The drafters of the original Convention did not anticipate that the Schedule would be manipulated to suit some ethnicities and discriminate against others. "Subsistence whaling", which the IWC has never defined, is a vehicle for giving special hunting privileges to some ethnic groups while denying those rights to others. Domestic laws in the United States recompense Native Americans for reasons unique to American culture. However, this national characteristic has been transcended into the IWC in a way that discriminates against communities in other countries that have, like Native Americans, traditionally hunted whales. This exploits the loophole that such prejudice was not explicitly forbidden in 1946.

The IWC's quota for "subsistence whaling" allows specific ethnic groups to hunt whales, including endangered bowheads, in quantities larger than that established by the Revised Management Procedure (RMP) - a loophole not foreseen by the original Convention.

NGOs are not recognized in the original Convention or the Schedule. The fact that limits are not placed on their activities (presumably because they were not a socio-political feature until the 1980s) has allowed them to dictate the direction of the IWC - by recruiting and paying the subscriptions of new members to join and vote for the moratorium in the 1980s and by collaborating closely and openly with certain anti-whaling delegations.

While the IWC has no authority over small cetaceans, it has used the loophole that this is not expressly forbidden to set up a working group on these species.

The irony is that, despite the blatant exploitation of all of these loopholes over many years, it is those nations that abide most closely to the original Convention that are accused of by-passing it. Article VIII states not only that scientific research whaling can be carried out (such as the programs of Japan and Iceland), but that member states should take "all practicable measures" to obtain the type of biological data it provides. As an Article in the original Convention, the right to undertake research whaling is guaranteed and has been immune to the reversals of purpose that the loopholes have allowed.

By definition, it is impossible for a Convention established to bring about the "orderly development of the whaling industry" to have a loophole that allows whaling. All it can have are loopholes that prevent it. And that is precisely what has been exploited over the last twenty years. The IWC will remain dysfunctional until these loopholes are eliminated.