Lives and deaths of the great whales

OTHER INTERNATIONAL DEVELOPMENTS

LIVES AND DEATHS OF THE GREAT WHALES A Report on the International Whaling Commission by MAXINE McCLOSKEY* Atler four years in the whale conservation movement I finally observed an annual meeting of the International Whaling Commission (IWC). This was the 29th meeting, and was held in Canberra, Australia June 20 - 24, 1977. I was a member of the U.S. government delegation. The IWC usually meets in London. The acceptance by the IWC of the Australian invitation was designed to avoid impacting on the Queen's Jubilee in London. Conservationists whispered that the IWC was tired of the antiwhaling activities prevalent in London. But instead, the anti-whaling movement took Australia by storm. There were speeches, seminars, stunts, newspaper interviews and advertisements for weeks in advance. By the time the lWC convened in a highly secured hotel the country was alert to follow the daily developments. More demonstrations and interviews were reported during the week of the meetings. The IWC meets in secret. Only authorized delegates from member countries, observers from other countries, and observers from accredited international organizations are issued badges and allowed past the guards. At the same time, they are forbidden to discuss the debates and votes taken during the technical committee sessions. The press is allowed to attend the opening and the closing sessions of the plenary. The secretariat issues a press statement at the close. However, leaks to the press are commonplace. And a coalition of nongovernmental organizations stayed up all night publishing a daily "Eco" newspaper filled with peppery barbs at *President, Project Jonah, founded in California in 1972, is an international organization devoted to learning about and from cetaceans, and protecting them around the world.. There are Project Jonah offices in Australia, Canada, France, New Zealand, and United Kingdom. 114

the IWC and its actions. It also printed useful information about whales. The deaths of whales are the subject of the IWC. The demonstrations and other activities outside the IWC are directed toward the lives of whales saving them, learning about and from them, informing people about the mystery, beauty, intelligence, gentleness, and family relationships of whales. The animals themselves are the unrepresented focal point of the IWC. When mentioned at all, the living animals are termed "stocks," "quotas," or "resources." Life and death decisions are made about them with not even allusions to the nature of the great whales. They are the largest animals ever to evolve on earth. They have social systems that include family and community caring over the many decades of their natural lives. They communicate over great distances and dive to great depths. Their brains are highly developed and the largest of all animals, harboring an intelligence capability that baffles the human brain. Are whales the people of the seas? For the second year the IWC accepted all the recommendations of its Scientific Committee. This year saw the largest reduction in quotas in its history, down 36 percent to 17,839 animals. The largest reduction was for North Pacific sperm whales with a 100 percent reduction for males, and a 74 percent reduction for females, now 763. That change was recommended by the Scientific Committee because of its concern over the adequacy of the data. Other significant reductions were for Southern Hemisphere sei and minke whales. At the same time there was an increase in Southern Hemisphere sperms. Rejoicing may not be an appropriate response for these reductions. For while they may reflect real or imagined improvements in the technique of analysis of inadequate data, what these reductions really say is that whale popu-

lations are continuing to plummet. The only change is that the IWC is paying heed. The North Pacific sperm whale quotas is only a tentative decision because it was agreed that there would be a special meeting of the Scientific Committee (scheduled for November 21 26, 1977 in Cronulla, Australia) to reevalutate the data. The Soviets may even provide data that heretofore they have not made available to the Scientific Committee. If the committee recommends a change in the quotas for them, a special meeting of the Commission will convene December 6 and 7, 1977 in Tokyo. If the commissioners there change the quotas, this whole process would be completed in time for the sperm whale season next spring. Satisfaction over the present drastic cut in sperm whale quotas is therefore premature. Other actions at the IWC carried out changes advocated by conservation organizations. They were: 1. A resolution requesting member nations to take all practicable steps to prevent the transfer of factory ships, whale catchers, equipment, training of personnel, or financial aid for whaling operations to any nonmember nation; 2. A resolution prohibiting the importation of whale products from nonmember countries; 3. A change in the rule of procedure that allows member nations to issue permits to their scientists to take whales for scientific purposes requiring that all such scientific permits be reviewed in advance by the Scientific Committee. This issue arose because in 1976 Japan issued permits to take 240 Bryde's whales in an area where the IWC quota was zero. Reports showed that little useful research was accomplished, but the carcasses were fully utilized. This has the effect of increasing Japan's take over IWC quotas. Japan now

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states that it will issue another scientific permit for Bryde's whales, but this time will submit its research program to the Scientific Committee. It should be noted that none of the three improvements are binding on the member nations. But violations of them will surely arouse world opinion to increase demands for a moratorium on commercial whaling. When conservation groups examine the quota and catch record of the IWC, they see that until 1976 most quotas assigned were so high that the whalers usually could not find and catch their limit. This means that essentially the whalers have been operating without meaningful regulation. However the record for 1976 shows that catches were generally close to quotas.

Problems with the IWC There are numerous flaws in the treaty of 1946 that established the IWC. It rests on the premise of providing for management of common property by a few nations for the economic benefit of even fewer. The sad history of depletion of one species after another convinces many that whales must be treated instead as a common heritage. This proposition holds that all nations share the oceans and their living components, and therefore all nations should share in decisions made on their use. An international agency, such as the United Nations or a subsidiary International Cetacean Commission, would seem to provide the requisite authority to represent the interests of all. Ideally, a nation should have to pay a fee to that agency to take a whale. This would not by itself guarantee proper.conservation of whales, for the economic incentive is very high. There would still be need for continual pressure by concerned people for conservation and for recognition of the other values of living whales. But if this change could come about, at least it would end the present system that allows the common heritage to be converted to the economic gain of a few nations that do not have to recompense the other nations for their loss. Another problem is that membership is voluntary and continuation of membership is voluntary. This year there are seventeen member nations: (* denotes presently doing commercial whaling) Argentina; *Australia; *Brazil; Canada; *Denmark; France; *Iceland; *Japan; Mexico; Netherlands; New Zealand;

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The end o f a fin whale.

*Norway; Panama; South Africa; United Kingdom; *Soviet Union; and United States. Japan and the Soviet Union are by far the most significant whalers, taking 82 percent of all whales caught by IWC members in 1976 and the 1976 - 77 Antarctic season. If the Soviet Union and Japan, or any other members, don't like the quotas and other regulations, they may withdraw their membership after giving six months' notice. Such threats have served to veto proposed conservation measures, or to even prevent their introduction. Nations can circumvent the IWC by issuing an objection within ninety days to any amendments to the Schedule. Those are the specific whaling regulations contained in the appendix, which are adopted at each annual meeting. Issuance of an objection means that the amendment is not binding on that nation. There is then a further ninetyday period for additional nations to register their objections to the same. amendment. This tactic has been used many times. The IWC has no enforcement powers. Enforcement of regulations and quotas is the responsibility of the member nations for their nationals. Each government is required to transmit to the IWC full details of each infraction and the measures taken for dealing with them and penalties imposed. Penalties are now required to be expressed in U.S. dollars for comparison. The only penalty required by the IWC treaty is that no bonus or other remuneration shall be

Courtesy: WWF international

paid to gunners and crews for any forbidden taking. Even though there is now a system of observers from other member nations who issue reports on compliance and infractions, rumors and charges by some non-governmental organizations continue to cast doubt on the completeness of the information made available. However, the report of the Infractions Committee of the 1977 meeting included this statement: "Comparison of the infractions reports submitted by member governments with the reports of the international observers indicate that infractions have been accurately and faithfully recorded and reported to the Commission." The IWC is easily dominated by a minority because a three-fourths vote is required for decisions made in the plenary sessions. The votes in 1977 show that the minority had dwindled to one or two in some cases. The real test would come in a new vote on the moratorium if and when it reappears on the agenda. Because the IWC is a voluntary international organization, not all nations presently engaged in commercial whaling are members. This is one of the most distressing problems for there does not now seem to be any international remedy. Commercial whaling nations not members are Peoples Republic of China, Chile, North Korea, Peru, Portugal, Somalia, Republic of Korea, and Spain. It is estimated that altogether they take some 4000 whales without IWC regulation. Since Peru takes about 2000, she is the fourth largest whaler in 115

the world. A whaling station in Chile has been taking about 100 whales annually, but it has recently asked for a government permit to take 500. In spite of vehement protests by conservationists, it appears the government will grant it. It should be noted that Chile and Peru are members of the Permanent Commission for the Exploitation and Conservation of the Marine Resources of the South Pacific, which is designed to monitor and regulate fisheries within the 200-mile limits of Chile, Peru, and Ecuador. No recent biological or population studies have been done, and no effective regulations to maintain the whale stocks have been issued. It appears that most of the whale catch by non-IWC countries is sold to Japan. In this way Japan exceeds her quotas under the IWC and provides incentive to unregulated whalers. Indeed, Japanese companies are directly involved in much of this nonregulated whaling through ownership or operation of the enterprise. It is feared that some of the whales taken by non-IWC countries are protected species. At present there are no international legal steps that can be taken to stop the unregulated whaling or to insure total protection of endangered species. International treaty on trade in endangered species

The International Treaty on Trade in Endangered Species does not appear to offer effective means of protecting endangered whale species. It contains a clause called "introductions from the sea" that applies to whaling. It leaves enforcement of those provisions to the importing country alone. Not only has Japan not ratified the treaty, and therefore is not bound by it, but if she does ratify, those provisions that would seek to protect endangered whales from trade would be subject only to Japan's enforcement. And if this weren't enough immunity from Convention regulations on trade in whale products, the Convention contains a ninety-day reservation or objection clause, so that any member nation can simply reserve with respect to whales within ninety days of listing in the Appendix. The First Conference of the Parties to the Convention was held on November 2 - 6, 1976 in Berne, Switzerland. Appendix I and II listings for great whale species were adjusted to conform to the classification by the IWC in 1976 116

of blue, humpback, right, gray, sei, and fin, with different stocks of the latter two appearing on both Appendices. A lookalike clause in the Convention, if activated for whales, would seem to offer protection because it is impossible to distinguish between species or areas of taking once the carcass has been processed. However, to date only the African elephant has been added to Appendix II because its products are so similar to those of the clearly endangered Asian elephant that it would be impossible to determine which species was the source. In this case Hong Kong invoked the ninety-day rule and entered a reservation for the African elephant, although this decision is now under review. The efficacy of the lookalike clause seems to be doubtful. Law of The Seas There is continuing interest in the opportunity provided by the Law of the Seas (LOS) negotiations to establish an international mechanism for effective protection of cetaceans. But so far there is only disappointment. There are no provisions that declare marine mammals to be a common heritage. Whales remain a common property resource on the high seas which will continue to be regulated only by the IWC. Article 54 from the Draft Text is the only one to address marine mammal management. At present its language is: Nothing in the present Convention restricts the right of a coastal State or international organization, as appropriate, to prohibit, regulate and limit the exploitation of marine mammals. States shall cooperate either directly or through appropriate international Organizations with a view to the protection and management of marine mammals. This article "gives no guidance, lays down no criteria, for determining when the coastal state or the organization is the most "appropriate" body for the purpose and does not specifically refer to any international organizations. ''1 There are no directions or criteria on management or consideration of other values of whales, such as ecological, research, esthetic, or moral. There is no requirement for gathering and exchanging information and statistics, or for the conduct of research. There is no requirement that all states exploiting great whales be a member of one international authoritative body. Regional coastal states could form their own

regulatory body, such as the weak organization that includes Chile and Peru. When Article 54 is combined with Article 53 on highly migratory species, which is defined to include the great whales, and along with other articles, relating to the 200-mile exclusive economic zone of coastal states, coastal states appear to have an obligation to achieve optimum utilization of marine mammal resources within their economic zones. What this would do is give the coastal state a unilateral property right to the marine mammals in their zones 2. This means that a coastal state could impose stricter regulations than the IWC, such as prescribing a total ban on all whaling as the United States, Mexico, and Canada have done already. Or it could prescribe regulations more lenient than the IWC, which is what Chile and Peru are doing now. So far these articles do not require any state to join the relevant international organization. The alternative of direct cooperation is stated permissively "with a view to promotion of the objective" of optimum utilization, an objective more appropriate to fisheries. The Connecticut Cetacean Society held a seminar on Whales and the Law of the Sea in March 1977. It concluded that all cetaceans should be excluded from the article on highly migratory species, thereby eliminating any duty to achieve optimum utilization arising from Article 53. All nations having an interest in cetaceans would have a duty to cooperate in establishing an International Cetacean Commission "to advance understanding of cetaceans and to ensure their effective conservation and protection on a global basis, both within and beyond the exclusive economic zone". Consolidation of draft texts of the Law of the Seas Treaty Conference has now resulted in the above language ascribed to Article 54 being incorporated into Article 65 of the Informal Composite Negotiation Text. Conservation organizations are preparing for the next round of sessions of the LOS, to be held in Geneva,in March 1978. The text for the renumbered Article 65 that will be promoted for marine mammals will be: Nothing in the present Convention restricts the right of a coastal State or an international organization, as appropriate, to prohibit or limit the exploitation of marine mammals. States shall cooperate with a view to the protection of marine mammals and to establish an international orgaEnvironmental Policy and Law, 3 (1977)

nization for the protection, conservation, and understanding of cetaceans on a global basis. 200-mile limit Having shown that commercial whalers have little to fear so far from the Convention on Trade in Endangered Species, and the Law of the Seas proposals, and with no instruction on whale m~nagement from the United Nations beyond support of the ten-year moratorium, let us look at what individual nations can do. The most significant action is the move toward universal adoption of the 200-mile limit, although less than half the coastal states have taken such action, and there is variation in the type of jurisdiction claimed. The United States adopted jurisdiction with enactment of the Fishery Conservation and Management Act of 1976. There was discussion on whether this would mean that because the United States is a member of the IWC, it would be obliged to allow whaling under IWC regulations and quotas to occur within this 200-mile limit. The argument was helped by the interpretation that the Marine Mammal Protection Act requires foreign whalers to obtain permits or risk seizure o f their boats and cargo. President Carter settled the matter when he declared that there would be no whaling within the 200-mile limit of the United States, and therefore no permits would be issued. The United States decision was taken under the authority of the Marine Mammal Protection Act and the Endangered Species Act. It was based on the position that "coastal states should have the right to take action more restrictive than that agreed upon in the International body, but not to take less restrictive action and thereby weaken internationally accepted conservation measures... ''3. Other coastal states could interpret their opportunities and obligations just the reverse and allow whaling either foreign or domestic within their 200-mile limit in compliance with or above IWC quotas. Because Japan has taken about onethird of its sperm whale quota and 30 Bryde's whales within this zone claimed by the United States, the decision prompted strong objections by the Japan Whaling Association. Included in its complaints are the fact that the U.S. lists the sperm whale as endangered, which the association claims is "scientifically groundless", and the Bryde's whales are not on the U.S. list but are protected Environmental Policy and Law, 3 (1977)

under the 200-mile zone decision anyway. Since this exchange, the 1977 IWC agreed on the drastically reduced sperm whale quota for the North Pacific (as discussed above). If this decision is not altered at the November special meeting of the Scientific Committee, then Japan will have little to argue over with the United States. If the quota is increased significantly, however, so that Japan can participate in sperm whaling in the North Pacific next spring, then this conflict will arise again. The United States has an additional unilateral tool that, if applied, could have significant benefits for whale conservation. This is the Pelly Amendment

that Japan and Russia would abide by future IWC quotas, and (2) the domestic economic disruption which would be caused by halting the substantial imports from the two countries. While neither country has issued an objection since then, the President's second reason would seem to indicate that the offense would have to be extreme for the President ot issue such a ban on importation of fish products. The U.S. Department of Commerce is now reviewing the recommendation by the Marine Mammal Commission that the Pelly Amendment be invoked against Peru and South Korea. Peru took 213 sei and Bryde's whales in 1976, all outside the IWC quota. South Korea took 43 fin whales in the North Pacific, a population protected by the IWCs. The Pelly Amendment can be used against a non-IWC nation if its actions are detrimental to conservation regulations. President Carter's environmental message of May 23, 1977 directed the Secretary of Commerce to report "within 60 clays any actions by other countries that have diminished the effectiveness of the International Whaling Commission's conservation program". This is a warning The marine symbol is the trademark and copyright of the World Wildlife Fund that the Pelly Amendment is likely to be invoked against any whaling country if it does not abide by the decisions of to the Fishermen's Protective Act of the IWC. This unilateral action, or the 1967. It "authorizes the Secretary of threat of it, could have more impact on Commerce, whenever the nationals of a whale conservation than the unenforceforeign country 'are conducting fishing able decisions of the IWC. Other nations operations in a manner or under circum- concerned with cetacean survival could stances which diminish the effectiveness enact similar laws. of an international fishery conservation program', to certify such fact to the President. The President may then direct New treaty for IWC the Secretary 'to prohibit.., the imporWhile the above methods of strengthtation.., of fish products of.the offendening the international regulation and ing country for such duration as he protection of whales are being discussed, determines appropriate and to the extent the IWC is moving forward on drafting a that such prohibition is sanctioned by new convention. A Working Group o f the IWC has prepared a revised text and the General Agreeement on Tariffs and Trade ''4. The term "international fisfiery has collated amendments proposed by a few countries. The effort has advanced conservation programs" has been interto the point that a preparatory meeting preted to include whales. GATT sancon the new convention will be held next tions trade restrictions relating to exMarch in Copenhagen. A formal meeting haustible natural resources. of plenipotentiaries will be held in the One attempt was made to use the United States during the winter of 1978Pelly Amendment when in 1974 the 79. All countries that conduct signifiSoviet Union and Japan set their own cant whaling operations or that have quotas for minke whalesin the Antarctic that were substantially above the IWC whale stocks of commercial interest off quotas. The two countries h~d used their coasts are invited to participate. So far the proposed revisions would their ninety-day objection period. President Ford refused to act on the recomnot change the IWC into the kind of mendation of his Secretary of ComInternational Cetacean Commission advocated by reformers. The drafts do merce for these reasons: (1) his belief 117

not attempt to bring the IWC within the framework of the United Nations, nor recognize the common heritage principle. The IWC would remain a voluntary organization. The drafts retain the right of members to take an objection to amendments; enforcement would still be the responsibility of member nations on their own nationals. There is no requirement that whaling members conduct and share scientific research. Some beneficial changes appear more likely to be adopted. They would include: consideration of humane killing; bringing small cetaceans under purview; requiring an ecosystem approach to management; recognition that cetaceans have many values besides economic; and strengthened restrictions on transferring whaling equipment to nonmember nations and prohibiting member nations from importing cetacean products from a nonmember nation. Even with adoption of the best amendments proposed so far, it is doubtful that environmentalists will be satisfied with the new look for the IWC. Many will probably feel there are sufficient grounds for them t o continue to characterize it as a trade association for whalers which fixes public attention on the annual meeting while the animals continue to disappear into the mists of bureaucracy and up the slipways of the factory ships.

Moratorium The clamor for the moratorium on commercial whaling will continue. None of the multilateral or unilateral schemes for dealing with commercial whaling seem likely to be adequate and quick enough to solve the problem o f protecting the world's whales. At the 1972 IWC, held immediately after the United Nations Conference on the Human Environment that called for a ten-year moratorium on commercial whaling as a matter of urgency, the moratorium vote was 4 for, 6 against, with 4 abstentions. In 1973, the moratorium vote was 8 for, 5 against, with 1 abstention. The three-fourths vote requirement in plenary was not met. In 1974 while the moratorium was again on the agenda, it was not voted upon because the IWC adopted instead the Australian Amendment, or the New Management Procedure. Since then, the moratorium has not even been on the agenda. World pressure for it has not abated. Sixty-nine nongovernmental organizations in ten countries signed a state118

ment circulated by Project Jonah, U.S. from the killing would have many direct in 1977 that reaffirmed the demand for benefits to the animals and to people. the moratorium on commercial whaling. It would allow the animals to begin to The IUCN andWorld Wildlife Fund reaf- rebuild their decimated populations and eventually return to their natural role in firmed support of the moratorium at the ecosystems of the world's oceans. the 1977 IWC, as did most of the other It would allow people to e11joy the nonobservers from international organizationsat the meeting. Thirty-six mailbags economic values of great whales. This includes the joy to the human spirit in containing 150,000 petitions for the moratorium were delivered to the Soviet seeing their gentle, loving natures in their watery homes. This would include and Japanese embassies in Washington, the joy of knowing, even without seeing, D.C. by representatives of the Center that whales were at last living out their for Environmental Education's Whale destinies without being hounded by all Protection Fund. The demonstrators the complicated machinery of modern before and outside the IWC meetings in Canberra demanded an end to the killing. whaling. It would allow incentive for scientists to develop methods of studyA decision by the lWC to adopt the ing living whales without capture or moratorium on commercial whaling harassment. Because conservationists would certainly focus public attention prefer to focus on the lives of whales, on any continued trade. It would be the clamor for the moratorium is bound hard indeed for the supplier and buyer [] of these products to continue. A respite to increase. 1 Patricia Birnie, "Extended Coastal State Jurisdiction and the Law of the Sea: Effect on Whales and Other Migratory Species" available from Sierra Club Office of International Environment Affairs, 800 Second Ave., New York, N.Y. 10017; Price $ 2, p. 23. 2 James E. Scarff, "International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary Assessment", Ecology Law Quarterly, Vol. 6, No. 2 and 3, 1977 (two-part article), p. 613. 3 Marine MammalNews, May, 1977. 4 Michael J. Bean, The Evolution o f National Wildlife Law, A Report to the Council on Environmental Quality, U.S. Government Printing Office, Washington, D.C., 1977, p. 307. 5 Marine Mammal News, February, 1977.

A Plea for a Conference of the Parties In the December 1975 issue of EPL doubts were raised in a short article on whether the Ramsar Convention (an international convention on the Conservation of Wetlands and Waterfowl) which came into force on 21 December 1975 would provide any noticeable support in preserving the world's stock of wildfowl. In the two years since then the answer would appear to be a substantial no. It could even be argued that such a "painless" convention can do more harm than no convention at all. The Convention has increasingly become a source of amazement, bewilderment, and indeed amusement to many as being the only convention in existence enabling a party to sign without risk of any change in the status quo. It could continue to serve as a source of amusement and a brilliant example of T

*See Article 8, 1 : "The International Union for the Conservation of Nature and Natural Resources shall perform the continuing bureau duties under this Convention until such time as another organization or government is appointed by a majority of two-thirds of all Contracting Parties". The Ramsar Text was finalized in 1971 before UNEP was constituted, thus there is no reference to UNEP in this Article.

how not to draw up a Convention if the subject it purports to control was not so serious and so in need of regulation; and the argument that the Ramsar Conference intended the Convention to be a highly flexible instrument in order to facilitate the broadest acceptance possible is being used to excuse the ambiguity and bad drafting. How else can one explain the fact that France and certain African francophone countries are precluded from adhering to the Convention because Article 12 states that... "in the case of divergence the English text prevailing", and French law prohibits adherence to any convention in which the French language is not given at least equality with other languages. The answer here is that the Convention must then be amended in this point - but there is no provision for amendment to the text. As Articles 39 and 40 of the Vienna Convention on the Law of Treaties can be applied in such a situation no lasting harm has been done here and it can even be that the Convention has set an interesting precedent in international law. What makes this Convention so extraordinary and implementation so diffi-

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