Exploiting 'Science' Flaw In Whale Law

• Author: Carolyn Raffensperger
• Position: Executive Director of the Science and Environmental Health Network in Windsor, North Dakota
• Pages: 14-14

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14 ❖THE ENVIRONMENTTHE ENVIRONMENT

THE ENVIRONMENTTHE ENVIRONMENT

THE ENVIRONMENTAL FORUMAL FORUM

AL FORUMAL FORUM

AL FORUM

By Carolyn Raffensperger

SCIENCE FOR LAWYERS

Carolyn Raffensperger is Executive Direc-

tor of the Science and Environmental Health

Network in Windsor, North Dakota. She can be

reached at craffensperger@compuserve.com.

Exploiting ‘Science’

Flaw In Whale Law

The moot point is, whether Leviathan can

long endure so wide a chase, and so

remorseless a havoc; whether he must not

at last be exterminated from the waters,

and the last whale, like the last man,

smoke his last pipe, and then himself

evaporate in the final puff.

—HERMAN MELVILLE

In July, Japanese whaling ships set

sail for the northwestern Pacific.

The Japanese have been hunting

minke whales, but for the first time since

the International Whaling Commission

placed a moratorium on commercial

whaling in 1987, this hunt included

sperm and Brydes whales, both pro-

tected under the Convention on Inter-

national Trade in Endangered Species.

The Japanese say the hunt is for sci-

entific purposes, a limited exception

granted by the IWC, a sister organiza-

tion to CITES. Conservationists feel the

“research” is an excuse to supply Japa-

nese restaurants with whale meat, a

$100-million a year business.

Over the two hundred years of large-

scale whaling, many populations were

hunted to the edge of extinction. As a

response to the catastrophic decline, the

first Whaling Convention was signed

in 1931. Some species may be on the

rise again, but their status is tenuous.

The increase in the number of

whales is largely due to the moratorium.

However, that moratorium continues to

be challenged by Japan and Norway

through the science exemption. Japan

set a science quota of 600 minke whales

for the 1999-2000 season — more than

whalers could even catch. They re-

turned in April from Antarctic seas with

439 minke whales. Norway set its quota

at 655, arguing that because it has a

standing objection to the moratorium,

it can simply ignore it.

The IWC was created to implement

the 1946 International Convention for

the Regulation of Whaling. There is

sharp disagreement between commer-

cial whaling countries and those that

oppose it over what the IWC is sup-

posed to oversee. Opponents (Austra-

lia, New Zealand, and the United

States) want the IWC to provide for

whale research and manage whale

watching. Whaling supporters believe

the IWC should manage whale re-

sources for hunting. Until the 1970s the

IWC was a sporting club that set bag

limits, the opening day of the hunting

season, etc. Whaling increased under

the jurisdiction of the convention and

the IWC from 1933, when 30,000 were

killed, to 1962, when 67,000 were killed.

Neither side believes that the mora-

torium will stand much longer for two

reasons. First, some whale populations

are apparently increasing, although

the science of population health is less

advanced than the capacity to identify

individuals. Countries maintain DNA

records to track the size and diversity

of populations. However, neither Japan

nor Norway has allowed other coun-

tries to study their DNA records. But

DNA testing of meat in Tokyo markets

shows that some comes from severely

threatened or endangered species such

as the Mexican humpback whale.

We do not know why some popula-

tions are rebounding and others have

not recovered. The science of terrestrial

ecosystems is fraught with uncertainty,

but that uncertainty pales in compari-

son to the science of the seas. While we

assume that some whales are recover-

ing, others, like the northern right whale,

are not. New theories about how pollu-

tion might affect immune and reproduc-

tive systems are just coming to the fore

as scientists are seeing new diseases

among whales. Grey whales were re-

covering, but only this year huge num-

bers are dying. It appears that their food

supply has collapsed because of warm-

ing waters in the Arctic.

Countries that wish to resume com-

mercial whaling argue that decisions

about whaling should be made on the

basis of “sound science” and not on

emotions such as an affinity or rever-

ence for whales. Accordingly, if some

populations are increasing, then coun-

tries should be allowed to hunt them.

The second reason the moratorium

is shaky is that the IWC lacks enforce-

ment powers. Until the World Trade Or-

ganization was created, the United

States policed the IWC moratorium

under the Pelly Amendment to the U.S.

Fishermen’s Protection Act by threat-

ening trade sanctions. But WTO rules

prohibit punitive trade sanctions.

CITES provides a weak enforcement

mechanism which reinforces the mora-

torium. The treaty, which governs in-

ternational trade in endangered and

threatened species, not just whales,

went into force in 1975 and now has

152 member countries. There are three

categories of species at risk. The first is

those that are threatened with extinc-

tion. Appendix I bans international

trade in these species. The next tier of

risk is those that might become endan-

gered. Under Appendix II, countries are

to regulate and monitor trade of those

species. Appendix III gives similar sta-

tus to “all species which any party iden-

tifies as being subject to regulation

within its jurisdiction for the purpose

of preventing or restricting exploita-

tion.” Depending on the species, at least

one of the appendices can be applied to

whale populations that are at risk.

In a CITES meeting in April, Norway

and Japan tried to reopen whaling, chal-

lenging the moratorium. Before the meet-

ing, both had lobbied the poorest Afri-

can and Caribbean countries with prom-

ises of glittering aid packages if they

would approve taking certain species off

the list. They also sought to trade votes

with African countries that want to re-

open the elephant ivory trade. These

strategies failed and endangered whales

are still safe, but only from commercial

international trade under CITES. Coun-

tries that ignore the moratorium or ex-

ploit its science exemption cannot be

stopped from whaling as long as they

don’t engage in trade.

It is time we closed all loopholes and

protected Leviathan. It cannot endure

this remorseless havoc.