Case Study: Whaling Debate

Michael Williamson (
Mon, 21 Jan 1995 16:16:28

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From: Michael Williamson <WHE_WILLIAM@FLO.ORG>
Subject: Case Study: Whaling Debate
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The following is a reply to Alan Macnow's post with respect to Robbins
Barstow's excellent statement recently posted on MARMAM.
>     1. While I agree that "whales are a global resource and a global
>     responsibility" by virtue of the fact that they are highly
>     migratory, I do not agree that they are "a special case" and there-
>     fore exempt from utilization.  Certainly, neither Japan nor any
>     other country has any inherent right to the whales, neither to
>     their exploitation nor to declaring them sacrosanct.  However, many
>     countries consider them a renewable natural resource capable of
>     being sustainably utilized and their views should not be denied nor
>     suppressed by those who believe otherwise.
Whether or not whales are "special", they differ from many other potentially
exploitable marine resources in that many people, and many countries, have a
special attitude towards them that goes beyond their mere exploitability.
While Japan, or others, may disagree with this, or argue that it is not
scientifically based, it is nonetheless there and as strongly-entrenched
culturally as the attitude towards whales that we are often told prevails in
Japan (regardless of which attitude is historically older).  Thus,
considering that they are not the property of any one country, ALL the
attitudes towards them, be they exploitationist, protectionist or whatever,
deserve to be aired and considered (rather than being "denied or
suppressed", which is not happening anyway).  As long as we believe that
international cooperation and mutual respect among peoples is valuable,
nations cannot merely act as they wish while riding roughshod over the
wishes of others.
Of course this argument cuts both ways; in effect it does not tip the scales
in one direction or another but balances them.  Thus, the argument "You must
let us whale because that our attitudes towards whales (whatever their
source) require or permit it" is no stronger than the argument "You must not
whale because our attitudes towards whales (in which our share is as great
as yours) require that they not be taken in this way".  Thus the decision
whether or not to permit whaling must be decided on the assumption that both
positions are legitimate under international law and by resorting to the
international legal mechanisms available to do so (in this case, the ICRW).
>     2. Mr. Barstow stated: "As pointed out by Japanese scientist Hideo
>     Obara, "Whales are not domestic animals.  The oceans where whales
>     live are not the private property of Japan."
>     I believe that Obara is a journalist, not a scientist.  The Japa-
>     nese do not believe that the whales are Japan's private property
>     and, in fact, the IWC does not permit the allocation of whale catch
>     quotas to any particular country.  All countries with an interest
>     in catching them can do so, provided that the total catch does not
>     exceed the IWC's catch limits.
I was under the impression that Mr. Obara did, indeed, have scientific
credentials; perhaps someone could clarify this?  As to the wording of the
ICRW, I believe Mr. Macnow is referring to Article V, par. 2(c), which
forbids the allocation of specific quotas "to any factory ship or land
station or to any group of factory ships or land stations".-
>     3. ......  Only 39 of the world's almost 200 countries
>     belong to the IWC, and the 23 which voted for the Southern Ocean
>     Whale Sanctuary do not comprise either the majority of the coun-
>     tries nor the majority of world population.
However, they certainly represent a greater proportion of it than the ONE
country, Japan, that voted against it.  There is nothing in the ICRW that
requires member states either to be involved in whaling themselves or to
attempt to be representative of the world as a whole.  If other nations feel
that their voices are not heard, let them join.
Second, the IWC was
>     not established to determine the "values to be applied to this par-
>     ticular category of fauna."  It was established and empowered to
>     manage whaling, not "values," under the provisions of the Interna-
>     tional Convention for the Regulation of Whaling (ICRW).  And third,
>     international conventions or treaties depend entirely upon the
>     voluntary adherence to its provisions of their signatory nations,
>     each of which is a sovereign state.  Non-signatories are not bound
>     by it.  And signatory nations are not bound by provisions estab-
>     lished by the IWC to which they object.
Actually, the Preamble to the ICRW states that it recognizes "the interest
of the nations of the world in safeguarding for future generations the great
natural resources represented by whale stocks", and notes that "it
isessential to protect all species of whales from further over-fishing".
Thus the ICRW was set up to protect whales, and though in 1946 it was not
expected that this would mean a moratorium on whaling or the establishment
of sanctuaries there is nothing in the language of the ICRW making such
things impossible.  As to Mr. Macnow's third point, I agree but I do not see
its relevance here.
>     4. Mr. Barstow states: "Until recent years, it was taken for
>     granted that "optimum utilization" meant maximum sustainable har-
>     vesting. . .  however, the idea has grown throughout the world that
>     whales are worth more to humankind alive than dead, and that their
>     "optimum utilization" should involve their non-lethal conservation,
>     management and study."  I am afraid that Mr. Barstow has general-
>     ized and universalized the "idea" promoted by him and his like-
>     minded friends. Most of the countries that utilize whale products,
>     or who would like to utilize whale products and other renewable
>     natural resources would strongly dispute any idea of placing any
>     natural resource off-limits.
But, as I pointed out, others, including some ICRW signatories, feel
otherwise.  In any case, the ICRW signatories have never taken any step that
closes the door on whaling for all time.  The moratorium is just that, a
moratorium, and the sanctuary does not extend to the entire ocean.
>     5. Mr. Barstow states:  "There is nothing in either ICRW or UNCLOS
>     which precludes non-consumptive uses such as benign research, edu-
>     cation, and whalewatching as appropriate, desirable, and legitimate
>     bases for whale management."
Mr. Macnow's reply (accidentally deleted here) was that the ICRW regulates
whaling only.  However, I would argue that though this is largely true the
preambular language quoted earlier is broad enough to permit members to take
into consideration the protection of whale stocks for other purposes.
>     6. Mr. Barstow states: "In today's world, the rational, science-
>     based, sustainable utilization of natural resources has come to be
>     accepted as a general rule."  Quite right!
Well, I would say that it has come to be accepted as a mantra.  Whether or
not it is actually happening on a case-by-case basis is another matter
altogether; indeed, one can question for certain marine resources whether it
is even possible in the light of our current knowledge.  There are quite a
few fisheries that have collapsed under so-called "rational, science-based
sustainable utilization".   In my experience at CITES and elsewhere the
terms "rational", "scientific", and especially "sustainable" are trotted out
as buzzwords to justify any type of wildlife utilization as though merely
mentioning them was proof that they were, indeed, applicable - as though
there were only two states possible, "sustainable use" and "protectionism",
and that there was no such thing as poor wildlife management or
>     7. Mr. Barstow states: "Indeed, the non-consumptive utilization of
>     the international resource of whales may be considered their 'most
>     highly sustainable' and therefore rational use."  There are popula-
>     tion dynamics scientists who can point out many stocks of wildlife
>     that were unable to sustain their populations although untouched by
>     predation.
Yes, but so what?  Are you suggesting that ADDING pressure to these
populations will improve the situation?  This is not one of those
"use-it-or-lose-it" arguments trotted out, with varying degrees of
justification, for species living on land that might be expropriated for
other purposes if exploitation is not permitted - I cannot see how such
arguments could apply to whales.  What happens in natural populations has
nothing to do with humans deciding what uses, if any, are appropriate for us
to apply to them.
  >Non-consumptive utilization,
>     therefore, is hardly a "highly sustainable use."  Consumptive
>     utilization under the principles of sustainable management is more
>     rational because it provides humans with food and products while
>     maintaining the populations for future generations.  It is a way to
>     have one's cake and eat it, too.
Non-consumptive utilization is certainly capable of being highly sustainable
in that it can add little or no ADDITIONAL stress to wild populations.  If a
population is unable to sustain itself under natural conditions, it is
probably not capable of being used in any way that stresses it further -
unless Mr Macnow is arguing that whales are declining so let's grab 'em
before they go.  Once again, utilization under the "principles" of
sustainable manaement guarantees nothing; only the actual PRACTICE of truly
sustainable utilization, or, if this cannot be put into place,
non-utilization for varying periods of time, can have a chance of doing so.
>     8.  ....However, those "other nations" have no right
>     to violate the provisions of the International Convention for the
>     Regulation of Whaling (ICRW) which call for the IWC to take
>     measures "to provide for the conservation, development, and optimum
>     utilization of the whale resources; (b) shall be based on
>     scientific findings;  ... and (d) shall take into consideration the
>     interests of the consumers of whale products and the whaling indus-
>     try."  Nor do these "other nations" have a right to contravene the
>     purpose of the ICRW which, among other things, calls for providing
>     "for the proper conservation of whale stocks and thus make possible
>     the orderly development of the whaling industry."  If these "other
>     nations" cannot fully adhere to the ICRW, they should resign from
>     the IWC.
As pointed out above there have been no violations of ICRW.  A moratorium or
the establishment of sanctuaries can be perfectly justified in the legal
sense as measures taken to permit recovery of stocks and for the
conservation of whale resources.  They are NOT ultra vires the wording of
the treaty, though arguably a permanent global ban might be.  As to Article
V, clauses (b) and (d), quoted above, I submit the following:
(b) requiring decisions to be "based on" scientific findings does not
require parties to cede their sovereign decision-making powers to the
Scientific Committee.  This is equivalent to the situation in which a judge
may hear expert evidence in a case but is not required to let the expert
direct his or her verdict.  The Parties, under the general principles of
state sovereignty, are free to take other factors, including sociopolitical
ones, into account.  Further, as others have pointed out, Japan has ignored
the Scientific Committee in the past and has certainly attempted to
influence the decisions of other Parties with economic pressure.  Well,
what's sauce for the goose...
(d) again, "taking into consideration" the interests of the  whaling
industry only means that these interests cannot be ignored, not that they
must direct the result.  If the treaty had said something like "act in
accordance with the interests..." a different argument might have been
possible - but even then one could argue that steps designed to preserve
whale stocks in perpetuity ARE in the interest of consumers of whale
products.  After all, no whales=no products.
Bear in mind that international law is an evolving thing, and that the ICRW
was signed in 1946.  In 1995 it must be interpreted in the light of our
present standards, not those that existed in the 1940's; as with any treaty,
it should be a living instrument for cooperation among nations, not a dead
hand throttling necessary or even highly desirable actions by its Parties.
Ronald I. Orenstein                           Phone: (905) 820-7886 (home)
International Wildlife Coalition              Fax/Modem: (905) 569-0116 (home)
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