of the Mayagna (Sumo) Awas Tigni Community v. Nicaragua, Judgement on merits
and reparations, IACtHR, Series C No. 79, 30 August 2001, 23.
25 Leonardo J. Alvarado, 2007, Prospects and Challenges in the Implementation of
Indigenous Peoples' Human Rights in International Law: Lessons from the Case of
Awas Tingni v. Nicaragua." Ariz. J. Int'l & Comp. L. 24 (2007): 609-643.
26 Kichwa Indigenous People of Sarayaku v. Ecuador, IACtHR, Series C No. 245, 2012, para.
217.
27 Caso Masacres de Rio Negro v. Guatemala, IACtHR, Series C No. 250, 2012, para 52.
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United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),
acknowledge the indigenous peoples’ right.28
The UDHR is an international declaration that recognize the
fundamental human rights for all people and nations. In essence, the UDHR
guarantees the right to life,29 the right to an adequate standard of living,30
and the right to freely participate in the cultural life of the community.31
Furthermore, Article 6 – Article 15 of ICESCR ensure that “everyone”
has the right to food, clothing, shelter, and the right to take part in cultural
life. The committee on Economic, Social, and Cultural Rights (CESCR),
whose interpretation of ICESCR under this court is deemed authoritative,32
has further explained that “everyone” involves individuals acting alone or in
a group, such as indigenous peoples.33 This provision is affirmed in several
jurisprudences.34
Article 27 of ICCPR also ruled that “In those States in which ethnic,
religious or linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion,
or to use their own language.”
Moreover, the scope of cultural rights is rather broad, as specified in
the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), it involves the rights to cultural customs and traditions,35 as well
as the rights to spiritual and religious traditions.36
The people of Faroe Islands’ shall be considered as indigenous people
as they are living on the lands they inherited from their ancestor which is
the Faroe Islands, and practicing their grindadrap tradition since thousands
28 United Nations Human Rights Office of the High Commissioner. “Indigenous Peoples and
the United Nations Human Rights System.” Human Rights Fact Sheet No. 9/Rev.2,
Geneva, (2013): 4-9; Peter Manus. “Sovereignty, Self-Determination, And
Environment-Based Cultures: The Emerging Voice Of Indigenous Peoples In
International Law.” Wisconsin International Law Journal Vol. 23, No. 4, (2012): 572-
575
29 UDHR, Art. 3.
30 UDHR, Art. 25.
31 Rez Gardi. “ From Suppression to Secession: Kurds, Human Rights and the Right to Self-
Determination in Turkey." ILSA J. Int'l & Comp. L. 24 (2017): 61-108.
32 Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 ICJ 136, para. 112.
33 UN Commission on Economic, Social, and Cultural Rights, General Comment No. 21,
para. 9, UN Doc. E/C.12/GC/21.
34 Aloeboetoe and Others v. Suriname, Reparations, IACtHR, Series C No. 15, 1993, paras.
17, 58; Plan de Sanchez Massacre v. Guatemala, Merits, IACtHR, Series C No. 105,
2004, para. 36(4); Bamaca Velazquez v. Guatemala, Reparations, IACtHR, Series C
No. 91, 2002, para. 82; Mahuika and Others v. New Zealand, Views, Human Rights
Committee 70th Session, 2000, para. 9.3.
35 UNDRIP, Art. 11(1).
36 UNDRIP, Art. 12.
Indigenous Whaling Tradition
in Faroe Islands under International Law
Olivia Martha Setyonugroho,
I Gede Pasek Eka Wisanjaya, and Made Maharta Yasa
191
of years ago.37 Moreover, states parties to ICESCR and UNDRIP should take
measures to guarantee that the exercise of the right to take part in cultural
life takes due account of the values of cultural life, which may be strongly
communal or which can only be expressed and enjoyed as a community by
indigenous peoples.
Therefore, since Faroese is indigenous people, the international
environmental law recognizes the special situation of indigenous peoples
and their dependence on subsistence and cultural marine resources for self-
determination. The following section of this writing addresses sources of
international law that recognize indigenous peoples’ right to food from the
marine environment. The three sources of international law that will be
analyzed are: (1) international regulation concerning whaling (International
Convention for the Regulation of Whaling) (2) international environmental
law (namely; the aboriginal subsistence exception in the Convention on
Migratory Species); and (3) international convention regarding endangered
species (Convention on International Trade in Endangered species of Wild
Flora and Fauna).
2.2. Whaling in International Law
2.2.1. Grindadrap under the International Convention for the
Regulation of Whaling
In 1982, the IWC established zero catch limits for all whaling, with
two exceptions: aboriginal whaling and special permit scientific whaling
under Article VIII of the International Convention for the Regulation of
Whaling (ICRW).
The persistence of the moratorium on commercial whaling 38 and
Japan’s scientific research whaling39 under the International Convention for
37 Catherine Bennett. “Sea of red: the Faroe Islands’ controversial whale-killing tradition”.
FRANCE 24, https://observers.france24.com/en/20180803-faroe-islands-
controversial-whale-killing-grindadrap accessed on 19 February 2019; Rachael
Revesz. “Faroe Islanders’ ritual slaughter of pilot whales turns sea blood red.” The
Independent, https://www.independent.co.uk/news/world/europe/faroe-islands-
slaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritual-
tradition-a7798436.html
38 International Convention for the Regulation of Whaling art. XI(10), The Schedule is an
integral part of the ICRW art. I(1). The Schedule was last amended at the 65th
Annual Meeting of the IWC in September 2014. At the moment, however, the IWC’s
website only provides a link to the Schedule as amended in 2012; International
Convention for the Regulation of Whaling, Schedule art. III(10)(e), Dec. 2, 1946, 62
Stat. 1716, 161 U.N.T.S. 72; The 2014 amendments can be found in IWC, 2014,
Summary of Main Outcomes, Decisions and Required Actions from the 65th Meeting,
URL: http://iwc.int/iwc65docs
39 Between 1987 and 2001, the IWC has condemned Japan’s so-called scientific whaling for
failing to meet the criteria for scientific whaling and the IWC’s Scientific Committee
has stated that Japan’s scientific whaling does not provide data relevant to any
critically important management purpose. See, e.g., IWC, Resolution on Whaling
https://observers.france24.com/en/20180803-faroe-islands-controversial-whale-killing-grindadrap
https://observers.france24.com/en/20180803-faroe-islands-controversial-whale-killing-grindadrap
https://www.independent.co.uk/news/world/europe/faroe-islands-slaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritual-tradition-a7798436.html
https://www.independent.co.uk/news/world/europe/faroe-islands-slaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritual-tradition-a7798436.html
https://www.independent.co.uk/news/world/europe/faroe-islands-slaughter-pilot-whales-sea-blood-red-north-atlantic-iceland-denmark-ritual-tradition-a7798436.html
http://iwc.int/iwc65docs
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the Regulation of Whaling (ICRW)40 have dominated discussion within IWC
for about three decades. Further, in March 2014, a decision of the
International Court of Justice (ICJ) ruled that Japan’s Antarctic whaling was
not for purposes of scientific research. 41 However, the recent issue is
regarding Aboriginal Subsistence Whaling (ASW).
To understand the current whaling regime, it is necessary to briefly
sketch the history of the IWC. The IWC is based on Article III of the ICRW.
The convention came into force on 10 November 1948. By 2018, ICRW
membership has risen to 89 members.
At first, the ICRW primarily concerned is to “provide for the proper
conservation of whale stocks and thus make possible the orderly development
of the whaling industry.” 42 In order to achieve these goals, it creates a
commission, the IWC, 43 with the authority to adopt binding regulations
“with respect to the conservation and utilization of whale resources.”44 The
elementary part of the regulation is the Schedule which outlines specific
provisions and catches limits for specific regions and species.
Aboriginal Subsistence Whaling (ASW) has been addressed in the
ICRW Schedule. As noted above, the Schedule is part of the treaty in every
meaningful sense.45 When the ICRW was negotiated and came into force, it
is notable that the Schedule explicitly provided an exception for aboriginal
hunting of gray whales. The Schedule provided that, “It is forbidden to take
or kill gray or right whales, except when the meat and products of such
Under Special Permit in the North Pacific Ocean, IWC Res. 2000-5 (2000); IWC,
Resolution on Whaling Under Special Permit in the Southern Ocean Sanctuary, IWC
Res. 2000-5 (2000); IWC, Resolution on Whaling Under Special Permit, IWC Res.
1998-4 (1998); IWC, Resolution on Special Permit Catches in the North Pacific by
Japan, IWC Res. 1997-6 (1997); IWC, Resolution on Special Permit Catches in the
Southern Ocean by Japan, IWC Res. 1997-5 (1997); IWC, Resolution on Special
Permit Catches by Japan, IWC Res. 1996-7 (1996); IWC, Resolution on Special Permit
Catches by Japan in the Southern Hemisphere, IWC Res. 1994-10 (1994); IWC,
Resolution on Special Permit Catches by Norway, IWC Res. 1994-11 (1994); IWC,
Resolution on Special Permit Catches by Japan in the Southern Hemisphere, IWC Res.
1993-7 (1993); IWC, Resolution on Special Permit Catches by Japan in the Southern
Hemisphere, IWC Res. 1991- Appendix 2 (1991); IWC, Resolution on Special Permit
Catches by Japan in the Southern Hemisphere, IWC Res. 1990-2 (1990); IWC,
Resolution on the Proposed Take by Japan of Whales in the Southern Hemisphere
Under Special Permit, IWC Res. 1989-3 (1989); IWC, Resolution on Japanese Proposal
for Special Permits, IWC Res. 1987-4 (1987); Petition to Certify Japan Pursuant to 22
U.S.C. § 1978 for Trading in the Meat of Minke, Bryde’s, and Sperm Whales from the
North Pacific and the Southern Hemisphere (Nov. 14, 2000), URL:
http://law.lclark.edu/clinics/international_environmental_law_project/our_work/w
haling
40 ICRW, Art. VIII
41 Whaling in the Antarctic (Australia. v. Japan), 2014 I.C.J. 148, paras. 35-37.
42 Last preamble paragraph of the ICRW.
43 ICRW, Art. III(1)
44 Ibid., Art. V(1)
45 Ibid., Art. I.1
http://law.lclark.edu/clinics/international_environmental_law_project/our_work/whaling
http://law.lclark.edu/clinics/international_environmental_law_project/our_work/whaling
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whales are to be used exclusively for local consumption by the aborigines.”46
From its inception, the ICRW recognized the important role that whale
products play in the nutritional and cultural life of some native peoples.47
Over the next several decades, subsequent requests for aboriginal
subsistence whaling of other whale species or stocks were handled in a
similar fashion.48
Nonetheless, since its creation, the ICRW’s mandate has undoubtedly
shifted from regulations of whaling fishery to a moratorium, or a complete
ban, on commercial whaling. 49 The ICRW implemented the moratorium
through the IWC. In the early 1980s, the IWC created a special ad hoc
workgroup to provide it with guidance on how to handle proposals for
aboriginal subsistence whaling. The workgroup reached agreement on the
following three definitions, which are relevant to the question of the status of
Faroese whaling: 50
a. “Aboriginal subsistence whaling” means “whaling, for purposes of
local aboriginal consumption, carried out by or on behalf of
aboriginal, indigenous or native peoples who share strong
community, familial, social and cultural ties related to a continuing
traditional dependence on whaling and on the use of whales.”
b. “Local aboriginal consumption” means “the traditional uses of
whale products by local aboriginal, indigenous or native
communities in meeting their nutritional, subsistence and cultural
requirements. The term includes trade in items which are by-
products of subsistence catches.”
c. “Subsistence catches” are “catches of whales by aboriginal
subsistence whaling operations.”
The efforts of the workgroup ultimately led the IWC to adopt a
resolution in 1983 on aboriginal subsistence whaling and to establish a
more formal Aboriginal Subsistence Whaling Subcommittee. In the
resolution, the IWC stated that it “recognizes the importance and desirability
of accommodating, consistent with effective conservation of whale stocks,
46 Ibid., Schedule, para 2.
47 IWC, “Bowhead Whale, Qeqertarsuaq, Greenland.” http://iwc.int/aboriginal (noting the
two major objectives of IWC regulation of ASW is to maintain healthy populations of
whale and to allow aboriginal groups to maintain cultural practices of whaling).
48 Alexander Gillespie. Aboriginal Subsistence Whaling: A Critique of the Inter-Relationship
between International Law and the International Whaling Commission." Colo. J. Int'l
Envtl. L. & Pol'y 12 (2001): 80.
49 Monder Khoury. “ Whaling in Circles: The Makahs, the International Whaling
Commission, and Aboriginal Subsistence Whaling." Hastings LJ 67 (2015): 293-322.
50 IWC. “Aboriginal/Subsistence Whaling (with Special Reference to the Alaska and
Greenland Fisheries).” 1983): 83.
http://iwc.int/aboriginal
Udayana Journal of Law and Culture
Vol. 3 No. 2, July 2019
194
the needs of aboriginal people who are dependent upon whales for
nutritional, subsistence and cultural purposes.”51
In conclusion, the international community has recognized the special
relationship between aboriginal peoples and marine mammals for at least 90
years, with increasing attention over time dedicated to ensuring that the
needs of aboriginal peoples and the conservation and proper management of
whale stocks are ensured and accommodated.
2.2.2. Grindadrap Tradition under the Convention on Migratory
Species (CMS)
2.2.2.1. The Government of Denmark and Faroe Islands have
Acknowledged the Importance of Yak Conservation
CMS obligates states to acknowledge the importance of migratory
species being conserved 52 and avoid any migratory species becoming
endangered. 53 Such provision was acknowledged in Pulp Mills case 54 and
Blufin Tuna case.55
On 19th June 1993, the grindamannafelagio or the Faroese Pilot
Whalers Association was officially founded. 56 Representatives from all
authorized whaling bays were present and gave their unanimous support to
the creation of the association. The association would formalize the
exchange of information between whaling districts. The aims of the new
organization, are:57
(1) To maintain and enhance pilot whaling in order to ensure a
sustainable catch of pilot whales according to need;
(2) To co-operate internationally with other organizations with
similar objectives;
(3) To inform about pilot whales and pilot whaling nationally and
internationally; and
(4) To support scientific projects about pilot whales and their living
conditions.
Therefore, the establishment of the Faroese Pilot Whalers Association
proven that Denmark and Faroe Islands acknowledge the importance of pilot
whale conservation.
51 Office of the Commission. “Report of the Thirty-Fifth Meeting of the International
Commission on Whaling 38.” (1983): app. III
52 CMS, Art. 2(1)
53 Ibid, Art. 2(2)
54 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Rep. 2010, para.
262.
55 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Order, ITLOS Rep.
1999, para 48.
56 Sean Patrick Kerins, op.cit, 223.
57 Ibid.
Indigenous Whaling Tradition
in Faroe Islands under International Law
Olivia Martha Setyonugroho,
I Gede Pasek Eka Wisanjaya, and Made Maharta Yasa
195
2.2.2.2. The Whaling Tradition in Faroe Islands is Considered as an
Exception
CMS objective is to conserve habitat and protect migratory species
threatened with extinction. 58 Article 3(5)(a) and 3(5)(c) of the convention
governs that exceptions may be made upon the prohibition of the taking of
the endangered migratory species, on the grounds that the taking is for
scientific purposes, 59 or the taking is to accommodate the needs of
traditional subsistence users of such species.60
As submitted supra, Faroese as indigenous peoples still need the
whales to maintain their traditional subsistence. The Grindadrap is a
tradition, not a ritual. A tradition is a cultural element passed through
generations,61 on the other hand, a ritual is a procedure or collection of
processes relating to a rite or ceremony.62 In the case at hand, there is no
ceremony or rite attached to the hunts, because for the past 1000 years the
sole purpose of grindadrap has always been to provide the local community
with food. The mountainous islands and harsh conditions of the Faroe
Island are largely unfit for agriculture, therefore pilot whales were
instrumental to Faroese survival. It is also important to note that whale
meat does still represent about a quarter of the meat consumption in the
Faroes, and as such remains economically significant.63
Moreover, Denmark as a state party to this convention has authorized
the Faroese to practice their tradition for decades. Thus, the hunting of the
whale in Faroe Islands is justifiable.
2.2.3. Grindadrap under the Convention on International Trade in
Endangered Species of Wild Flora and Fauna
Up to present, there are 183 state parties to the Convention on
International Trade in Endangered Species of Wild Flora and Fauna
(CITES).64 The aim of the agreement is to control or prohibit trade in species
58 Malcolm D. Evans, loc.cit.
59 Philip J. J. Drost. “Multilateral Environmental Agreements: States of Affairs and
Developments.” Eleven International Publishing, (2008): 405-406.
60 United Nations Environment Programmed (UNEP). Handbook of environmental Law,
(1997): 166.
61 Nwoye Charles Egbo. “Traditions and Customs in Community Development: The Case of
Nkanu West and Nkanu East Local Government Areas of Enugu State, Nigeria”,
Journal of Education and Practice Vol.7 No.18, (2016): 120-121.
62 Meg Jerrad, “Understanding The Faroe Islands Grindadrap”,
https://www.mappingmegan.com/understanding-faroe-islands-grindadrap/
63 Megan Jerrard. “Whale hunting in the Faroe Islands has received a bad reputation. But
here’s what social media is getting wrong”,
https://matadornetwork.com/life/whale-hunting-faroe-islands-received-bad-
reputation-heres-social-media-getting-wrong/
64 CITES, List of Contracting Parties. https://cites.org/eng/disc/parties/chronolo.php
https://www.mappingmegan.com/understanding-faroe-islands-grindadrap/
https://matadornetwork.com/life/whale-hunting-faroe-islands-received-bad-reputation-heres-social-media-getting-wrong/
https://matadornetwork.com/life/whale-hunting-faroe-islands-received-bad-reputation-heres-social-media-getting-wrong/
https://cites.org/eng/disc/parties/chronolo.php
Udayana Journal of Law and Culture
Vol. 3 No. 2, July 2019
196
or their products where those species are in danger of extinction.65 CITES is
legally binding instrument that needs to be adopted into the domestic
legislation of the state parties, and further, to be implemented.66 The pilot
whale is listed in Appendix II, meaning that international trade in the
products derived from them is very limited.67
The Faroe Islands is part of the Kingdom of Denmark, but for whaling
issue (and many more) the indigenous Faroese are autonomous from the
government of Denmark. 68 Even though they issue the permit for whale
hunting, while Denmark itself does not, there is no evidence of any
commercialization of whale by the people of Faroe Islands. The pilot whale
meat harvested during the grindadrap is mainly distributed for free to the
Faroese community and does not enter into market.69 Therefore, it is proven
that grindadrap tradition is lawful under CITES.
2.3. Legal Obligation of Denmark in Respect of the Whaling Activities
in Faroe Islands
Article 1(2) of International Covenant on Civil and Political Rights
(ICCPR), Article 1(2) of ICESCR, Article 3 of Convention on Biological
Diversity (CBD), and Preamble of Nagoya Protocol recognize that states shall
have sovereign rights to exploit their own resources. This rule was
acknowledged in North Sea case70 and Volga case.71
Furthermore, the concept of a state’s sovereignty over its natural
resources is rooted in the old principle of territorial sovereignty, that the
right of peoples and nations to permanent sovereignty over their natural
resources and wealth must be exercised in the interest of their national
development, and of the well-being of the people of the state.72
The consequence, of the existence of sovereign rights over wild
animals is that States have exclusive jurisdiction ratione loci over them in all
areas under their jurisdiction and no jurisdiction outside their national
jurisdictional limits, of sovereignty over natural resources is considered a
universal principle of international law, 73 and has been elevated to the
65 Malcolm D. Evans. “International Law 2nd Edition.” Oxford University Press, United States,
(2006): 680.
66 Ibid, p. 681.
67 CITES, Appendix I, II, III
68 Ian Hurd, https://blogs.lse.ac.uk/europpblog/2013/02/18/whaling-europe-eu-norway-
iceland-greenland-faroe-islands0cites-international-whaling-commission
69 Margherita. “Faroe Islands Grindadrap – Understanding Faroese Perspective”.
https://www.thecrowdedplanet.com/faroe-islands-grindadrap-faroese-perspective/
70 North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands), ICJ Rep. 1969, para 19.
71 Volga (Russian Federation v. Australia), Judgment, ITLOS Rep. 2002, paras. 76, 79.
72 Max Valverde Soto. “ General Principles of International Environmental Law." ILSA J. Int'l
& Comp. L. 3 (1996): 193-209.
73 Klemm C. De. “Migratory Species in International Law.” 29 Nat. Resources J. 935, (1989):
936.
https://blogs.lse.ac.uk/europpblog/2013/02/18/whaling-europe-eu-norway-iceland-greenland-faroe-islands0cites-international-whaling-commission
https://blogs.lse.ac.uk/europpblog/2013/02/18/whaling-europe-eu-norway-iceland-greenland-faroe-islands0cites-international-whaling-commission
https://www.thecrowdedplanet.com/faroe-islands-grindadrap-faroese-perspective/
Indigenous Whaling Tradition
in Faroe Islands under International Law
Olivia Martha Setyonugroho,
I Gede Pasek Eka Wisanjaya, and Made Maharta Yasa
197
status of jus cogens. As a result, animals that migrate from one jurisdiction
to another are subject, in succession, to the sovereign rights and
jurisdiction of all the States along their migration route.74
Moreover, Denmark is a signatory to several international conventions
such as ICCPR, which recognizes in Article 27 the right of minority groups
to the protection of “all those characteristics that are necessary for the
preservation of their cultural identity.” Article 27 stipulates that “in those
States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community
with the other members of their group, to enjoy their own culture, to profess
and practise their own religion, or to use their own language.”
The UN Human Rights Committee, formed under the ICCPR, has
confirmed that for indigenous groups, such as the Awas Tingni, traditional
land possession is an aspect of the enjoyment of its culture protected by
Article 27 of the ICCPR, “culture manifests itself in many forms, including a
particular way of life associated with the use of land resources, especially in
the case of indigenous peoples. That right may include such traditional
activities as fishing or hunting and the right to live in reserves protected by
law.”
Denmark has also undertaken responsibilities under the International
Convention on the Elimination of All Forms of Racial Discrimination. This
Convention focuses on the right to equality and, in particular, it obliges
states parties to eliminate any form of racial discrimination. As has already
been observed, the principle of non-discrimination has particular
significance when it concerns indigenous peoples and the maintenance of
their traditional or customary forms of land possession. As a result, within
its mandate of safeguarding the fulfillment of the aforementioned
Convention, the UN Committee on the Elimination of Racial Discrimination
“calls upon the states parties to recognize and protect the rights of
indigenous peoples to own, develop, control and use their communal lands,
territories, and resources and where they have been deprived of their
lands…or used without their free and informed consent, to take steps to
return those lands and territories.”
Article 25 and Article 26(2) of UNDRIP also ruled that indigenous
people have the right to own, use, develop and control the lands, territories,
waters, coastal seas, and resources that they possess to uphold their
responsibilities to future generations.
Faroe Islands as a part of the Kingdom of Denmark is the providing
party of the pilot whales, noting that pilot whale is a migratory species, and
the hunting is conducted within the territory of Faroe Islands. Providing
74 Klemm C. De, loc.cit.
Udayana Journal of Law and Culture
Vol. 3 No. 2, July 2019
198
party is a state or other parties of origin that acquired and supplied the
concerned resources.75 Thus, shows that Faroe Islands have sovereign rights
to exploit pilot whale which is Faroe Islands’ resources.
Therefore, Denmark has no legal obligation to end whaling tradition
by the People of Faroe Islands as the Faroese are indigenous people who
have practiced such tradition for decades in its territory. Additionally,
Denmark has a legal obligation to ensure the right of the Faroese to their
culture and traditional subsistence are enjoyed.
3. Conclusion and Recommendation
3.1. Conclusion
The grindadrap tradition in Faroe Islands is lawful according to
UNDRIP, ICCPR, and ICESCR, because as an indigenous peoples, Faroese
have a right to practice their tradition and cultural life. Furthermore, the
tradition is lawful under the CITES because there is no prove regarding the
international trade of the whale meat/products, and does not contravene
the CMS and ICRW because the whaling activities is considered as
exception, which is to accommodate the needs of traditional subsistence.
Moreover, Denmark has no obligation to end whaling activities in Faroe
Islands because as the providing party of the pilot whale, Faroe Islands
enjoy the sovereign rights to use and develop the pilot whale as their
resources including the whaling in their territory.
3.2. Recommendation
It is recommended for the government of Denmark and Faroe Islands
to establish authorization procedures, commitments to environmental
standards, ways to access information, the use of penalties, and the need to
carry out environmental impact assessments. It is also proposed for the
relevant agencies in Denmark to actively monitor and control the number of
whales hunted in grindadrap tradition to prevent over whaling of the pilot
whale.
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Indigenous Whaling Tradition
in Faroe Islands under International Law
Olivia Martha Setyonugroho,
I Gede Pasek Eka Wisanjaya, and Made Maharta Yasa
203
Thesis/Dissertation
Kerins, Sean Patrick. “Whaling in the Faroese.” Thesis (PhD Doctorate),
Griffith School of Environment, 2008
Other
Office of the Commission, 1983, Report of the Thirty-Fifth Meeting of the
International Commission on Whaling 38, app. III