Articles

CALLING OFF THE HUNT: THE MORALITY OF SUPPORTING A BAN ON COMMERCIAL WHALING

  • Tyler Dewey
  • Animal Legal & Historical Center
  • Publish Date: 2007
  • Place of Publication: Michigan State University College of Law

 

I. Introduction

Concern about the fate of whales has infiltrated the consciousness of the United States public to the extent that saving whales from extinction has served as the plot for Hollywood films.  In 1986’s Star Trek IV: The Voyage Home, the famed crew of the U.S.S. Enterprise travel back in time to bring two Humpback whales to the future, thus saving the earth from destruction. [1]  Outside the realm of science-fiction, debate about whales and commercial whaling continues.  More specifically, the parties to the International Convention on the Regulation of Whaling (ICRW) disagree about the necessity for the continuing moratorium on the commercial hunting of whales. [2]

The International Whaling Commission (IWC), formed by the ICRW as the regulatory body of the ICRW, instituted the moratorium in response to whale stocks continuing decline in the face of less stringent regulations. [3]  The moratorium also represents the latest stage in the cycle of increased regulatory controls enacted to attempt to prevent further decline of whale stocks. [4] 

Initially imposed as a temporary measure to allow research to determine the population figures for commercial whale stocks, the moratorium on commercial whaling is over 20 years old. [5]  Some whaling States, particularly Japan, Norway, and Iceland, believe whale stocks have recovered enough to allow the resumption of commercial whaling. [6]  However, for anti-whaling States, the debate about whaling has shifted from one about the scientific numbers and conserving whales for further exploitation, to a discussion of the morality of whaling and the ethics of killing whales. [7]  The United States, Great Britain, Australia and other States now support the moratorium, not because the need to allow for more time for recovery, but because those States believe whales have a right to life. [8]  Such divergent views—the pro-whaling States viewing the whale as a resource to be exploited; the anti-whaling States viewing the whale as an intelligent life-form to be respected—create the current standoff and deadlock in the IWC.

This note will examine the current deadlock in the IWC, discuss the shift from conservation towards preservation, and argue for a continuation of the moratorium based on moral and ethical concern for whales as whales.  Part I will trace the history of whaling and whale regulation.  It will focus attention on the factors that led to the enactment of the IWC moratorium as well as the reasons for the current standoff.  Part II will discuss the current regulatory scheme.  This section will delve into the regulations created the IWC; the moratorium as well as whale sanctuaries and the exceptions to the moratorium.  This part will also explore the response of the pro-whaling states to the moratorium.  Part III will analyze the Preservationist position as it concerns whales.  It will build from a discussion of the uncertain science concerning whale populations and stock recovery, to a discussion of the pain and suffering inflicted on whales by current whale practices, and will finish by arguing that whales, as unique and intelligent mammals, deserve protection as such. 

 

II. Part I

Humans have long exploited whales’ massive bodies for “the food, oil and ‘whale bone’ (baleen) they yield.” [9]  By most accounts, whaling began with the Basques, [10] but there is evidence of whaling as far back as 1100 BC. [11] It was not until industrialized countries began to use motorized ships, explosive harpoons, and other technological advances that whaling began to have a large impact on declining whale populations. [12]  Recognizing the threat to their own commercial interests, in the 1930s, the whaling States began the process of self-regulation. [13]  These attempts generally failed, and after WWII, the United States spearheaded the effort to create IWC. [14]  Since its creation in 1946, the IWC has slowly evolved from tool of conservation to a tool of preservation, much to the dismay of the pro-whaling States. [15] 

A. Pre-IWC Whaling and Regulation

As stated above, whaling appears to have begun with Basque whalers hunting in the Bay of Biscay around 1100 AD. [16]  By the 17th century, the Dutch, British, Germans, Norwegians, Japanese and Americans had begun to hunt whale. [17]  During this period, hunters primarily used the harpoon-line-float technique. [18]  This method involves striking a whale with a harpoon attached to rope and floats. [19]  The harpoon injures the whale; the rope and floats tire the whale so it must rest. [20]  For larger whales, the harpoon boat is also used as an additional anchor. [21]

In the 18th and 19th centuries, new hunting techniques made whaling more efficient, in that it made whales easier to hunt, kill, and process.   Steam powered ships began to replaced sailing vessels, [22] and whalers began to use explosive harpoons. [23]  Now traveling far from shores, pelagic whaling led to the creation of land-based whaling stations to transform the whale carcass into valuable oil, as well as other by-products. [24]  At this point, whaling concluded its shift from subsistence hunting to commercial enterprise. [25]  The more advanced techniques led an accelerated decline in whale stocks. [26]  Rather than curtail whaling when one species of whale became scarce, the whalers would move on to a new location. [27]

By the opening of the 20th century, whaling had moved into the Antarctic. [28]  Factory ships capable of processing the whale on the ship itself soon replaced land stations. [29]  Such wide-spread, industrialized technologies allowed whalers to kill large numbers of animals: “In 1910 over ten thousand whales were killed.  By 1914-1915, Norway alone was responsible for killing 14,917 whales just in Antarctic waters.” [30]  While whalers recognized that over-whaling was beginning to have an impact on profits, there was no international regulation that could prevent the over-exploitation of whales.

Economic self-interest ultimately led whalers to take action to conserve the resource upon which they depended.  Actually, the initial agreement between whalers concerned the production of whale oil. [31]  Over-production had caused a depression of the whale oil market; “[f]or example, in 1930, 150,000 tons of whale oil had remained unsold in Norway alone.” [32]  In that same year, whalers had processed 3.6 millions tons of whale oil world-wide. [33]  To protect their industry, whaling companies entered into private agreements to regulate whaling. [34]  In 1931, 26 nations, prompted by the League of Nations, created the International Whaling Convention. [35]  The Convention made strides in conservation by prohibiting the taking of certain right whales. [36]  It also prohibited the“taking or killing of calves or suckling whales, immature whales, and female  whales which are accompanied by calves (or suckling whales).” [37] In 1937, the Convention expanded to impose restriction on the takings of blue whales; in 1938-39, it placed restrictions on the killing of humpback whales. [38]  These protections did not work. [39]  These protections failed because the catch quotas remained high and the science behind the quotas was inadequate. [40]  Additionally, the inability of the early Convention exposes the perverse incentives of whaling.   That is to say, as long as whaling companies have money invested in whaling vessels, it is more economically advantageous to use the vessel than to not. [41]  Such economic concerns led to discussion in the 1930s of dropping all regulations and allow whaling “until stocks were reduced to the level at which whaling ceased to be remunerative.” [42]

B. The Creation of the IWC and the Development of Whaling Moratorium

After WWII, the whaling industry, confronted by earlier regulatory failures, was faced with a choice: create meaningful regulation or hunt whales to the point of financial ruin and possible extinction.  The United States took the first step by bringing 15 nations together to draft the International Convention for the Regulation of Whaling (ICRW). [43]  The ICRW, in turn, established the International Whaling Commission (IWC) as the body to carry out the ICRW’s mandates. [44] 

In the initial years, the IWC mainly regulated through the setting of Blue Whale Unit (BWU) quotas. [45]  The BWU focuses on the resources that whalers can extract from the whale and does not consider the science of how many whales hunters could remove from the ecosystem.  These quotas were often set at higher limits than recommended by the IWC’s Science Committee. [46]   As a result of these economically-driven decisions, whale stocks continued to decline towards extinction. [47]  Indeed, by the beginning the 1970s, “whaling ceased to be an economically viable industry.” [48] Attempting to salvage an increasingly bad situation, the IWC got rid of the BWU and instituted new, more stock specific management procedures. [49]  Nonetheless, the early 1970s found the ICW at a critical juncture concerning its validity and effectiveness as a regulatory body. [50]

As the IWC was questioning its ability to adequately regulate whaling, external pressures on the IWC to regulate more strictly was building.  The 1972 Stockholm Conference focused new light on the problems that faced the whaling industry. [51]  In 1973, one of the Stockholm Conference Committees recommended a 10 year moratorium on whaling. [52]  Japan labeled the action as “dramatic and emotional.” [53]  The IWC did not believe the scientific evidence necessitated such a step. [54]  However, as non-whaling states continued to join the IWC, the trend to toward conservation and preservation began to gain momentum. [55]  In 1977, the ICW moved to ban aboriginal hunting of bowhead whales, though the United States, under pressure of native aboriginal groups called for an end to the ban the next year. [56]  Two years later, Australia and the United States discussed a world-wide ban on commercial whaling. [57]  Australia also prohibited whaling inside its 200-mile fishing zone. [58]  In doing the so, Australia listed the following reasons for the ban: “the potentially high intelligence of whales, a growing community conviction of the immorality of whaling, the imminent availability of substitutes for whale products, the inhumane way that whales are killed, and the risks to the maintenance—and even survival—of some species.” [59]  These comments underline how the conservationist theories of whale protection began to transform into preservationist theories relying on morality, ethics, and respect for the whales themselves. 

C. Post-Moratorium Conflict

By 1982, the anti-whaling States had obtained enough votes to obtain a moratorium on commercial whaling. [60]  The backlash to the moratorium by the pro-whaling States was immediate, and their dissatisfaction with the moratorium continues to this day.  At the ICW meeting the next year, Japan, Russia, and Norway filed objections to the moratorium. [61]  The timely objection meant the objecting countries were not bound the moratorium. [62]  However, despite their objections, these nations initially followed the terms of the moratorium. [63] As the moratorium continued, the antagonism towards it has increased.  In 1993, Norway announced it would resume commercial whaling. [64] Japan later withdrew it legal objections while still claiming technical objections. [65]  Iceland also has a contentious history with the IWC moratorium.  In 1992, it withdrew from the IWC due to frustration over the moratorium [66] only to rejoin the IWC in 2002. [67]  In 2006, Iceland changed course once more and decided to resume commercial whaling. [68] 

At its most basic, the current conflict is simply this: the pro-whaling States of Japan, Norway, and Iceland want to continue whaling; the anti-whaling States want to prevent the resumption of commercial whaling.  Mirroring this diametrical opposition in goals is a contrary view of the pertinent scientific data.  To be more precise, the pro-whaling States believe that they have enough scientific evidence to resume whaling. [69]  The IWC Scientific Committee also does not believe the moratorium is scientifically justifiable. [70]  The pro-whaling States perceive the staunch opposition to whaling as “emotionally based political interference” [71] that amounts to “cultural imperialism.” [72]

The anti-whaling States take a more cautious stance toward the current science. [73] In particular, they fear that certain whale stocks have not recovered to the point where they could support a resumption of commercial whaling. [74]  Furthermore, the anti-whaling states fear that ecological threats such as global warming and pollution have made whale populations more susceptible to population collapse. [75]  Additionally, the anti-whaling States, the United Kingdom in particular, make moral arguments against whaling; mainly, anti-whaling States see whales as social and intelligent creatures that can suffer when hunted. [76]  As such, they argue that current whaling practices are cruel and should be stopped, and even if the killing were painless, that whales should be respected on an individual level. [77] 

As anti-whaling states attempted to rally more countries behind their cause, so to do the pro-whaling States retrench their positions.  In 1995, in a symbolically direct attack on the integrity of the IWC, Norway and Iceland went as far as to form an alternative whaling regulation body, the North Atlantic Marine Mammal Commission (NAMMCO). [78]  Currently, NAMMCO does not have much regulatory power and serves mainly as a challenge to the political integrity of the IWC. [79]  For example, NAMMCO has adopted, contrary to the IWC, the scientific evidence complied by the IWC Scientific Committee that would support increased commercial whaling. [80]  In addition to such symbolic disavowal of the IWC moratorium, the pro-whaling States have found more direct ways to hunt whales.  Norway opted out of the moratorium, and in 1993 it resumed commercial whaling. [81]  It sets its 2007 quota at 1,000 whales. [82]  In addition to killing whales under the IWC exception for scientific research, [83] Iceland recently resumed whaling. [84]  It plans to kill 39 whales in 2006-7. [85]  Japan continues to kill whales under a program of scientific research. [86]  It kills approximately 1,000 whales a year under this program. [87]  With pro-whaling and anti-whaling States at a philosophical impasse, it is not surprising that the IWC talks have become deadlocked.

 

III. Part II

Having described the current conflict within the IWC, it is time to turn an analytical eye toward the ICRW itself.  Examining the regulatory framework provides a better base to understand the current conflict and how it came to pass.  This Part will pay particular attention to the language and philosophy of the agreement to cast further light on how the various parties to the ICRW have become so polarized.

A.  The Regulatory Framework of the ICRW

The ICRW Preamble captures the conservationist spirit of the document.  Its second clause recognizes “the great natural resources represented by whale stocks.” [88]  Such language quickly reinforces the commercial nature of whales as resources to be exploited.  Nonetheless, the Preamble also recognizes the past failures to regulate whaling: “[c]onsidering that the history of whaling has seen over-fishing of one area after another and of one species of whale after another to such a degree that it is essential to protect all whale species from further over-fishing.” [89]   The ultimate goal of the ICRW is encapsulated in the final clause.  It states the goal as the “proper conservation of whale stocks” to ensure “the orderly development of the whaling industry.” [90]  This sentence subordinates the conservation of whales to the ultimate goal of continuing, profitable commercial whaling. 

Article III establishes the IWC. [91]  It also establishes the procedure by which amendments to action taken pursuant to Article V, the establishment of the moratorium and ocean sanctuaries for example, must be voted by a three-fourths majority. [92]  The difficulty of obtaining a three-fourths majority caused the current deadlock, and it causes both the pro-whaling States and the anti-whaling States to recruit new members to the IWC in attempt to create a super-majority without having to convince the other side. [93]  Article III also allows the IWC to establish committees of experts or advisers. [94]  The Scientific Committee is one such committee.  Before moving into the heart of the regulation, it is important to note the exception provided in Article VIII.1 that allows a Contracting Government a special permit “to kill, take and treat whales for the purposes of scientific research.” [95]  Japan takes a sizable amount of whales under this exception, and pro-whaling States do not find such killings necessitated by science. [96]

The IWC “Schedule” carries most of the regulatory weight of ICRW.  Article II of the ICRW integrates the “Schedule” into the ICRW. [97]  The Schedule, as explained further in Article V, contains the binding regulations that fix:

(a) protected and unprotected species; (b) open and closed seasons; (c) open and closed waters, including the designation of sanctuary areas; (d) size limits for each species; (e) time, methods, and intensity of whaling (including the maximum catch of whales to be taken in one season); (f) types and specifications of gear and apparatus which may be used; (g) methods of measurement; and (h) catch returns and other statistical and biological records. [98]

Thus, a majority of the binding regulations that divide the pro-whaling and anti-whaling States are contained in the Schedule.  These mandates are seen in the current Schedule.  For example, Part III.6 prohibits the use of the cold grenade harpoon to kill whales. [99] Part III.7 sets out the geographic limits of the Indian Ocean Sanctuary and Southern Ocean Sanctuary. [100]  In addition to fleshing out the contents of the Schedule, Article V notes that the decision to amend the Schedule “shall be based on scientific findings.” [101]

The Schedule takes on more importance considering that the moratorium occurred because the United States and other anti-whaling States obtained the three-fourths votes necessary to amend the Schedule to reduce the catch quota’s to zero.  Only when the anti-whaling States obtain a three-fourths vote to revise the Schedule can they raise the catch limits.  On a related note, the pro-whaling States have created two whale sanctuaries as allowed under Article V.1.c.:  the Indian Ocean Sanctuary [102] and the Southern Ocean Sanctuary. [103] As noted in the Schedule, commercial whaling in these Sanctuaries is prohibited. [104]  This prohibition goes above and beyond the moratorium because whaling in the Sanctuaries is not allowed “irrespective of such catch limits for baleen or toothed whales as may from time to time be determined by the Commission.” [105]  Therefore, even if the pro-whaling States are successful in overturning the moratorium, they would have to remove the Sanctuaries by three-fourths vote as well.  The Sanctuaries, as would be expected, have become points of contention as Japan’s program of scientific research includes lethal takes inside the Southern Ocean Sanctuary. [106] Anti-whaling countries condemn such killings. [107]

Practically, the ICRW is a simple instrument; it places most of the binding regulations in the somewhat flexible Schedule. [108]  In theory, the amendment of the Schedule to reduce catch quotas to zero—the moratorium—has created the current conflict between pro-whaling and anti-whaling States.   In large part, this conflict results from the tension between the preservationist effect of the continuing ban on commercial whaling and the anti-whaling States belief that the moratorium runs counter to the goals of the ICRW. [109]  With this understanding of the counterpoised positions about role of the ICRW, it is possible to move on to the next topic: the future of the ICRW and the ICW moratorium on commercial whaling.

 

IV. Part III

Support for the extension, or even permanent codification, of the moratorium on commercial whaling can rely on three premises: 1) doubts about the science that would support the resumption of commercial whaling; 2) concerns about the pain and suffering endured by whales pursued by commercial whalers; and 3) recognition of the whales’ right to life. [110]  The first reason focuses on the uncertain science about whale population and the uncertain threats facing whales regardless of the commercial whaling.  The second justification examines the current morality of further whaling based on the pain and suffering inflicted on whales.  The third premise examines the intelligence, sociability, and inherent worth of the animal and posits that such attributes make the whale worthy of protection.  This section of the Note will examine each reason in turn and will conclude by arguing that the above reasons support making the current moratorium on commercial whaling a permanent ban.

A.  The Uncertain Future

As noted by the ICRW, the history of whaling is one of one continued over-harvesting. [111]  When one whale stock or species became scarcer, the whalers would seek out new hunting grounds. [112]  Increased regulation did little to stem the slaughter.  In many respects, whaling regulation led to the further decline of whale stocks; for example, the Blue Whale Unit quota system “created perverse incentives for parties to whale as quickly and efficiently as possible.” [113]  Nor did the creation of the ICW slow the depletion of whale species: “By the early 1970s, stocks of Antarctic whales were so badly depleted that, assuming a total and effective ban on whaling, it would take fifteen years for fin whales to recover to the optimum and fifty years for blue whales.” [114]  The checkered history of the effectiveness of whaling regulation, at least, casts doubts about the ability of whaling States to control whaling if it they were to resume the practice on a commercial scale. 

Disregarding past practices, whales still face an uncertain future because of threats other than hunting.  The United Kingdom has pointed to the dangers of ship strikes, fishing nets, pollution and climate change as threats that posed an uncertain risk to whales. [115]  The slow reproduction rates of whales make them particularly susceptible to swift population decline. [116]  The procedures and regulations proposed by the pro-whaling States and the ICW Scientific Committee do not appear to take an ecosystem-wide view of whales that would account for variables outside of hunting. [117]  This myopic view could once again lead to rapid decline of whale stocks.  

B.  The Welfare Concerns Surrounding the Resumption of Commercial Whaling

Of course, it is possible that some whale stocks, particularly the minke, may have recovered enough to allow commercial whaling of certain, specified populations.  However, simply because it may be scientifically possible to resume commercial whaling, it does not mean countries should so do.  Indeed, the pain and suffering inflicted on hunted whales has emerged as another reason for continuing the ban on commercial whaling. [118]

As mentioned previously, the earliest form of whale hunting used basic harpoon-line-float techniques to tire the whale and bring it within the range of a whaler who would then kill the whale with a lance. [119]  Over time, whalers first adopted the mechanically powered harpoon; next, they adopted the grenade harpoon which, as the name suggests, explodes upon attaching to the whale. [120]  These devices are designed to kill the whale as quickly as possible by causing massive brain trauma from the explosive shockwave; however, due to differing gunner skill, adverse weather and sea conditions, and differing whale anatomies, the efficacy of harpoons can differ drastically. [121]  For example, Norway admits that 20% of the minke whales they strike are not killed immediately. [122]  In the 2002 hunt, those figures translated into 127 whales not killed immediately. [123] The Japanese statistics indicated less accuracy.  Its figures reveal that in 2002-3, only 40% of whale the hunters took were killed immediately. [124]  Since the methods used by the Norwegians and Japanese are fairly similar, the differing kill rates indicate how difficult it is for whalers to control the hunting conditions.  Sea conditions, for example, often rapidly changing as the ship succumbs to wave action can make accurately aiming the harpoon a near impossibility. [125]  Adverse weather conditions, often present in the Antarctic hunting grounds, also play havoc on the ability of a harpooner to successfully shoot a whale. [126]  Generally, the less accurate the harpoon shot, the longer it will take the whale to die.  Prolonging the death of whale, in turn, extends the animals suffering. [127]  One thing appears reasonably certain, whales do experience pain.  After being harpooned, the whale’s song changes; it becomes a low monotone. [128]  Whales also appear to experience a wider range of skin sensations than humans. [129] 

The injuries caused by the harpoon are not the only harm inflicted upon a whale during the hunt.  The chase—the pursuit of the whale—may also cause stress, pain, and suffering in the whale. [130]  While the numbers are disputed, there reports exist of Norwegian and Japanese whalers chasing whales for a half hour to and an hour before killing the animal. [131]  What remains unclear is how pursuits physiologically affect the whale.  There is conflicting evidence about whether the chase has an adverse impact on the whales. [132] Even though the science is cloudy, it appears as if enough evidence exists to support a cautionary approach to limit the ability of whalers to pursue their prey. [133]

The difficulty of determining when exactly a whale dies further muddies these waters.  In general, the ICW measures death in hunted whales by relaxation of the jaws, the “cessation of flipper movement, or [s]inking without any active swimming.” [134]  The time from the harpoon strike to one of the above criteria equals the time to death (TTD). [135]  While immediate kill rates now stand at about 80%, an examination of the data reveals that 10% of struck whales take 10 minutes to die. [136]  However, these figures result from visual cues taken during the hunt, far from controlled environments.  Therefore, it is possible that if whalers made more accurate measurements and observations TTDs would increase.

The killing conditions taking place during whale hunts differ greatly from the procedures undertaken by agencies in charge of euthanizing whales or slaughtering farm animals.  Sperm whales frequently strand themselves on New Zealand beaches. [137]  As a result, the New Zealand government researched different methods for euthanizing whales. [138]  The fruit of the research was a device called the 14.5 SWED (sperm whale euthanasia device). [139]  The 14.5 SWED is a large-caliber gun with specialized bullets designed to penetrate deep into the brain of the whale. [140]  For non-Sperm whales, the New Zealand government recommends large caliber rifles fired into the brain. [141]  Interestingly, the euthanasia guidelines do not allow for euthanasia by explosives or lances. [142]  In other words, stranded whales receive more assurances of a quick death than whales hunted in the open ocean.  Hunted whales—killed in the wild but used for commercial purposes—also receive fewer protections than domesticated slaughter animals. [143]  Whale, unlike slaughtered animals, are not removed from stressors prior to death, are not stunned or rendered unconscious before death, and are not swiftly killed. [144]

In response to concerns that whaling inflicts unnecessary pain and suffering upon whales, the pro-whaling States point back at the use of domestic animals for food by the anti-whaling States. [145]  However, as noted above, regulations to ensure the most painless slaughter of domestic animals exist.  The hunting of whales does not currently measure up to those standards and perhaps never could. [146]  The concerns that many whales face the prospect of a slower, more painful death than necessary, drives countries like the United Kingdom to denounce the resumption of commercial whaling. [147] 

C.  Whales Right to Life

Even if it were possible to create a new method to painlessly kill whales, it is still possible to argue that whales deserve protection because they have a right life arising from their status as a unique, intelligent, and social animal that deserves the extension of the right to life “not because they are ‘less’ than human but because they are ‘different’ from humans in various respects that do not affect or qualify the rights in question.” [148]  Extending the right to life to whales would moot concerns about future threats and past regulatory failures because it would place whales beyond the reach of commercial whalers.  Similarly, asserting that whales have a right to life would blunt the need to protect whales from the pain and suffering of hunting because killing whales would violate the new norm.  To codify this principal in international law, the ICW should codify and make permanent the ban on commercial whaling.  Indeed, to fully respect the whales’ right to life, the ICW should also prohibit aboriginal exceptions to the ban. [149]

While it is difficult to determine the exact IQ of a whale, there are certain other indications of intelligence.  First and most bluntly are studies that examine the Encephalisation Quotient (EQ). [150] EQ “is a ratio between the size of the brain and the mass of the animal, with a ratio of 1 meaning that the brain is the size expected for that animal’s body.” [151]  Modern humans have an EQ of 7; some small dolphins have EQs between 3.24 and 4.56. [152]  Whales, adapted to a marine environment do not have high EQs in large part because of the amount of mass comprised of blubber. [153]  For whales and other marine mammals, the EQ, then, becomes a specious measurement of whale intelligence. [154]  However, before leaving the realm of brain studies, note that some scientists point to sheer size of the whale’s brain and the amount of convolutions, to suggest that whales have high intelligence. [155]

Beyond the hard biology of brain size, whales exhibit other characteristics of intelligence.  In particular, whales have extensive communication skills. [156]  The humpback, famously, sing complicated songs that play a role in male communication or mate selection.  Sperm whales appear to have group specific codas—rhythmic sets of clicks—and perhaps even individual codas, and right whales appear to have greeting calls. [157]  In addition to advanced communication skills, humpback whales participate in co-operative foraging, even using bubbles to act as a net to catch fish. [158]  Sperm whale groups display defensive postures and scientists have observed many cetaceans supporting injured or dead group members. [159]  Scientists have also observed the transmission of culture among many cetacean species. [160] 

The next question is whether whales’ intelligent and social nature should provide them with a right to life.  The pro-whaling view such an assertion as “ethnocentric arrogance” and “cultural imperialism” because they view whales as having no more right to life than beef cattle. [161]  On the other hand, as seen above, there is compelling evidence that whales display intellectual attributes that set them apart from other animals.  The hesitancy to recognize the intelligence of whales seems to stem from a Cartesian view of animals that denies rights to animals because of the inability of animal to communicate with human kind. [162]  However, it makes little sense to withhold rights from a seemingly intelligent creature merely because we have not discovered a method of communicating with it. [163] 

 

V. Conclusion

Some commentators argue that the extension of the right of life to whales is supported by an emerging opinio juris that recognizes such a right. [164]  While it is true that many States believe that whales have a right to life, [165] it is clear that there is an equally large contingent of States that do not agree that whales hold such a right. [166] So it seems that the pro-whaling States and anti-whaling states are again at a deadlocked.  However, considering the social skills, communication abilities, and group behavior that evidence considerable intelligence, it appears that hunting and killing whales inflicts a considerable amount of pain and suffering on the animal.  In order to eliminate the pain, suffering, and needless loss of life, the ICW should recognize what has always existed: a whale’s right to live free from hunting.  Drastic action may further splinter the already fragile ICW, however, the relations between the anti-whaling States and pro-whaling States is already fractious.  Norway has resumed commercial whaling, Iceland has resumed commercial whaling, and Japan is expanding its scientific research whaling.  Recognizing a whale’s right to life will not persuade these countries to cease their whaling activities.  However, such a step might make these countries reexamine their positions; at the very least, the recognition would help create a global climate in which continued whaling is frowned upon and help eliminate the market for whale products.  

[1] See Star Trek IV: The Voyage Home (1986).

[2] See e.g. Cinnamon Pinion Carlarne, Saving the Whales in the New Millennium: International Institutions, Recent Developments and the Future of International Whaling Policies, 24 Va. Envtl. L.J. 9-13 (2005).

[3] See Lisa Kobayashi, Lifting the International Whaling Commission’s Moratorium on Commercial Whaling as the Most Effective Global regulation of Whaling, 29-SPG Environs Envtl. L. & Pol’y J. 177 (2006).

[4] See generally, Anthony D’Amato & Sudhir K. Chopra, Whales: Their Emerging Right to Life, 85 Am. J. Int’l 21 (1991) (discussing 6 stages of whale regulation). 

[5] See id. at 48.

[6] See Sarah Suhre, Misguided Morality: The Repercussions of the International Whaling Commission’s Shift from a Policy of Regulation to One of Preservation, 12 Geo. Int’l Envtl. L. Rev. 305, 312 (1999).

[7] See D’Amato & Chopra supra note 4, at 47. 

[8] See generally, Department for Environment; Food and Rural Affairs, Protecting Whales: A Global Responsibility (2006) [hereinafter Protecting Whales]; see also D’Amato & Chopra supra note 4, at 49.

[9] Troubled Waters: A Review of the Welfare Implications of Modern Whaling Activities 6 (2004) [hereinafter Troubled Waters].

[10] See e.g., id.

[11] Id., at 6.

[12] See Kobayashi, supra note 3, at 183-4.

[13] See D’Amato & Chopra, supra note 4, at 31-2.

[14] See Carlarne, supra note 2, at 5.

[15] See D’Amato & Chopra, supra note 4, at 22-3.

[16] Troubled Waters, supra note 9, at 6.

[17] See Kobayashi, supra note 3, at 181.

[18] Troubled Waters, supra note 9, at 6.

[19] See id. at 7.

[20] See id.

[21] See id.

[22] See Suhre, supra note 6, at 308.

[23] See Troubled Waters, supra note 9, at 8.

[24] See D’Amato & Chopra supra note 4, at 29.

[25] See Kobayashi, supra note 3, at 183.

[26] See id.

[27] See id.

[28] See D’Amato & Chopra supra note 4, at 29.

[29] See Kobayashi, supra note 3, at 183.

[30] D’Amato & Chopra supra note 4, at 29.

[31]See Kobayashi, supra note 3, at 185.

[32] Id.

[33] D’Amato & Chopra supra note 4, at 30.

[34] Kobayashi, supra note 3, at 185.

[35] Convention for the Regulation of Whaling, Sept. 24, 1931, 49 Stat. 3079.

[36] See id., at Art. 5.

[37] Id., at Art. 6.

[38] See Kobayashi, supra note 3, at 186.

[39] See id., at 187.

[40] Id.

[41] See D’Amato & Chopra supra note 4, at 32.

[42] Id., at 31-2 (quoting D. Johnston, The International Law of Fisheries 398 (1965)).

[43] International Convention for the Regulation of Whaling, 1946. Part II will focus on the regulatory mechanics of the ICRW.

[44] See Suhre, supra note 6, at 308.

[45] Id. at 309. 1 BWU unit is the equivalent of I blue whale.  For example, 2 fin whales equal 1 BWU.  See http://www.fao.org/docrep/96215E/96215e07.htm.

[46] See Suhre, supra note 6, at 309.

[47] See Carlarne, supra note 2, at 8.

[48] Id., at 7.

[49] See Suhre, supra note 6, at 310. 

[50] See D’Amato & Chopra supra note 4, at 37-40.

[51] See Carlarne, supra note 2, at 7-8.

[52] See D’Amato & Chopra supra note 4, at 38.

[53] Id.

[54] Id., at 39.

[55] See Carlarne, supra note 2, at 9. 

[56] See D’Amato & Chopra supra note 4, at 42.

[57] See id.

[58] Id.

[59] Id. (quoting IWC/31st Mtg./1979/OS (Australia’s Opening Statements)).

[60] See e.g. D’Amato & Chopra supra note 4, at 45-6.

[61] See id., at 46.

[62] See Suhre, supra note 6, at 312-313.

[63] See Carlarne, supra note 2, at 9.

[64] See Suhre, supra note 6, at 313.

[65] See D’Amato & Chopra supra note 4, at 47.

[66] See Suhre, supra note 6, at 315.

[67] See Howard Schiffman, The International Whaling Commission: Challenges from Within and Without, 10 ILSA J. Int’l & Comp. L. 367, 371 (2004).

[68] See Krista Mahr, Iceland Defies Ban on Whaling for Commerce: Greenpeace Condemns Hunt as ‘Unnecessary, Chi. Trib. Oct. 18, 2006 WLNR 180555167.

[69] See Kobayashi, supra note 3, at 202.

[70] See id. at 200.

[71] Carlarne, supra note 2, at 33.

[72] Suhre, supra note 6, at 313.

[73] See Protecting Whales, supra note 8, at 4.

[74] See id.

[75] See id.

[76] See id.; See generally Troubled Waters, supra note 9, at 1 (arguing against the continued hunting of whales based, in part, on the pain inflicted by current hunting practices).

[77] See Protecting Whales, supra note 8, at 7.

[78] The North Atlantic Marine Mammal Commission, http://www.nammco.no/webcronize/images/Nammco/659.pdf.

[79] See David S. Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: Institutional Risks of Coercion in Consensual Structures 89 Am. J. Int’l L. 154, 165.

[80] See id.

[81] See Protecting Whales, supra note 8, at 5.

[82] Id.

[83] See id.

[84] Mahr, supra note 68, at 1.

[85] Protecting Whales, supra note 8, at 5.

[86] See id.

[87] Id.

[88] International Convention for the Regulation of Whaling, Dec. 2, 1946 161 U.N.T.S. 72 preamble [hereinafter ICRW].

[89] Id.

[90] Id.

[91] See id., at. Art.III.1.

[92] See id., at Art.III.2. The Convention itself cannot be amended. See Kobayashi, supra note 3, at 189.

[93] Evidence of such vote recruitment can be seen in the site of the latest IWC meeting; St. Kitts.  A non-whaling state. See http://www.iwcoffice.org/meetings/meetingsmain.htm.

[94] See ICRW, at Art.III.4.

[95] Id., at Art.VIII.1.

[96] See Protecting Whales, supra note 8, at 8.

[97] See ICRW, at Art.II.

[98] Id., at Art.V.

[99] See Schedule III.6. available at http://www.iwcoffice.org/_documents/commission/schedule.pdf.

[100] See Schedule III.7.

[101] ICRW, at Art.V.2.

[102] See Schedule III.7.a.

[103] See Schedule III.7.b. The IWC established the Indian Ocean Sanctuary in 1979; it established the Southern Ocean Sanctuary in 1994. See http://www.iwcoffice.org/conservation/sanctuaries.htm.

[104] See Schedule III.7.

[105] Id.

[106] See Protecting Whales, supra note 8, at 5.

[107] See id.

[108] See ICRW, at Art.1.

[109] See Carlarne, supra note 2, at 9-13.

[110] See generally, Protecting Whales, supra note 8, at 1 (arguing for the continuation of the whale hunting moratorium); see generally D’Amato & Chopra, supra note 4, at 21 (arguing that international law is in the beginning stages of recognizing a whale’s right to life). 

[111] See ICRW Preamble.

[112] See Carlarne, supra note 2, at 6. 

[113] Carlarne, supra note 2, at 6

[114] D’Amato & Chopra supra note 4, at 39.

[115] See Protecting Whales, supra note 8, at 4.

[116] See CITES 2000: The End of the Battle—Whales still protected. available at http://www.wdcs.org/dan/publishing.nsf/allnew/AF56AB93B9B4942480256D0300519A8F

[117] Carlarne, supra note 2, at 15.

[118] See generally Troubled Waters, supra note 9.

[119] See id., at 7. 

[120] See id., at 8.

[121] See id., at 63.

[122] Id.

[123] Id.

[124] Id.

[125] See id., at 67.

[126] See id.

[127] See id., at 67.

[128] See D’Amato & Chopra supra note 4, at 24-5. 

[129] See id.

[130] See Troubled Waters, supra note 9, at 69.

[131] See id.

[132] See id., at 74.

[133] See id.

[134] Troubled Waters, supra note 9, at 84.

[135] See id.

[136] Id.

[137] See id., at 79.

[138] See IWC 58 : Workshop on Whale Killing Methods and Associated Welfare Issues: Euthanasia of Stranded Cetaceans in New Zealand, 1, available at  http://www.iwcoffice.org/_documents/commission/IWC58docs/58-WKM&AWI%2010.pdf [hereinafter Euthanasia of Stranded Cetaceans in New Zealand].

[139] See Troubled Waters, supra note 9, at 80.

[140] See id.  Deep penetration is needed because a whale’s brain is buried deep within the body.  See also Euthanasia of Stranded Cetaceans in New Zealand, at 5.

[141] See Euthanasia of Stranded Cetaceans in New Zealand, at 5.

[142] See id., at 6.

[143] See Troubled Waters, supra note 9, at 92-96.

[144] See id., at 97.

[145] See Suhre, supra note 6, at 321.

[146] See id., at 101.

[147] See Protecting Whales, supra note 8, at 3.

[148] D’Amato & Chopra supra note 4, at 27.

[149] See id.

[150] See Troubled Waters, supra note 9, at 21.

[151] See id.

[152] Id.

[153] See id.

[154] See id.

[155] See D’Amato & Chopra supra note 4, at 21.

[156] See Troubled Waters, supra note 9, at 22.

[157] See id., at 22-3.

[158] See id., at 18.

[159] See id.

[160] See id., at 20.  Culture “[d]efined as behavioural [sic] variations between sets of animals that are maintained and transmitted by social learning.” Id.

[161] Suhre, supra note 6, at 321-2.

[162] See D’Amato & Chopra supra note 4, at 25-7.

[163] See id., at 26.

[164] See id., at 50.

[165] See Protecting Whales, supra note 8, at ; D’Amato & Chopra supra note 4, at 42.

[166] Pro-whaling states are now the majority in the ICW. See Protecting Whales, supra note 8, at 9.

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