Vol. 16 No.2 (February 2006), pp.160-164

 

WHALING DIPLOMACY: DEFINING ISSUES IN INTERNATIONAL ENVIRONMENTAL LAW, by Alexander Gillespie. Northampton, MA: Edward Elgar Publishing, 2005. 544pp. Hardback. £95.00/$160.00. ISNN: 1-84542-107-8.

 

Reviewed by Christopher C. Joyner, Department of Government and Edmund A. Walsh School of Foreign Service, Georgetown University. Email: joynerc [at] georgetown.edu.

 

This volume concerns the plight of marine creatures and the ways, means and strategies adopted by governments to govern their existence. More specifically, WHALING DIPLOMACY analyses the present legal and conservation situation of cetaceans—whales, dolphins and porpoises—as living marine resources in the world’s ocean. Unlike fish, these creatures are warm-blooded mammals that breathe air, bear live young, and nurse them on milk. Cetaceans play an important role in the life of the ocean, as they serve as benchmarks for the entire marine ecosystem’s health and well-being.

 

This work is well written, authoritatively argued, masterfully thought out, and extensively documented with references from primary sources. The author, Alexander Gillespie, is Professor of Law at the University of Waikato in New Zealand and no stranger to the subjects of whaling and marine resource conservation. As acknowledged early on in this work, his views on the law, ethics and politics of whaling diplomacy became anchored in some fourteen journal articles published in major law reviews over the past five years. This finished book product, however, furnishes a compelling assessment of the political obstacles that confront modern international environmental law for ocean space.

 

This volume is divided into three substantive parts and a conclusion. Part I deals with “numbers and threats,” and begins with a brief history of whaling, followed by an assessment of how individual whale species are managed. Gillespie is right to devote considerable attention to the nature of environmental threats that jeopardize the survival of cetaceans. Historically, the greatest threat was over-harvesting, and we still are prone to think that that remains the case. But Gillespie makes clear that other factors now may pose even greater dangers to cetaceans. Among these are collision with ships, entanglement in fishing gear (and becoming discarded as “throw-away” resources usually referred to as “bycatch”), the increasing affliction of cetaceans to manmade pollution and the degradation of their ocean habitat. Anthropogenic environmental change, especially erosion of the ozone layer and the introduction of persistent organic pollutants into the marine environment, may well become the most serious threat. Given these impending dangers, some cetacean species and tens of thousands of creatures will be lost in coming decades. The response of the international community, Gillespie cogently contends, must be more resolute and proactive in setting and enforcing policies aimed at halting these threats. [*161]

 

The main actors in the present international community are 191 independent states. Of these, sixty-six have explicitly agreed to adhere to an international regime that regulates whaling. That regime is comprised of customary principles and formal rules codified in two major multilateral instruments, the 1946 International Convention for the Regulation of Whaling (ICRW) and the 1982 UN Convention on the Law of the Sea (UNCLOS). Gillespie makes clear the current international law for whaling: General or customary international law permits nationals of all states the right to harvest whales on the high seas, unless the state of their ship’s registry or flag has agreed otherwise. In addition, each coastal state retains control over cetaceans within the limits of its offshore territorial jurisdiction, subject to obligations in its international agreements, with sole authority over activities of its nationals on the high seas.

 

The credibility of this regime rests on the ability of the International Whaling Commission (IWC), the institution created under the ICRW for setting whaling rules and policy, to use the best scientific evidence available for rendering decisions that affect the management of whales. This is not merely a matter of desirable policy; it is a matter of law, mandated by UNCLOS and uniformly viewed as general international law binding on all states. Article 119 of UNCLOS declares that, in establishing conservation measures for fisheries on the high seas, states shall “take measures which are designed on the best scientific evidence available to the States concerned.” No question exists that, if authoritative decisions are to be enacted as effective policy, any basis for action regarding the management of whaling must rest on the best scientific evidence available. Yet, deliberations in the IWC often treat science as irrelevant for specific decisions, largely because scientific facts complicate the politics affecting the international management of whaling.  As Gillespie makes clear, to allow science to be continually disregarded by the IWC endangers not only whales and other living marine resources, but also undercuts the credibility of the treaty implementation process and neglects the impacts stemming from other environmental problems. Those are unduly high prices to pay for the political convenience of some member states.

 

Part II examines questions of ethics in international environmental law associated with whaling. Arguments made in the IWC by Japan, Norway and like-minded governments assert that the “humane killing” of whales entails a reasonable rationale for hunting them. One cannot help but wonder, as Gillespie does, how killing can be made humane, especially when the harpoon—a massive metal spear-like projectile fired from a ship-board cannon that smashes into the flesh of a whale—is used to kill the animal. Then there is the philosophical notion of “scientific whaling” used by Japan in the IWC to justify its nationals taking these creatures. To what extent can “scientific activities” using living, non-human subjects for tests be permitted “in the interest of science”? If whales are truly [*162] endangered, why should they be hunted at all? Even if sustainable limits are set for whales, which could make whaling a legitimate activity, does that ipso facto make killing whales ethically right? What about aboriginal substance whaling and the role of indigenous peoples under international law? Have justifications for whaling under these circumstances been manipulated through euphemistic notions of “non-commercial utilization,” “nutritional need” and “local consumption”? Gillespie’s arguments highlight the reality that man is not master of the earth and his science does not exist in an ethical vacuum. We must realize that humans are but one species on this planet, and we should respect the right of other creatures to coexist with us. His call for ethical integrity as a necessary ingredient for deliberating the merits of such culturally relativistic rationalizations seems compelling, sensitive and thought-provoking.

 

The third part of WHALING DIPLOMACY examines how and what statesmen have done to make international legal rules and design intergovernmental institutions for the protection, conservation and management of cetaceans.  At least 149 states are party to the UNCLOS. Accordingly, customary law and the conventional law in UNCLOS furnish most states the regime for using ocean space, including the rules for harvesting living marine resources. It is interesting to note that only a few parties to the UNCLOS favor or support the harvesting of cetaceans. Many more governments support fishery operations that accumulate by catches of marine mammals, including small cetaceans. Given these agreements, what legal effects are generated relevant to the general freedom to harvest whales? The UNCLOS affirms (in articles 87 and 116) that the nationals of all states are free to take living resources on the high seas, subject to their treaty obligations and to UNCLOS itself. No provision in UNCLOS otherwise prohibits whaling. Likewise, the principal instrument for regulating whaling, the ICRW, contains no provision that specifically prohibits whaling activities. Consequently, under current international law, nationals of all states are free to exploit all living marine resources, including cetaceans, in the high seas beyond national jurisdiction. Even so, the governments of these nationals’ flag states are obliged to prescribe conservation measures for nationals engaged in such operations and to cooperate with other governments toward that end.

 

Gillespie makes a powerful argument that the need to take precautionary action should apply to the enforcement of compliance in any revised management regime for whaling. All phases of such a system need careful attention including monitoring, surveillance, inspection, reporting, adjudication, trial, and penalty. It is common knowledge that securing the adequate performance of these operations is among the most difficult accomplishments of international fishery management efforts. Relatedly, innovations in technology for surveillance and monitoring should be factored into conservation strategies. Positive fallout from the Cold War’s end includes greater potential for civilian use of [*163] military sensing systems in the oceans. These technologies extend not only to vessel operations but to whales themselves. It is conceivable that these innovations may contribute to the negotiability of new agreements on enforcement by lending greater credibility and timeliness to observations and to scientific data.

 

Gillespie treats in detail the creation of whale sanctuaries in the IWC, as well as various roles of the IWC committee system for managing small cetaceans. The legal ramifications stemming from international agreements, especially the ICRW, the UNCLOS and the Convention on International Trade in Endangered Species, as well as implications spun off from the worldwide establishment of exclusive economic zones, are critically addressed. Among the most important analyses in this work is Gillespie’s indictment of the IWC’s pervasive non-compliance with its own rules and goals throughout its history. He also notes the IWC’s need to secure a new inspection and monitoring regime. It seems incredible, but the international institution responsible for managing activities affecting the largest creature inhabiting the planet intentionally opts to remain hamstrung by anachronistic observation procedures and outdated catch documentation schemes. Such liabilities undercut the IWC’s functional efficiency and encumber its ability to enforce compliance.

 

Finally, Gillespie discusses the legal nature of reservations to treaties and the complications they posed for the IWC when Iceland sought to rejoin the ICRW in 2001. As he observes, transparency in international law remains an issue usually receiving scant attention. In the case of the IWC, this issue looms large, especially in the degree to which nongovernmental organizations can get access to information concerning committee discussions and deliberations. Much to its credit, as Gillespie observes, the IWC increasingly has opened its door to outside media attention, resisted secret voting and maintained certain accountability for its decisions. 

 

Clearly, this volume will be welcomed as an indispensable intellectual resource by laymen, scholars and policy-makers alike who are seriously interested in the modern plight of whales, especially the need for new attitudes dedicated to marshalling diplomatic initiatives for implementing and enforcing effective conservation policies. In this regard, WHALING DIPLOMACY makes a simple plea. If people are serious about the need to protect and conserve whales, the debate must be framed within the context of ethics, politics and law.  Gillespie is right; this view embraces a salient concern. All too often discussions about whaling become intertwined with and complicated by considerations of national interest, local constituent rights, and cultural sensitivities. Consequently, such discussions degenerate into confrontation and conflict, with little being accomplished save for ill will and political resentment. Real changes are needed in national priorities and long-term perceptions of national interests for multilateral institutions to implement and enforce policies that offset tactics of political cajoling and intimidation by a few governments. If the past is prologue, [*164] making this happen will remain the major challenge confronting cetacean diplomacy in the years ahead.

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© Copyright 2006 by the author, Christopher C. Joyner.