From cartel to conservation and on to compassion: Animal welfare and the International Whaling Commission

Journal of International Wildlife Law and Policy

Volumn 6, Issue 1-2, 2003, Pages 79-104

  Harrop, Stuart Ro ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ANIMAL WELFARE; INTERNATIONAL LAW; WILDLIFE MANAGEMENT;

ANIMALIA;

EID: 31344452788     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/713778532     Document Type: Article

References (92)

1. See generally, by example, Webster Ryder & J. Webster, Animal Welfare: A Cool Eye Towards Eden (1994)
2. G. Mason & M. Mendl, Why is there no simple way of measuring animal welfare?, 2 Animal Welfare 301-319 (1993).
3. In a report prepared for the UK's National Trust to assist it in its decision whether or not to ban hunting deer with hounds on its land the eminent scientific adviser begins with the moral driving forces which gave rise to the scientific analysis by referring to "contemporary" feelings towards deer hunting expressed in the Disney film Bambi. See P. Bateson, The Behavioural and Physiological Effects of Culling Red Deer, Report to the National Trust (1997).
4. This is a paraphrased description of the distinction between welfare and conservation. To unravel the level of science and moral assumptions in welfare and conservation arguments is beyond the scope of this analysis and results will, in any event, differ depending on the stance of the individual. Thus, there is a great deal of science in welfare just as there are many leaps of faith and moral assumptions in conservation.
5. "Charismatic megafauna" is a loosely defined phrase which describes those species which are the aim of the concern of conservation programmes not necessarily because they are crucial, keystone species but because they catch the public eye as a result of their size, beauty or other reason for popularity. See by example: H.J. Goodwin & N. Leader-Williams, Tourism and protected areas: Distorting conservation priorities towards charismatic megafauna?, in Priorities for the Conservation fo Mammalian Diversity: Has The Panda Had its Day? (A. Entwistle & N Dunstone, eds. 1997), at 257-275.
6. See generally for an example of objectively set priorities for conservation programmes: J.E. Lovelock, GAIA A New Look at Life on Earth (1979, reprinted 1987).
7. The contention relates to the manifestation of welfare and conservation rather than the theoretical base behind them. The author appreciates that there are many excellent arguments demonstrating scientific or pragmatic bases for moral propositions.
8. See by example: RSPCA Policies on Animal Welfare (Revised 1991)- Royal Society for the Prevention of Cruelty to Animals page 20 where, in paragraph 4.1, it is stated: "Since the RSPCA is concerned with the welfare of wild animals it deplores changes made in the environment which disturb the balance of nature."
9. See generally for a comprehensive analysis of the threats to global diversity and the current extinction spasm E.O. Wilson, the Diversity of Life (1992).
10. Even this distinction is grey at the edges. UK Charity law, which governs most of the UK organisations concerned with this issue, insists that animal welfare (along with species conservation) is regarded from an anthropocentric point of view. For a charity dealing with welfare to be registered as such its actions must ultimately elevate the human race. (See by example: Re: Wedgwood [1915] 1 Ch. 113, per Swinfen Eady L.J. at p. 122: Where it is said that a charity for animal welfare must... "tend to promote and encourage kindness towards [animals], and to ameliorate the condition of the brute creation, and thus to stimulate humane and generous sentiments in man towards the lower animals, and by this means to promote feelings of humanity and morality generally, repress brutality and thus elevate the human race."
11. S.R. Harrop, The dynamics of wild animal welfare law, 9 J. Envtl. L. 287-302 (1997).
12. These instruments are essentially conservation oriented although there are some sparse examples of welfare legislation within them either intended or incidental. (See, for a detailed analysis: Harrop, supra note 11, at 287-302.)
13. S.R. Harrop & D.F. Harrop, Comparing different national regulatory approaches to the practice of hunting wild animals with Dogs, 4(3) J. Wildlife L. & Pol'y 469-481 (2001).
14. Harrop, supra note 10, at 287.
15. There are two agreements but the difference is minor and exists to ensure that all the negotiating parties sign up to the core terms. (See generally S.R. Harrop, The trapping of wild mammals and attempts to legislate for animal suffering in international standards, 12(3) J. Envtl. L. 333-360 (2000)
16. The first is the Agreement on International Humane Trapping Standards between the European Community, Canada and the Russian Federation, O.J. NO. L 042, 14/02/1998 P. 0043-0057. It was approved in the European Community by Council Decision 98/142/EC (O.J. no L 042, 14/02/1998 p. 40-41.).
17. The second is the International Agreement in the form of an Agreed Minute between the European Community and the United States of America on humane trapping standards - Standards for the humane trapping of specified terrestrial and semi-aquatic mammals. O.J. L 219, 07/08/1998 p. 0026-0037.
18. European Brief on the standards in the Agreement on International Humane Trapping Standards, Royal Society for the Prevention of Cruelty to Animals (1998).
19. As witnessed by the large number of parties to CITES, the Convention on Biological Diversity etc. and the difficulty faced in obtaining the signatures of parties to the relatively innocuous Agreement on Humane Trapping Standards.
20. The High North Alliance (See: ) states that its objectives are: "to protect the rights of whalers, sealers and fishermen to harvest renewable resources in accordance with the principle of sustainable management. HNA also works towards consolidating the knowledge and skills necessary for the ecologically sound management of marine mammal resources."
21. F. Lynge, Arctic Wars, Animal Rights, Endangered Peoples xi (1992).
22. Id. at xi.
23. P. Birnie & A. Boyle, International Law & The Environment (2002, 2d ed., at 66 & Note 181 to Chapter 2.
24. Harrop, supra note 10, at 289-290.
25. The proposal was contained in document Doc. 4.32 presented at the 4th Conference of the Parties of Cites in 1983 held in Gaborone in Botswana.
26. See CITES Articles III.2(c), IV.2(c), 5(b), 6(b), V.2(b) and Viii.3.
27. Convention on the Conservation of European Wildlife and Natural Habitats 1979, ETS 104.
28. See, by example, Berne Article 9.1.
29. See by example Art. IIII.2(b). Note also that where these words do not appear clauses deal with re-export where the matter would, in any event, be irrelevant. (See by example Art. III.4.)
30. CITES Doc. 4.6
31. and CITES Plen 4.8 (Rev.)
32. Plen. 4.8 (Rev.) para 15.
33. 161 UNTS 143.
34. The classic Moby Dick by Hermann Melville centres on the moral conflicts faced by whalers, indeed all hunters of prey. The syndrome of the hunter becoming the hunted is bordering on the archetypal.
35. RSPCA - Whaling - The suffering must stop. (An information paper provided by the Royal Society for the Prevention of Cruelty to Animals (UK).)
36. See IWC 10th Report 1959, at 7.
37. Article 6 Schedule to the International Convention for the Regulation of Whaling. Note that in the footnotes to this article it is recorded that Japan and the Russian Federation still retain reservations in respect of Article 6.
38. Article 10 the Schedule to the IWC convention. On the history and status of the moratorium the IWC says as follows: "In 1982, the Commission took a decision, which came into force for the 1986 and 1985/86 seasons, that catch limits for all commercial whaling would be set to zero. That decision also stated that by 1990 at the latest, the Commission will undertake a comprehensive assessment of the effect of the decision on whale stocks and consider modification of the provision and establishment of other catch limits. At the 2000 meeting, as in previous years, the Commission did not adopt a proposal by Japan for an interim relief allocation of 50 Minke whales to be taken by coastal community-based whaling. As Norway has lodged objections to the relevant items in the Schedule, it has exercised its right to set national catch limits for its coastal whaling operations for Minke whales. The Commission passed a Resolution calling on Norway to halt all whaling activities under its jurisdiction,"
39. See, by example: M. Klinowska, Dolphins, Porpoises & Whales of the World, The IUCN Red Data Book. IUCN, Gland, Switzerland (1991)
40. D.W. Rice, Marine mammals of the world - Systematics and distribution Society of Marine Mammalogy Special Publication Number 4 (1998).
41. Under Article VIII of the International Convention for the Regulation of Whaling restricted permits, for the purpose of scientific research, may be issued to nationals of the parties to the convention.
42. According to a press release from the International Fund for Animal Welfare dated 21 September 2000 the Japanese fleet captured 43 Bryde Whales, 40 Minke Whales and 5 Sperm Whales during that year's season.
43. P.G.H. Evans, The Natural History of Whales & Dolphins 134 (1987).
44. Harrop, supra note 11, at 288.
45. See T. Schweder, Distortion of uncertainty in science: Antarctic Fin whales in the 1950s, 3 J. Int'l Wildlife L. & Pol'y 73 (2000).
46. There is a report of a whale taking 55 minutes to die during the 1993 Norwegian whale hunt. (See the website of the Whale and Dolphin Conservation Society - .)
47. Ibid.
48. By example at the most recent meeting (54th Annual Meeting of the International Whaling Commission 20-24 may 2002, Shimonoseki, Japan) the agenda item 8 of the Plenary Session Agenda deals with Whale Killing and Associated Welfare Issues with a specific item entitled improving the humanness of whaling operations.
49. Both of these quotations are from the IWC website:
50. H. Mclachlan, The use of electricity to kill Minke Whales: Humane considerations, 4(2) Animal Welfare 126 (1995).
51. Japan's report on its experiment of humane methods of catching whales in the 1982/83 Antarctic whaling season. Proceedings of the International Whaling Commission IWC/TC/35/HK2.
52. See Chairman's Report of the 49th meeting of the IWC (8.1 Report of the Humane Killing Working Group.)
53. There are a number of instruments emanating from the European Community and the Council of Europe relating to this subject which could have been the subject of the reference and all make much the same point. Article 12 of the European Convention for the Protection of Animals in Slaughter (Official Journal L 137, 02/06/1988 p. 0027-0038) requires pre-stunning for most farm animals brought to slaughter and Article 16.1 describes the desired effect: The stunning methods... shall bring animals into a state of insensibility which lasts until they are slaughtered, thus sparing them in any event all avoidable suffering.
54. See paper issued by the RSPCA to delegates to the 1996 meeting of the IWC and Mclachlan, supra note 46, at 125-129.
55. See IWC website: .
56. Again this whole area is regularly a matter for conferences of the parties and at the miost recent meeting in 2002 Agenda item 8 was wholly concerned with the issue.
57. K. Simpson, The 51st Annual Meeting of the International Whaling Commission: One Minute Before Midnight?, 3(2) J. Int'l Wildlife Law & Pol'y 343 (1999).
58. See Resolutions of the 51st Meeting of the International Whaling Commission - final press release 28 May 1999 for a description of quotas extant at that time.
59. IWC Resolution 1997-1.
60. See Chairman's Report of the 49th meeting of the IWC (8.1 Report of the Humane Killing Working Group.)
61. Breach Marine Protection 1996 The Unacceptable, Inhumane Slaughter of Gray Whales during a socalled 'aboriginal Subsistence' Hunt in Russia, http://members.aol.com/breachenv/gray1.htm
62. See IWC Resolution 1999-1.
63. Simpson, supra note 53, at 345.
64. IWC Resolution 1999-1 Resolution Arising from the Workshop on Whaling Killing Methods.
65. See also Simpson, supra note 53, at 345.
66. Chairman's Report of the 49th meeting of the IWC (8.1 Report of the Humane Killing Working Group.)
67. W. Fridman, The Changing Structure of International Law 4-5 (1965).
68. Lewis Carroll, Alice in Wonderland.
69. Once the rules have substantially altered the effect may be so drastic that the original concept of the rules is no longer adhered to. In the context of the IWC, Iceland attempted to re-enter the IWC with full membership at the IWC conference in May 2002 only to have its proposal rejected. The basis for rejection appeared to be the failure to accept the relatively recent (when compared with the age of the IWC) moratorium on commercial whaling which was not necessarily the type of measure contemplated at the time of the establishment of the IWC. According to the UK's delegate, Eliot Morley "I have no sympathy for Iceland. The situation is of its own making. Iceland is free to join, but it cannot decide in advance which parts to accept. The moratorium is the cornerstone of the IWC." Reported in The Guardian 22 May 2002.
70. UN Doc A/Conf 39/28, UKTS 58 (1980)
71. 8 ILM 679.
72. Vienna Convention, art. 31.1.
73. Ibid. at art. 31.4.
74. Bearing in mind the regular presence of NGO's to parties in a ratio of more than 2:1. (See supra note 21.)
75. In terms of the cognitive abilities of cetacean species the position is controversial with some claiming that dolphins, in particular, share the same level of intelligence as primates. This is not the place to debate the issue but it may is safe to assume a minimum physiological and behavioral level of sophistication which imputes a complex ability of whales to feel pain and to suffer in other ways on a par with the capabilities of domestic cattle. See for a brief examination of some of the contentions in this area: Evans, supra note 39, at 100-205.
76. See the views of the UK expressed in the Chairman's Report of the 49th meeting of the IWC (8.1 Report of the Humane Killing Working Group.) See also Council Directive 93/119/EC on the protection of animals at the time of slaughter or killing Official Journal L 340, 31/12/1993 p. 0021-0034 and the US Humane Methods of Slaughter Act of 1958. Chapter 48 Sec. 1902. Sec. 1902. Which states that: "No method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane. Either of the following two methods of slaughtering and handling are hereby found to be humane: (a) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut; or [(b) ritual slaughter]."
77. See the views of the Japanese delegates in the Chairman's Report of the 49th meeting of the IWC (8.1 Report of the Humane Killing Working Group.) and see also Hayashi Y. (1996) Humane Killing of Whales and the Sustainable Wildlife Utilisation http://luna.pos.to/whale/icr.
78. This point arose from information passed to the author when interviewing a marksman for the UK's National Trust who was responsible for deer culling in the UK West Country.
79. See supra note 14.
80. Supra note 15.
81. Reports describe the recent 2002 pleanry session of the IWC in Japan as beset by controversy and tension and only a small part of its business was fully executed.
82. As was the case when Norway (and others) proposed a down listing of the MinkeWhale from Appendix I to II at the Fort Lauderdale at the 9th Conference of the Parties of CITES in 1994.
83. W.C.G. Burns, G. Wandesforde-Smith & K. Simpson, The 53rd Meeting of the International Whaling Commission and the Future of Cetaceans in a Changing World, 4(2) J. Int'l Wildlife L. & Pol'y 225 (2002).
84. Opened for signature 10 December 1982, 21 I.L.M. 1261 (entered into force Nov. 16, 1994).
85. Articles 65 and 120 ofUNCLOS establish that all states must cooperate with a viewto the conservation of marine mammals and in the case of cetaceans shall in particular work with the appropriate international organisations for their conservation, management and study. (The IWC is the appropriate international organisation.)
86. William J. Clinton to the Congress of the United States, Feb. 11, 1967.
87. Section 8 Fishermen's Protective Act 1967 (22 U.S.C. 1978). A similar approach was taken by the USA in relation to Japan prior to its acceptance of the 1982 moratorium and Norway has been certified pursuant to the Pelly Amendment but no sanctions have ensued thereby, (S. Lyster, International Wildlife Law 34-35 (1985).
88. According to the Guardian newspaper 22 May 2002, Iceland failed to regain full membership and stormed out of the IWC's conference of the parties on 21 May 2002. The reason for the rejection of full membership was, according to the newspaper, Iceland's requirement that it would join without recognising the moratorium on commercial whaling.
89. Stefan Asmundsson quoted in Japan Today 22 July 2001.
90. Letter to the Canadian Government from Rosemari Kupanat, President of the Inuit Tapirisat (Council) February 24, 1994.
91. See S.R. Harrop, The GATT 1994, The Biological Diversity Convention and their Relationship with Macro-Biodiversity Management, 4 Biodiversity & Conservation 1019-1025 (1995).
92. Article 4.1 takes the rather unusual step in a conservation/wild animal welfare agreement of asserting that: Nothing in this Agreement affects the rights and obligations of those Parties that are members of the World Trade Organisation (WTO) under the Marrakesh Agreement establishing the World Trade Organisation. This is, however, not a surprise because the Agreement was negotiated in response to a potential WTO dispute. (See Harrop, supra note 15.)