WHALES AS M ENDANGERED SPECIES
JAN MARTIN
97 WHALES AS AN ENDANGERED SPECIES
BY JAN MARTIN
Submitted to Professor Frank E. Skillern Texas Tech School of Law January 9, 1978 WHALES AS AN ENDANGERED SPECIES
Introduction I. The Whale Classification Feeding Habits and Migration Recruitment II. Whaling
History Technological Development Japan's Role Need for Regulation
I'll. Whaling Regulation
1931 Convention for the Regulation of Whaling Blue Whale Unit 19^6 International Convention for the Regulation of Whaling International Whaling Commission Federal Statutes IV. Other Considerations Economic Costs of Whaling Minimization of Harm and Ecology
Conclusion
99 WHALES AS AN ENDANGERED SPECIES
So little is known of the whale that it is difficult to be certain of many things. Greater knowledge is possessed by man now than ever before, yet in relation to knowledge of other animals it is comparatively little. Many conferences have been held on the regulation of whaling and there are two international conventions in force, not to mention several Federal statutes. The study of whales and whaling unfolds multiple aspects of the problems which go hand in hand with any attempt at conservation of whales or regulation of whaling.
1. The Whale
According to scientific nomenclature whales cannot be correctly termed an endangered species because whales are part of the Order Cetacea. Nonetheless, there are eight species of whales listed as endangered in the Federal 2 . 3 Register as ordered by the Endangered Species Act of 1973. including the Blue Whale, Bowhead Whale, Fin Whale, Gray
Whale, Humpback Whale, Right Whale, Sei Whale and Sperm Ll Whale. The fact that these great whales are included on this list means that neither the animals nor their products may be imported into the United States.J McVay defines an endangered species by stating "a species is endangered when the exploitation rate is so 100 2
high that, on the average over time, each adult less than 6 replaces itself in the next generation." The above listed animals have been subjected to such exploitation. These whales are commonly known as the great whales or larger Cetaceans and have been the basis of the international whaling industry. Cetaceans are mammals, though often referred to as fish by whalers/'7 The order is divided into two distinct suborders, Mystacoeti and Odontoceti. The seven whales listed above besides the sperm whale all fall into the first suborder and are known as baleen whales. Suborder Odontoceti encompass sperm whales, porpoises and dolphins, members of this group are known as toothed whales. In the Suborder Mystacoeti the whales 8o f the family Balaen- opteridae are referred as rorquals, and are characterized by the grooves running from the lower lip to the chest. The blue whale, fin whale, sei whale and. the humpback fall into this category. The blue whale has been named the mainstay of whaling because it is the largest of the whales, yielding more profit for whalers. Little is known of whales as compared to other marine mammals due to the difficulty of intense research. The amount of and type of food in addition to their size makes 1 0 it impossible to keep a great whale m captivity for study. Sperm whales feed mainly on squid which is one reason they spend most of their lives in tropical seas. Squid are abundant where cool and warm waters meet. Baleen whales possess plates of whalebone instead of teeth limiting their diet to small sea animals-, i ankton. and phytoplankton, which can be swallowed without chewing. A major part of their diet' consists of krill, small crustaceans. Diet in part controls the migration of baleen whales. The summer months are spent in polar waters, feeding, the whales migrating before the ice pack expands and cuts off the open sea and food supply. The whales travel toward 11 warm waters for mating or to give birth. Krill is abundant in cold water due to the abundance of carbon dioxide, oxygen and other inorganic nutrients which nourish diatoms. Diatoms are small plants on which 12 krill feed. Damage to the environment is a result when a food chain is severely disrupted, but the probabilty and nature of the damage remains unknown. A species of whale will separate into stocks. A stock is a group within which whales live and breed. A species can be termed a group potentially able to interbreed, but a stock is a population unto itself. Stocks are geograph- ically and behaviorially seperate. For example, a stock of blue whales migrates to the Arctic and another migrates to the Antarctic during the summer. Due to the difference in seasons between the1 3hemisphere s these whales will probably never intermingle.x Baleen whales are found in groups of mixed sex while sperm whales are found in polygamous groups of one male and about ten females. Among baleen whales the sise difference between male and female whales is minimal making it useless to set quotas by sex, however, female sperm whales are often ten feet or more shorter than males, making it possible to set quotas by sex. ' Consequently, males without harems can be killed without affecting the recruitment rate drastically (in theory). Recruitment is "the quantity natrually added to the stock each year to build it up to replace what has been lost through natural deaths or catching" while "sustainable yield is ... the catch which can be taken without affecting
1J 5 the level of the stock." The rate at which stocks reproduce is a major factor in deciding whether a stock or a species dies out. Two principles apply theoretically to the relationship between population size and recruitment. The first is a tendency for the recruitment rate to increase as population size decreases, making-up for the loss. However, the second principle refers to a critical population level. At this level the recruitment rate ceases to increase as the population becomes smaller? when a population reaches this level extinction is inevitable. Each species has a different critical population level, whether several hundred or thousand. II. Whaling Aside from several major developments, the factory ship in 1905. and harpoon with the exploding head in the 1860's, the whaling industry has not undergone a great 17 number of changes since its beginning. The Basques began whaling from land bases in small boats during the twelfth century. The right whale was the first target because 103 its migration route is along the European coast and it is a slow swimmer. By the fifteenth century they had built 1 8 larger ships and pelagic whaling began. Although Arctic whaling during the early seventeenth century was known as 19 the Golden Age of Whaling, y the discovery of Antarctic stocks produced the largest catches ever. Whaling in the United States began in the seventeenth century? early whalers also exploited the right whale.
The value of sperm whales was20 discovered in 17-12, providing stimulation to the industry. As the Basques, the
Americans killed the whale which was the easiest to kill first then moved to the open seas. The sperm whale became the support of the American industry which virtually ended ?1 in 1925s ~ though Eskimos continue whaling. Rorquals became significant in the twentieth century due to advanced technology. Whalers long knew about them but they swam faster than ships could sail and sank when killed. The development of the steam powered catcher boats, harpoons with expd^liding heads fired from cannons,.^and„a methoit possibld of efillin to comerciallg the carcass^Wity marketh rorqualsair to .floa 22 t Ththee mAntarcti made c was a virtually untouched source of rorquals in the early 23 years of this century. J Rorquals could always be found during the Antarctic summer because of their food supply requirements. For the whaling season of 1913-1^ "the Antarctic catch was eighty percent of the world catch and more than three times the world catch ten years before. Whale oil production peaked in 1931 but, the largest amd most profitable whales had been overfished? an increased catch never produc 2k- as much marketable product. The Japanese also have a whaling history. Like the Basques and New England whalers they were able to operate a land based industry by killing gray whales and others that passed close to shore. In the seventeent2 5 h century they developed large nets to catch whales. In modern whaling Japan takes a large share of the established quotas. As countries like Great Britain and Norway decreased their fleets' size and later ceased whaling, Japan bought their ships and a share of their quotas. Using these quotas plus its own, Japan has been able to maintain a 2large 6 r catch and still remain within agreed regulation. As the Antarctic stocks dwindled, the North Pacific regained some importance as a whaling ground. A special meeting was called in 1966 for the nations involved, including Japan, Canada, U.S.S.R. and the United States.
Canada and the United States were involve27 d because of the whaling done by Indians and Eskimos. The urgent need for stringent regulations is exhibited by a few facts. The bowhead, right and gray whales were over exploited before and during the ninteenth century; the blue whale whale has almost been wiped out. If we term the existing whale stocks as the principal, a certain number of whales can be harvested without depleting the population; this harvest can be termed interest. While the principal is undisturbed interest will be produced, 105 -2?- but if both the interest and principal are used the resource will become depleted and extinct. Regulation should preserve , 28 the principal. III. Whaling Regulation If whaling had remained based in land stations, regu- lation would be most effective through individual nations, but whaling is pelagic and international regulation is the 29 most effective means of controlling pelagic whaling. Though the international community had recognized the 30 need for strict regulation the Convention for the Regulation of Whaling of 1931 was virtually useless. The limitations set were too vague, also the nations offered only limited protection to the almost extinct right whale and bowhead whale. "Additionally, the convention is internationally uneforceable due to the failure of Japan and the U.S.S.R. to accept it. As of January 1, 1976, there were 3forty-seve2 n nations as signatories to the 1931 Convention.- No matter how weak the 1931 Convention is, it was a first step. In 1937 the International Agreement for the Regulation of Whaling was signed containing regulations limiting the season, placing a minimum length on blue whales33, AACL limiting the area permissively subject to pelagic whaling. Two conferences were held in 1938 and 1939 prescribing more regulations; one was planned for 1940 but World War II cancelled it and precluded further efforts until 1944.- Before World War II and throughout the 1930's Japan remained uncooperative. 35 I /CO -S--
The first attempted regulation after World "War II was instigated by the British in 1944. It was at this conference that the blue whale unit was established as the standard for quotas in the Antarctic region (south 40° S. latitude). The quota set was 16,000 b.w.u.. One b.w.u. equals onn blue whale, two fin whales, two and one-half humpbacks or six sei whales. Based on oil yield the system has proved scientifically unsound. It was hoped that whalers v/ould divide their catch among the different species but this did not occur. The 16,000 b.w.u. quota was too high and as always the whalers hunted the blue and humpback whales 3? first to obtain the highest yield with the least effort. The United States called the next conference in 1946. The result of this conference was the International Convention for the Regulation of Q Whaling and the International Whaling Commission or IWC. " Fourteen nations represented themselves at the conference; Japan was represented by Allied Observer Officers. Several countries later subscribed to the 1946 Convention including: Iceland, Sweden, Mexico, Panama and Japan. Several countries have since withdrawn including: Chile and Peru. Chile and Peru then combined 40 with Ecuador to form the Commission for the South Pacific. As of January 1, 1976 there were fifteen nations listed 4l as parties to the Convention. The 1946 Convention has only been ammended once since 1946, in November, 1956. The purpose was to extend regulation to aircraft, helicopters, and to make methods of inspection 42 among the ammendable provisions of the Schedule. 107 -17- The Preamble to the 1946 Convention sets the tone
for the Convention's interpretation; it is in the Preamble il o that conflict first arises. J The Convention speaks of whales as a natural resource that should be protected in the second paragraph of the Preamble. The words "conservation" and "preservation" are present throughout, but in the last paragraph, the preamble states conservation is desireable to "make possible the orderly development of the whaling industry." J The whaling industry has main- tained an active interest in the activities of the IWC, established in Article III of the Convention. The IWC is to encourage studies of whales and whaling, collect data on whale stocks, study information on population 46 maintenance, and make reports of its activities. The 1946 Convention has a second part known as the
Schedule; it contains the regulatory provisions. The 47 Schedule can be ammended by a three-fourths majority vote ' of the IWC. This procedure makes it unnecessary to 48 make new formal agreements in the event of needed changes. Any subscribing nation has ninety days to object to a proposed ammendment; if an objection is made the resulting regulation will not apply to that government. In case of an objection there is an additional ninety days granted to other nations for further objections. A government which previously agree49d to the provision is free to object at a later time. y This is an effective means of regulation only for those who want it. The IWC has no powers of enforcement. It can change the schedule and its regulation^. i^tt has no power if a -10- K0 state decides not to agree to an ammendment^ and objects. Aside from the problems within the 1946 Convention, many governments do not grant unconditional authority to the head of the delegation to the IWC. This increases the pass- ibiltiy of an objection after the commission has adjourned.1 The IWC meets in June each year and has three perma- nent committees, Finance and Administration; Scientific, and Technical. Presently a cetologist serves as Executive Secretary, a change from the part-time administrator of the past. 52 Although the IWC has no autonomy and can only c-1 carry out the wishes of member nations, J it has made progress toward whale conservation. A few examples of regulations include size limits for catching; the setting of dates for the whaling season, and a ban on killing certain 54 ... species. Yet conflict remains, Article V, paragraph one of the convention authorizes the IWC to ammend the Schedule defining the type of regulations, while paragraph two restricts this power in part by not allowing any limit on the number of factory ships or land stations per country and by specificially giving the whaling industry consideration on every ammendment. Since the IWC has the power to make regulations but no power of enforcement, why should a nation bother to be concerned? Certainly there will be infractions of the regulations- One example involves the role of the inspector on Japanese whaling vessels. The position was so honored that the inspector did not come on deck during the flensing (butchering of the carcass). The workers took the needed -10- measurements, having no reason to be unbiased, the meas- urements were probably inaccurate. Impartial observers are needed
There are ways of loosening the restrictions such as filing an objection or withdrawing from the Convention^ <7 states have used both methods. However, the fact that the IWC cannot impose sanctions against those who violate the Convention does not mean that a country will purposely
violate the Convention. There are many factors which cause a state to abide by the law even in the face>of temptation to violate it; a strong expectation of resulting advantages is ordinarily necessary for a state to violate the inter- national norm. Under the Convention (19^6) each subscribing nation is expected to enforce the regulations in regard to its
citizens, plus fulfill the responsibilities necessar5y9 to maintain international supervision and enforcement. Nations frequently find it more advantageous to carry out their responsibilities for several reasons. Observation
of law can be a valuable instrument of foreign policy,^°but the responsibility of enforcement can become a heavy burden.
A nation can insure primary representation of its whaling industry by choosing a delegate to the IWC who is £ ? a member of the whaling association of said country. In the past economic considerations have been given too much weight in setting the quotas; one reason for this is the whaling industry representation at the IWC meetings. The quota for the Antarctic blue whale should never have exceeded 110 -12- } 3,000 b.w.u.j the animal was overfished in 1946. 6'J Yet,
, t , , fjli the 19^9 quota of 16, 000'b.w.u. was maintained until 1953. By 1956 the quota was reduced to 14,500'b.w.u. which was still too high. The IWC8s authority over quotas is restricted to a cumulative or "global quota", having no authority to allocate the quota between nations. Ordinarily,
the interested nations meet to divide up the quota decided upon, after the IWC meeting each year,^t the smaller the stocks become, the harder it is to fill a quota. To make a profit it is necessary to get a large catch; therefore, the goal of Antarctic whalers has?to capture as many whales
as possible as quickly as possible. Antarctic whaling 66 became known as "The Whaling Olympic." The IWC has had a hard task in trying to preserve whales while trying to maintain the subscribing nations' interest through continued profits from whaling. In 1959 Norway and the Netherlands withdrew from the convention. Crippled, because Norway and the Netherlands were still major whaling nations, the IWC did not set a formal quota for the 1959-60 season. In fact catch limits were suspended
67 for the 1960-61 and 1961-62 seasons.
In I960 three scientists were appointed to study whale stocks. The major whaling nations agreed to abide by the committee's recommendations by 1964. In 1963 the committee recommended that the blue whale unit be abolished in favor of quotas set by species, and that a ban on the killing of blue and humpback whales be instituted. The permanent scientific committee supported the special committee, but the recommendations were rejected in 1963 and inll964.68 -13- The 1964 meeting has been termed "disastrous" by J. L. McHugh. Again, nations were unwilling to adopt the type of quota necessary to preserve whales; no limit was set for the 1964-65 season. The whaling nations met after the commission meeting and set a quota of 8,000 b.w.u.. y And in 1964 Japan and other nations objected to protection for the Antarctic blue whale. During the 1960's many nations wanted to implement the International Observer 70 Scheme. The Convention of 1946 had been ammendea in 1956 to allow this,^ but implementation was delayed?2 The blue whale received complete protection in 1965- In 1966 the Antarctic quota was reduced to 3.500 b.w.u. In 1971 the IWC agreed to abolish the blue whale unit for 1972 and the International Observer Scheme was implemented. 73 There -was a need impartial observers in order to obtain 74 objective data. The benefit of this plan is that the observer is not from the country whose fleet he is observing. 7 5 And, the observers report directly to the commission'-' By 1975 catch levels had been established for all oceans, and sperm whales were receiving special attention.
The commission also provided7 6 for more research on behavior and breeding of all whales. The sperm whale had not been included in the blue whale quota system for two reasons. First, sperm oil and whale oil (from baleen whales) are- totally different and cannot be used for the same things. Second, few sperm whales are found in the Antarctic. The blue whale unit was based on whale oil producin77 g capacity of whales in the Antarctic, mainly rorquals. In 1973 the United Nations Governing Council for Environmental' Programs confirmed a resolution for a moratorium on the killing of whales. The resolution was rejected at no the next IWC meeting* and the United States protested. The U. S. had been working for a 10 year moratorium through the IWC. 79 Instead of a total moratorium, the Austrailian
Ammendment was introduced in -197v V e5 a v».»an*d « *>approve& v* e sv'Vd by the commission. McKugh feels that ,—s considers the uncertainties of precise estimation of the sustainable yield of a whale stock and is practical but with the effect of a moratorium. On Under the plan a zero quota is assigned to stocks whose population is ten percent or more below the maximum sustainable 81 yield. Maximum Sustainable Yield is the largest number of animals which can be caught without any further depletion 82 of the stock. Under this new plan the permanent Scientific Committee determines the status of a stock and the quota. The effect is protection of endangered species and limited hunting.^ The United States has maintained an interest in whales despite the absence of commercial whaling as an industry in the U. S. Interest is manifest by continued participation 84 in the IWC. There are two strategies which have been used by the U. S. to further whale conservation on a international level. The first is a threat to invoke the Pelly Ammendment to the Fisherman's Protective Act of
1967r The effect of which would be a ban on importation of fish products from offending nations. The second 113 -2?- is to arouse public opinion and private boycotts of Soviet 8 and Japanese goods. Japan and the U.S.S.R. are presently 86 the two major whaling nations.
The U.S. implemented the International Convention for the Regulation of whaling on a nationaa n l scale with the Regulation of Whaling Act of 194-9. The act provides for appointment of the U. S. commissioner to the IWC; 88 the commissioner receives no compensation. ' The act also authorises the Secretary of State in connection with the
Secretary of Commerce to make or8 9 withdraw any objections to ammendments to the Schedule. y Violation of IWC regu- lations is made illegal and licenses and license fees are required for any whaling operation. 90 The penalty for violation of the Convention is a fine of $10,000, or 91 imprisonment or both. The effect of this statute Is to institute international regulations on a national level.
The Endangered Species Act should be interpreted as preventive, it shov/s that Congress is not willing to 9wai2 t for a species to become extinct before taking action.'
A species' status is made public through the direction to the Secretary of the Interior to list all species which are endangered of threatened m the Federal Register.
This listing is importan94 t because the act prohibits trade in the whales listed. This trade limitation can operate as a sanction for Japan*, until 1970 when the list was
I /CO first published under the 19&9 ac"t the U. S. was importin 9 r> a .large amount of whale meat every year. ^ The act is directed towards conservation of those species nearing extinction because there lies the urgent need Eskimos and Indians subject to Federal jurisdiction are exempt from regulation where whaling is critical to food supply and the economy, for example where 97th e whale is also used in the making of native articles. Under this act, two types of penalties may be levied against the violator. If the act is knowingly violated in the course of a commercial activity there is a civil penalty, but if a person willfully commits an act in violation of the act a criminal penalty will be assessed98 , consisting of a fine, a year in prison or both. 7 The use of the word threatened allows regulation and preservation befor9e9 the specie... s is in immediate danger of extinction. 7 This is important when one considers the length of time it has taken to regulate whaling in a way that gives hope of the whale's survival. In the last section of the Endangered Species Act of 1973. the statute grants the Marine Mammal Protection Act precedence in the event of any conflict between the the
100 two. The Marine10 1Mamma l Protection Act took effect in December, 1972. Congressional intent seems to have been aimed toward protecting marine mammals before
L . . 102 they are nolonger a working part of their ecosytem.
This recognition of the need for early regulation and
115 -17- of the importance of the ecosystem are just two examples
of the importance of this act.
There is also a recognized need for greater knowledge
of whales as well as recognition of marine mammals as 103 a great recreational, esthetic and economic resource.
A moratorium on the taking or importation of any marine
mammal or marine mammal product is established and excep-
tions made are made according to scientific need or time
needed to adjust to the fact that marine mammalsi niwilx l no longer be a source of revenue, commercially. The
moratorium does not apply to Indians, Aleuts or Eskimos
on the coast of the North Pacific or Arctic Ocean, if
the whale is used for food or authentic handcrafts;
however, the secretary is granted the authority by the
act to impose regulations if a species used by the Eskimos
or Indians becomes depleted.
This is the case with the bowhead whale, it seems
that at the 1977 IWC meeting all bowhead hunting was banned
for 1978« But, the Eskimos claim a great need for hunting
the bowhead. They won a court order in October of 1977
exempting them from the ban, but this decision was
overturned on appeal by the U. S. Court of Appeals. The
appellate court reasoned that exempting Eskimos would
damage the United States' efforts at conservation.
The Administration stated that it would ask the IWC at
a meeting held in December, 1977 for permissio10n7 for the Eskimos to kill a limited number of bowheads. The question is, are there enough bowheads to allow for any 116 -10- more killing or will the continued hunting result in a critical population level and extinction for the bowhead? Under the Marine Mammal Protection Act, factors which must be considered by the secretary when making regulations include population levels, international agreements, and 1 OR the marine ecosystem. The secretary is required to propose such ammendments through the Secretary of State as necessary to make any existing treaty for marine mammal 109 protection conform to this statute. 7 Though until the treaty in question is changed, the provisions of the Marine Mammal Protection Act are in addition to, not in contravention of the treaty and statute implementing the treaty, in this case it is the 1946 Convention and the Regulation of Whaling Act.."'"''"0 The act also establishes the Marine Mammal Commission whose duties include reviewing of U. S. activities in relation to the 1946 Convention; making recommendations and reports and doing studies. Unlike the commissioner to the IWC, members of this , . 111 commission are compensated.
Under the Pelly Ammend to the Fisherman's Protective Act of 1967,112 the President of the United States is authorized to prohibit importation of any or all fish products from a country who conducts fishing operations in a way 11whic3 h damages an international• fishery conservation program. Under the amrnendment, an "international fishery conservation program means any ban, restriction...pursuant to a multilateral agreement to which the United States is -2?- a signatory party, the purpose of which is to protect the 1l4 living resources of the sea."
The sole application of the Pelly Ammendment up until
1975 has been to whales. Japan and the U.S.S.R. both
exceeded the minke whale quota in 1973-74, but since both
countries supported the 1974 IWC quotas the President
chose not to enforce the sanction.*^
The most current statute applicable to whales is the
Whale Conservation and Management Act passed in October,
1.976. *^ Congress imposed, a two hundred nautical mile or
boundary for conservation of whales as Imposed in the 117 Fishery Conservation and Management Act of 1976.
A need is expressed for protection within the two hundred lip mile boundary and for further study of whales. To fulfill
the charges made by this act $1,000,000 was appropriated for 119 use in 1978 and 1979•
One reason economic sanctions imposed by Federal lav/ are potuU effective against Japan is her "self development" program instituted in 1970.120 Japan imported 99-7% of her petroleum and 88% of her iron ore in 1972. Japan also imports much 121
of her food. ~ The self development concept applies
to Japan's dependence on trade and economic development needs. She wants to exert control over foreign resources antagonzthrough einvestment resource-rics andh tocountries do this,. wil122 l not intentionally
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IV. Other Considerations The costs of whaling are tremendous. In the 1950*s a factory ship cost at least $11,000,000 and each catcher had a cost of approximately $600,000. These ships are not useful for anyother purpose. Whaling nations have tried to adapt the ships, but the attempts were impractical and unprofitable. To make a profit, whalers feel the need to maximize production by killing more whales. 123 The need for better catches causes larger expenditures 124 which enforces the need for larger catches. ' The effect is cyclical, but the larger whales are protected, shifting whaling emphasis to smaller whales. A greater number of small animals is necessary to equal the product yield of larger animals which when added to the cost of maintaining a whaling fleet begins the cycle. Japan maximizes production by using whale meat for human consumption. In the past the Japanese have been able to earn more than twice as much for meat alon1e as a European country made for the entire whale. 126 There is no market for whale meat in Europe. This utilization has enabled Japan to continue whaling at a profit.127 Since the harm to whales has already been done, at this point the hope should be that nationi Os Q will minimize existing damage by causing no new harm. One positive step that should be taken is the step toward greater emphasis on ecological considerations and how the whale 119 -21- fits within its environment. It has been said that ecology 129 is the answer of whale stocks. Ecological research on whales is especially difficult because of the vastness of their habitat ani the extent of their migrations. One example is the relationship between blue whales and smaller rorquals. The exploitation of blue whales increased the food supply causing a slight increase in numbers of less exploited rorquals. And, as blue whale hunting became more commercially unprofitable attention was turned toward the smaller whales, reducing thei13r1 numbers. The effect of this reduction is unknown. - The lack of knowledge of whales is always detrimental to successful conservation. Though the primary responsibility for enforcing the IWC regulations rests with the mdiviua. . l nations. . 13" 2 A less state centered perspective is needed in considering 133 the international law relating to whaling. ^^ Conclusion Truly there are a number of serious problems surrounding whales. Many species are close to extinction, some may have already reached their critical population level. There is a sore need for greater knowledge in all areas of the whale's existence. But, the ecological area merits even more attention. Man must consider the effect of the whale's extermination on the world's environment.
120 REFERENCES
1. R. Burton, The Life and Death of Whales 13 (1973). 2. 39 Fed. Reg. 1172,1174 (1974).
3. 16 u.S.C.A. 1533(c)(1), (1974) .
4. 39 Fed. Reg. 1174. 5> McVay, "Reflections on the Management of Whaling," in The Whale Problem 378 (W. E. Schevill ed. 1974). 6. Id. at 379-
7. Burton at 14. 8. J. Cousteau and P. Diole, The Whale: Mighty Monarch of the Sea 262, 266-6?, 264~fT972TT
9- Fur ton at 2.0-21. 10. Scarff, "The International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary Assessment," 6 Ecology L. Q. 323,334 (1977).
11. Burton at 6O-61. 12. E.J. Slijper, Whales and Dolphins 107 (1976). 13. Scarff at 334-35- 14. Id. at 334. 15. K. R. Allen, "Recruitment to Whale Stocks," in The Whale Problem 3.52 (W. E. Schevill ed. 1974). 16. Id. at 354.
17. McVay at 372. 18. Cousteau and Diole at 281. 19 • Burton at 91• 20. Scarff at 345-
21. Cousteau and Diole at 281.
22. Scarff at 346.
23. Burton at l4l. -2?- 24. Scarff at 347-
25- Cousteau and Diole at 273. 26. J. L. McHugh, "The Role and History of the International Whaling Commission, " 325 (W. E. Schevill ed. 1974) -frcw. ^fJ6- ^Jirv
27. Id. at 329. 28. McVay at 375-376.
29- Tomasevich, International Agreements on Conservation of Marine Resources"2?2~(1971) . 30. Christol, Schmidhauser & Totten, "The Law and the Whale: Current Developments in the International Whaling Controversy," 8 Case W. Res. J. of Int'l L. 149 (1976) (hereinafter cited as Christol).
31. Convention for the Regulation of Whaling of 1931. art. IV, 155 L.N.T.S. 349; 49 Stat. 3079 (1934-35). 32. U. S. Department of State, Treaties in Force 444 (1976). 33. G. Small, The Blue Whale 172-74 (1971). 34. Scarff at 350. 35. Christol at 151.
36. Id.
37- Scarff at 352. 38. Id. at 352-53.
39. S. Oda, International Control of Sea Resources 79 (1963) 40. Small at 178. 41. U. S. Department of State, Treaties in Force 445 (1976). 42. Protocol to the International Convention for the Regulation of Whaling "signed under the date of Ded, 2, 1946," Nov. 1956, 338 U.N.T.S. 366 (hereinafter cited as Protocol to the International Whaling Convention).
43. Scarff at 353- 44. International Convention for the Regulation of Whaling with Schedule of Whaling Regulation, Dec. 2,1946, l6l U.N.T.S. 72 (hereinafter cited as IWC Convention).
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45 Id. at Preamble. 46 Id. at art. III. 4? Id. at art. 111(2). 48 McHugh at 315. 49 IWC Convention, art. V(3).
50 Ghristol at 153- 51 McHugh at 319.
52 Scarff at 355- 53 McHugh at 320. 54 McHugh at 306.
55 IWC Convention, art. V. 56 Small at 162-63. 57 Scarff at 35?- 58 A. Sheikh, International Law and National Behavior 253-54 (1974TT 59 Scarff at 358. 60 Sheikh at 254.
6l Scarff at 357-58. 62 Christol at 153~54.
63 McHugh at 309. 64 Scarff at 360.
65. McHugh at 324. 66 Small at 91•
67. McHugh at 324. 68, Scarff at 362-65. 69 McHugh at 326. 70. Scarff at 365.
71. Protocol to the Int'l Whaling Convention, art. II. I /CO -2?- 72 Scarff at 365.
73 Id. at 366-67. 74 McHugh at 330.
75 Scarff at 365- 76 Christol at l6l.
77 Small at 96. 78 Christol at 156.
79 Scarff at 368. 80 McHugh, Book Review, 3 Ocean Dev. & Int'l L. 389, 409 (1976) (hereinafter cited as McHugh, Book Review). 81 Friedman, "Legal Aspects of the International Whaling Controversy: Will Jonah Swallow the Whale/* 8 N.Y.U. J. Int'l L. & Pol. 211,223.(1975). 82 McVay at 376.
83 Friedman at 223-24. 84 McHugh, Book Review at 389.
85 Friedman at 222. 86 Christol at 163.
87 16 U.S.C.A. 916-9161. (1974). 88 16 U.S.C.A. 916a. (1974).
89 16 U.S.C.A. 916b. (1974). 90 16 U.S.C.A. 916c & 9l6d. 91 16 U.S.C.A. 9l6f. (1974) :< 92 McVay at 379- 93 16 U.S.C.A. 1533(c)(1). (1974) 94, 16 U.S.C.A. 1538. (1974).
95. Friedman at 22?, n.84. 96, 16 U.S.C.A. 1531 - (1974).
97. 16 U.S.C.A. 1539- (1974). I /CO -2?-
98 16 U,S.C.A. 1540. (1974).
99 16 U.S.C.A. 1532. (1974). 100 16 U.S.C.A. 1543. (1974).
101 16 U.S.C.A. 1361-62,1371-84,1401-0?. (19?4).
102 16 U.S.C.A. 1361(2). (1974).
103 1.6 U.S.C.A. 1361 (3), (6) . (1974). 104 16 U.S.C.A. 1371. (1974)
105 16 U.S.C.A. 1371(b). (1974), 106 Gwyne & Cook, "Saving the Bowheads" in Newsweek, Nov. 7, 19?7 at 113- 10? Shabecoff, "Whale-Hunting Curb is Supported by U. in The New York Times, Oct. 21, 197? at 12, col.l.
108 16 U.S.C.A. 1373. (1974).
109 16 U.S.C.A. 1378. (1974).
110 16 U.S.C.A. 1383. (1974).
111 16 U.S.C.A. 1401-02. (1974).
112 22 U.S.C.A. 1978. (Supp. 1977)•
113 22 U.S.C.A. 1978(a). (Supp.1977). 114 22 U.S.C.A. 1978(g). (Supp. 1977)•
115 .Friedman at 232-33. 116 16 U.S.C.A. 9l?-91?d. (Supp. 197?) •
117 16 U.S.C.A. 917(3)• (Supp. 1977). 118 16 U.S.C.A. 917(5) & (?) - (Supp. 19??).
119 16 U.S.C.A. 9i?d. (Supp. 1977)• 120, Wells. "Japar and the United Nations Conference on on the Law of the Sea," 2 Ocean Dev. & Int'l L. 65 84 (1974). 121. Id. at 65.
I /CO -2?- 122. Id. at 84.
123. Small at 82. 124. Id. at 93-94.
125. Id. at 134. 126. Id. at 102.
127. Id. at 134-36. 128. Stein, "Reeponsibilty and Liability For Harm to the Marine Environment," 6 Georgia J. Int' 1 & Comp. L. 4l, 45 (1976). 129. Friedman at 221.
130. Scarff at 412.
131. McVay at 378. 132. "New Perspectives on International Environmental Law," 82 Yale L.J. 1659,1678 (1973)• 133. Id. at 1659.
I /CO APPENDIX
A. Species Size and Distribution
B. Shapes and Sizes C . Food Chain
D. World Catch of Rorquals
E. World Catch of Five Major Species of Whales F. Current Estimates of Whale Population Sizes
If I':\!\:!
Appendix A. Species Size and Distribution (Source: Burton at 18.)
128 •xmfte&ij »title
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ous
fsft *haj» Figure I SHAPES AND SIZES OF SELECTED CETACEANS
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Appendix B. Shapes and Sizes (Source s Scarff at 331).
129 Sunlight
PhViiplrnkton: DLr.oms FI?3cllcrto3
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Appendix Ci Food Chain (Sources Burton at 50)
130 Appendix D. World Catch of Rorquals. (Source: McVay at 372).
131 Ant arctic Rev-ia i nder OR v-j M a SF*A r.nn Blue? HUT ipKvrk Fin Sri Sperm Blue Hurnfibick f'i n S 0 i SCOT.
1920 1, R74 261 3,213 71 8 400 284 1. 733 1,049 741 1921 2,617 260 5,491 36 31 370 34 3 1, 413 651 720 I'lP? 4,416 9 2,492 103 3 859 1,15 3 '2, 002 67 0 817 192 3 5,08 3 517 3,677 10 23 1,1 86 1,462 3,04 6 888 576 1924 3,732 233 3,015 - 193 66 1,113 973 3, 859 1 , 5 ? 6 es4 1925 5,703 359 4,366 1 59 1,845 2,983 4, 755 1,092 1,380
19?6 4,697 364 8,916 195 37 2, 530 2,674 5, 34 8 1 ,299 1,54 5 1927 0,54 5 189 5,102 778 39 2,170 2,359 3, 506 1,219 1,275 1928 8, 334 23 4,459 88 3 72 1, 293 1,453 2, 594 1,407 1,60- 1929 12,847 59 6,690 808 62 916 256 2, 443 741 1,693 1930 17,898 05 3 11,614 216 73 1,181 1,066 2, 667 62 5 1 ,051
1931 29,410 576 10,017 145 51 239 206 571 60 43 1932 6,488 184 2,871 16 13 217 52 679 83 95 1933 18,891 159 5,168 2 107 171 65 915 29 43 3 1934 17,349 872 7,200 0 666 177 1,417 1, 468 541 1,176 1935 16,500 1 965 12,500 266 577 334 2,123 578 696 1,6C1
1936 17,731 3 162 9,C97 2 399 377 1,529 2 4 51 721 4,44 : 19 3 7 14, 304 4 477 14,381 490 926 332 2,135 3,30 5 746 6,126 1938 14,92 3 2 079 28,003 161 867 112 3,046 1/67 1 765 2 r. ? 1939 14,081 883 20,784 22 2,585 71 510 1,83 8 793 2,9.-:' 19-10 11,480 2 18,694 81 1,938 79 526 1,23 0 469 2,1"
19-11 4,943 2 675 7,831 110 804 86 258 X, 319 704 4," ' 194 2 59 16 1,189 52 109 21 339 955 321 A, C 194 3 125 0 776 73 24 26 277 1, 018 433 5, 35) 1 94 4 339 4 1,158 197 101 14 261 1, 084 792 2,4 50 1945 1,042 60 1 ,666 78 45 69 243 987 140 1,62 6
85 69 255 3,181 1946 3,606 238 9,185 273 1 837 662 1947 9,192 29 14,54 7 393 1,431 110 261 1 948 738 6,015 621 489 1948 6,908 26 21,111 2,622 249 2 887 952 7,238 1949 7,625 31 19,123 578 4,078 156 3,364 2 640 1,277 4,938 1 ,284 2,920 1,187 5,456 1950 6, 182 2 ,143 20,060 2,727 131 2 84 2
886 4,968 230 2,714 2,147 13,296 1551 7,048 1 ,638 19,456 3 363 2,467 6,072 1952 5,130 1 ,556 22,527 530 5,485 306 3 078 2,593 621 2,365 1953 3,870 963 22,867 2, 332 348 2 714 1,587 7,245 ,029 2,550> 1954 2,697 605 27,659 1 2,879 31 2 3 676 1,462 10,664 569 319 ,218* 9,894 1955 2,176 495 28,624 5,790 2 3 561 1, 371
560 373 2,448 1,516 11,616 1956 1,614 1 ,432 27,958 6,974 3 538 692 2,517 1957 1,512 679 27,757 1 4,429 263 3 900 1,446 14,727 2,527 1958 1,690 396 27,473 3 ,309 6,535 305 4 207 2, 361 15,311 2 ,421 250 2,661 1959 1,192 2 394 27,128 5,652 3 824 3,118 15,646 19C0 1, 239 1, 3 38 27,575 4 309 4 ,227 226 2, 2 38 3 489 2,726 16,117
1961 1,744 718 28,761 5 102 4,800 243 2,122 3,155 2,683 16,330 1962 1,118 309 27,099 5 196 4,829 137 2,127 3 056 3, 608 18,497 196 3 947 270 18,668 5,503 4,771 482 2,488 3 248 4,046 23,087 1964 112 2 14,422 8 695 6,711 260 316 4 731 4,995 22,514 1965 20 0 7,811 20 380 4 ,352 593 452 4 540 5,074 21,196
17 58 7 242 58 22,873 1966 1 1 2,536 4,555 4 •156 5,480 12 368 66 4 1967 4 0 2,893 4,960 3 507 6,648 21,464 1963 0 0 2,155 10 357 2,568 0 2 2 9 30 6,742 21,512 776 0 0 1969 0 0 3,020 5 2,682 2 300 6, 204 21,455 1970 0 0 3,002 5 857 3,090 0 0 2 055 5, 338 22,752 6 151 0 1971 0 0 2,883 2,745 0 I _
Appendix E. World Catch of Five Major Species of Whales, 1920 to 1971 (Sources: McHugh at 306-07). CURRENT ESTIMATES OF WHALE POPULATION SIZES IN IQOO's OF WHALES (% OF INITIAL POPULATION)* So. Hemisphere No. Pacific No Atlantic
Bowhead** not present 1-2 ? (10%?) <0.1 (i%?)
Right** 3-4 (
Gray** not present 11-12 (-100%) not present
Humpback 2-3 (3% I 2 (unknown) <1.5 (70%?) Blue 7-8***(4%) 1.5-2 (30-40%) <1 (10%?)
Fin 80 (20%) 14-19 (40%) >31 (unknown)
Sei 50-55 (331) 21-23 i-50%) >2 (unknown) Bryde's >10 <90%.') 20-30 (-100%.) unknown
Minke 120-200 (80%) unknown > 10 (unknown) Sperm J 128 (50%) 74 (41%) 38 (unknown) Sperm 9 295 (90^r) 103 (82%) * These figures represent the st/esof the "exploitable populations"!.?..those animals above minimum legal harvest length. To estimate total stock s,ize, multiply exploitable stock size by 1.5 for baleen whales and 2.0 for sperm whales. The estimates for these species are for total stock sue, not exploitable stock size. "" This figure includes "a few thousand" pygmy blue whales, a relatively small (70 feet long) subspecies (B. musculus brnicauda) found in the southern Indian Ocean.'5
Appendix F. Current Estimates of Whale Population Sizes (Sources Scarff at 332).
133