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The International Management of Whales, Dolphins, and Porpoises: an Interdisciplinary Assessment

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The International Management of Whales, Dolphins, and Porpoises: an Interdisciplinary Assessment The International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary Assessment James E. Scarff TABLE OF CONTENTS Part One I. Whales-A Description of the Resource A. Introduction B. Types of Whales C. Abundance D. Biological Characteristics 1. Behavior and Population Biology 2. Distribution E. Uses of Whales II. The History of Whaling and Early Regulation A. Early Whaling B. Antarctic Whaling C. Whaling Regulation before World War II III. The International Whaling Commission A. The 1946 Whaling Conference B. The International Convention for the Regulation of Whaling 1. Conflict of Purposes 2. Structure of the IWC C. The IWC in Operation 1946-1976 IV. The Conservation of Small Cetaceans A. Small Cetaceans and the IWC B. A Survey of the Small Cetaceans C. Uses of Small Cetaceans D. Small Cetacean Fisheries V. Ethics and Management A. The Risk of Extinction B. The Humaneness of Hunting Techniques C. The Ethics of Killing Cetaceans VI. Biological Assessment A. The Choice of Goals 1. The Danger of Extinction ECOLOGY LAW QUARTERLY [Vol. 6:323 2. The Search for the "Optimum Population Level" a. Maximum Sustainable Yield b. The Marine Mammal Protection Act and "Optimum Sustainable Populations" c. The New Management Procedure and MSY d. Optimum Ecological Resource Management 3. Approaching the Optimum Level 4. The Questionable Existence of a Single Optimum Popula- tion Level B. Cetacean Management in Practice 1. Endangered Species a. The bowhead problem b. Other endangered cetaceans 2. Whales and the Practice of MSY a. The calculation of MSY b. MSY-Weight vs. MSY-Numbers 3. The IWC and Ecosystem Management C. The Institutional Response to Biological Uncertainty 1. The Problem of Biological Uncertainty 2. "Best Estimates" 3. Minimizing Uncertainty 4. Coping with Uncertainty a. Safeguards of the New Management Procedure b. New stock classifications Part Two VII. Economic Assessment A. Introduction B. The Variety of Economic Goals 1. Maximizing Physical Yield vs. Maximizing Economic Rent 2. Maximizing Present Values-Single Species Models C. The Economics of Extinction 1. The Common Property Problem 2. Extinction Despite Property Rights D. The Choice of a Discount Rate 1. Discount Rate Theory 2. Property Rights and the Choice of a Discount Rate E. Economics and Small Cetacean Fisheries F. Regulation for Economic Efficiency 1. Distribution 2. Effort Controls 3. Abstention G. Research and Management Costs 1977] WHALE MANAGEMENT 325 VIII. Legal Assessment A. Whaling Not Regulated by the IWC B. Strategies for Achieving Compliance with International Regulation C. Enforcement of International Regulations D. Legal Alternatives 1. The Current Law of the Sea 2. The Third United Nations Conference on the Law of the Sea 3. The 200-Mile Economic Zone and American Law 4. Modification of the IWC 5. Alternative Legal Institutions IX. Conclusions A. Evolution of Whaling and Whaling Regulation B. Future Trends and Challenges The International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary Assessment* (PartOne) James E. Scarff** "More than any otherform of life, whales have come to epitomize the problems of management of our living resources." ' "If we prove unable to manage whales, it does not augur wellfor our ability to manage any of the other species for which there is so much greater incentive of exploitation. In other words, if we cannot find a way to manage whales successfully, it is unlikely we will be able to do so successfully with any other component of our living environ- ment. [T]here is probably no one group of animals which has the significance of whales to world conservation. "2 -Dr. Lee Talbot, Senior Scientist Council on Environmental Quality For international conservationists, cetaceans-whales, dolphins, and porpoises-have become symbols of endangered species everywhere. The rapid decline of whale populations during this century is dramatic evidence of the power of human technology to affect the environment on a global scale. The inability of the International Whaling Commission, the major intema- Copyright © 1977, James E. Scarff. * An earlier draft of this paper won first place in the 1976 Ellis J. Harmon Environmental Law Writing Competition. Part of. this paper was presented under the title "Ambiguity, Economics, and the International Whaling Commission," at the Conference on the Biology and Conservation of Marine Mammals, Univ. of Cal., Santa Cruz, Dec. 4-7, 1975. ** B.A. 1972, Stanford University (Political Science); J.D. 1975, University of California, Berkeley; M.S. 1976, University of California, Berkeley (Wildlife Ecology). Without the help and encouragement of the following people this article never would have been possible: Scott McVay, Dr. Sidney Holt, Dr. William Aron, Dr. Robert Brownell, Jr., Dr. Lee Talbot, Prudence Fox, Prof. Sho Sato, and Bemi Debus. I would also like to specially thank Peter Heineman, Karen Scholer, and the other editors at ELQ for all their encouragement and patience, and my parents who provided the financial support for this three year study. 1. L. Talbot, History, Status, and Conservation Problems of the Great Whale Populations I (paper delivered at the Symposium on Endangered Species: Causation and Remedies, Session on Cetaceans, at the Annual Meeting of the Am. Ass'n for the Advancement of Science, San Francisco, Cal., Feb. 28, 1974) [hereinafter cited as Talbot]. 2. Talbot, Remarks at the Presentation of the Albert Schweitzer Medal, ANIMAL WELFARE INST. INFORMATION REP. 2 (Jan.-Mar. 1974). 1977] WHALE MANAGEMENT tional agency which regulates whaling, 3 to adopt adequate conservation measures over the last 30 years, despite a high degree of scientific consensus on what conservation measures are necessary, has caused many conservation- ists to question the capability of international legal regimes to protect the environment, most particularly their capability to safeguard the living re- sources of the seas. Numerous articles in law journals in the last several years have addressed the International Whaling Commission's failure to achieve its conservation objectives, and have suggested legal reforms necessary to its successful operation.4 The authors of those articles were trained in law or political science. Applying only the traditional analyses of those disciplines, they failed to understand the unique and multifaceted problems of whale management. 5 In addition, those authors generally ignored the conservation problems of dolphins, porpoises, and other cetaceans not actively managed by the International Whaling Commission. This article, in contrast, draws heavily upon biological and economic as well as legal and political knowl- edge to analyze the international conservation problems of all cetaceans. An interdisciplinary approach is essential for understanding the complex problems of cetacean management. In 1976, a group of international experts on cetacean biology and conservation concluded that "[flor adequate re- search into marine mammals and their environments, interdisciplinary studies are an increasingly vital necessity, not merely a fashionable luxury. "6 3. For more information on the International Whaling Commission, see note 137 infra and text accompanying notes 138-71 infra. 4. Griffis, The Conservation of Whales, 5 CORNELL INT'L L.J. 99 (1972); Grieves, Leviathan, The Int'l Whaling Comm 'n andConservation as Environmental Aspects oflnt'l Law, 25 WEST. POL. Q. 711 (1972);Christol, Schmidhauser, &Totten, The Law andthe Whale:Current Developments in the International Whaling Controversy, 8 CASE W. RES. J. INT'L L. 149 (1976) [hereinafter cited as Christol]; Friedman, Legal Aspects of the Int'l Whaling Controver- sy: WillJonah Swallow the Whales? 8 N.Y.U.J. INr'L L. & POL. 211(1975); the whaling issue is also briefly discussed in Herrington & Regenstein, The Plight of Ocean Mammals, I ENVIR. AFFAms 792,805-13 (1972); and Coggins, Legal Protectionfor MarineMammals:An Overview of Innovative Resource Conservation Legislation, 6 ENVIR. L. 1, 54 (1975); see also note 5 infra. 5. The most comprehensive studies of whaling regulation that have been done in this country are three Ph.D. dissertations, one by a geographer, G. SMALL, THE BLUE WHALE (paper ed. 197 1) [hereinafter cited as SMALL], and two by political scientists. The better of the latter two studies is P. Bock, A Study in International Regulation: The Case of Whaling (1966) (unpublished thesis, New York University, available from University Microfilms Inc., Ann Arbor, Michigan) [hereinafter cited as Bock]. See also M. Bradley, The International Whaling Commission: Allocating an International Pelagic Ocean Resource (1971) (unpublished thesis, Univ. of Michi- gan, available from University Microfilms Inc., Ann Arbor, Michigan). The latter two studies make no serious attempt at being interdisciplinary. Small's study does combine some biology and economics, but his understanding of both those disciplines is weak and his understanding of law even weaker. 6. Working Group 20, Draft Report of Recommendations for a Research Program, Doc. FAO/ACMRR/MMISC/Rep. 20 Add. 1, at 6 (Sept. 1976). (For an explanation of this citation form see note 14 infra.) This report went on to state: Traditional disciplines presuppose a pattern of discreteness and separation of functions in natural processes which is in part fictional. They are useful for purposes of administrative convenience, and for some management objectives which require a "divide and conquer" approach. It is no longer possible, however, to assert
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