The Parable of the Good Cetacean: Whales, Dolphins, and International Law by Andrew Reding

ANIMA Vol. 4 No. 1 (Fall Equinox 1977), 44-54 The Parable of the Good Cetacean: Whales, Dolphins, and International Law By Andrew Reding I. TWIN TRAGEDIES A Sound Sensation A breaching humpback whale makes for a spectacular sight. Suddenly, forty-five feet of whale clear the surface. For an instant you are facing one of the largest creatures the earth has known—suspended in midair. It twirls its long (almost one-third body length) white flippers, spraying water droplets across the ocean surface, as it splashes its side back down in the water and disappears beneath a storm of wave and spray. It is not difficult to imagine how such occurrences awed, and occasionally terrorized, ancient mariners in their small wooden vessels—they were certain that they had encountered “monsters of the deep.” In our time, another dimension of the humpback whale, of potentially greater significance, is coming into view. Every spring, pods of humpbacks congregate in the waters off Puerto Rico and Bermuda. Here they mate and calve, and for a few months they sing. Their songs were originally detected on fixed arrays of underwater microphones maintained by the Navy, and have now been recorded continuously for two decades. These recordings reveal the humpbacks to be accomplished vocalists.1 Humpback whale songs are highly sophisticated. They have been measured as lasting from seven minutes to half an hour. The patterns are extremely complex—songs consist of a succession of themes, composed of phrases, which are in turn made up of units. The units may be further subdivided into subunits that are not detectable to the human ear unless slowed down. Songs are repeated without pause and with great precision during song sessions that may go on for hours. By monitoring these song sessions over a period of years, it has been discovered that song types are changed from year to year.2 In any given year, all whales use the same general song-type, with recognizable variations among individuals. However, basic song- types have not been repeated during any of the years surveyed—humpbacks appear to compose distinct song types for each new year. Where the humpback whale once impressed men with its spectacular physical size and power, we are now beginning to faintly perceive the outline of its mental (i.e., behavioral) complexity. It is a tardy perception. Humpbacks have been hunted to the brink of oblivion. The International Whaling Commission belatedly extended protection to the few thousand survivors in 1966, and little recovery has been noted. The Irrationality of National Management of Global Resources The plight of the humpback whale is shared by many of the other cetacean species (whales, dolphins, orcas), some of which are on the verge of extinction. All are victims of a serious human failing, referred to by biologist Garrett Hardin as “the tragedy of freedom in a commons.”3 In this situation, in which herd animals belonging to many owners graze in a community- owned area—the commons—the temptation of herdsmen to add “just one more animal” leads to rapid deterioration of the pasture. Although each herdsman may gain initially because the deterioration is shared by all, while he alone reaps the benefit of the additional animal, there is nothing to stop all herdsmen from taking advantage of the freedom to use without the responsibility to care. This pursuit of short-term self-interest undermines long-term self-interest realizable through sustained yield. Farsighted individuals who understand that their own eventual interests are threatened are helpless to moderate the frenzy of appropriation. Those who set an example of moderation are penalized for their good sense, as less scrupulous individuals seize what would have been their share. The commons is no better off for the actions of its wiser participants. The logic of atomistic management of shared resources for private gain generates an institutionally sanctioned “big grab.” The cetaceans are current victims of this rapacious mentality. The oceans they inhabit lie for the most part outside territorial jurisdictions. However, the prevailing doctrine of national sovereignty places oceanic resources entirely at the disposal of nation-states, notwithstanding the formal pretense of the International Whaling Commission (as we shall see). Since sovereignty implies equality under international law, all nations are entitled to “freedom of the seas.” The oceans and their contents are treated as commonly owned pasture, managed atomistically by sovereign nations in the furtherance of their own individual interests. The outcome of such a system is institutionally prejudiced towards collapse. The Great Whales and the Specter of Irreversible Loss The cetacean problem is really a pair of tragedies, each more severe than the already-sad case of the commons. The older and better-known tragedy is that of the great whales— the right whales (including the bowhead whale), the rorquals (blue, humpback, fin, sei, and Bryde’s whales), and the sperm whale. These have been hunted for meat and oil over the past few centuries. In the days of sail and wooden ships, the impact of whaling tended to be marginal. All of the rorquals except the humpback whales swam too fast for the ships of that era. Sperm whales were plentiful but hard to catch. Whalers approached them with hand harpoons in rowboats, a difficult and hazardous adventure. The slow-moving right whales and bowheads were more vulnerable and were soon hunted to the brink of extinction. The rorquals, the largest animals ever to inhabit the earth, were the real prize—the dream of many a whaler. In 1864: an enterprising whaling captain named Svend Foyn perfected the harpoon cannon. For years he had stared helplessly as the blue and fin whales sped by him in the North Atlantic. Not only were they too fast to be overtaken, but what good would it have done to have “struck an iron” into one of these seventy-ton behemoths? Who would have caught whom? His grenade-tipped harpoon cannon would kill the whale more quickly, and the steam engine, which was coming into general use during the same period, would enable whalers to run down and wear out the speedy rorquals.4 The blue whales, largest of the rorquals, were soon intensively hunted. As their numbers declined, efforts were extended to the next largest, the fin whales. More recently, with the number of fin running low, sei and Bryde’s whales have become prime targets. Meanwhile, as whales become harder to find, additional technological innovations made detection and handling easier. Factory ships, each with an entourage of fast catcher boats, were deployed. Spotter helicopters and sonar completed the technological noose. Now not only would detected whales have little chance of escape, but detection itself became a near-certainty. Today, as a result of the interaction of changes in technology with the ruling legal paradigm that emphasizes national appropriation of global resources, many of the great whales—including the blue, fin, humpback, right, and bowhead whales—are endangered. Others—the sperm, sei, and Bryde’s whales—are now travelling down the same path. We have here the typical outcome of “the tragedy of the commons.” The great whale tragedy may prove more serious, though. Unlike a pasture that, with sufficient time and perhaps care, can be returned to its original quality, the extinction of any species is an entirely act. There is, therefore, a special urgency to the problem of the great whales, an urgency recognized and expressed at the highest level of international discussion. At the United Nations Stockholm Conference on the Human Environment in June 1972, Recommendation 33 was adopted by a vote of 53 in favor, none opposed, and 12 abstentions: It is recommended that governments agree to strengthen the International Whaling Commission, to increase international research efforts, and as a matter of urgency to call for an international agreement, under the auspices of the International Whaling Commission and involving all governments concerned, for a 10-year moratorium on commercial whaling.5 Dolphins and Tuna: The Inadvertent Tragedy Technological advances have taken an even more sinister turn in the tuna fishing industry. Until recently, Tuna were fished one at a time, with poles, hooks and lines. With the exception of Pacific yellowfins, they still are. It was discovered, however, that yellowfin tuna schools tend to swim beneath surface-swimming—and highly visible— dolphin packs. With aerial surveillance, fast boats, and the development of nylon purse seines capable of withstanding tropical waters, the technological noose was again complete. The yellowfin is now “harvested” much like Kansas wheat by combines, or like great whales by spotter plane/factory ship/catcher boat task forces—another “triumph” of scientific technique, of science in the pursuit of power and profit rather than knowledge, seeking to manipulate rather than to understand. So successful has the technique been that yellowfin tuna are presently in danger of being overfished. The dolphins that have made it all possible have been dying of suffocation in tuna nets at a rate in excess of 100,000 per year. This time the cetaceans are unintended victims of “progress.” The tragedy of the dolphins, like that of the great whales, surpasses that of the commons—in this case because the dolphins are not even the resources being sought. The indifference with which these highly intelligent creatures are slaughtered by the thousands in order to make more tuna available to North American tables is a glaring indication of the extent to which the worth of any other life form is calculated according to its ability to satisfy human material wants. From such a chilling perspective, dolphins are viewed as expendable. On the other hand, should they disappear, so will the new tuna fishing fleets that rely on them.

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