Wednesday, August 24, 2011

Prohibitions and Permissions

Dr. Sidney Holt is ASOC's representative at meetings of the International Whaling Commission (IWC) and has decades of IWC experience. The following guest blog by Dr. Holt summarizes the history of the shift from permitting whaling to prohibiting whaling.

The approaches by companies and governments to the problems of facilitating the ‘orderly’ conduct of the whaling industry, ensuring its future if possible, and conserving the whale resources for the sake of human society and for their own sake, have evolved through the century of existence of ‘modern whaling’ with powered vessels and cannon firing harpoons. The ideological and procedural evolution has been from a dominance of everything is permitted except that which is prohibited to everything is prohibited except that which is permitted. Negotiation of the International Convention for the Regulation of Whaling (ICRW) in 1946 marks roughly a time of transition.

This is evident from the references in Article V.1 that define what the International Whaling Commission (IWC) can and cannot do. It is empowered to adopt regulations (a) to ‘fix’ both protected and unprotected species; (b) both open and closed seasons: (c) both open and closed waters including the designation of sanctuary areas. Other provisions are mostly permissive: (e) fix the times and methods of whaling, (f) fix types and specifications of gear, apparatus and appliances which may be used.  In practice most regulations draw on two or all three of the a-b-c permissions/prohibitions, and even also on d and/or e – such as not killing humpback whales in a certain area and at a certain time, and not using factory ships.

The basically one dimensional Prohibition measures that have continued in one form or another for most of the IWC’s history are for (a) – Protected Species and something not originally provided for specifically: the protection of calves, sucklings and mothers accompanied by calves.,  and sexually immature animals, although this was mostly in practice referred as (d) : body size limits, that were always in place for all species except the minke whale.

All right whales were designated as Protected in the Convention for the Regulation of Whaling 1931 of the League of Nations. This convention applied only to baleen whales , and whaling by aboriginals for subsistence was specifically excluded from its provisions. .The definition of such whaling was, however, quite different from what it is legally taken to mean today – no motorized vessels or firearms could be used, and products could not be sold or traded with third persons. The area to which the convention applied was defined as “all waters of the world, including the high seas and territorial and national waters”. At that time nations that were in a position to declare territorial Seas all held to a three nautical mile zone, as defined in 1702 by the Dutch Jurist Cornelius Bynkershoek on the basis of a calculation by an Italian, Ferdinand Galiami, of the parabolic trajectory of a cannonball. I presume that ‘national waters’ here means ‘internal waters’, that is those waters landward of the baseline from which the territorial sea is established. They differ from the territorial waters in that no ‘innocent passage’ by foreign-flagged ships is tolerated through them.

The next instrument, the International Agreement for the Regulation of Whaling (1937) added the grey whale as a protected species. There are other fundamental changes. It applied also to sperm whales, it applied both to factory ships and catchers based at land stations but it defined the area to which it applied as:  “all waters in which whaling is prosecuted by factory ships and by catchers”. I think the simplification of this formulation probably resulted from the fact that the three-mile limit was no longer universal; the range of defensive shells had long surpassed that of cannonballs and several states were already interested to extend their defensive zone to six or even twelve. It is important, however, to bear in mind that such extensions did not normally signal a special interest in the actual coastal waters except with respect to navigation, customs controls and so on; they remained defensive.

The same phrases define the geographical competence of the IWC under the ICRW 1946. But, in fact, there is a universal assumption that it applies to all places where whales are to be found – or at least where whaling has been prosecuted at some time – regardless of whether whaling is now being prosecuted there. Naturally, the huge extensions of national jurisdictions that have been claimed and, mostly, recognized, – up to 200 nautical miles and in many cases beyond that – have made this universal definition of competence difficult to sustain, or rather it can only be sustained by a different argument. The extended jurisdictions have less to do with coastal security than defining areas of direct economic and social interest to the coastal states. The spokespersons of some states – I particularly have in mind Iceland and Norway – behave as if the whales in their EEZs belong to those states, even though they are party to the UN Convention on the Law of the Sea which classes all the whales (indeed practically all the marine cetaceans) as Highly Migratory Species the exploitation and conservation of which are the responsibility of competent inter-governmental organizations in cooperation with coastal states.  Such deliberate mis-representation of their status plagues all efforts to secure a future for the whales and, for that matter, the whaling and the whale-watching industries. In the days of 3nm (now 12nm) territorial limits virtually all modern whaling took place on the High Seas. Practically all whaling and, I think, all whale-watching, now takes place in areas of national jurisdiction except in the Antarctic, where the Antarctic Treaty has put all national claims on hold and where factory ships continue to operate offshore collecting ‘scientific specimens’, and in contradiction of the decision by the IWC in 1979 to prohibit all pelagic whaling except for minke whales. In any revision of the ICRW 1946 these big changes in views about ownership of marine resources and freedom of the sea surely have to be taken fully into account.

The ability to declare their EEZs as off limts to whalers is, of course, a double-edged sword; whaling nations such a Iceland are ready to welcome whaling in their jurisdictions regardless of the internationally-declared status of the whales temporarily within them.

The protection of immature whales had been removed from the application of the 1937 Agreement.. This is not surprising as throughout the 1940s the average lengths of blue, fin and humpback whales in catches had been declining and it is sure that an increasing proportion of immature whales were being taken either deliberately or unintentionally. However minimum size limits were now set (blue 70 feet, fin 55 ft, humpback and sperm 35 ft) and at the time these were thought to approximate to the average size of attainment of maturity – in the case of the sperm whale presumably of the females; the crucial difference in this species between puberty and effective sexual activity then being unknown.

In 1937 two entirely new provisions were introduced, having very important implications for us now because they were taken practically unchanged into the ICRW 1946. One was the prohibition of factory ships in the Southern hemisphere operating north of 40ºS; the other the unqualified freedom of any Party to issue special permits for its nationals to kill any whales for scientific purposes. This last was to allow the killing of Protected Species and also protected stages such as juvenile whales and calves as well as in plaees out of bounds to certain types of commercial whaling operations. The former measure was not to designate a vast protected area in a back-handed way – although later commentators said it gave some protection to whales on their breeding areas (so long, I suppose, as they kept well away from land stations) – but to minimize interference between the factory ships and the land stations outside the Antarctic.

The 1937 Agreement went further than the 1931 Convention in trying to ensure that dead whales were fully utilized, with distinction between the rules for oil production and production of commodities for direct human or animal consumption (The 1931 conventionsaid that at land stations “adequate arrangements shall be made for utilizing the residue after the oil has been extracted”.)

It is, I think, worth noting that the 1939 Agreement had the double purpose of  seeking “to secure the prosperity of the whaling industry and, for that purpose, to maintain the stock of whales” – conservation clearly being for one economic and social purpose. (No ‘purpose’ is specified in the 1931 convention). The objective as stated in the Preamble to the ICRW 1946 is subtly different; it seeks ‘orderly development’ rather than ‘prosperity’; perhaps they had already given up hope of long-term profit. More cynical observers were later inclined to think the IWC’s objective was to effect the orderly run-down of the whaling industry instead of a chaotic extinction.

An important Protocol to the 1937 Agreement was adopted in June 1938.  One new idea was to allow land stations to apply shorter minimum size limits than had been generally provided before (blue 65 ft, fin 50 ft, sperm 30 ft) “provided the meat is to be used for local consumption as human or animal food”.) The other was to prohibit factory ships from taking baleen whales south of 40ºS from 70ºW westward to 160ºW, initially for a period of two years. Although it was not called so at the time this was what later was labelled The Sanctuary. A protocol of June 1938 extended this prohibition for another two years. This was signed by practically all countries engaged in whaling except Japan and Portugal, as was the 1937 Agreement itslf. Although the prohibition was of factory ships there were no land stations in those latitudes, nor physical possibility of their being set up in future (And, of course, no ‘aborigines’ bent on killing whales). In fact the absence of safe harbours and necessary freshwater supplies in these latitudes was one of the incentives to develop factory-ships; the other was to escape taxes and license fees imposed by the British authorities At the time some delegates were unsure whether their countries had the power to make such declarations regarding parts of the High Seas and, if they could, whether they could enforce the regulation. They went home pledged to talk to their governments about this but WWII interrupted such legal debate.

A protocol of March 1946 introduced a new idea: a limit of not more that 10 catches per factory ship. At the same time the season limits were greatly widened; this was of course a response to the post-war world shortage of fats and oils.

The protection of baleen whales in sectors of the Antarctic (Areas I and VI in IWC terms adopted in the 1938 Protocol was written into the Schedule of the 1946 Convention and the area labeled as The Sanctuary. That was the first time the term had been used in formal international instruments since the League of Nations Report of 1930. It had, however, been used in national legislation concerning whales: that of the authorities of Western Australia before World War I, to protect what were thought to be breeding grounds from the operations of catchers based at land stations in the region of Albany and Norwegian Bay. Evidently the rationale for this was entirely different from that in the 1938 Protocol and the 1946 Convention, which was to give some protection to whales that were moving latitudinally through their extensive feeding grounds. The Sanctuary was opened to whaling in 1954, at first temporarily and then permanently.

A protocol to the 1937 Agreement dated 15 June 1944 for the first time specified a limit to the permitted catch of baleen whales by factory ships in the Antarctic south of 40ºS during the first post-war season (1944(45) of 16,000 Blue Whale Units (BWUs), defined as one blue whale or two fin whales or 2.5 humpbacks or 6 sei whales. This provision, which was calculated as about two-thirds of the pre-war average reported catch, was extended to the 1946/47 season by the Protocol of November 1945, and then into the ‘launch’ Schedule of the 1946 Convention.

By 1943 the British and Norwegians were already planning their post-war resumption of Antarctic pelagic whaling. They had two questions to answer: how to prevent any other countries re-engaging in this industry, and how to share the production between the two of them – for this latter they had two formulae but both awarded Britain a bit less than 50% of the oil and Norway correspondingly more. They did manage, by various ploys, to stop Sweden, Argentina, Germany and Italy but as is well known failed as far as Japan was concerned, thanks to General McArthur. They tried but failed to stop the Netherlands (after all it had the powerful and immensely wealthy Unilever Corporation behind it). They could of course not do much about the USSR.

In all the discussions among companies before the war the BWU had been the bargaining chip for agreement on company quotas. Although it was based on oil production the ratios among species was changed from time to time in accordance with variations in oil production methods and sources; the overall recovery rate did not exceed for a long time about 80%. The starting point was an estimate of 110 barrels of oil  (six barrels equal to one ton) from a blue whale. The rigid BWU system was biased when the average sizes of blue and then fin whales declined before later whaling had much effect on the sei whales; it was wildly wrong when production preferences moved from oil to meat: six sei whales produce much more, and better, meat than one blue whale. That production change helped ensure the rapid demise of the sei whale stocks.

Returning now to the permission-prohibition shift it is worth looking at the evolution of attempts to change the basic management principles after the UN intervention of 1972. The New Management Procedure (NMP)  of 1974-75 dangerously straddled the two ideologies. It said that every stock must be classified and on that basis each of them would be awarded a zero or a non-zero catch limit for the coming year. But that flew in the face of the ICRW 1946 decision rules that commonly led to no decision being taken, or the decision taken being objected to by the Parties, thus nullifying the decision. This had also plagued the pre-1972 arguments: several times there was no agreement on a BWU total and it was unclear whether that meant the limit of last year would apply, or there was no limit or (very rarely! the default limit must be zero. By the late 1970s, nearly all the stocks that had not been declared ‘protected’ under the NMP because they had been found to be depleted, were ‘unclassified’, with arbitrary non-zero catch limits. The RMP was designed to change that, fundamentally. Catch limits would be zero unless non-zero was scientifically justified, with adequate and automatic precautionary rules. If a whaling country was exploiting a stock with a non-zero limit, and did not produce the required survey and other data, the limit would automatically be reduced and then default to zero.  The result is clear: all commercial whaling is prohibited until a specific exception can be justified under rigorous rules.

Sanctuaries do that, except that they stay closed at least until scientific research shows that all depleted stocks in them have recovered and damaged ecosystems have restored themselves.

When the Republic of Seychelles moved in 1979 to have the IWC declare the Indian Ocean as a sanctuary in accordance with Article V.1(c) of the ICRW 1946 it also declared its own huge, newly declared, EEZ as a protected area for all cetaceans and also marine mammals generally – in case there were any dugongs surviving there - and it encouraged all other Indian Ocean coastal states to do likewise; some did. The Seychelles proposal was intended to protect those sub-populations of whales that feed, migrate through and breed in the Indian Ocean sector of the Southern Hemispheret. However, a political compromise to obtain the necessary votes terminated the sanctuary at 55ºS; this was only corrected when the Southern Ocean Whale Sanctuary (SOWS) was declared fifteen years later. We now have the unexpected situation in which all the ‘IWC whales’ are protected (insofar as the IWC can offer protection) in their feeding areas, and some of them also on their main migratory paths and on breeding grounds. All this is rough and ready because we know that not all whales breed every year in the same ocean sector – and very recently we learned - to everyone’s surprise - that some of them occasionally venture into the Northern Hemisphere.

Adoption of the Brazil-Argentina proposal that the IWC designate the South Atlantic as a sanctuary would protect more of them en route and when feeding. I think this is especially important because it is in the southern Atlantic sector of the southern hemisphere that intensive modern whaling, by factory ships and from sub-Antarctic island land stations as well as land-stations in South Africa, Brazil, and Argentina had the greatest impact on whale populations and caused the deepest depletion, only surpassed when the pelagic fleets moved into the Indian Ocean, both from their North Atlantic and their North Pacific bases.

Brazil, Argentina and Chile have all declared their EEZs closed to whaling. The proposed new sanctuary reaches the South American and African coasts and would be contiguous with the SOWS. Brazil includes its EEZ as within the proposed IWC sanctuary but Argentina, Chile and others would havee the right to decide later whether to do likewise. In any case protection by coastal states may go well beyond the species limitations at present operated by the IWC, as well as prohibiting also the transport of dead whales and whale products through their waters. The Brazil-Argentine proposal rightly takes a long-term view of conservation and protection: it provides for review after twenty years and every ten years thereafter. All the indications are that it will, if voted on in Panama next year, attract a bigger simple majority than it has in previous years, and have a good chance of binding adoption by a three-fourths majority, bearing in mind that abstentions do not count in IWC voting and several countries are likely to ‘abstain’ or tactically absent themselves if the desired consensus is not reached.

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