ANIMA Vol. 4 No. 1 (Fall Equinox 1977), 44-54 The Parable of the Good Cetacean: , , and International Law By Andrew Reding

I. TWIN TRAGEDIES A Sound Sensation A breaching humpback 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 , 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 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 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 . 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— 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. To be sure, the American attitude towards dolphins is currently very mixed—even schizophrenic. On the one hand our institutional structures—economic, administrative, juridical—are still steeped in a tradition that evaluates elements of the environment in terms of their contributions to human consumption. On the other hand, recent publicity concerning dolphin intelligence combined with television popularizations and first-hand exposure in seaquaria have endeared these creatures with a solid cross-section of Americans. The new attitude is expressed in the Marine Protection Act of 1972, which directs the National Marine Fisheries Service to reduce the number of dolphins killed in tuna nets to “insignificant levels approaching zero mortality.” The Fisheries Service has made no real effort to enforce the law. By the government’s own estimate, roughly 130,000 dolphins were killed in 1975 as opposed to about 113,000 the previous year. (The dolphin slaughter estimates are very rough. They represent the midpoint of a range of estimates based on the reports of observers stationed on only about 10% of the tuna fleet. Since only the more responsible tuna skippers are likely to accept observers on board, the sample is likely to be severely biased, so that the carnage is probably being underestimated.) The continuing wholesale slaughter of dolphins by the United States in defiance of its own law jeopardizes its advocacy of the great whale cause. The United States has led the campaign for a ten-year moratorium on commercial whaling, an area in which it no longer has any economic interest. It is glaringly evident that the United States is only willing to be reasonable when it has nothing to lose in the bargain. Much like the Fisheries Service, the International Whaling Commission has ignored the United Nations recommendation that it implement a ten-year moratorium on whaling. These are symptoms of the inappropriateness of the prevailing legal (national sovereignty) and economic (maximization of private or corporate profit) paradigms— both resting on a reductionist logic—to the conditions and perceptions of a highly interdependent world. II. VALUE—OF THEM TO US, OR OF BOTH TO EACH OTHER? Cetaceans as Objects: The Whaleburger Perspective Of what use are dolphins and whales to ? The anthropocentric premise embodied in existing legal and economic institutions insists that we think of them as resources to be used in the furtherance of human objectives. If no use can be found, they have no value. They may be suffocated en masse in the interest of catching more tuna for human consumption. There can be no respect for the lives, loves, and perceptions of nonhuman life forms. The great whales are principally valued for their oil and meat. The only two whaling countries remaining, now that whale stocks have dwindled, are Japan and the Soviet Union. Their reasons for persisting are remarkably similar. Both have recently undergone economic transitions that have yielded relatively high per capita incomes. The forces that have propelled these changes—corporate capitalism in Japan, bureaucratic socialism in the U.S.S.R.—arose from a different theoretical base but have become almost identical in effect. They have suffused their respective societies with ideologies that stress rapid industrial and technological growth towards ever-higher levels of material prosperity. High incomes then interact with the pervading materialist ethic to produce a consumer economy clamoring for a Western lifestyle. In terms of food this means a high-protein diet, preferably featuring meat. But the ratio of population to arable land in each country is too high to justify devoting any more acreage to land and grain- intensive livestock. So the Japanese and the Soviets alike are looking to the sea for their protein⎯and mammalian meat. Sperm whales, whose meat is unpalatable, are valued primarily for their oil. Sperm oil is a superior lubricant capable of withstanding pressures well beyond the range of other oils. There are other ways in which cetaceans may serve us—ways that do not require killing. Cetaceans are of immense scientific value. Their and their sophisticated social structure and behavior provide many opportunities for comparison with human features. Studies of parallels and contrasts allow us to learn more about ourselves, and conceivably to gain some helpful insights about constructive social interaction. Dolphins are widely used for human entertainment. They are removed from their natural and social environment and imprisoned in small tanks for observation. They are trained to perform sequences of complex acts in seaquarium exhibitions. They star in movies and television programs. Cetaceans are also valued for their contributions to the richness of human experience— for their aesthetic and romantic qualities. Their size, the remoteness and impenetrability of their habitat, their mammalian features, their gymnastic and vocal talents all make strong impressions on us that enrich our lives. Cetaceans as Brothers and Sisters: The Synergism of Relationship So far we have been asking how whales and dolphins can be put to use for man, Our approach has presupposed that cetaceans are no more than objects—that they are lacking in intrinsic value. From this perspective, they can have worth only insofar as they possess instrumental value—value which is entirely derivative from the enhancement of that which has intrinsic value, in this case human life. On what grounds is this anthropocentrism based? Why can’t cetaceans share with us in intrinsic value? We need to explore the various rationalizations that have been set forth to justify our vision of human exclusivity: 1. The us-them distinction highlights differences. Cetaceans are clearly not of our kind. They inhabit a totally different environment, communicate with each other in what are to us alien ways. Their social structure and behavior differs substantially from ours. The problem with such a perspective is that it applies as well to all differences, including those among humans. It has been applied to the color of the skin, the geographic location of birth and residence, and the configuration of the sex organs. The us-them distinction represents an extension of egocentrism that needs to equate different with inferior. It thereby serves to uphold racism, nationalism, and sexism, all of which consist of the denial of intrinsic value to humans. 2. The assertion of power argument, otherwise known as “might makes right.” Men have hands, enabling them to manipulate their surroundings as they see fit. Cetaceans do not, and as the reasoning goes, “it’s just their tough luck.” The power argument is every bit as contemptuous of intrinsic human value as is the us/them distinction. It expresses itself in the ongoing elaboration of techniques for domestic social control and for the manipulation and destruction of foreign societies. It results in the brutal misapplication of human intelligence and creativity towards repressing, contaminating, and dismembering human life. It culminates in the logic of Auschwitz and Hiroshima, of Vietnam and Hungary, of Chile and Uganda. 3. The argument of self-evident mental superiority. The fact that humans have large brains is seen as evidence that man is the “pinnacle of evolution.” Mark Twain very effectively satirized this view: Man has been here 32,000 years. That it took a hundred million years to prepare the world for him is proof that that is what it was done for. I suppose it is. I dunno. If the Eiffel Tower were now representing the world’s age, the skin of paint on the pinnacle- knob at the summit would represent man’s share of that age; and anybody would perceive that that skin was what the tower was built for. I reckon they would, I dunno.6 Whatever the significance of possessing large brains, humans are anything but unique in that regard. Whales and dolphins are similarly endowed. Although human and cetacean intelligences are qualitatively different, they are comparable in their level of sophistication. Where human minds are primarily vision-oriented, cetacean minds emphasize the auditory and tactile senses. Both have a highly developed and convoluted neocortex containing extensive layers of association neurons.7 This intricate structure is responsible for the phenomenon of “free will.” It superimposes consciousness and reason over fixed action patterns (instincts), allowing for flexible reactions to changing circumstances. It generates insight, heightens sensitivities, and fosters creativity. The sophistication of the cetacean mind is reflected in the behavior that emanates from it. Dolphins are extremely playful creatures. They are inquisitive and learn fast. They rapidly become impatient and bored with repetitive testing.8 Their ability to generalize— to use a pattern of behavior for an entirely different purpose than the one it was developed for—is substantial. Sexual play is well developed, frequent, and often imaginative. Insight behavior manifests itself in every aspect of their lives. Brown and Norris describe the efforts of two dolphins to flush out a Moray eel from its rock crevice on the bottom of a salt-water tank. After some fruitless tries, one of the dolphins suddenly darted off to snatch another fish—with spiny fins—and used these to prod the eel out of its shelter. The eel was then seized and released in the middle of the tank.9 Insights such as this one are typically delphinic, and suggestive of the mental capabilities that enable dolphins to teach humans. The believer in mental superiority is unimpressed by such evidence. “If they’re so smart, why aren’t they rich?” Cetaceans have not transformed their environment by building cities, roads, and factories. They have no libraries, theatres, or research institutes. They are nontechnological, nonmanipulative—characteristics that are easy to understand when we consider that they lack hands. Does this mean that cetaceans are mentally inferior? By no means—it merely suggests that cetacean mentality is qualitatively different, that it is employed in the service of different objectives. Cetaceans have no need to modify their comfortable, stable aqueous environment that has sustained them in roughly their present form for far longer than man in his land environment. Certainly, cetacean insight in these matters is not at question—dolphins use tools within the limitations of their physical capabilities, as shown by our eel-chasing friend. The technological prowess argument can only degenerate into the manipulation and power argument. A related question has to do with the role played by the accumulation of knowledge and artifacts in human progress. Anthropologists tell us that the brain has developed little in the past tens of thousands of years that have witnessed the spectacular rise of human culture. We have no greater innate mental capabilities than our uncultured ancestors. The difference lies in the significant cultural inheritance we are born into—an inheritance that depends on our ability to pass onwards the accumulated contributions of generations. Books, tools, structures, and other products of our hands have made this all possible. Without such aids, life as we know it would be impossible. The fragility of our cultural attainments—the extent to which they rest on group organization and modification of the environment rather than on innate intellectual ability—is amply attested to by the existence of Stone Age cultures into the twentieth century. Language has been crucial to human cultural development. It is therefore often cited as a distinguishing characteristic that sets humans radically apart from all other life forms. The recent studies of the great apes are currently shattering this vision. and gorillas, although they lack our vocal apparatus, have been taught to communicate by sign language and by computer typewriters. They learn fast, build up impressive vocabularies, follow rules of grammar, even combine words to form new ones. They are now beginning to converse with each other in sign language.10 Similar efforts have yet to be tried with cetaceans. Whales and dolphins are known to have an extraordinarily rich vocal repertoire. We have already discussed the songs of the humpback whale. Dolphins communicate extensively, emitting sounds through a wide range of frequencies with their twin-sacked vocalization apparatus. These structures, located just inside the blowhole, are each capable of generating either low-frequency whistles or high-frequency sonar pulses (clicks), which enable the dolphins to “see” their surroundings in great detail through sound patterns. They can operate independently, enabling dolphins to create stereophonic sound patterns far more sophisticated than human sound emissions.11 Although we are as yet unable to decipher the meanings of dolphin vocalizations, it is easy enough to see how that communication is put to use. Dolphins, like most cetaceans, are intensely social animals. They travel together, play together, fish cooperatively, and team up in handling sharks. They find loneliness unbearable. Social organization and coordination of this type requires good communication. 4. The claim to moral superiority. Ethical sensitivity is tied both to mental development and to the extent and quality of social interaction. We’ve seen that both of these traits are comparably developed in humans and cetaceans. It remains for us to compare the associated ethical development of the two minds. Cetacean social interaction is well developed, often innovative, and generally constructive. They use various forms of sex play and tactile contact to develop bonds of affection that cement groups together. Dolphin sex has far more than just procreative value—as with humans, dolphins are at all times in a state of sexual readiness. Dolphins readily form lasting, stable friendships among themselves, with other types of cetaceans, and with humans. Altruistic behavior is frequently observed, as when dolphins come to the aid of a sick or hurt conspecific.12 In spite of their considerable power—their numerous large teeth and muscular flukes—they are models of restraint in the use of force. The parable of the Good Samaritan might well be renamed the parable of the good cetacean. All cetacean species have consistently treated humans benignly if not affectionately. Even the supposedly ferocious orcas seem to intend no harm for humans, and may come to love them, as captive individuals have shown. Wild orcas have been hand-fed by divers in mid-ocean on first encounter. Dolphins have been known to save drowning humans for several millennia now, often guiding them to shore.13 They often protect human bathers from sharks. They occasionally fish cooperatively with humans and easily form strong friendships with them.14 Contrasting the cetaceans’ friendly stance towards humans with the relentless human slaughter of whales and dolphins suggests that cetaceans have generally far better developed ethical sensitivities than do humans. Perhaps man could stand to learn much about constructive social interaction from our oceanic friends. Our review of human claims to favored treatment has shown us that we are not alone— that the qualities we most value in ourselves in our better moments are also found in other life forms, where they may even be better developed in some respects. It is now also clear that valuation of human life cannot take place in a vacuum. The very criteria used to justify the limitation of intrinsic value to man are erosive of any such value. We are in need of a new foundation for assessing intrinsic value. The anthropocentric “pinnacle of evolution” theory of human ascendancy must be supplanted by a more careful evaluation of the dynamics and meaning of evolution. “Survival of the fittest” does not mean “survival of the strongest and cruelest.” Evolution favors those who are best able to adapt with—to develop a constructive relationship with—their social and natural environment. Surely intrinsic value must be a function of the quality, extent, and intensity of constructive relationships. Evolution operates at two levels. We usually consider only its physical, or genetic, component. The mental component is at least as important, though, and has the potential to greatly accelerate the process. Mental evolution expresses itself primarily through growth in ethical sensitivity. It is instructive to examine the long-term trends in human mental evolution. The extension of human ethical sensitivity outwards toward successively more remote elements of the social and natural environments originated with the mammalian family unit organized around care of the young. The benefits of social interaction led beyond extended families to the concepts of clan, tribe, and community, and to the virtue of loving one’s neighbor. The next step involved the recognition of the “brotherhood of man” and the rise of the universal religions, encompassing all races and nationalities within their scope. Greater emphasis on the transcendent value of love and altruism as relationships that bridge all differences has promoted greater sensitivity towards women, towards the poor, and lately towards sexual “deviants.” Much of our conceptual progress to date is expressed in the preamble to the Charter of the United Nations, and elaborated on in the Universal Declaration of Human Rights. Both in order to consolidate previous gains and to establish new constructive links with our environment, we must now extend the range of our sensitivities to other life forms. Our relationships with the rest of earth’s biotic community will also in large measure determine our potential for future growth as we encounter extraterrestrial intelligences: It is at this point that the ultimate significance of dolphins in the search for extraterrestrial intelligence emerges…It is whether we can develop a sense that beings with quite different evolutionary histories, beings who may look far different from us, even “monstrous,” may, nevertheless, be worthy of friendship and reverence, brotherhood and trust.15 The outdated and false concept of evolution as the survival of the strongest is the logical product of the reductionist thinking that has dominated the last few centuries. The whole—in mechanistic fashion—is seen as the simple sum of its parts. The parts are then conceived of as having an existence—and hence value—entirely apart from the whole and its other constituents. Relationships are thus neglected, so that getting ahead is seen as requiring that others be pushed back. The world is then perceived through the perspective of power. The discernment of evolution as the gradual and cumulative enhancement of relationships with the social and natural environment (adaptation) is the outcome of the emerging ecological, holistic paradigm. Progress is here measured in terms of cooperation. Value is perceived as arising out of the constructive, mutually beneficial interaction of varied participants. Participants share in intrinsic value to the extent to which they contribute to the quality arid intensity of such interaction. The world may now be evaluated in terms of symbiosis and creativity—the process of forming new value. III. FROM CONFLICT TO COOPERATION National Sovereignty: An Outdated Institution The materialist ethic, which views other elements of the natural environment—and often the human social environment—only in terms of their instrumental value to humans or a subset thereof, is in large measure responsible for the twin tragedies of the whales and the dolphins. Our growing understanding of, and appreciation for, cetaceans is slipping a wedge into the core of the materialist perception. Our oceanic friends are facilitating human re-recognition of the continuity and communality of life on our shared planet. As we become more sensitive to the life all around us, it cannot help but affect our treatment of the living environment. To take that environment—natural as well as social—seriously in terms of its intrinsic value is to undermine the basis for materialism. Unfortunately, (as we have seen) substantial gains in popular support for a more reverent human relationship with cetaceans—as reflected in the Stockholm call for a moratorium on whaling and the Marine Mammal Protection Act of 1972—have not translated themselves into a new human-cetacean relationship. The principle of national sovereignty is largely to blame here as elsewhere for the widening gap between environmental sensitivity and behavior. In each cetacean tragedy, the exploiters and their backers are in the minority—even on the International Whaling Commission. However, national sovereignty—a concept that, like materialism, is born of the atomistic paradigm—has consistently intervened in behalf of special interests. Its fragmentation of welfare and decision-making makes effective protection of cetaceans almost inconceivable for a variety of reasons: 1. The multiplicity of individual actors, each with different interests, ensures that global development and coordination of policies directly concerning and indirectly affecting (fishing, pollution) whales will be next to impossible. 2. The need for unanimity. The doctrine of national sovereignty requires that a state must consent to an agreement or decision in order for it to be binding on that state. The International Whaling Commission reflects this doctrine both in composition and procedure. The Commission consists of representatives from all of the whaling nations who signed the International Convention for the Regulation of Whaling in 1946. Whale preservation interests are represented through some of the participating nations that have since given up whaling. Although a three-fourths majority is required for decision, any single nation may nullify any decision simply by filing an objection within ninety days. Japan and the Soviet Union have consistently used their objection powers. Tuna and dolphins are suffering from the parallel mismanagement of tuna fishing. A 1966 treaty establishes a tuna conservation zone extending from California to Chile and up to 2000 miles into the Pacific. The tuna catch within this zone is supposedly regulated, but nations that weren’t signatories to the treaty are ignoring it and taking advantage of others’ restraint. The threat to tuna and dolphins is thereby accentuated. 3. Reliance on self-enforcement in a system of sovereign states. Each nation is responsible for policing its own citizens and their activities. The quality and extent of enforcement is therefore uneven. 4. The extraterritoriality of effects. Actions of one nation affecting pollution, fishing, and whaling affect all of the oceans and all other nations. The intervening nation does not have to bear the full consequences of its decisions. One oft-suggested solution to the whaling and fishing “tragedies of the commons” is to simply parcel out the commons among maritime nations as proposed at the Law of the Seas Conference. Such an approach would merely exacerbate the extraterritoriality effect. Whales, fish and pollution do not recognize or respect national boundaries. 5. The escape-from-jurisdiction phenomenon. Free-enterprise nations that strive to be responsible by regulating fishing and pollution find their industries hopping borders to establish themselves in more sympathetic jurisdictions. Nothing is gained in the bargain. A growing portion of the United States tuna fleet is shifting to foreign “flags of convenience” to escape regulations. 6. The ineffectiveness of boycotts. The more responsible nations may try to exert pressure on irresponsible ones by boycotting their products. A selective boycott aimed only at tuna products of nations that refuse to sign regulatory agreements is easily bypassed by “laundering” the tuna through other nations. Blanket boycotts—like the American boycott of all Japanese goods over the whaling issue—become an invitation to economic warfare to the extent that they are successful. The stability of international trade rests on reciprocal respect, a reciprocity that is undermined by boycotts. Having established that the current fragmentary approach to global problems offers no sane resolution of the cetacean tragedies, we must identify and pursue a comprehensive strategy that takes all legitimate interests into full account. It is precisely because the interests themselves are so fragmented in this case that such an approach is conceivable. Furthermore, whaling and tuna purse-seining are not vital national interests. To resolve these problems would not require much from the governments involved, unlike attempts to end the arms race, curtail repression, or limit pollution. So it is that the cetacean tragedies provide us with a unique opportunity for a precedent-setting step an exemplary act establishing a new relationship that might eventually open the way towards a new, planetary, human civilization in constructive interaction with its natural environment. Research: Promoting Understanding and Sensitivity A commitment to the well being of others (human or otherwise) flows naturally out of a perception of their intrinsic value. Such a perception is in no case automatic. It arises largely out of the interaction of experience with understanding. Our experience shapes our understanding by affecting the interpretation of information, while increments to our understanding open us to the possibility of new experience. It is through this learning process that the valuation of others solidifies into an inner conviction, spontaneously giving the motivation to share with and care for those others. The recent extension of human ethical sensitivity outwards towards cetaceans has been closely tied to the expansion of our knowledge about them. Where we once saw fish we now see fellow- with large brains, sophisticated behavior patterns, well- developed communicative capabilities, and friendly dispositions. This transition became institutionally recognized and enforced in the Soviet Union through the March 1966 decision of Alexander Ishkov, Minister of Fisheries (sic), to ban the killing and catching of dolphins. According to Izvestia, Ishkov explained that recent extensive research had established that dolphins have brains “strikingly close to our own,” making them “marine brothers of men.” He concluded that “their catch should be discontinued in all seas and oceans of the world.”16 Our understanding of our cetacean brothers is far from complete. Even among the best- studied species the task has but begun. Our knowledge of cetacean communication and behavior is in its infancy—it has progressed just far enough to ensure an appreciation of the significance and sophistication of delphinic (if not cetacean) intelligence. In the global interest, the continued development of human understanding of cetaceans should be promoted along three fronts: 1. Basic research. Advances in this domain underlie all others. Studies of dolphin intelligence and humpback whale songs have already challenged simplistic behavioral paradigms and have had a revelational impact on countless humans. Recent work with orcas is beginning to revolutionize our view of the “wolves of the sea.” Similar efforts should be continued and extended, with liberal funding through research grants and study fellowships. 2. Public dissemination of findings. It is at this stage that the discoveries of basic research are communicated to people at large. The quality of this communication vitally affects human social attitudes towards cetaceans. In addition to written accounts, phonograph records, photographs, and film documentaries have proven very effective, permitting humans to hear and see for themselves. 3. Relating new understanding to our experience. As our knowledge about cetaceans grows, we need to probe its meaning within us. The facts we discern form but an outer skin enveloping a deeper reality—a reality largely beyond the realm of logic, calling for different approaches. It is here that the poet, the novelist, the filmmaker, and the mystic may each contribute their insights. By expressing the deeper meaning behind our expanding knowledge of cetaceans in ways that permit analogies to elements in our experience, they help develop that sense of continuity essential to the inner conviction that cetaceans are intrinsically valuable. Economics: Substitutes, Compensation, and the Power of Example A cooperative, symbiotic world order system can only arise through the power of example. Individuals and groups that adopt a holistic value system need to declare through their actions that the welfare of all participants must be the concern of all. For good or for bad, the Japanese and the Russians have sunk a substantial investment in their whaling effort, just as the Americans have in their tuna-fishing operations. For these fleets to suddenly go idle would entail substantial economic sacrifices. The Japanese would be particularly affected, both because of their shortage of protein and the private ownership of whaling operations. Many employees would be jobless. Such economic losses should be compensated within reason. Funding methods will be discussed shortly. Whaling ships need not rust away. They could be refitted for new objectives, such as fishing. Others could be purchased by the United Nations for scientific, monitoring, and protection uses by a cetacean relations agency (to be described). Critical food and protein supplies must be guaranteed. Japan should not have to fear American soybean politicking, nor should the Soviet Union need to fear grain boycotts. Nationalities must not stand in the way of the valuation of every human being as an individual worthy of concern. Altruistic behavior must become the norm, not the anomaly. Fully effective substitutes exist for all whale products. There are many protein alternatives to whale meat, many far less expensive. The jojoba plant produces an oil that is identical to sperm oil in all of its properties. Its requirements are few—it is a desert plant—and cultivation is now economically feasible. Best yet, impoverished American Indian tribes that have pioneered in jojoba oil production would be beneficiaries along with the sperm whales.17 As Americans we must set a better example. We have been asking the Japanese and the Soviets to moderate their growing appetites for meat. But when our own per capita meat consumption—which was five times that of the Japanese in 1970—took a moderate dip a few years ago, we treated it as a full-blown crisis.18 We will have to set our own house in order first if we intend seriously to ask other countries to follow suit, and ultimately to join with us in seeking a unified resolution to the twin cetacean tragedies. Law: Cetacean Rights and the Teleological Approach Law represents an effort to order behavior so as to be compatible with perceived patterns of value. Growth in ethical sensitivity must be reflected in the law if it is to have full meaning. To perceive intrinsic value in cetaceans entails conferring legal rights to them. A shift in the law as dramatic as the one contemplated calls for an explicit addition to constitutive law. We need a declaration of fundamental cetacean (if not ecological) rights to supplement and (as we have seen) support the Universal Declaration of Human Rights and preamble to the Charter of the United Nations. Ideally such a declaration would be paralleled by national legislation for added impact, and for protection of local cetacean populations. A declaration of cetacean rights would have to be part of a comprehensive multilateral agreement providing for an immediate halt to whaling operations with full compensation for economic losses. The phase-out of whaling would function in a way analogous to the international law of expropriation and compensation. A functional agency—a cetacean relations agency—would administer the transition.19 The agency would then monitor, study, and protect cetaceans and their environment on an ongoing basis. Financing for both the compensation of whaling interests and the permanent functions of the agency would come from a “resources of the ocean” fund. This fund would be maintained by a tax—levied by the agency on fishing. The principle behind the tax is a logical outgrowth of the recognition of fundamental cetacean rights. Most species of cetaceans rely heavily on fish for food. Fairness demands that whales be compensated for incursions into their food supply. The tax would be applied at a per-unit rate, adjusted by type of seafood and status of stocks. Through its taxation power, the cetacean relations agency would raise money while protecting whale food supplies. An added bonus would be moderation of the fisheries “tragedy of the commons.” The cetacean relations agency would, within its well-delineated range of authority, have access to all waters inhabited by cetaceans including territorial waters. Nations would be obliged to respect that authority—an extension of the concept of impact territoriality. (Impact territoriality is a limitation on national sovereignty in cases where actions taken within a state’s boundaries have severe repercussions beyond them—affecting other sovereigns.) Legal challenges would be handled through the International Court of Justice. A body of international law, consistent with the first principles expressed in the declaration of cetacean (or ecological) rights, would be developed. Laws would be needed to protect the cetacean resource base (such as the tax on fishing) and to protect their environment from severe degradation by chemical poisons and radioactivity. Needless to say, human interests would also be well served by such legislation. To ensure that the best interests of cetaceans would be faithfully served, whales and dolphins should be given standing in both national courts and the International Court—a variant of Christopher Stone’s suggestion that natural objects be given standing.20 Such standing would be explicitly in the cetaceans’ own behalf, with all benefits accruing to them. Cetaceans would be represented by a court-appointed guardian. Finally, judicial interpretation would be guided by the teleological approach emphasizing the purposes and first principles expressed in constitutive documents. In contrast to the school of legal positivism that “insists on rigid adherence to the distinction between law and morals…and discounts humanitarian and sociological considerations,” the “teleological school emphasizes the role of the objects and purposes of a treaty in the interpretive process.”21 In this more flexible, lifelike conception of law, it is the judge’s role to resolve questions that are not explicitly dealt with in the law books by referring to the more general moral aims set forth in such documents as the Universal Declaration of Human Rights and the proposed declaration of cetacean rights. Peter Dolphin Shows the Way The present international legal system featuring national sovereignty is inadequate to most of our pressing needs (disarmament, relief of hunger, population and pollution control), as is the atomistic paradigm it serves. Transitions to new paradigms never come easily, since they call for basic alterations of well-established behavior. To move from an atomistic to a symbiotic paradigm would entail replacing conflict with cooperation, selfishness with altruism. Such visions are hopelessly utopian when examined through the colored-spectacles of the atomistic frame of thought. This should not surprise us, since the behavior spawned by any ruling paradigm is always thought to be “human nature” by the participants in that paradigm. The challenge is clear, though. Those who adhere to the symbiotic paradigm have a responsibility to search for, and act upon, key situations that offer revelational insights into the promise of constructive and cooperative relationships with our environment. The cetacean tragedies provide an ideal opportunity—one that may not be neglected without compromising our first principles—to give this world a tantalizing glimpse of the next. Love and respect for cetaceans undermines the cynical atomism of our time. By showing active concern for others who differ from us in so many ways and who are virtually lacking in power we reilluminate the wisdom expressed in the parable of the Good Samaritan. Crises, shortages, and other systemic failures are supplying the motivation to search for something better. The prophets of our age must strive to light the paths to a symbiotic world order system, and to make the transition as easy as possible. In this connection we will let Peter dolphin have the last word. Peter spent two months with Margaret Howe at John Lilly’s Communications Research Institute in the Virgin Islands. In that experiment, two very different but highly intelligent life forms had to adjust to living with each other on a round-the-clock basis. Margaret at first found Peter rather unsettling. Dolphins have big mouths lined with teeth, and Peter frequently sought to bring those teeth into gentle contact with Margaret. Margaret would have none of this, and scolded him. Peter immediately perceived that Margaret was afraid. In what followed he showed forth not only an excellent understanding of what was giving rise to that fear but also a keen insight into how to help Margaret around it. It occurred to him to place a ball in the front of his mouth, and to clamp his jaws shut on the ball. With his mouth still slightly open but unable to close he could now run his teeth along Margaret’s leg without upsetting her. Peter could well have stopped here, but instead he chose to go all the way—to show Margaret that her fear was entirely unnecessary, that he could be trusted. In stages he placed the ball further back in his mouth, enabling his jaws to close part way. Just as Margaret became comfortable with this intermediate level of protection, Peter graduated her to the next level. Now, he could let the ball “accidentally” roll out of his mouth as he approached her. Finally, after several weeks’ preparation, she was ready to let Peter “drop the ball” entirely.22 Peter dolphin’s patient, insightful, gentle, stepwise approach to getting Margaret to accept the delphinic way is a model for our own efforts to gain widespread acceptance of the symbiotic paradigm. We may “pick up the ball” as Peter did by putting a permanent end to the twin cetacean tragedies.

©1977 Andrew Reding. All rights reserved.

NOTES

1 Roger S. Payne and Scott McVay, “Songs of the Humpback Whales,” Science, Vol. 173, No. 3997 (August 13, 1971), pp. 585-597. 2 K. Payne, National Whale Symposium, University of Indiana, November 1975.

3 Garrett Hardin, “The Tragedy of the Commons,” Toward a Steady-State Economy, ed. Daly (San Francisco: W. H. Freeman, 1973), pp. 133-148. 4 David 0. Hill, “Vanishing Giants,” Audubon, Vol. 77, No. 1 (January, 1975), p. 85. 5 Report of the United Nations Conference on the Human Environment (New York: United Nations Press, 1973), p. 12. 6 Mark Twain, “The Damned Human Race,” in Letters from the Earth (New York: Harper & Row, 1974), p. 170. 7 Peter Morgane, “The Whale Brain: The Anatomical Basis of Intelligence,” Mind in the Waters, ed. A. McIntyre (New York: Scribners, 1974), pp. 84-93. 8 Gregory Bateson, “Observations of a Cetacean Community,” Mind in the Waters, pp. 160, 161. 9 David H. Brown and Kenneth S. Norris, “Observations of Captive and Wild Cetaceans,” Journal of Mammalogy, 37:311-323 (1956), pp. 321, 322. 10 Eugene Linden, Apes, Men, and Language (New York: Saturday Review Press, 1974), 304 pp. 11 John Lilly, The Mind of the Dolphin (New York: Avon Books, 1967), pp. 130-146, further confirmed by Scott McVay (personal communication). 12 M. C. Caldwell and D. K. Caldwell, “Epimeletic (Care-giving) Behavior in Cetaceans,” Whales, Dolphins, and , ed. Kenneth Norris (Berkeley: University of California Press, 1966), pp. 755-789. 13 E. Devine and M. Clark (eds.), The Dolphin Smile: Twenty-Nine Centuries of Dolphin Lore (New York: Macmillan, 1967), pp. 329, 330, 357. 14 Ibid. pp. 151-155, 209-219, 355-357. 15 Carl Sagan, The Cosmic Connection (New York: Dell, 1973), p. 179. 16 E. Devine and M. Clark (eds.), op. cit., pp. 356-357. 17 Noel D. Vietmeyer, “Can a Whale Find Life in the Desert?” Audubon, Vol. 77, No. 5 (September, 1975), pp. 101-105. 18 Norman Myers, “The Whaling Controversy,” American Scientist, July-August 1975, pp. 450-451. 19 For a fuller discussion of the functional agency concept, refer to option D in Richard A. Falk, “A New Paradigm for International Legal Studies,” Yale Law Journal, Vol. 84 (1975), pp. 969-1021. 20 Christopher D. Stone, Should Trees Have Standing (Los Altos, California: William Kaufmann, 1974), p. 11. 21 John Dugard, The South West Africa/Namibia Dispute (Berkeley: University of California Press, 1973), pp. 494, 495. 22 John Lilly, op cit., pp. 254-256.