WHALES AS M
JAN
ENDANGERED
MARTIN
97
SPECIES
WHALES AS AN ENDANGERED SPECIES
BY
JAN MARTIN
Submitted to
Professor Frank E. Skillern
Texas Tech School of Law
January 9, 1978
WHALES AS AN ENDANGERED SPECIES
Introduction
I.
The Whale
Classification
Feeding Habits and Migration
Recruitment
II.
Whaling
History
Technological Development
Japan's Role
Need for Regulation
I'll.
Whaling Regulation
1931 Convention for the Regulation of Whaling
Blue Whale Unit
19^6 International Convention for the Regulation of Whaling
International Whaling Commission
Federal Statutes
IV.
Other Considerations
Economic Costs of Whaling
Minimization of Harm and Ecology
Conclusion
99
WHALES AS AN ENDANGERED SPECIES
So little is known of the whale that it is difficult
to be certain of many things.
Greater knowledge is
possessed by man now than ever before, yet in relation
to knowledge of other animals it is comparatively little.
Many conferences have been held on the regulation of whaling
and there are two international conventions in force, not
to mention several Federal statutes. The study of whales
and whaling unfolds multiple aspects of the problems which
go hand in hand with any attempt at conservation of whales
or regulation of whaling.
1.
The Whale
According to scientific nomenclature whales cannot be
correctly termed an endangered species because whales are
part of the Order Cetacea.
Nonetheless, there are eight
species of whales listed as endangered in the Federal
2
.
3
Register as ordered by the Endangered Species Act of 1973.
including the Blue Whale, Bowhead Whale, Fin Whale, Gray
Whale, Humpback Whale, Right Whale, Sei Whale and Sperm
Ll
Whale.
The fact that these great whales are included on
this list means that neither the animals nor their products
may be imported into the United States.J
McVay defines an endangered species by stating "a
species is endangered when the exploitation rate is so
100
2
high that, on the average over time, each adult less than
6
replaces itself in the next generation."
The above listed
animals have been subjected to such exploitation.
These
whales are commonly known as the great whales or larger
Cetaceans and have been the basis of the international
whaling industry.
Cetaceans are mammals, though often referred to as
fish by whalers/'7
The order is divided into two distinct
suborders, Mystacoeti and Odontoceti.
The seven whales
listed above besides the sperm whale all fall into the
first suborder and are known as baleen whales.
Suborder
Odontoceti encompass sperm whales, porpoises and dolphins,
members of this group are known as toothed whales.
In
the Suborder Mystacoeti the whales 8
of the family Balaenopteridae are referred as rorquals,
and are characterized
by the grooves running from the lower lip to the chest.
The blue whale, fin whale, sei whale and. the humpback fall
into this category.
The blue whale has been named the
mainstay of whaling because it is the largest of the whales,
yielding more profit for whalers.
Little is known of whales as compared to other marine
mammals due to the difficulty of intense research.
The
amount of and type of food in addition to their size makes
it impossible to keep a great whale m
captivity for study.
Sperm whales feed mainly on squid which is one reason
they spend most of their lives in tropical seas.
abundant where cool and warm waters meet.
Squid are
Baleen whales
possess plates of whalebone instead of teeth limiting their
diet to small sea animals-, i
ankton. and phytoplankton,
10
which can be swallowed without chewing.
A major part of
their diet' consists of krill, small crustaceans.
Diet
in part controls the migration of baleen whales.
The
summer months are spent in polar waters, feeding, the
whales migrating before the ice pack expands and cuts off
the open sea and food supply.
The whales travel toward
11
warm waters for mating or to give birth.
Krill is abundant in cold water due to the abundance
of carbon dioxide, oxygen and other inorganic nutrients
which nourish diatoms.
Diatoms are small plants on which
12
krill feed.
Damage to the environment is a result when
a food chain is severely disrupted, but the probabilty
and nature of the damage remains unknown.
A species of whale will separate into stocks.
is a group within which whales live and breed.
A stock
A species
can be termed a group potentially able to interbreed, but
a stock is a population unto itself.
ically and behaviorially seperate.
Stocks are geograph-
For example, a stock of
blue whales migrates to the Arctic and another migrates to
the Antarctic during the summer.
seasons between the13hemispheres
Due to the difference in
these whales will probably
never intermingle.x
Baleen whales are found in groups of mixed sex while
sperm whales are found in polygamous groups of one male
and about ten females.
Among baleen whales the sise
difference between male and female whales is minimal making
it useless to set quotas by sex, however, female sperm
whales are often ten feet or more shorter than males, making
it possible to set quotas by sex. ' Consequently, males
without harems can be killed without affecting the
recruitment rate drastically (in theory).
Recruitment is "the quantity natrually added to the
stock each year to build it up to replace what has been lost
through natural deaths or catching" while "sustainable
yield is ... the catch which can be taken without affecting
15
the level of the stock." J
The rate at which stocks reproduce is a major factor
in deciding whether a stock or a species dies out.
Two
principles apply theoretically to the relationship between
population size and recruitment.
The first is a tendency
for the recruitment rate to increase as population size
decreases, making-up for the loss.
However, the second
principle refers to a critical population level.
At this
level the recruitment rate ceases to increase as the population
becomes smaller? when a population reaches this level
extinction is inevitable.
Each species has a different
critical population level, whether several hundred or
thousand.
II.
Whaling
Aside from several major developments, the factory
ship in 1905. and harpoon with the exploding head in the
1860's, the whaling industry has not undergone a great
17
number of changes since its beginning.
The Basques began
whaling from land bases in small boats during the twelfth
century.
The right whale was the first target because
103
its migration route is along the European coast and it is
a slow swimmer.
By the fifteenth century they had built
18
larger ships and pelagic whaling began.
Although Arctic
whaling during the early seventeenth century was known as
19
the Golden Age of Whaling,
y
the discovery of Antarctic
stocks produced the largest catches ever.
Whaling in the United States began in the seventeenth
century? early whalers also exploited the right whale.
The value of sperm whales was
20 discovered in 17-12, providing
stimulation to the industry.
Americans
As the Basques,
the
killed the whale which was the easiest to kill
first then moved to the open seas. The sperm whale became
the support of the American industry which virtually ended
?1
in 1925s ~
though Eskimos continue whaling.
Rorquals became significant in the twentieth century
due to advanced technology.
Whalers long knew about them
but they swam faster than ships could sail and sank when
killed. The development of the steam powered catcher boats,
harpoons with expd^liding heads fired from cannons,.^and„a
method
of filling
the carcass^With
air to float
themAntarctic
made
it possible
to comercially
market rorquals.
22 The
was a virtually untouched source of rorquals in the early
23
years of this century.
J
Rorquals
could always be found
during the Antarctic summer because of their food supply
requirements.
For the whaling season of 1913-1^ "the Antarctic
catch was eighty percent of the world catch and more than
three times the world catch ten years before.
Whale oil
production peaked in 1931 but, the largest amd most profitable
whales had been overfished? an increased catch never produc
2k-
as much marketable product.
The Japanese also have a whaling history.
Like the
Basques and New England whalers they were able to operate a
land based industry by killing gray whales and others that
passed close to shore.
In the seventeenth
century they
25
developed large nets to catch whales.
In modern whaling
Japan takes a large share of the established quotas. As
countries like Great Britain and Norway decreased their
fleets' size and later ceased whaling, Japan bought their
ships and a share of their quotas.
Using these quotas
plus its own, Japan has been able to maintain a 2
larger
6
catch and still remain within agreed regulation.
As the Antarctic stocks dwindled, the North Pacific
regained some importance as a whaling ground.
A special
meeting was called in 1966 for the nations involved,
including Japan, Canada, U.S.S.R. and the United States.
Canada and the United States were involved
because of the
27
whaling done by Indians and Eskimos.
The urgent need for stringent regulations is exhibited
by a few facts.
The bowhead, right and gray whales were
over exploited before and during the ninteenth century;
the blue whale whale has almost been wiped out.
If we
term the existing whale stocks as the principal, a certain
number of whales can be harvested without depleting the
population; this harvest can be termed interest.
While
the principal is undisturbed interest will be produced,
105
-2?but if both the interest and principal are used the resource
will become depleted and extinct.
,
the principal.
Regulation should preserve
28
III.
Whaling Regulation
If whaling had remained based in land stations, regulation would be most effective through individual nations,
but whaling is pelagic and international regulation is the
29
most effective means of controlling pelagic whaling.
Though the international community had recognized the
30
need for strict regulation
the Convention for the Regulation
of Whaling of 1931 was virtually useless.
The limitations
set were too vague, also the nations offered only limited
protection to the almost extinct right whale and bowhead
whale.
"Additionally, the convention is internationally
uneforceable due to the failure of Japan and the U.S.S.R. to
accept it.
As of January 1, 1976, there were 32
forty-seven
nations as signatories to the 1931 Convention.No matter how weak the 1931 Convention is, it was a
first step.
In 1937 the International Agreement for the
Regulation of Whaling was signed containing regulations
limiting the season, placing a minimum length on blue whales,
33 AACL
limiting the area permissively subject to pelagic whaling.
Two conferences were held in 1938 and 1939 prescribing
more regulations; one was planned for 1940 but World War
II cancelled it and precluded further efforts until 1944.Before World War II and throughout the 1930's Japan remained
uncooperative. 35
I /CO
-S-The first attempted regulation after World "War II was
instigated by the British in 1944.
It was at this conference
that the blue whale unit was established as the standard
for quotas in the Antarctic region (south 40° S. latitude).
The quota set was 16,000 b.w.u..
One b.w.u. equals onn
blue whale, two fin whales, two and one-half humpbacks or
six sei whales.
Based on oil yield the system has proved
scientifically unsound.
It was hoped that whalers v/ould
divide their catch among the different species but this did
not occur.
The 16,000 b.w.u. quota was too high and as
always the whalers hunted the blue and humpback whales
3?
first to obtain the highest yield with the least effort.
The United States called the next conference in 1946.
The result of this conference was the International Convention
for the Regulation of
o Q Whaling and the International Whaling
Commission or IWC. "
Fourteen nations represented
themselves at the conference; Japan was represented by
Allied Observer Officers.
Several countries later subscribed
to the 1946 Convention including: Iceland, Sweden, Mexico,
Panama and Japan.
Several countries have since withdrawn
including: Chile and Peru. Chile and Peru then combined 40
with Ecuador to form the Commission for the South Pacific.
As of January 1, 1976 there were fifteen nations listed
4l
as parties to the Convention.
The 1946 Convention has only been ammended once since
1946, in November, 1956.
The purpose was to extend regulation
to aircraft, helicopters, and to make methods of inspection
42
among the ammendable provisions of the Schedule.
107
-17The Preamble to the 1946 Convention sets the tone
for the Convention's interpretation; it is in the Preamble
il o
that conflict first arises.
J
The Convention speaks of
whales as a natural resource that should be protected in
the second paragraph of the Preamble.
The words
"conservation" and "preservation" are present throughout,
but in the last paragraph, the preamble states conservation
is desireable to "make possible the orderly development of
the whaling industry."
J
The whaling industry has main-
tained an active interest in the activities of the IWC,
established in Article III of the Convention.
The IWC
is to encourage studies of whales and whaling, collect
data on whale stocks, study information on population
46
maintenance, and make reports of its activities.
The 1946 Convention has a second part known as the
Schedule; it contains the regulatory provisions. The
Schedule can be ammended by a three-fourths majority vote
of the IWC.
This procedure makes it unnecessary to
make new formal agreements in the event of needed changes.
Any subscribing nation has ninety days to object to a
proposed ammendment; if an objection is made the resulting
regulation will not apply to that government.
In case of
an objection there is an additional ninety days granted to
other nations for further objections. A government which
previously agreed
49 to the provision is free to object at
a
later time.
y
This is an effective means of regulation
only for those who want it.
The IWC has no powers of enforcement.
the schedule and its regulation^. i^tt has no
It can change
power if a
47
'
48
-10K0
state decides not to agree to an ammendment^
and objects.
Aside from the problems within the 1946 Convention, many
governments do not grant unconditional authority to the
head of the delegation to the IWC.
This increases the pass-
ibiltiy of an objection after the commission has adjourned. 1
The IWC meets in June each year and has three permanent committees, Finance and Administration; Scientific,
and Technical.
Presently a cetologist serves as Executive
Secretary, a change from the part-time administrator of the
past. 52 Although the IWC has no autonomy and can only
c-1
carry out the wishes of member nations,
J
it has made
progress toward whale conservation. A few examples of
regulations include size limits for catching; the setting
of dates for the whaling season, and a ban on killing certain
54
.
.
.
species.
Yet conflict remains, Article V, paragraph one
of the convention authorizes the IWC to ammend the Schedule
defining the type of regulations, while paragraph two
restricts this power in part by
not allowing any limit on
the number of factory ships or land stations per country
and by specificially giving the whaling industry consideration
on every ammendment.
Since the IWC has the power to make regulations but
no power of enforcement, why should a nation bother to
be concerned?
regulations-
Certainly there will be infractions of the
One example involves the role of the inspector
on Japanese whaling vessels.
The position was so honored
that the inspector did not come on deck during
the flensing
(butchering of the carcass).
the needed
The workers took
-10measurements, having no reason to be unbiased, the measurements were probably inaccurate.
Impartial observers
are needed
There are ways of loosening the restrictions such as
filing an objection or withdrawing from the Convention^
<7
states have used both methods.
However, the fact that
the IWC cannot impose sanctions against those who violate
the Convention does not mean that a country will purposely
violate the Convention.
There are many factors which cause
a state to abide by the law even in the face>of temptation
to violate it; a strong expectation of resulting advantages
is ordinarily necessary for a state to violate the international norm.
Under the Convention (19^6)
each subscribing nation
is expected to enforce the regulations in regard to its
citizens, plus fulfill the responsibilities necessary
59 to
maintain international supervision and enforcement.
Nations frequently find it more advantageous to carry out
their responsibilities for several reasons. Observation
of law can be a valuable instrument of foreign policy,^°but
the responsibility of enforcement can become a heavy
burden.
A nation can insure primary representation of its
whaling industry by choosing a delegate to the IWC who is
£?
a member of the whaling association of said country.
In
the past economic considerations have been given too much
weight in setting the quotas; one reason for this is the
whaling industry representation at the IWC meetings.
The
quota for the Antarctic blue whale should never have exceeded
1 1 0
-12}
J
3,000 b.w.u.j the animal was overfished in 1946. 6'
,
t
,
Yet,
fjli
,
the 19^9 quota of 16, 000'b.w.u. was maintained until 1953.
By 1956 the quota was reduced to 14,500'b.w.u. which
was still too high.
The IWC8s authority over quotas is
restricted to a cumulative or "global quota", having no
authority to allocate the quota between nations.
Ordinarily,
the interested nations meet to divide up the quota decided
upon, after the IWC meeting each year,^t the smaller the
stocks become, the harder it is to fill a quota.
To make
a profit it is necessary to get a large catch; therefore,
the goal of Antarctic whalers has?to capture as many whales
as possible as quickly as possible.
Antarctic whaling
66
became known as "The Whaling Olympic."
The IWC has had a hard task in trying to preserve
whales while trying to maintain the subscribing nations'
interest through continued profits from whaling.
In 1959
Norway and the Netherlands withdrew from the convention.
Crippled, because Norway and the Netherlands were still
major whaling nations, the IWC did not set a formal quota
for the 1959-60 season.
for the
In
stocks.
1960-61
I960
and
In fact catch limits were suspended
1 9 6 1 - 6 2
seasons.67
three scientists were appointed to study whale
The major whaling nations agreed to abide by the
committee's recommendations by 1964.
In 1963 the committee
recommended that the blue whale unit be abolished in favor
of quotas set by species, and that a ban on the killing of
blue and humpback whales be instituted.
The permanent
scientific committee supported the special committee, but
the recommendations were rejected in 1 9 6 3 and inll964.68
-13The 1964 meeting has been termed "disastrous" by J. L.
McHugh.
Again, nations were unwilling to adopt the type
of quota necessary to preserve whales; no limit was set
for the 1964-65 season.
The whaling nations met after the
commission meeting and set a quota of 8,000 b.w.u..
y
And in 1964 Japan and other nations objected to protection
for the Antarctic blue whale.
During the 1960's many
nations wanted to implement the International Observer
70
Scheme.
The Convention of 1946 had been ammendea in
1956 to allow this,^ but implementation was delayed?2
The blue whale received complete protection in 1965In 1966 the Antarctic quota was reduced to 3.500 b.w.u.
In 1971 the IWC agreed to abolish the blue whale unit for
1972 and the International Observer Scheme was implemented. 73
There -was a need impartial observers in order to obtain
74
objective data.
The benefit of this plan is that the
observer is not from the country whose fleet he is observing.
75
And, the observers report directly to the commission'-'
By 1975 catch levels had been established for all
oceans, and sperm whales were receiving special attention.
The commission also provided76for more research on behavior
and breeding of all whales.
The sperm whale had not been
included in the blue whale quota system for two reasons.
First, sperm oil and whale oil (from baleen whales) aretotally different and cannot be used for the same things.
Second, few sperm whales are found in the Antarctic. The
blue whale unit was based on whale oil producing
capacity
77
of whales in the Antarctic, mainly rorquals.
In 1973 the United Nations Governing Council for
Environmental' Programs confirmed a resolution for a moratorium
on the killing of whales.
The resolution was rejected at
no
the next IWC meeting* and the United States protested.
The U. S. had been working for a 10 year moratorium through
the IWC.79
Instead of a total
moratorium, the Austrailian
Ammendment was introduced in -1975
and
vVe a v
».»* « *approved
>& v* e sv'V by the
commission.
McKugh feels that ,—s considers the uncertainties
of
precise
estimation
the
sustainable
yield
a whale On
stock
and is
practical of
but
with
the effect
of aof
moratorium.
Under the plan a zero quota is assigned to stocks whose
population is ten percent or more below the maximum sustainable
yield.
81
Maximum Sustainable Yield is
the largest number
of animals which can be caught without any further depletion
82
of the stock.
Under this new plan the permanent Scientific
Committee determines the status of a stock and the quota.
The effect is protection of endangered species and limited
hunting.^
The United States has maintained an interest in whales
despite the absence of commercial whaling as an industry
in the U. S. Interest is manifest by continued participation
84
in the IWC.
There are two strategies which have been
used by the U. S. to further whale conservation on a
international level. The first is a threat to invoke the
Pelly Ammendment to the Fisherman's Protective Act
1967r
of
The effect of which would be a ban on importation
of fish products from
offending nations.
113
The second
-2?is to arouse public opinion and private boycotts of Soviet
8
and Japanese goods.
Japan and the U.S.S.R. are presently
86
the two major whaling nations.
The U.S. implemented the International Convention for
the Regulation of whaling on a national
scale with the
a n
Regulation of Whaling Act of 194-9.
The act provides
for appointment of the U. S. commissioner to the IWC;
88
the commissioner receives no compensation. '
The act also
authorises the Secretary of State in connection with the
Secretary of Commerce to make or
89 withdraw any objections
to ammendments to the Schedule.
y
Violation of IWC regu-
lations is made illegal and licenses and license fees are
required for any whaling operation. 90 The penalty for
violation of the Convention is a fine of $10,000, or
91
imprisonment or both.
The effect of this statute Is
to institute international regulations on a national
level.
The Endangered Species Act should be interpreted as
preventive, it shov/s that Congress is not willing to 92
wait
for a species to become extinct before taking action.'
A species' status is made public through the direction
to the Secretary of the Interior to list all species which
are endangered of threatened m
the Federal Register.
This listing is important
because the act prohibits trade
94
in the whales listed.
This trade limitation can operate
as a sanction for Japan*, until 1970 when the list was
I /CO
first published under the 19&9
ac
"t the U. S. was importin
9 r>
a .large amount of whale meat every year. ^
The act is
directed towards conservation of those species nearing
extinction because there lies the urgent need
Eskimos and Indians subject to Federal jurisdiction
are exempt from regulation where whaling is critical to
food supply and the economy, for example where 97
the whale
is also used in the making of native articles.
Under
this act, two types of penalties may be levied against
the violator.
If the act is knowingly violated in the
course of a commercial activity there is a civil penalty,
but if a person willfully commits an act in violation of
the act a criminal penalty will be assessed,
consisting
98
of a fine, a year in prison or both.
7
The use of the word threatened allows regulation
and preservation before
99 the species
. . . is in immediate
danger of extinction.
7
This is important when one
considers the length of time it has taken to regulate
whaling in a way that gives hope of the whale's survival.
In the last section of the Endangered Species Act of
1973. the statute grants the Marine Mammal Protection Act
precedence in the event of any conflict between the the
two. 1 0 0 The Marine101
Mammal Protection Act took effect
in December, 1972.
Congressional intent seems to
have been aimed toward protecting marine mammals before
L
.
.
they are nolonger a working part of their ecosytem.
1 0 2
This recognition of the need for early regulation and
115
-17of the importance of the ecosystem are just two examples
of the importance of this act.
There is also a recognized need for greater knowledge
of whales as well as recognition of marine mammals as
103
a great recreational, esthetic and economic resource.
A moratorium on the taking or importation of any marine
mammal or marine mammal product is established and exceptions made are made according to scientific need or time
needed to adjust to the fact that marine mammalsi nix
will
no longer be a source of revenue, commercially.
The
moratorium does not apply to Indians, Aleuts or Eskimos
on the coast of the North Pacific or Arctic Ocean, if
the whale is used for food or authentic handcrafts;
however, the secretary is granted the authority by the
act to impose regulations if a species used by the Eskimos
or Indians becomes depleted.
This is the case with the bowhead whale, it seems
that at the 1977 IWC meeting all bowhead hunting was banned
for 1978«
But, the Eskimos claim a great need for hunting
the bowhead.
They won a court order in October of 1977
exempting them from the ban, but this decision was
overturned on appeal by the U. S. Court of Appeals.
The
appellate court reasoned that exempting Eskimos would
damage the United States' efforts at conservation.
The Administration stated that it would ask the IWC at
a meeting held in December, 1977 for permission
107 for the
Eskimos to kill a limited number of bowheads.
The
question is, are there enough bowheads to allow for any
116
-10more killing or will the continued hunting result in a
critical population level and extinction for the bowhead?
Under the Marine Mammal Protection Act, factors which
must be considered by the secretary when making regulations
include population levels, international agreements, and
1 OR
the marine ecosystem.
The secretary is required to
propose such ammendments through the Secretary of State
as necessary to make any existing treaty for marine mammal
109
protection conform to this statute. 7 Though until the
treaty in question
is changed, the provisions of the
Marine Mammal Protection Act are in addition to, not
in contravention of the treaty and statute implementing the
treaty, in this case it is the 1946 Convention and the
Regulation of Whaling Act.."'"''"0
The act also establishes
the Marine Mammal Commission whose duties include reviewing
of U. S. activities in relation to the 1946 Convention;
making recommendations and reports and doing studies.
Unlike the commissioner to the IWC, members of this
, . 111
commission are compensated.
Under the Pelly Ammend to the Fisherman's Protective
Act of 1967, 112 the President of the United States is
authorized to prohibit importation of any or all fish
products from a country who conducts fishing operations
in a way 113
which damages an international• fishery conservation
program.
Under the amrnendment, an "international fishery
conservation program means any ban, restriction...pursuant
to a multilateral agreement to which the United States is
-2?a signatory party, the purpose of which is to protect the
1l4
living resources of the sea."
The sole application of the Pelly Ammendment up until
1975 has been to whales.
Japan and the U.S.S.R. both
exceeded the minke whale quota in 1973-74, but since both
countries supported the 1974 IWC quotas the President
chose not to enforce the sanction.*^
The most current statute applicable to whales is the
Whale Conservation and Management Act passed in October,
1.976. * ^
Congress imposed, a two hundred nautical mile
or
boundary for conservation of whales as Imposed in the
117
Fishery Conservation and Management Act of 1976.
A need is expressed for protection within the two hundred
lip
mile boundary and for further study of whales.
To fulfill
the charges made by this act $1,000,000 was appropriated for
119
use in
1978 and 1979•
One reason economic sanctions imposed by Federal lav/ are potuU
effective against Japan is her "self development" program
instituted in 1970. 1 2 0 Japan imported 99-7% of her petroleum
and 88% of her iron ore in 1972.
Japan also imports much
121
of her food. ~
The self development concept applies
to Japan's dependence on trade and economic development
needs.
She wants to exert control over foreign resources
through investments
and to
do this, will
antagonze
resource-rich
countries.
122 not intentionally
I /CO
-21IV.
Other Considerations
The costs of whaling are tremendous.
In the 1950*s
a factory ship cost at least $11,000,000 and each catcher
had a cost of approximately $600,000.
useful for anyother purpose.
These ships are not
Whaling nations have tried
to adapt the ships, but the attempts were impractical
and unprofitable.
To make a profit, whalers feel the
need to maximize production by killing more whales. 123
The need for better catches causes larger expenditures
124
which enforces
the need for larger catches. '
The
effect is cyclical, but the larger whales are protected,
shifting whaling emphasis to smaller whales.
A greater
number of small animals is necessary to equal the product
yield of larger animals which when added to the cost of
maintaining a whaling fleet begins the cycle.
Japan maximizes production by using whale meat for
human consumption.
In the past the Japanese have been
able to earn more than twice as much for meat alone
1
as a European country made for the entire whale.
126
There is no market for whale meat in Europe.
This
utilization has enabled Japan to continue whaling at a
profit. 127
Since the harm to whales has already been done, at
this point the hope should be that nations
i O Q will minimize
existing damage by causing no new harm.
One positive
step that should be taken is the step toward greater
emphasis on ecological considerations and how the whale
119
-21fits within its environment. It has been said that ecology
129
is the answer of whale stocks.
Ecological research
on whales is especially difficult because of the vastness
of their habitat ani the extent of their migrations.
One example is the relationship between blue whales and
smaller rorquals.
The exploitation of blue whales
increased the food supply causing a slight increase in
numbers of less exploited rorquals.
And, as blue whale
hunting became more commercially unprofitable
attention
was turned toward the smaller whales, reducing their
131
numbers. The effect of this reduction is unknown. The lack of knowledge of whales is always detrimental
to successful conservation.
Though the primary responsibility for enforcing the
. .
.
132
IWC regulations rests with the mdiviual
nations.
"
A
less state centered perspective is needed in considering
133
the international law relating to whaling. ^^
Conclusion
Truly there are a number of serious problems
surrounding whales.
Many species are close to extinction,
some may have already reached their critical population
level.
There is a sore need for greater knowledge in all
areas of the whale's existence.
merits even more attention.
But, the ecological area
Man must consider the effect
of the whale's extermination on the world's environment.
120
REFERENCES
1.
R. Burton, The Life and Death of Whales 13 (1973).
2.
39 Fed. Reg. 1172,1174 (1974).
3.
16 u.S.C.A. 1533(c)(1), (1974) .
4.
39
5>
McVay, "Reflections on the Management of Whaling,"
Fed. Reg. 1174.
in The Whale Problem 378 (W. E. Schevill ed. 1974).
6.
Id. at 379-
7.
Burton at 14.
8.
J. Cousteau and P. Diole, The Whale: Mighty Monarch
of the Sea 262, 266-6?,
264~fT972TT
9-
Fur ton at 2.0-21.
10.
Scarff, "The International Management of Whales, Dolphins,
and Porpoises: An Interdisciplinary Assessment,"
6 Ecology L. Q. 323,334 (1977).
11.
Burton at
12.
E.J. Slijper, Whales and Dolphins 107 (1976).
13.
Scarff at 334-35-
14.
Id. at 334.
15.
K. R. Allen, "Recruitment to Whale Stocks," in The
Whale Problem 3.52 (W. E. Schevill ed. 1974).
16.
Id. at 354.
17.
McVay at 372.
18.
Cousteau and Diole at 281.
19 •
Burton at 91•
20.
Scarff at 345-
21.
Cousteau and Diole at 281.
22.
Scarff at 346.
23.
Burton at l4l.
6O-61.
-2?24.
Scarff at 347-
25-
Cousteau and Diole at 2 7 3 .
26.
J. L. McHugh, "The Role and History of the International
Whaling Commission, " 325 (W. E. Schevill ed. 1974) -frcw.
27.
Id. at 329.
28.
McVay at 375-376.
29-
Tomasevich, International Agreements on Conservation
of Marine Resources"2?2~(1971) .
30.
Christol, Schmidhauser & Totten, "The Law and the
Whale: Current Developments in the International
Whaling Controversy," 8 Case W. Res. J. of Int'l L.
149 (1976) (hereinafter cited as Christol).
31.
Convention for the Regulation of Whaling of 1931.
art. IV, 1 5 5 L.N.T.S. 349; 49 Stat. 3079 (1934-35).
32.
U. S. Department of State, Treaties in Force 444 (1976).
33.
G. Small, The Blue Whale 172-74 (1971).
34.
Scarff at 350.
35.
Christol at 151.
36.
Id.
37-
Scarff at 352.
38.
Id. at 352-53.
39.
S. Oda, International Control of Sea Resources 79
40.
Small at 1 7 8 .
41.
U. S. Department of State, Treaties in Force 445 (1976).
42.
Protocol to the International Convention for the
Regulation of Whaling "signed under the date of Ded, 2,
1946," Nov. 1956, 338 U.N.T.S. 366 (hereinafter cited
as Protocol to the International Whaling Convention).
43.
Scarff at 353-
44.
International Convention for the Regulation of Whaling
with Schedule of Whaling Regulation, Dec. 2,1946,
l6l U.N.T.S. 72 (hereinafter cited as IWC Convention).
I /CO
(1963)
^fJ6- ^Jirv
-2?45
Id. at Preamble.
46
Id. at art. III.
4?
Id. at art. 111(2).
48
McHugh at 315.
49
IWC Convention, art. V(3).
50
Ghristol at 153-
51
McHugh at 319.
52
Scarff at 355-
53
McHugh at 320.
54
McHugh at 306.
55
IWC Convention, art. V.
56
Small at 1 6 2 - 6 3 .
57
Scarff at 35?-
58
A. Sheikh, International Law and National Behavior
59
Scarff at 358.
60
Sheikh at 254.
6l
Scarff at 357-58.
62
Christol at 153~54.
63
McHugh at 309.
64
Scarff at 360.
65.
McHugh at 324.
66
Small at 91•
67.
McHugh at 324.
68,
Scarff at 3 6 2 - 6 5 .
69
McHugh at 326.
70.
Scarff
71.
Protocol to the Int'l Whaling Convention, art. II.
253-54 (1974TT
at 365.
I /CO
-2?72
Scarff at 365.
73
Id.
74
McHugh at 330.
75
Scarff at 365-
76
Christol at l 6 l .
77
Small at 9 6 .
78
Christol at 1 5 6 .
79
Scarff at 368.
80
McHugh, Book Review, 3 Ocean Dev. & Int'l L. 389, 409
(1976) (hereinafter cited as McHugh, Book Review).
81
Friedman, "Legal Aspects of the International Whaling
Controversy: Will Jonah Swallow the Whale/* 8 N.Y.U.
J. Int'l L. & Pol. 211,223.(1975).
82
McVay at 376.
83
Friedman at 223-24.
84
McHugh, Book Review at 389.
85
Friedman at 222.
86
Christol at 1 6 3 .
87
16 U.S.C.A. 916-9161. (1974).
88
16 U.S.C.A. 916a. (1974).
89
16 U.S.C.A. 916b. (1974).
90
16 U.S.C.A. 916c & 9l6d.
91
16 U.S.C.A. 9l6f. (1974) :<
92
McVay at 379-
93
16 U.S.C.A. 1533(c)(1). (1974)
94,
16 U.S.C.A. 1538. (1974).
95.
Friedman at 22?, n.84.
96,
16 U.S.C.A. 1531 - (1974).
97.
16 U.S.C.A. 1539- (1974).
at
366-67.
I /CO
-2?98
16 U,S.C.A. 1540. (1974).
99
16 U.S.C.A. 1532. (1974).
100
16 U.S.C.A. 1543. (1974).
101
16 U.S.C.A. 1361-62,1371-84,1401-0?. (19?4).
102
16 U.S.C.A. 1361(2). (1974).
103
1.6 U.S.C.A. 1361 (3), (6) . (1974).
104
16 U.S.C.A. 1371. (1974)
105
16 U.S.C.A. 1371(b). (1974),
106
Gwyne & Cook, "Saving the Bowheads" in Newsweek,
Nov. 7, 19?7 at 113-
10?
Shabecoff, "Whale-Hunting Curb is Supported by U.
in The New York Times, Oct. 21, 197? at 12, col.l.
108
16 U.S.C.A. 1373. (1974).
109
16 U.S.C.A. 1378. (1974).
110
16 U.S.C.A. 1383. (1974).
111
16 U.S.C.A. 1401-02. (1974).
112
22 U.S.C.A. 1978. (Supp. 1977)•
113
22 U.S.C.A. 1978(a). (Supp.1977).
114
22 U.S.C.A. 1978(g). (Supp. 1977)•
115
.Friedman at 232-33.
116
16 U.S.C.A. 9l?-91?d. (Supp. 197?) •
117
16 U.S.C.A. 917(3)• (Supp. 1977).
118
16 U.S.C.A. 917(5) & (?) - (Supp. 19??).
119
16 U.S.C.A. 9i?d. (Supp. 1977)•
120,
Wells. "Japar and the United Nations Conference on
on the Law of the Sea," 2 Ocean Dev. & Int'l L. 65
84 (1974).
121.
Id. at 65.
I /CO
-2?122.
Id. at 84.
123.
Small at 82.
124.
Id. at 93-94.
125.
Id. at 134.
126.
Id. at 102.
127.
Id. at 134-36.
128.
Stein, "Reeponsibilty and Liability For Harm to the
Marine Environment," 6 Georgia J. Int' 1 & Comp. L. 4l,
45 (1976).
129.
Friedman at 221.
130.
Scarff at 412.
131.
McVay at 378.
132.
"New Perspectives on International Environmental Law,"
82 Yale L.J. 1659,1678 (1973)•
133.
Id. at 1659.
I /CO
APPENDIX
A.
Species Size and Distribution
B.
Shapes and Sizes
C.
Food Chain
D.
World Catch of Rorquals
E.
World Catch of Five Major Species of Whales
F.
Current Estimates of Whale Population Sizes
If
I':\!\:!<lc
maximum
iniclh
Distribution
CM
o"r>n: C'ciacra
:
*.fy..'rVi-.'i:(\vlulcl',onc or baleen whales)
r.'.rr.v Pafaemdae
C ri cr..;.:* . rv^ht whale or bowheail
''\:i.:ct:j
Arctic seas
ca Go Cosnmp' litan
except tr- pics
ca 20 Antarctic seas
":,:ticclus)
Go
Pise.;v.-:: T b!. eh rirhf whale
fEubjfwM
/facialis)
••ipmv r-r.ht whale
r''".'
v
(Carcrca
n.r/iuaia)
V.sth'ic'r.tiidae
Grav \vh:.!e
ca .15 North Pacific
(Usciirichtiw /iH"sus)
r;,."iLY Ealrairptcridiic
(rorquals)
n
Elite whale (Br.!aa: pfra tnuscuhis)
Fin whale phvsahts)
Eei whale (]'.. nrrralis)
: :"-.'c s wh; !
e l'. h'ydvi)
i '.in/.c v.. :.'•: (V: c:uf->rv:r6ta)
Ilinnrbaek whale (.'VC^.VM nevac-an/Jiac)
or."::: (jdci-'cceii 'toothed v iiales)
f
: \ y v
107 Civ::u»politan
Sj Cosmopolitan
Go Cosmopolitan
ca 50 Warmer seas
ca i.i Cosmopi litan
50 Cosmopolitan
r'nyincriuM
r
Sj cm. vhalv ( 'hyc!T
'
male
60 ,
,.
iem,;,
!e
40 (."nnorolitan
! ,-:nv Term whale ll^-'ia Wrictj*)
ca i; Ovmopolitan
ZrM'r /b.-Jutl whales)
J'.-ird':; be:!:- 1 -h> 'TVvcW b.:i'dii)
North Pacific
Ar<.::c t-t-V.-.T.O'C whale 'h'v/rv drn >vnpn!l>tu<) ca 30 Arctic seas
/,".:. :ct:c 1 ot:k:ic": whale III. pfamjrotis)
30 Antarctic seas
r/.M'i.v Dr'p'iininac (dolphins)
! vjt wi-'*if '($' l"'rrpl:flhi wktcmi)
ca 22 Cr "lopolitan
r.-T.vr wl-v.lc '/Jrcmuf orca)
37 (. ••• m-ipolitan
r.wccrkahis)
r
x
L] eck-, t'v.-ir size am! <! 11 bnrinn. IV v r;- einn !)• «•' ::!:..have been
: • <•! rer'-tuin t •> -.i:c mnn'"i'rs caufl.!. 'o prc?'cr ni.vinir*" 1C""t'-:- are
' • :. •. r rc:i- '!v in ! ::'-. !::i'w< • pecies. /.-. •: lerr.rhs i" wh: !cs ca'.'-.*!': are
t.-.'rJ !-. . ..: oat V.'-C::IT ! ', !<->r the blue whale.
Appendix A.
Species Size and Distribution
(Source: Burton at 18.)
128
•xmfte&ij »title
Nome ,
Asian elephant
tnajnm
£Upk&i
ous
fsft *haj»
Figure I
S H A P E S AND S I Z E S OF
SELECTED
CETACEANS
ipwrm ifem*J©j
Pkytmltv ctttodon
eotllrnoM-d doipfcm
Cuner'»
wfciu*
Ztpkme asixerminu
North Pae»f6f p&Ju boctteno* ^hftk
arfe«t fith
Appendix B.
Shapes and Sizes
(Source s Scarff at 3 3 1 ) .
129
Sunlight
PhViiplrnkton: DLr.oms
FI?3cllcrto3
Zooplnnkton*.
Kri!l
Opcpotlt
Scc-tnr.tcrfiics
Sq'irf
r:h
Tor.l'.r;' V.'iiclM
V.'lT'-.tonci V.'hdos
Appendix Ci Food Chain
(Sources Burton at 50)
130
Appendix D.
World Catch of Rorquals.
(Source: McVay at 372).
131
Rev-ia i n d e r O R
Ant a r c t i c
SF*A
r.nn
a
Blue?
Fin
HUT i p K v r k
Sri
Sperm
Blue
v-j
M
f'i n
S0 i
1. 733
1, 413
1,049
741
651
720
67 0
817
Hurnfibick
1920
1921
1 , R74
2,617
261
3,213
71
8
400
284
260
5,491
36
31
370
34 3
I'lP?
4,416
9
2,492
103
3
859
1,15 3
'2,
192 3
5,08 3
517
3,677
10
1,462
3,0 4 6
1924
3,732
233
3,015
1925
5,703
359
002
23
1,1 8 6
193
66
1,113
973
3, 859
1 , 5? 6
4,366
1
59
1,845
2,983
4, 755
1,092
-
SCOT.
576
888
es4
1,380
19?6
4,697
364
8,916
195
37
2,
2,674
5 , 34 8
1 ,299
1,54 5
1927
0,54 5
189
5,102
39
2,170
2,359
1,275
23
88 3
72
1 , 293
1,453
1,407
1,60-
1929
8 , 334
12,847
3, 5 0 6
2 , 594
1,219
1928
4,459
778
59
6,690
808
62
916
256
443
741
1,693
1930
17,898
05 3
11,614
216
73
1,181
1,066
2, 667
62 5
1
1931
29,410
576
10,017
145
51
239
206
1932
184
159
2,871
5,168
16
13
217
1933
6,488
18,891
1934
17,349
872
7,200
1935
16,500
1 965
12,500
530
52
65
2
107
171
0
666
177
1,417
577
334
2,123
266
2,
1,
571
60
679
83
915
29
43 3
468
541
1,176
578
696
1,6C1
721
4,44 :
746
6,126
2 r. ?
793
2,9.-:'
469
2 , 1 "
1936
17,731
3
162
9,C97
2
399
377
1,529
19 3 7
1 4 , 304
4 477
14,381
490
926
332
2,135
1938
14,92 3
2 079
28,003
161
867
112
3,046
1939
19-10
14,081
883
20,784
2,585
71
510
11,480
2
18,694
1,938
79
526
4 51
3,3 0 5
1/6 7 1
1,8 3 8
1,2 3 0
2 675
16
7,831
804
86
258
X,
109
21
339
0
776
73
24
26
277
1,158
197
101
14
261
,666
78
45
69
85
393
273
1,431
2,622
4,078
2,727
69
110
22
81
19-11
4,943
194 2
194 3
59
125
1 94 4
339
1945
1,042
60
3,606
9,192
238
29
9,185
14,54 7
6,908
7,625
6 , 182
26
31
2 ,143
21,111
19,123
20,060
1952
1953
1954
1955
7,048
5,130
3,870
2,697
2,176
1 ,638
1 ,556
963
605
495
19,456
22,527
22,867
27,659
28,624
1956
1957
1958
1959
19C0
1,614
1,512
1,690
1,192
1 , 239
1
,432
27,958
27,757
1 692
27,473
27,128
27,575
,309
,421
4 309
6,535
5,652
4 ,227
1961
1962
196 3
1964
1,744
1,118
947
718
309
270
28,761
5 102
5 196
112
20
2
4,800
4,829
4,771
6,711
4 ,352
1946
1947
1948
1949
1950
1551
1965
1966
1967
1963
1969
1970
1971
4
679
396
2 394
, 3 38
1
0
110
52
1,189
1
27,099
18,668
14,422
7,811
621
578
1 ,284
886
530
621
373
263
305
250
226
1
2,536
0
0
0
0
0
2,893
2,155
3,020
3,002
17 58 7
1 2 368
1 0 357
5 776
5 857
0
0
2,883
6 151
1
4
0
0
4,555
4,960
2,568
2,682
3,090
2,745
Appendix E.
433
5, 35)
1,
084
792
243
987
140
2 , 4 50
1,62 6
255
1 837
1 948
2 887
2 640
2 84 2
662
952
1,277
1,187
3 363
3 078
2 714
3 676
3 561
2,147
2,593
1,587
1,462
1 , 371
13,296
6,072
3 538
3 900
4 207
3 824
3 489
1,516
1,446
11,616
14,727
2 , 361
15,311
15,646
16,117
3,155
3 056
3 248
4 731
4 540
2,683
3, 608
4,046
4,995
5,074
16,330
18,497
23,087
4 •156
3 507
9 30
2 300
2 055
5,480
6,648
22,873
21,464
21,512
21,455
22,752
261
489
2,218*
2,448
2,517
2,527
2,661
2 , 2 38
243
2,122
137
482
260
593
2,127
2,488
316
452
242
58
66
4
0
0
0
0
I
018
2,714
2,467
2,365
2,550>
4,429
5,503
8 695
20 3 8 0
A, C
1,
230
6,974
3
4," '
321
2,920
560
2
704
131
569
1, 0 2 9
765
95
319
3,364
306
348
31 2
319
2
43
955
249
156
4,968
5,485
2 , 332
2,879
5,790
,051
2
0
0
0
2
_
World Catch of Five Major Species of Whales,
1920 to 1971 (Sources: McHugh at 306-07).
738
3,118
2,726
6,742
6 , 204
5 , 338
3,181
6,015
7,238
4,938
5,456
7,245
10,664
9,894
22,514
21,196
CURRENT ESTIMATES OF WHALE POPULATION SIZES
IN IQOO's OF WHALES ( % OF INITIAL POPULATION)*
So.
Hemisphere
No.
Pacific
No
Atlantic
Bowhead**
n o t present
1-2 ? ( 1 0 % ? )
<0.1
(i%?)
Right**
3-4 ( < I 0 % >
0.3-0.4
<0.2
? (unknown)
(unknown)
Gray**
not present
11-12 ( - 1 0 0 % )
Humpback
2-3 ( 3 % I
2
Blue
7-8***(4%)
1.5-2 (30-40%)
<1
Fin
80 ( 2 0 % )
14-19 ( 4 0 % )
>31
Sei
50-55 ( 3 3 1 )
21-23
>2
Bryde's
>10
Minke
<90%.')
(unknown)
i-50%)
20-30 ( - 1 0 0 % . )
120-200 ( 8 0 % )
unknown
Sperm
J
128 ( 5 0 % )
74 ( 4 1 % )
Sperm
9
295 (90^r)
103 ( 8 2 % )
*
not present
<1.5
(70%?)
(10%?)
(unknown)
(unknown)
unknown
> 10 ( u n k n o w n )
38 ( u n k n o w n )
T h e s e figures represent the s t / e s o f the " e x p l o i t a b l e p o p u l a t i o n s " ! . ? . . t h o s e a n i m a l s
a b o v e m i n i m u m legal h a r v e s t length. T o e s t i m a t e total stock s,ize, m u l t i p l y e x p l o i t a b l e stock
size by 1.5 f o r b a l e e n w h a l e s a n d 2.0 for s p e r m w h a l e s .
T h e e s t i m a t e s f o r these species a r e for total stock s u e , not e x p l o i t a b l e stock size.
" "
T h i s figure i n c l u d e s " a few t h o u s a n d " p y g m y b l u e w h a l e s , a relatively small (70
feet l o n g ) s u b s p e c i e s
( B . musculus brnicauda) f o u n d in the s o u t h e r n I n d i a n O c e a n . ' 5
Appendix F. Current Estimates of Whale Population Sizes
(Sources Scarff at 332).
133