The proposal by the authorities of the Principality of Monaco that the United Nations offer ‘full and permanent protection’ to all whales and dolphins on the high seas would, I suspect, have come as a surprise to many of those people who are interested in those animals and follow ‘the whaling controversy. (See details on blog ‘The Monaco proposal’) If they think of it at all most would have come to associate the arguments about their fate with the International Whaling Commission (IWC), with its limited powers and strident claims by the pro-whaling factions that it is ‘dysfunctional’ – although, if it is so, it is they that have deliberately made it that way. But the UN has for long, and in many times and different ways, been involved with whales and dolphins and with whaling. I thought a short review of the history and main features of that involvement might be useful.
First, however, about the limits of the IWC’s competence. The IWC exists under the umbrella of the International Convention for the Regulation of Whaling 1946 and that convention explicitly and deliberately excludes the IWC from having any authority concerning the matter of killing whales for ostensibly scientific purposes. Then the ICRW does not give any possibility for the IWC to ban – in the sense of prohibiting any kind of whaling indefinitely. The pause in commercial whaling, of indefinite duration, adopted by the IWC in 1982 (the so-called ‘moratorium’, though use of that term was strictly avoided in the decision) was formulated in such a way as to permit the resumption of whaling as and when certain conditions had been met; those conditions related primarily to the states of the whale populations and the effectiveness of future management of commercial whaling. There is much misunderstanding of what has been viewed as the double, parallel purposes of the ICRW and hence the IWC: to conserve whales and to provide for the orderly development of the whaling industry, with the presumption that we are free to chose between these aims and the priority among them. That is not so. The ICRW is clear: ‘ensure proper conservation and thus make possible the orderly development of the industry’ The requirement that the necessary actions should be such as to ensure that depleted populations are allowed to recover ‘to optimum levels as rapidly as possible’ provides the justification for setting catch limits at zero in certain circumstances. In early years the circumstances were perceived threats to even the continued existence of some threatened species. Next came the protection of populations found to be depleted to below optimum levels. Finally it came to be recognized that continuing scientific uncertainty about the states and potential productivity of those populations fully justified long-term – but not permanent - closure of all commercial whaling operations. Lastly, because the negotiators of the 1946 Convention omitted to define ‘a whale’ the IWC has for forty years been in the limbo of uncertainty about exactly what kind of commercial whaling it can regulate or, if necessary, suspend.
The ‘International Community’, in the form of the League of Nations, took an interest in the control of whaling from the beginning of pelagic operations in the Antarctic in the 1920s. It was urged to do so by the scientists assembled in the International Council for the Exploration of he Sea (ICES) based in Copenhagen and comprised of European Governments, including Italy and Russia. The first regulatory treaty was negotiated under League auspices in 1931 and, with amendments from time to time – especially in 1937 – continued to function through to the end of World War II.
The negotiators in 1946 were in two minds about what if anything, the baby they were conceiving should be linked to, or even be cradled within, the new United Nations system of global inter-governmental organizations. The host country and main drafter of the new convention - the USA – thought the IWC should be placed within the framework of the constitution of the Food and Agriculture Organisation of the UN (FAO), which had been established even before the UN itself, and structured with a Fisheries Division (itself a controversial decision at the time, pushed by the Canadian delegate, a biologist, Donald Finn, who became its first Director). Others, including the UK and Norway thought otherwise – they saw the IWC as a club of whaling countries and did not favour the likely openness of a UN body. The matter was not resolved in 1946 and the IWC itself was told to decide whether or not it wanted to be a part of the UN system. When decision time came, at the IWC’s second meeting, in Oslo in 1950, the USA had changed its mind and the option to be integrated in the UN system was rejected.
By 1959 the IWC and the Antarctic whaling industry were in deep crisis. The US and UK delegations saw the way out of this as the application of modern fisheries science and a renewed commitment to act on scientific advice. They, with the perennial observer for FAO, Donald Finn, put together a proposal to appoint an independent committee of scientists to provide better advice and to negotiate the necessary commitment for action, and in 1960 the so-called Committee of Three was established, and the commitment made to act on their advice by 1964 at the latest. Only Japan was seriously opposed to this, although the USSR was hesitant, mainly because it was not a member of FAO. But the FAO engagement was more than simply to provide for one of its staff – me – to be a member of the new scientific group. FAO offered to provide services and it convened the launch meeting of the Committee with a group of representatives of member states to organize the study, arrange for the release of data (much of which was at the time being held more or less secret by the whaling countries) and provide facilities. It was clear before the 1964 deadline arrived that certain countries were not going to be willing to honour their 1970 commitment – especially Japan, again -, and meanwhile the situation of the industry was going from bad to worse. Twice in that period the General Conference of FAO expressed great concern about the way things were going, and twice the Director-General of FAO, Dr B. R. Sen, a distinguished Indian diplomat personally conveyed warnings about the likely consequences. Sen warned the 1963 meeting that FAO "…could not continue to collaborate with the IWC if the scientific results were used merely to plan the more efficient destruction of the resources…", and urged the Commission "…not to use scientific uncertainty or controversy as an excuse for not acting." When the Comiitte of Three had finished its work, in 1965, FAO itself took on the responsibility of making the scientific assessments on which the IWC should base its phasing down of a grossly over-capitalised industry.
Although I had not been involved in the whaling issue before 1960, and knew little about it, I had been very much involved in the actions by the United nations to codify the Law of the Sea, especially the Technical (preparatory) Conference held in 1955 at FAO HQ, and the first UN Law of the Sea Conference, in 1958, in Geneva. The latter resulted in five conventions, but my concern was the Fishing and Conservation of the Living Resources of the High Seas, which eventually came into force in March 1966. This fisheries convention was based on a draft provided by the International Law Commission (ILC) that had been established by the Second UN General Assembly in 1947 and instructed to give priority to the codification of the regimes of the high seas and of territorial waters, The problem was that the 1958 conference failed to agree on a definition of the breadth of the Territorial Sea somewhere in the range 3 to 200 miles.
The ILC draft – put together in the period 1955-56 - contained a provision that:
Articles 52 and 53 - “…states shall adopt measures for regulating and controlling fishing activities … when necessary for the purpose of the conservation of the living resources of the high seas.” And those exact words were included in Articles 3 and 4 of the 1958 convention. “Fishing” included whaling. That looks fine in terms of promoting ‘conservation’ but there was a catch:
“Article 50 – “the expression ‘conservation of the living resources of the high seas ‘ means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products.”
These words were was also included in Article 2 of the 1958 convention, but with an additional condition:
“Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption.”
Baleen whaling would conform with that, more or less, but certainly not the hunts for sperm and bottlenose whales, which were for industrial purposes and also provision of food for livestock and pet animals.
Thus optimum and maximum became conflated and we have ever since been plagued by this pseudo-synonymy in the management of fishing and whaling. It was emphasized because the US had worked to make the Maximum Sustainable Yield (MSY) concept a condition of the US-Japan Peace Treaty negotiations – the San Francisco Treaty came into force in April 1952 -. in order to exclude Japanese fishing operations from the Northeast Pacific, in accordance with an “abstention principle”. It is indeed remarkable that in accedingto the 1958 convention, in April 1961 the USA added a footnote that
“ such ratification shall not be construed to impair the applicability of the principle of ' abstention ', as defined in document A/CONF. 13/C.3/L.69, of 8 April 1958. “
My colleague Ms Leslie Busby has reminded me that the 1958 conference adopted a Resolution that has long been buried in old files but is of particular interest now. Here it is:
HUMANE KILLING OF MARINE LIFE Resolution adopted 25 April 1958
States are “requested to prescribe, by all means available to them, those methods for the capture and killing of marine life, especially of whales and seals, which will spare them suffering to the greatest extent possible. (My emphasis)
It was not until a Special Meeting of IWC in 1965 that an organization concerned with the suffering of hunted whales (the Universities Federation for Animal Welfare, (UFAW)) was able to attend IWC proceedings; it did so in the company of the World Wildlife Fund (WWF), the Fauna Preservation Society and the International Union for the Conservation of Nature (IUCN). And it was another fourteen years before the IWC head Dr Harrie Lillie, representing UFAW, describing the horrors he had witnessed as ship’s doctor on a British whaling expedition in the Antarctic in the 1940s.
Meanwhile, in the 1960s,, concern about the situation was growing outside the IWC and even outside the UN. This culminated in the proposal by the US and other co-sponsors to the UN Conference on the Human Environment (UNCHE) held in Stockholm in 1972, that the IWC should be advised to adopt a ten-year moratorium on all commercial whaling. That idea, too, divided those who thought the IWC should be given yet another chance to perform its functions and those who though it never would – still being pretty well a club of whaling nations – and therefore that the UN itself should declare the moratorium. The former group carried the day and eventually, in Stockholm in June and at the UN General Assembly in New York later in the year the moratorium ‘suggestion’ was adopted, the only vote against it being that of Japan. At its 1972 meeting, addressed by the representative of the UN Secretary-General, the IWC rejected the UNCHE ‘suggestion’ for a moratorium (some countries such as, especially, Norway, whose representatives had voted for it in Stockholm, vigorously rejected it in the IWC; they accepted the idea of a substantial research programme – but didn’t fund it; and went on to design the compromise called the ‘Australian Amendment’ or New Management Procedure (NMP), adopted in principle in 1974 and fleshed out in 1975..
The NMP took on the idea of ‘optimum sustainability’ – the reification of greed - in the UN 1958 sense, but the IWC botched it. Instead of seeking a maximum supply of food for humans it merely continued the old policy of looking only at the numbers of animals to be killed as well as ignoring the priority reason for allowing continuation of commercial whaling – providing food for human consumption. Maximising the weight of the catches by optimizing the biomass of the population was written as an option in the 1974 Resolution that launched the NMP, but that was never implemented. And the more reasonable idea of maximizing or just increasing economic yield (profit) by catching a bit less than the maximum number or weight but with much less expenditure as proposed by Canadian and US economists and by Raymond Beverton and me, in the 1950s, was not even considered.
A decade later, when the IWC’s Scientific Committee embarked on what was to become the Revised Management Procedure (RMP) – which dealt satisfactorily with two issues - variability, uncertainty and precaution, and avoiding the danger of unintentional depletion – the old errors were repeated. Although by then my work with Dr Christine Lockyer had shown that the average weights of fin and blue whales in catches had declined by one third from the beginning of pelagic whaling in about 1928 to its end (as far as the major species were concerned) in the 1970s, the IWC scientists continued to think only in maximum numbers, and not at all in terms of commodity production and economic productivity. This was largely the fault of the Commission itself, which decided policy objectives. But not once did the scientists draw the Commissioners’ attention to this factor, as they had at least done in the 1970s – though not listened to. In that early period, and before, the net-economic yield issue was hotly debated in fisheries circles, and I remember the US delegate to many high-level meetings – Dr William Herrington, himself a biologist by training - arguing, with some reason, that there could never be agreement on an economic optimum because different nations valued different species differently and had differing cost structures. In those days subsidies were thought to be good because they encouraged renovation of the fishing fleets. But this hardly applied to the whaling issue because practically all whaling operations were directed to supplying the global oil market and the burgeoning whale meat market that was 95% Japanese.
As one outcome of UNCHE the UN established the UN Environment Programme (UNEP). One of its main and best funded activities was the Marine Mammals Project, set up as a joint programme with FAO. I was put in charge of that and from 1973 to 1976 more than 400 scientists collaborated in reviewing what was known about cetaceans, seals, dugongs and manatees. Towards the end of the decade, when the NMP was obviously failing- especially regarding the whaling in the Northern hemisphere, and conservation of the sperm and minke whales, FAO and UNEP again became active in trying to get the IWC to reform itself. Things began to improve when UNEP, WWF and the Threshold Foundation helped, in 1979, the newly independent Republic of Seychelles to revive the idea of whale sanctuaries. In parallel with all that, however, the UN had again taken up the codification of the Law of the Sea for the new era and sought to rectify the failures and inadequacies of 1958 and 1960, beginning with Dr Arvid Prado’s historic speech in the UNGA in 1967, on behalf of newly independent Malta. This led eventually to the success of a Third UN Conference on the Law of the Sea that ended, after nine years of negotiations, with the new convention (UNCLOS) that was signed in 1982 and eventually came into force in November 1994 – the year that the IWC designated the Southern Ocean as a whale sanctuary.. UNCLOS has very important implications for the conservation and protection of whales and dolphins.
More about that later.