"Environmental law needs ethics because it is blind without values." (1)
This Essay focuses on a commentary published in the journal Nature by a professor of natural resource economics at the University of California's Bren School of Environmental Science and Econonfics, the Dean of the Bren School, and an ecologist from Arizona State University. (2) The trio--justifiably troubled by the inability of the International Whaling Commission (IWC) to protect whales because of paralyzing schisms between whaling and non-whaling members, among other problems--suggested instead that the IWC administer an international market in whale shares. (3) Under their proposal, member nations would receive allowances to hunt whales at "sustainable harvest levels." (4) They could harvest their quotas, hold onto them for a year, or retire them permanently. (5) Some whale shares would be auctioned off with the earnings going to conservation efforts (not necessarily whale-related), and all allowances would be tradable in a global market. (6)
I found the proposal initially seductive, then troubling, eventually horrifying; and I stepped back to figure out why--hence the genesis of this Essay. I concluded that it was because whales have an intrinsic right to life, that the proposal to kill some whales in order to save others was deeply bothersome and ultimately unacceptable because of its amorality. (7) Since my conclusion leaves whales to the mercy of unfixable flaws in the International Convention for the Regulation of Whaling and the dysfunction of the IWC, I suggest here that international environmental organizations, through a combination of education and interventionist activities focusing on the cruelty of whaling, might help a whale preservation norm emerge in whaling nations by encouraging the citizens and governments of those nations to change their serf-image as whale-eating cultures. That this will not be an easy task is apparent from an article appearing this summer in The Guardian indicating that restaurants in Greenland were serving endangered bowhead whale meat to tourists and that its supermarkets were selling endangered fin whale meat. (8)
Let me begin with a few words on whales, and the flawed international regulatory regime designed to protect them, before I turn to my arguments on why we owe whales a moral duty not to kill them, why markets are poor exemplars of this principle, and how a whale preservation norm would be the better alternative to ensure their survival.
Whales are magnificent, remarkable animals that have a strong magnetic hold on people--the enduring popularity of MobyDiek9 and Free Willy (10) illustrate how whales grab and hold onto our imagination. A further example of this fascination is whale-watching, which is a billion dollar global industry. (11) While hunting is not the only threat to the survival of whales, (12) it is the most visible one and, for our purposes, the one that drew the attention of the journal authors. (13)
Because whales reproduce slowly, reach maturity late, travel in small pods, and are mostly found on the high seas14 (which are largely unregulated), (15) they have been especially vulnerable to hunting pressures. For hundreds of years, a form of "frontier economics" (16) operated in the open oceans when it came to whaling. In the early twentieth century, the advent of more lethal and efficient methods of killing whales, like exploding harpoons and factory ships, accelerated the slaughter. (17) Even when it was known that whale stocks were rapidly declining, and with them the fate of the whaling industry, the pressure to continue hunting whales remained. (18) The unrelenting decline in great whales even came to the attention of the League of Nations because of the potential collapse of the whaling industry. (19) By 1948, over 43,000 whales were killed annually. (20)
Starting in 1918, there were international attempts to stop the slaughter of whales, including one initiative by the whaling industry to protect the price of whale oil. (21) But all these efforts collapsed because the major whaling nations refused to join in. (22) Ironically, Norway and Iceland, two of the most recondite modern whaling countries, were among the first to pass domestic laws limiting whale hunting. (23) Finally in 1946, fifteen nations signed the International Convention for the Regulation of Whaling to stop the over-fishing of whales, (24) and in 1949, the IWC was formed; (25) the animating goal of each was to maintain whale markets. (26) The IWC now has eighty-nine members, and the Convention remains the principal legal document governing the whaling practices of member states. (27)
The first three decades of the IWC's history were extremely disappointing from a whale preservation perspective. The commission's restrictions on killing certain whale species had the opposite effect, setting off what some describe as the "Whaling Olympics." (28) Members with strong whaling industries dominated the proceedings and blocked all efforts to establish sustainable whale hunt quotas. (29) The result for whales was tragic. (30) Unbridled hunting until the mid-1960s led to the commercial extinction of many species like blue, humpback, and fin whales. (31) Today, blue whales are at 1% of their pre-exploitation levels, humpback whales at less than 5%, and fin whales at approximately 15%. (32) Some Antarctic baleen species declined by over 96% from pre-exploitation levels, and six out of eleven great whale species are currently classified as endangered or vulnerable. (33) To give an idea of the scope of the annual slaughter post-formation of the IWC, 55,795 whales were killed during the 1950-1951 whaling season. Eight years later, with twenty factory ships operating in the Antarctic, 64,586 whales were slaughtered and processed on the high seas. (34) The IWC functioned more like a "whaling cartel," (35) or what Gerry Nagtzaam calls a "whalers' club." (36) The IWC was clearly not protecting whales. (37)
In 1972, the United Nations Conference on the Human Environment (Stockholm Conference) recommended a ten-year moratorium on whaling to allow whale stocks to recover. (38) That year, United Nations Secretary General Maurice Strong pled the case for whale preservation at the annual meeting of the IWC, and the United States introduced a resolution banning the killing of whales for ten years, which passed unanimously. (39) By 1981, most of the world viewed whales as "the heritage of all mankind." (40)
Between 1979 and 1983 membership of the IWC grew to forty-one countries, many of whom were openly opposed to or had serious doubts about commercial whaling. (41) Two United Nations organizations and the International Union for the Conservation of Nature also began participating in IWC proceedings, and international environmental organizations started attending proceedings as unofficial observers. (42) In 1982, the changed composition of the IWC combined with the dire condition of great whales enabled the IWC to issue a moratorium on the commercial hunting of sperm whales in the northern Pacific Ocean. (43) In 1986, the IWC expanded the moratorium to cover the commercial catch of all types of whales in all whaling areas. (44) By 1990, all legal commercial killing of great whales had ceased. (45) Although initially intended to be a temporary ban while whale populations rebounded, the moratorium has remained in effect. (46)
However, the refusal of major whaling nations like Norway to join the IWC, (47) the threat of withdrawal by countries like Japan, (48) and the actual withdrawal by Canada and Iceland (49) have prevented the IWC from taking more aggressive efforts to protect whales or enforce the moratorium's terms. The Convention allows lethal scientific research on whales and aboriginal hunting, (50) exceptions that countries like Japan and Norway have relentlessly exploited. (51) Countries may also "opt out" of any regulation they do not like. (52) Japan is the largest user of the scientific research exemption, killing thousands of whales since the ban against whaling came into effect in 1986 (53) and making regular use of the opt-out provision. (54)
The IWC has few enforcement powers over member nations because the Convention allows it only to make "recommendations" to the offending state. (55) It has no enforcement power over non-member nations, and members can only enforce IWC regulations within their territorial jurisdiction (56)--Australia is an example of a country that has used its power to protect whales in its territorial waters. (57) The decision in Japanese Whaling Association v. American Cetacean Society (58) blocked the United States from using the threat of economic pressure to compel compliance with IWC regulations. (59)
Moreover, the IWC has no authority to monitor whaling activities or impose penalties on members who violate its regulations. (60) Many violations of IWC regulations are undetected or under-reported. (61) This contributes to the indeterminacy of whale stock estimates that undergird hunting quotas on unprotected whales, (62) making these quotas vulnerable to challenge by whaling members. Even a highly controversial requirement that whaling ships carry at least two inspectors on board has not improved the accuracy of reporting because inspectors are appointed and funded by their own governments and have a tendency to overlook infractions. (63) IWC has been unsuccessful in its attempts to encourage DNA testing of whale products, discourage the stockpiling of whale meat, and establish a register of whaling ships to eliminate the practice of vessels flying "flags of convenience." (64)
Finally, an inherent tension between the Convention's animating goal of ensuring the whaling industry's "orderly development" as reflected in its Preamble, (65) and the more modern goal of protecting whales for their own sake, (66) has generated acrimonious debate among the member nations...