Swimming through a Sea of Sovereign States: A Look at the Whale's Dilemma

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1. Luis Kunter, "The Genocide of Whales: A Crime against Humanity," report prepared for Outlaw Whaling: Hearing before the Senate Committee on Commerce, Science, and Transportation, 96th Cong., 1st sess., 1979, 29. 2. Richard Harrison and M. Bryden, Whales, Dolphins, and Porpoises (New York: Facts on File, 1988), p. 16. 3. Baleen whales undertake some of the longest migrations in the animal king- dom. The distribution and abundance of food and the availability of sites for repro- duction are the factors that motivate these migrations. Sperm whales follow a similar pattern (ibid., p. 98). 4. Anthony D'Amato and Sudhir K. Chopra, "Whales: Their Emerging Right to Life," American journal of International Law 85 (1991): 21, 28.

5. One author refers to the history of man's depletion of whales as "perhaps the most infamous example of human mismanagement of the earth's natural resources" (Simon Lyster, International Wildlife Law [Cambridge: Grotius, 1985], p. 17). 6. D'Amato and Chopra (n. 4 above), p. 30. 7. Ibid. 8. Res communes resources are those in which a number of owners have coequal rights of usage, but may not transfer that right. See Yoshihiro Kuronuma and Clement A. Tisdell, "Institutional Management of an International Mixed Good: The IWC and Socially Optimal Whale Harvests," Marine Policy 17 (1993): 237. 9. Ibid. 10. Kunter (n. 1 above), p. 130. 11. Kazuo Sumi, "The Whale War between Japan and the United States: Prob- lems and Prospects," Denverjournal of International Law and Policy 17 (1989): 317; Mari Skare, "Whaling: A Sustainable Use of a Natural Resource or a Violation of Animal Rights?" Environment 36 (1994): 12, 14-15; Clay Erik Hawes, "Norwegian Whaling and the Pelly Amendment: A Misguided Attempt at Conservation," Minnesota Jourwial of Global Trade 3 (1994): 97, 99.

12. Harrison and Bryden (n. 2 above), p. 183. 13. The Inuit of the Arctic made use of almost every part of the whale. Meat was used for food; blubber for lamp oil; sinews, skin, and bone for kayak building; and air-filled intestines for harpoon floats. See ibid. 14. Hawes (n. 11 above), p. 99. 15. James Scraff, "The International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary Assessment," Ecology Law Quarterly 6 (1977): 326, 344. 16. Ibid. 17. Patricia Birnie, International Regulation of Whaling: From Conservation of Whal- ing to Regulation of Whale Watching (New York: Oceana Press, 1985), 1: 66-67.

18. Ibid. Since the overexploitation of the right whales in the Bay of Biscay, the whaling industry has progressed in "a series of booms and slumps as the discovery of new whaling techniques and new whaling grounds has been invariably followed by the rapid depletion of one population after another" (Lyster [n. 5 above], p. 17). 19. Scraff (n. 15 above), p. 344. 20. Birnie (n. 17 above), 1: 66, 67. 21. Ibid. 22. Dean M. Wilkinson, "The Use of Domestic Measures to Enforce an Interna- tional Whaling Agreement: A Critical Perspective," Denver Journal of International Law and Policy 17 (1989): 271; Kathy Glass, "Whaling the Cultural Gulf," Australian Natural History 23 (1994): 664. 23. American whalers took every whale in a fishing area "whether bull, cow or calf." See Joseph Rosati, "Enforcement Questions of the International Whaling Commission: Are Exclusive Economic Zones the Solution?" California Western Interna- tional Law journal 14 (1984): 114, 121. In contrast, the Japanese practiced traditional net whaling, a technique developed around 1606 that used thousands of people and sustained local whale populations through ecologically sound hunting practices. Hunt- ing females or calves was prohibited, unlike the Western practice of indiscriminately taking whole pods. See Glass (n. 22 above). 24. Scraff (n. 15 above), p. 345. See also William Graves, "The Imperiled Giants," National Geographic 150 (1976): 722, 725. 25. Scraff (n. 15 above). 26. Wilkinson (n. 22 above), p. 271.

27. Out of 900 whaling vessels operating worldwide in 1846, more than 700 were American. The American whaling industry employed over 70,000 people at this time. See Graves (n. 24 above), p. 730. 28. Ibid. 29. Ibid., p. 732. 30. Ibid. 31. Rorquals are a class of baleen whales that include the blue, fin, sei, Bryde's, minke, and humpback (Harrison and Bryden [n. 2 above], pp. 27-29). 32. Scraff (n. 15 above), p. 346. 33. Graves (n. 24 above), p. 732. 34. Ibid. 35. Rosati (n. 23 above), p. 122. 36. Wilkinson (n. 22 above), p. 272.

37. Ibid. 38. The Action Plan adopted at Stockholm included 109 recommendations that governments should follow in dealing with environmental problems. Recommenda- tion 33 provides that "[g]overnments agree to strengthen the IWC ... and to call for a 10-year moratorium on commercial whaling" (cited in Birnie [n. 17 above], 1: 368). 39. The moratorium was designed to allow an assessment of stock levels and to develop scientifically based methods of establishing quotas that would prevent over- harvesting. See Cynthia Taliaferro Bright, "The Future of the International Whaling Commission: Can We Save the Whales?" Georgetown International Environmental Law Review 5 (1993): 815. 40. At 10 m in length and 9 tons in weight, minke whales are the smallest of the rorqual species. See Harrison and Bryden (n. 2 above), p. 29. 41. Cliff Stein, "Whales Swim for Their Lives as Captain Ahab Returns in a Norwegian Uniform: An Analysis of Norway's Decision to Resume Commercial Whal- ing," Terreple International and Comparative Law Journal 8 (1994): 156. The IWC does not consider the minke to be an endangered species and estimates the current world population to be at 761,000 in the Antarctic Ocean, 87,000 in the northeast Atlantic, and 25,000 in the North Pacific. See Teruaki Ueno, "IWC Votes to Extend Ban on Commercial Whaling," Reuters Limited, 14 May 1993. 42. At the 1994 IWC meeting Japan requested that the IWC authorize it to take 2,000 minke whales each year for profit. See "Japan to Protest IWC Vote to Form Antarctic Whale Sanctuary," Kyodo News International, 15 August 1994. 43. "Watery Reserves," Econo�mist, 28 May 1994. 44. Skare (n. 11 above), p. 15. 45. "Japan Calls IWC Decision on Sanctuary `irrational,"' Japan Economics News Wire, 27 May 1994.

46. Bright (n. 39 above), p. 818. The price of whale meat has more than doubled in the last decade. Whale meat is no longer a mainstay of school lunch programs and local fish markets but now serves as a pricey delicacy, with an average lunch costing about $45. See Patricia Chisholm, "Prince of the Tides," Maclean's 14 June 1993. 47. Bronwen Maddox and Robert Thomson, "Whaling Countries Seek End to Ban," Financial Tinzes, 10 May 1993. 48. Norway raised formal objections to the commercial moratorium when it was voted on at the 1982 IWC meeting. Because it raised formal objections, under the ICRW it is not technically bound to abide by the moratorium. See Hawes (n. 11 above), p. 124. 49. Clinton's decision not to impose sanctions was influenced by Norway's involvement in mediating the peace agreement between the Palestine Liberation Orga- nization and the Israeli government. Norway agreed to host secret negotiations be- tween the warring factions, which allowed for private and open consultations. In addition, Clinton was also concerned with preserving the integrity of the IWC. See Stein (n. 44 above), pp. 176-77. 50. "Watery Reserves" (n. 43 above). 51. Ueno (n. 41 above). 52. Nina M. Young, "Whales Find Sanctuary at IWC Meeting," Marine Conserva- tion News 6 (autumn 1994): 1-4. The RMP allows takes up to the point where a whale stock remains at or above 54% of its preexploitation population levels. See Nina M. Young, Understanding the Revised Management, Procedure (Washington, D.C.: Center for Marine Conservation, 1992), p. 14. 53. Young, "Whales Find Sanctuary" (n. 52 above), p. 1. 54. "Japan Calls Decision `irrational"' (n. 45 above).

55. Birnie (n. 17 above), 1: 128-30. The 1931 Convention for the Regulation of Whaling prohibited commercial hunting of only two species, the right whale and the bowhead whale. Although the convention tried to prevent excess waste in the industry by requiring whalers to make full use of whale carcasses and prohibited the killing of calves and immature females, it had little effect because five of the whaling states, Japan, Germany, Chile, Argentina, and the USSR, did not sign it. See Lyster (n. 5 above), pp. 17-18. 56. Bright (n. 39 above). 57. International Convention for the Regulation of Whaling with Schedule of Whaling Regulations, 2 December 1946, U.S. Statutes at Large 62: 1716 (hereafter cited as ICRW). 58. Ibid., Art. III(1). 59. Ibid., Arts. V(1), (2). 60. Ibid., Art. III(2).

61. Ibid., Art. 1(2). 62. Ibid., Art. V(3)(a). 63. Ibid., Art. V(3)(b). 64. Ibid., Art. V(3)(c). 65. Lyster (n. 5 above), p. 27. 66. Ibid.

67. Bright (n. 39 above), p. 818. 68. Ibid. 69. Oran R. Young, Milton M. R. Freeman, Gail Osherenko, Raoul R. Andersen, Richard A. Caufield, Robert L. Friedheim, Steve J. Langdon, Mats Ris, and Peter J. Usher, "Subsistence, Sustainability, and Sea Mammals: Reconstructing the Interna- tional Whaling Regime," Ocean and Coastal Management 23 (1994): 118. 70. ICRW (n. 57 above), Art. VIII(1). 71. See "Watery Reserves" (n. 43 above); "Japan Calls Decision `irrational"' (n. 45 above). 72. Wilkinson (n. 22 above), p. 278.

73. Perhaps the best example of this was a proposal submitted by the Japanese to take sperm whales in Antarctica. The research was allegedly necessary to examine the stomach contents of the whales in order to determine their diet. For centuries it has been known that sperm whales eat giant squid. When this point was raised to the Japanese scientists who submitted the proposal, they responded by stating that they really were interested in learning what the squid were eating. See ibid. 74. "Japan Proposes Whaling of 100 Minke Whales to IWC Panel," Japan Eco- norrtic Newswire, 30 April 1994. 75. C. S. Baker and S. R. Palumbi, "What Whales Are Hunted? A Molecular Genetic Approach to Monitoring Whaling," Science 265 (1994): 1538. 76. ICRW (n. 57 above), Art. IX(4).

77. The Pelly Amendment authorizes the president to place an embargo on the importation of fish products from a state that the secretary of commerce determines has conducted fishing operations in a manner or under circumstances that diminish the effectiveness of an international fishery conservation program or has directly or indirectly engaged in trade or taking that diminishes the effectiveness of any interna- tional program for endangered or threatened species. The Packwood-Magnuson Amendment requires the president to reduce automatically a state's allocation of fish- ing rights within the U.S. EEZ when the secretary of commerce determines that the state has directly or indirectly conducted fishing operations or engaged in trade or taking that has diminished the effectiveness of the ICRW. See Lyster (n. 5 above), pp. 34-35. 78. Wilkinson (n. 22 above), pp. 281-83. 79. Francis G. McFaul, U.S. Foreign Trade Highlights, 1993, report prepared for the U.S. Department of Commerce, International Trade Administration, Office of Trade and Economics (Washington, D.C.: Department of Commerce, 1994), p. 162. 80. Wilkinson (n. 22 above), p. 285. 81. The recent GATT Dispute Panel decisions on the tuna-dolphin issue indicate that this could well be the case. The panel determined that the United States could not restrict imports of tuna from Mexican fishers who catch tuna by purse seining "on dolphin," a practice that incidentally kills thousands of dolphins each year. The panel found that the import ban violated Article XI(1) of the treaty and was not permitted under exceptions in Articles XX(b) and (g). See Bright (n. 39 above), p. 823. 82. The Rio Declaration on Environment and Development was adopted by the United Nations Conference on Environment and Development (UNCED) at Rio de

Janeiro, 13 June 1992, UN document A/Conf.151/26, vol. 1, International Legal Materi- als 31 (1992): 874. Principle 12 states, in relevant part: "Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global envi- ronmental problems should, as far as possible, be based on international consensus." 83. United National Convention on the Law of the Sea, concluded at Montego Bay, Jamaica, 10 December 1982, UN document A/Conf.62/122, International Legal Materials 21 (1982): 1261. 84. Birnie (n. 17 above), 1:586. 85. Ibid., p. 593.

86. Ibid.

87. Convention on International Trade in Endangered Species of Wild Fauna and Flora, concluded at Washington, 3 March 1973, entered into force 1 July 1975, U.S. Treaties and Other International Agreements 27: 1087 (1973), Art. 2(1), (2) (hereafter cited as CITES). See also Lyster (n. 5 above), p. 241. 88. Lyster (n. 5 above), p. 239. 89. Ibid., p. 240. 90. CITES (n. 87 above), Arts. 3(5), 4(6). 91. Bright (n. 39 above), p. 825. 92. Lyster (n. 5 above), p. 264.

93. Ibid. 94. Bright (n. 39 above), p. 827. 95. Ibid. 96. Lyster (n. 5 above), p. 278. 97. Convention on the Conservation of Migratory Species of Wild Animals, Inter- national Legal Materials 19 (1980): 15, Art. 3(1).

98. Ibid., Art. 4(1). 99. Convention on the Conservation of Antarctic Marine Living Resources, Inter- nationals Legal Materials 19: 841 (1980), Art. 2(3).

100. Wilkinson (n. 22 above), p. 291. 101. An international working group of social scientists with extensive experi- ence in whaling issues and international resource management reached this conclu- sion. See Young et al. (no. 69 above), p. 119. 102. Ibid., p. 120. 103. Bright (n. 39 above), p. 828.

104. For example, in the case of Japan, repeated threats of economic sanctions have resulted in backing the Japanese into a "cultural corner" from which they feel compelled to vigorously defend their national pride and traditions. As one Western diplomat has noted, "If the U.S. hadn't made such a fuss, Japan would have given up whaling long ago." See Glass (n. 22 above), p. 23; Christine Tierney, "Japanese Feel Puzzled at Whaling Conference," Reuters Limited, 26 May 1994.


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