Introduction

This chapter, which is closely related to the previous one, examines the complex issue of animal rights, particularly in connection with whaling. It has been established in the previous chapter that certain States claim the right to cultural diversity, which includes taking whales. The question may be posed how this claim can be reconciled with the rights of animals (including whales). The animal rights theory, which is diversified, is part and parcel of ethics and philosophy. There are several very different schools of thought regarding the rights of animals. We can ask the following question: can whaling be banned on the basis of the animal rights approach, or does the theory of cultural diversity of nations, which identifies itself with the hunting of whales, override concerns for the rights of animals? There is not one simple answer to this very complex problem; and this chapter does not purport to give one. It analyses the issue of the rights of animals and their importance in relation to whaling. Cultural diversity and the rights of animals command a very individual approach, as they concern sensitive questions of which each and every person has a very different understanding.

Animal rights: outline of general issues

This section concerns the position of animals in overall nature from the standpoint of ethics and philosophy. For, as was stated by Coyle and Morrow, ‘[e]nvironmental law without a sense of philosophy and history is a pale and bloodless creature’.

The discussion in the field of philosophy regarding the relationship between humans and nature, be it the natural habitat or other animals, is as old as philosophical inquiry itself. This relationship has puzzled all manner of thinkers, including lawyers, philosophers and anthropologists. Lévi-Strauss noted that animals are good to think with, not just good to eat. There are different approaches to assessing what the value of nature might be, including doing this on a utilitarian basis, thus finding that it has essentially an instrumental value, or on a more discursive basis with a view to finding some inherent or intrinsic value. The first of these approaches is based on the material purpose; it serves the use to which it may be put. Inherent value, on the other hand, is premised upon the value that each entity possesses of itself, not as an object of utility.

Introduction

Whaling raises questions beyond merely that of the law, given that it is so inextricably linked to, among other things, the concept of cultural diversity – a concept that is of great importance to other disciplines, including that of social anthropology. The present chapter is devoted mainly to those legal issues that are often argued from the standpoint of cultural diversity. To this end, the chapter will give some degree of consideration to the chief anthropological questions that arise. The concept of cultural diversity (or cultural identity) within the context of grounds to justify whaling is most frequently analysed and discussed in relation to indigenous whaling, given that this is a category of whaling that is outside the scope of the current IWC Moratorium on commercial whaling. (On cultural diversity in relation to indigenous peoples, see Chapter 7.) However, there is also another pertinent aspect of whaling that is often neglected, relating to Japanese, Norwegian, Icelandic and Faroese whaling, which States claim that their engagement in whaling, and their consumption of whale products, is an expression of their national identities. Therefore, when juxtaposed to the practices of other nations, their whaling customs are considered as an expression of their cultural diversity. There will be no definite answers given, as cultural diversity is a complex and divisive issue, not least due to its highly discursive and indeterminate nature. There is also a further related contentious issue that compounds the complexity of the issues relating to whaling, namely, that of animal rights, that is often juxtaposed against rights to cultural diversity in the whaling debate, and which will be discussed in Chapter 5. This chapter therefore will be devoted to the often neglected issue of cultural diversity relating to non-indigenous people in relation to whaling.

General outline

This section deals with general issues of cultural diversity, such as its meaning, what its elements are, and the context in which it is applied. The section is, however, more of an overview of pertinent questions than an in-depth analysis of the concept, which indeed has already been widely researched and written about. In this context, it would be outside the scope of the present chapter to dwell in detail on the controversies that relate to the tensions between universal standards and particular assertions of culture.

Introduction

As we have seen in earlier parts of the present publication, the legal regime relating to the international regulation of whaling had been a relatively simple collection of general international rules that permitted whaling overall but which had introduced certain restrictions in order to allow diminishing whale stocks to recover. That relative simplicity gave way to a more contentious and complex regulatory system, culminating in the Moratorium (that is to say, a total ban) on commercial whaling, though with certain exceptions that have generated much controversy. Over recent decades, significant developments have taken place in international policy-making, in that we have witnessed, among other things, the growing influence of environmental concerns, including concerns over animal welfare (explored in the previous chapter).

Presently, the ICRW remains the starting point of any legal discussion concerning whaling by States that are parties to that instrument. That said, as discussed in previous parts of the present publication, there is a whole raft of international legal agreements (alongside the acts of important interstate bodies such as the Human Rights Committee) that have implications for whaling, in that they touch upon specific aspects of whaling, including the rights of indigenous peoples and the protection of endangered species. In that respect, understanding the interplay between the ICRW regime and other international instruments is fundamental to addressing the legalities of whaling at the interstate level. The present chapter deals with this without going into too much detail about the content, jurisdictional scope and functions of other instruments. Rather, this chapter focuses on the relationships themselves. It does not purport to analyse all the relationships with all possible treaty regimes and organisations; its purpose is to illustrate questions of cooperation and coexistence between the IWC and other regimes and possible issues of fragmentation. The importance of the collaboration of the IWC with other international bodies and conventions (discussed in the following paragraphs) was explicitly acknowledged by the IWC in its Resolution adopting the ‘Berlin Initiative’.

Introduction

The present chapter is devoted to outlining, albeit only briefly, the historical aspects of whaling, since, as was stated in the Introduction, this book focuses principally on current issues concerning whaling. This chapter will be primarily focused on whaling and its development throughout the centuries, with special attention to the pre-conventional and early conventional regulation. A substantial part of this chapter will be devoted to analysis of the two pre-Second World War Conventions, the 1931 Geneva Convention and the 1937 London Agreement. The main purpose of this chapter is to show that the contemporary problems concerning whaling are to some extent a continuation of the issues that existed earlier and which prompted States to conclude the above-mentioned treaties.

The 1931 and 1937 Conventions formed the basis for the 1946 Convention for the Regulation of Whaling (which will be discussed in Chapter 2). In order to fully appreciate the 1946 Convention and its role in relation to whales and whaling, it is necessary to present an analysis of previous international instruments. As will be seen, neither of the two preceding Conventions can be hailed as a success. The 1946 Convention is considered by many not to be the most effective international treaty, the reasons for which are complex and are not confined only to legal issues but also extend to scientific and political issues. However, this Convention is still operational after almost seventy years since its signing; therefore, despite the serious problems, it exhibits a certain resilience and longevity.

Pre-conventional whaling

Modern whaling began in 1868. Until that year,

Whaling appears to have begun thousands of years ago, possibly as early as 2200 BC. It is believed that the first organised hunt was conducted by the Basques in 700 AD, followed by the Flemish and the Normans, and then the British and the Dutch, surpassing the whaling activities of the Basques. Spain, Norway and France started whale hunting in the ninth century AD. The British, the Dutch and the Germans expanded their whaling activities to the North Atlantic.

Introduction

This chapter will describe and analyse the structure, development and functioning of the International Whaling Commission (IWC). It is organically linked to the previous chapter, which focused on the International Convention for the Regulation of Whaling (ICRW). The IWC is a regulatory body of the Whaling Convention. Much has been written about it: but as the present author has observed, for reason of completeness and also of a better understanding of current developments, it is necessary to outline the fundamental issues regarding this international body. In broad brushstrokes, it may be said that the structure and decision-taking procedure of the IWC do not differ greatly from those of such bodies as the fisheries commissions or the bodies of the Conventions adopted under the auspices of the International Maritime Organization, the majority of which take their decisions on the basis of the opting-out system (or tacit acceptance). In this chapter the Judgment in the Whaling in the Antarctic case, in which the International Court of Justice made important statements regarding not only scientific whaling but also interpretation of the ICRW and its Article VIII (scientific whaling), will be analysed as well.

General overview and structure of the International Whaling Commission

Introduction

As noted in Chapter 2, concerns over the oceans’ stocks of whales first arose in the initial decades of the twentieth century due to serious depletion resulting from the development of the whaling industry, and, in particular, modern methods of whaling such as the use of boats with steam engines, harpoon guns and factory ships, in the latter half of the nineteenth century. These developments arose to meet the growing demand for whaling products, particularly whale meat, whale oil and baleen, which existed during the nineteenth century and the first half of the twentieth century. These products constituted a lucrative resource; and a number of major States had mature commercial whaling industries. It was against this backdrop that international legal regulation of whaling was introduced through a series of conventions culminating in the conclusion in 1946 of the ICRW, which remains to this day the main international vehicle for the interstate regulation of whaling, and which operates, as discussed in Chapter 2, a treaty regime that includes the IWC set up pursuant to the Convention.

Whaling is a source of issues of great interest not only for lawyers (both national and international) but also for philosophers and anthropologists. It is a topic that has been covered by numerous publications, undoubtedly excellent; however, some, while covering whaling holistically, were published before the latest important developments took place (such as the Whaling in the Antarctic case), while others have mainly focused on discrete legal aspects of whaling. More than a few questions of international law have been looked at from very diverse viewpoints, and, on occasion, have been the cause of highly emotional reactions. The history of whaling is certainly not short of examples where whaling emerges as a complex, conflict-ridden and divisive field.

The complexity of whaling became patently clear in the 2014 Whaling in the Antarctic case before the International Court of Justice (ICJ), analysis of which is contained in a subsequent chapter of the present publication. Whaling engages a plethora of legal issues, ranging from biodiversity considerations to those relating to trade and the environment, to questions of, among other things, interpretation within the context of the law of treaties. Furthermore, whaling is an example of the close link between, and the dynamic interplay of, science and law.

From a philosophical and, more specifically, ethical point of view, one could query whether animals in general (and whales in particular) have rights, and, if so, what might be the interplay of such rights with those of other rights holders. To be more precise, how might animal rights engage with the right to cultural identity not only of, say, indigenous peoples, but also of other peoples who, although not indigenous in the traditional sense, are peoples whose history is not unrelated to whaling: for instance, the Japanese, the Icelanders, the Faroese and the Norwegians. Therefore, the matters that whaling engages are certainly not limited to the field of environmental law (or the notion of biodiversity).

This collection of thematically self-standing chapters does not aim to present whaling in an all-encompassing and exhaustive manner; rather it seeks to highlight particular issues that, for the most part, are complex and contentious in legal and ethical senses. It also provides some historical background that points towards the presence of contentious issues from the early stages of interstate whaling regulation and that are still very much present.

Introduction

This chapter is devoted to indigenous whaling, which is one of the forms of whaling provided for by the ICRW. It is based on certain assumptions, including: that certain indigenous peoples possess a right to whaling as an aspect of their right to cultural diversity; and that such indigenous peoples, as holders/beneficiaries of such rights affirmed by international law, may be reasonably held to be under certain obligations vis-à-vis the upholding of the rule of law, including international law relating to environmental protection of the world's endangered biodiversity. Such assumptions bring to the fore whatever tensions might exist between different legal regimes relating to, on the one hand, cultural diversity and, on the other, environmental protection. There are several examples of aboriginal/indigenous whaling which illustrate this problem; the best known are the Makah peoples of the State of Washington, USA, and the Inuit peoples in Greenland.

The compatibility and harmonisation issues that arise in relation to aboriginal whaling, environmental protection and whale welfare are complex; and practice, thus far, clearly indicates the complications resulting from the reconciling of these occasionally conflicting policy objectives.

Cultural diversity and indigenous peoples

This section is not meant to present an in-depth analysis of the legal regime pertaining to indigenous peoples’ cultural diversity, as it is the subject matter of many publications and its full analysis is beyond the scope of this chapter. A general introduction is of relevance, however, as some indigenous peoples consider whaling as an expression of their cultural identity.

Central to the rights of minorities and indigenous peoples is Article 27 of the International Covenant on Civil and Political Rights (ICCPR):

The construct of this Article was subject to some criticism as being rather vague. General Comments 21 and 23 of the Human Rights Committee (HRC) were instrumental in clarification of this Article in relation to minority rights.

The HRC's case law contributed to further understanding of the rights of indigenous peoples. There are several instruments and General Comments which relate directly to such rights.

Introduction to taxonomy of whales

It is extremely difficult, if not impossible, to state the exact figures relating to the entire whale population. This uncertainty results from the current methods of calculation and also historical mistakes – both accidental and deliberate – concerning calculation. Gillespie recommends caution regarding all estimates, and opines that, generally speaking, long-term non-lethal studies of certain whale species, such as the right and humpback whales, result in more reliable population estimates than vessel-based surveys conducted every five years. According to the International Whaling Commission (IWC), threats to cetaceans can be said to include two broad categories. The first are those that result in death in the short term, such as direct hunting and accidental or incidental mortality (e.g. bycatches in fishing gear, ship strikes). The second category of longer-term threats is more difficult to identify and especially to quantify. These threats can be said to affect the ‘overall fitness’ of the population with respect to reproductive success or survivorship and are generally related to environmental degradation (including such factors as chemical pollution, noise pollution, overexploitation of prey, disturbance, climate change, etc.). Environmental threats can adversely influence populations of all species. Detailed data for whale species may be obtained from papers and reports of the IWC Scientific Committee, marine mammal status reports published by the US (www.nmfs.noaa.gov/pr/sars/) and documents produced for the IUCN Red List (www.iucnredlist.org/). This Annex is mainly based on the IUCN listing,

Whales are mammals belonging to the order of cetacean. There are about 86 species of whales, dolphins and porpoises. The cetaceans are divided into three major groups: the Odontoceti or toothed whales; the Mysticeti or baleen (moustache whales); and the Archeoceti or ancient whales, which are extinct. The 1946 Whaling Convention does not define the term ‘whale’. However, a list of names in a number of languages was annexed to the Final Act of the Convention. Consequently, the jurisdiction of the IWC over the various types of whales is a matter of much controversy and the subject of dispute between various parties. (This is examined in Chapters 3, 6 and 8.)

Species of whales

Right whales (Eubalena spp.)

Right whales acquired their name due to being deemed the ‘right’ type of whale to hunt. They are listed by the IUCN as ‘endangered’.

Whaling is a commercial, social and cultural practice that has been analysed within the present publication primarily from a legal standpoint, as supplemented by some analysis from ethical and socio-cultural standpoints. The analysis appears to support the following conclusions.

Whaling is a practice that lacks homogeneity in that it takes place for different purposes – commercial, cultural, scientific, and varying combinations of these three – and in relation to different species. As a result, when we examine the question of any regulation in this field, we need to ask in relation to which purpose is whaling being conducted, and over which species. However, whaling raises not only legal questions but also questions that concern cultural diversity and the rights of animals, as well as questions concerning general environmental ethics. All these concerns result in a whole catalogue of contentious issues, given that it juxtaposes sets of rights and obligations against each other. This lack of homogeneity suggests that legal solutions – such as the development of a cohesive multilateral regime – must ensure that they sufficiently accommodate the various considerations at play.

The 2014 ICJ Whaling in the Antarctic case has, in the view of the present author, contributed to the solution of these contentious issues only to a limited degree (as of course was expected from the limited nature of the case). In the first place, it only dealt with one aspect of whaling, namely, scientific whaling – and more specifically, Japanese scientific whaling in the Antarctic. The Judgment, however, has shed some light on those obligations of Japan that may also be shared by other States. In order to find a solution to the impasse within the IWC, in the view of the present author, however, whaling needs to be analysed in a comprehensive and holistic manner, as the various types of whaling are not entirely disassociated from one another, and scientific whaling cannot be assessed without an analysis of the commercial dimension that may arise; and this is also the case with aboriginal subsistence whaling within the framework of the IWC.

However, whaling is conducted outside the IWC, and there is also whaling conducted within the remit of NAMMCO. This still does not exhaust all the potential problems: there is also regulation of whaling, or at least its trade aspects (to be more precise) by other multilateral environmental agreements such as CITES.

Adopted in Washington, USA on 2 December 1946

(http://iwcoffice.org/commission/convention.htm)

The Governments whose duly authorised representatives have subscribed hereto,

Recognizing the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks;

Considering that the history of whaling has seen over-fishing of one area after another and of one species of whale after another to such a degree that it is essential to protect all species of whales from further over-fishing;

Recognizing that the whale stocks are susceptible of natural increases if whaling is properly regulated, and that increases in the size of whale stocks will permit increases in the number of whales which may be captured without endangering these natural resources;

Recognizing that it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress;

Recognizing that in the course of achieving these objectives, whaling operations should be confined to those species best able to sustain exploitation in order to give an interval for recovery to certain species of whales now depleted in numbers;

Desiring to establish a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks on the basis of the principles embodied in the provisions of the International Agreement for the Regulation of Whaling, signed in London on 8th June, 1937, and the protocols to that Agreement signed in London on 24th June, 1938, and 26th November, 1945; and

Having decided to conclude a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry;

Have agreed as follows:

Article I

Introduction

This chapter analyses the law concerning the protection of the narwhal whale in the Arctic region. It is based on the premise that a great (and steadily growing) number of existing multilateral and bilateral agreements (be they regional or of broader geographical or thematic scope), paradoxically, do not provide sufficient protection for some species such as the narwhal, as they either fall into the loopholes of the Conventions, or the provisions of these Conventions are not sufficiently implemented by State Parties.

Setting the scene (the narwhal)

The narwhal (Monodon monoceros) is a small (sometimes referred to as medium-sized) cetacean exclusively populating the Arctic waters. Not only does the species lack a dorsal fin, but the male narwhal has a distinguishing feature unique in the world of whales: a tooth that grows into a long, spiral tusk, about one and a half to three metres long, for which they are mainly hunted. Narwhals have a cylindrical body, with a blunt head and a small mouth. Males average about five metres long, females about four metres. Mature males usually weigh up to about 1,600 kg, females are somewhat lighter, around 1,000 kg. There is no data available as to their exact number but the estimated population of narwhals ranges between 10,000 and 20,000. In 1996, the International Union for the Conservation of Nature (IUCN) concluded that the threat of extinction could not be adequately assessed due to the lack of precise data, and listed narwhal in the data deficient (DD) category in the 2000 IUCN Red List of Threatened Species. According to the 1999 Report of the IWC Scientific Committee, which was reinforced by previous findings by Hay and Mansfield in 1989 and Strong in 1988, the most recent population surveys were carried out in 1984 and yielded 18,000 narwhals in the four major summering areas.

Narwhals have been heavily exploited for their skin, meat and tusks. In the Davis Strait and Baffin Bay, they are a shared stock under the monitoring of the Canada–Greenland Joint Commission on Conservation and Management of Narwhal and Beluga. The narwhal is discontinuously circumpolar in the Arctic. It is observed only very infrequently south of 65°N in Greenland. However, during spring, when distributional ranges may overlap north of Greenland, its range may become circumpolar. The main part of the population is to be found in the eastern Canadian Arctic and West Greenland.