I. Ecology and ethics

Modern ecology has overturned many of the traditional assumptions that govern our relationship with nature. The idea that mankind is the ‘source or ground of all value’ appears increasingly naive; indeed, it appears as the ‘arrogant conceit of those who dwell in the moral equivalent of the Ptolemaic universe’ (Fox, Reference Fox1984, p. 184).Footnote ⁸ As ecological values move into the mainstream, many people are coming around to the view that animals have intrinsic moral worth and, as such, possess rights. These rights need not be the same as human rights: we might simply say that species possess a right to ‘pursue their own evolutionary destinies’ (Fox, Reference Fox1984, p. 194). Of course, ecology cannot prescribe which rights a species enjoys nor how they should be resolved vis-à-vis other rights. For guidance on such matters we must turn to law. Nevertheless, it is important to recognise that ecology has made it possible to argue for an ‘entitlement of whales–not just on behalf of whales’ (D'Amato and Chopra, Reference D'amato and Chopra1991, p. 23).

There are two main pro-animal positions in contemporary ethics.Footnote ⁹ The first, often associated with Peter Singer, is utilitarian; the second, with Tom Regan, proposes a theory of animal rights. For Singer, the motivating principle behind ethics is that of equality, which he defines not as an objective state of affairs (sameness between subjects) but as a rule prescribing conduct, as in, the taking into account of interests. Singer cites Bentham to the effect that the prerequisite to having an interest is the capacity for suffering: ‘the question is not, Can they reason? nor, Can they talk? but, Can they suffer?’ (Singer, Reference Singer1975, p. 7). Equality requires that the interests of all suffering beings be taken into account regardless of other limiting criteria. Utilitarianism seeks to weigh the aggregate sum of positive benefits. It is willing to allow suffering if a strong enough counter-argument exists: imagine, for example, a situation in which minke whale oil was discovered to be ‘an effective and safe cancer treatment’ (Heazle, Reference Heazle2012, p. 177). This would arguably overcome any utilitarian concerns with cetacean suffering as well as environmental constraints such as the ‘precautionary principle’ (which I will discuss later in this paper).

Regan, on the other hand, argues that all beings which are ‘subjects of a life’ possess inherent value and moral rights. The fundamental wrong is not a being's suffering – that is merely the result of a deeper root cause – but rather the ‘system that allows us to view animals as our resources’ (Regan, Reference Regan1983, p. 77). He criticises utilitarianism for its emphasis on ends over means: ‘The problem with the equality of interests principle is that it does not tell us what we ought to do, once we have taken the interests of all affected parties into account and counted interests equally’ (1982, p. 104). Regan prefers a rights-based approach because it is less likely to yield in the face of alternative benefits and so defends the rights holder with a higher standard. He describes his work as an ‘attempt to blend certain features of utilitarianism and Kant's theory’ (Reference Regan2001, p. 17). Cetaceans are standout candidates for a stronger Kantian theory since they meet the generally accepted criteria for personhood (White, Reference White2008, p. 155). We do not have to fall back on utilitarianism and its lower threshold of suffering and can put to one side the common distinction between ‘Kantianism for people, utilitarianism for animals’ (Narveson, Reference Narveson1977, p. 165). Cetaceans would even appear to satisfy Narveson's own stringent grounds – ‘the capacity to have a conception of oneself, to formulate long-range plans, to appreciate general facts about one's environment and intelligently employ them in one's plans’ (p. 166) – although they cannot enter into an agreement with us which remains the sine qua non for moral rights from a contractarian perspective.

In navigating rapidly through these arguments it should be remembered that a right is, from a legal perspective, never an absolute: ‘the lawyer is constantly aware that a right is not, as the layman may think, some strange substance that one either has or has not’ (Stone, Reference Stone2010, p. 18). Rights are, rather, made up of a ‘sort of procedural fabric’ and it is this which guarantees them judicial or administrative review (p. 18). Singer and Regan may wrangle over which ethical framework is superior, but in the juridical realm, some measure of value must be invoked; in other words, recognising the existence of a right does not determine ‘whose rights will be protected or how those rights will be enforced’ (Silverstein, Reference Silverstein1996, p. 222). This is why many legal commentators have cautiously sidestepped ethical debates and argued for an incremental extension of animal rights, i.e. in only the most compelling cases. This inevitably involves falling back on a consideration of sentience, intelligence and autonomy. These are the attributes we commonly associate with legal personhood even though there are many exceptions (‘practical autonomies’) and writs such as habeas corpus which do not require the ‘cognitive ability necessary to choose to understand and assert a claim or power’ (Wise, Reference Wise2007; Reference Wise2010).

Compelling philosophical arguments have winnowed the debate to the point where we can say that many great apes and cetaceans are ‘borderline persons’ (DeGrazia, Reference Degrazia and Singer2006). But only the former have received any legal recognition as such: ‘In the United States, chimpanzees at least, but likely all the great apes, appear to be edging toward a de facto “right” to life’ (Wise, Reference Wise, Salem and Rowan2003, p. 102). A right to life is, admittedly, a long way short of accepting great apes as ‘natural’ let alone ‘juridical persons’ (Berg, Reference Berg2007, p. 373).Footnote ¹⁰ Nevertheless, a de facto right to life is a step in the right direction, and a hurdle that cetaceans have yet to overcome. If cetaceans possess similar cognitive abilities to human beings and great apes – what Francione (Reference Francione2008) calls ‘similar minds’ theory – then clearly they ought to enjoy a similar status at law. Unless we accept the argument that ‘personhood’ denotes only ‘human beings’ but then such a narrow interpretation would deny many existing legal persons. Consistency therefore requires that cetaceans be ‘removed from the realm of property’ and given the ‘same basic negative rights to life, freedom and welfare we currently enjoy under the label of “human rights”’ (Cavalieri, Reference Cavalieri2006, p. 511).

It might reasonably be objected that since the greatest progress has come through a welfarist paradigm, we should continue to regard this as the best approach for advancing animal livelihoods (Garner, Reference Garner2006, p. 161).Footnote ¹¹ Whatever the value of welfare regimes, however, it seems fairly obvious that they have little to offer cetaceans. For such regimes aim to protect things that are property, and until such time as they are caught cetaceans are property belonging to no one (res nullius).Footnote ¹² Even the Five Freedoms adopted by the UK Farm Animal Welfare Council (1992), which many use as a ‘checklist’ for identifying ‘situations which compromise good animal welfare’ (Brakes, Butterworth, Simmonds and Lymbery, Reference Brakes, Butterworth, Simmonds and Lymbery2004, p. 13), are ill-adapted to a maritime context. For all Five Freedoms are ‘regularly contradicted’ at sea, meaning that the ‘concept is inappropriate when considering the welfare of aquatic animals in their natural environments’ (Diggles, Cooke, Rose and Sawynok, Reference Diggles, Cooke, Rose and Sawynok2011, p. 739). The freedoms also imply a relationship between animal welfare and ethology (Gonyou, Reference Gonyou1994). But we know very little about the social interactions of cetaceans in the wild, and most of what we do know must be inferred from indirect research methods (Whitehead, Christal and Tyack, Reference Whitehead, Christal, Tyack and Mann2000). A right to life, on the other hand, simply asserts a basic right not to be killed, independent of any conjectures as to mental states and regardless of whether a cetacean is property or at liberty.

Positive rights also have greater mobility. Whales, like refugees, migrate through national and international waters and need a form of legal protection that can travel with them. The comparison with refugees is instructive; state practice suggests that, while ‘human rights law should provide the common denominator of protections owed to refugees throughout the world … in practice it delivers little by way of legal entitlement’ (Hathaway, Reference Hathaway2005, p. 16). This is because states ‘simply have not been willing comprehensively to limit their sovereignty in favor of the essential dignity of the human person’ (p. 16). This does not disprove the existence of such rights, but merely points towards their limits, and the extent to which we routinely mistake politics for law. As a normative document, the Universal Declaration of Human Rights is of immense value; it tells us not what the law is (lex lata), but what it should be (lex ferenda), and in doing so may shape future state practice and opinio juris. This is especially significant given that the international legal system operates without the compelling force of a supranational Leviathan. Yet state practice towards cetaceans is more consistent than towards refugees; even taking into account ‘persistent objectors’ like Norway, Iceland and Japan, the right to life appears to be a settled feature of customary international law.

The cetacean right to life distils state practice at the same time as it is a strongly normative statement as to how states, and by extension their citizens, ought to behave towards whales and dolphins (even if sometimes they don't). Such a right, while not absolute, protects against the possibility that technology may one day enable us to justify ‘the “painless” mass slaughter of whales, arguably without mistreating them or abusing them’ (D'Amato and Chopra, Reference D'amato and Chopra1991, p. 28). A final factor, not to be underestimated, is that rights have ‘meaning – vague but forceful – in the ordinary language, and the force of these meanings, inevitably infused with our thought, becomes part of the context against which the “legal language” of our contemporary “legal rules” is interpreted’ (Stone, Reference Stone2010, p. 22). I agree with Stone that ‘a society in which it is stated, however vaguely, that “rivers have legal rights” would evolve a different legal system than one which did not employ that expression, even if the two of them had, at the start, the very same “legal rules” in other respects’ (p. 22). Indeed, from a natural law perspective, such a right is merely the lowest rung on a teleological ladder which proceeds from the ‘tacit assumption that the proper end of [cetacean] activity is survival’ (Hart, Reference Hart2012, p. 191).

II. Cetacean minds

The Greek poet Oppian believed that, ‘equally with human slaughter, the gods abhor the death doom of the monarchs of the deep’ (Burns, Reference Burns1997, p. 31). Whilst Oppian based his claim on religious grounds, it nevertheless speaks to a perception that cetaceans, like human beings, are exceptional. The same logic is employed today; we should think of cetaceans, advocates stress, as the ‘people of the sea’ (Callicott, Reference Callicott1997, p. 22). This presupposes that you, dear reader, enjoy unique moral status because of your sentience, intelligence and autonomy; in which case, the argument runs, so should cetaceans. While undeniably anthropomorphic, it is difficult to avoid the conclusion that, from a legal perspective, the strength of any claim is going to depend on whether it can be shown to be an incremental extension of already accepted principles. The essence of legal method remains one in which ‘legal fictions’ are used to find ‘new, and not very natural, meanings’ for old phrases (Maitland and Montague, Reference Maitland and Montague2010, p. 101). Thus, as Joan McIntyre (founder of Project Jonah) has argued, we must look for ‘something that is like us in other creatures … If we wish to save the whales from slaughter, part of our effort goes towards proving … they are similar to us’ (Scarff, Reference Scarff1980, p. 265).

Marine biologists point towards profound self-awareness. The mirror-recognition test (first used with primates) has been adapted to show that bottlenose dolphins ‘not only paid attention to the information in the mirror, but also they were able to interpret the images as themselves’ (Brakes et al., Reference Brakes, Butterworth, Simmonds and Lymbery2004, p. 24). There is a mounting body of evidence drawn from cognitive studies (Johnson, Reference Johnson2010; Marino, Reference Marino2002, Reference Marino2004; Marino et al., Reference Marino, Connor, Fordyce, Herman, Hof, Lefebvre, Lusseau, McCowan, Nimchinsky, Pack, Rendell, Reidenberg, Reiss, Uhen, Van der Gucht and Whitehead2007; Patrick et al., Reference Patrick, Ilya, Nancy, William, Peter and John1992). Marino, in particular, has written eloquently of the implications of cetacean brain structure: ‘the human brain is not the only brain that has undergone immense increases in size and complexity. Cetacean brains have as well, but along a different neuroanatomical trajectory, providing an example of an alternative evolutionary rout to complex intelligence on Earth’ (Marino, Reference Marino, Brakes and Simmonds2013, p. 115). Memory may also be radically different for a cetacean: ‘there is ample indirect evidence to suggest that memory-based systems in cetaceans have been transferred from the hippocampus primarily to adjacent highly elaborated regions of the brain’ (p. 122).

Such radical difference – a result of the fact that cetaceans returned to the sea about fifty-five million years ago – makes it difficult to compare humans and cetaceans. This evolutionary divergence makes ‘intelligence’ a somewhat slippery concept: ‘with reaching arms and grasping hands, human beings have evolved a primarily practical, manipulative, problem-solving intelligence that is only secondarily reflective and speculative. As the cetaceans have no similar appendages, their intelligence might be devoted to more philosophical and contemplative applications’ (Callicott, Reference Callicott1997, p. 23). This view is, of course, wildly speculative. The pioneering and often lamentable efforts of early cetacean neurologists such as John C. Lilly and Peter Morgane have been roundly discredited (Burnett, Reference Burnett2012, p. 531). Nevertheless, we can be confident of the fact that ‘such impressive structures’ as the cetacean brain ‘would not have evolved if they were not being used’ (Callicott, Reference Callicott1997, p. 23). In fact, we can go further than this, for we now know that when brains enlarge they do so ‘allometrically’, that is, they ‘cannot enlarge without also reorganizing, thus creating new areas and new features simply to maintain the same level of connectivity as in a small brain’ (Marino, Reference Marino, Brakes and Simmonds2013, p. 120).

This has profound implications for our understanding of cetacean cognition: ‘One of the most intriguing and informative aspects of enhanced auditory processing in cetaceans is the evidence that they have integrated this perceptual system into the general cognitive domain in a way that may be unprecedented in the animal kingdom’ (Marino, Reference Marino, Brakes and Simmonds2013, p. 121). Echolocation is not only a device for the ordering of spatial information, but also for communication. An analogy might be if we communicated with our eyes – which, of course, we do in sign language and body language. But this is a false analogy. The idea of echolocation suggests, at a deeper level, an ability to send signals with the same apparatus that receives them, and via the same medium; imagine being able to communicate by emitting photons from your retinae. In trying to understand what it is like to be a cetacean we encounter the same epistemological impasse that Thomas Nagel outlined in his famous essay ‘What Is It Like to Be a Bat?’ (Reference Nagel1974): ‘sonar, though clearly a form of perception, is not similar in its operation to any sense that we possess, and there is no reason to suppose that it is subjectively like anything we can experience or imagine’ (p. 428).Footnote ¹³

Marine biologists have also identified ‘culture’ in many cetacean species (Greggor, Reference Greggor2012). The song of the humpback is a familiar case which demonstrates a capacity for learned behaviour, memorisation, imitation and innovation. Sperm whales possess a sophisticated system of ‘codas’ or rhythmic clicks, while bottlenose dolphins and orcas use a range of altruistic ‘alarm calls’ and ‘greeting calls’ (Brakes et al., Reference Brakes, Butterworth, Simmonds and Lymbery2004, p. 20).Footnote ¹⁴ Orcas use ‘dialects that are unique to their family group’, and which they pass down through ‘maternal lines’ so as to ‘promote group cohesion and cultural identity’ (Spong, Reference Spong, Brakes and Simmonds2013, p. 129). Animal language experts have found evidence for ‘recursion’ amongst cetaceans, although it remains open to question whether this is recursion in the strong sense outlined by Chomsky (Pinker and Jackendoff, Reference Pinker and Jackendoff2005).Footnote ¹⁵ One may even infer a ‘moral system’ between sperm whales since they do not direct their ‘echolocation clicks at a social partners ears’ in the knowledge that it would ‘incapacitate the recipient's ability to forage for some time, and quite likely cause permanent damage’ (Whitehead, Reference Whitehead, Brakes and Simmonds2013, p. 158).

All of which goes to show that, if cetaceans are the ‘people of the sea’, they must be a very different kind of people. We may never fully understand this difference. All we can say is that we ‘share a select community of intelligent life on Earth with whales and dolphins – the community of minded organisms’ (Callicott, Reference Callicott1997, p. 24). The question we need to ask is: Should we recognise members of this community as having moral and legal rights?

III. Investigating the death of a whale

This is how Herman Melville depicted the death of a whale in Moby-Dick (1851). Nineteenth-century whalers wrangled with their leviathans at close range, rowing out and hurling harpoons from rickety boats. Today the basic technique is to fire an explosive harpoon (‘penthrite grenade harpoon’) from a deck-mounted canon, which is designed to penetrate approximately 30 cm into the whale's body and detonate, causing trauma, laceration and nervous shock (Brakes et al., Reference Brakes, Butterworth, Simmonds and Lymbery2004, p. 39). Should the harpoon fail, another will be fired, or a rifle (minimum 9.3 mm calibre) employed as a secondary device. While the idea is to achieve an instantaneous death, in reality the vast majority of whales die slowly and in excruciating pain. Brakes et al. (Reference Brakes, Butterworth, Simmonds and Lymbery2004) report that the instantaneous death rate for minke whales taken by Japan in Antarctic waters was 40.2 per cent. The rate is far lower for larger whales, as the difficulty of causing instantaneous death augments with the size of the whale. Meanwhile, the time to death rate can stretch to an hour and a half, although the average time to death was reported at four to five minutes.

Many variables frustrate the achievement of a so-called humane kill: ‘even the smaller whales are large when compared with other hunted wild mammals, they are marvellously adapted for rapid and very deep diving and they are often found in seas known for some of the most inhospitable and difficult conditions’ (Harrop, Reference Harrop2003, p. 7). It is almost impossible to ‘find a lethal spot within all the bone and blubber’ in a target that is moving rapidly and ‘seen only vaguely and intermittently from several hundreds of metres or more’ (p. 7). A crucial man-made obstacle derives from the fact that the current killing method was designed for and tested on minkes and is not suitably adapted to the morphology and physiology of other species.Footnote ¹⁶ The effectiveness of the rifle as a secondary weapon is also questionable. It can only cause death if a marksman is able to accurately target a whale's brain or heart, which occurs infrequently given the churning of the seas.

The death of a whale in a modern context departs very little from Melville's original template. Consider the following description by Dr Harry Lillie, who served as ship's physician aboard a British floating factory in the Antarctic in 1947: ‘If we can imagine a horse having two or three explosive spears stuck in its stomach and being made to pull a butcher's truck though the streets of London while it pours blood into the gutter, we shall have an idea of the method of killing. The gunners themselves admit that if whales could scream, the industry would stop for nobody would be able to stand it’ (Brakes et al., Reference Brakes, Butterworth, Simmonds and Lymbery2004, p. 31). The fact is that whales can, and do, scream; we just don't hear them. Scientists have observed how harpooned whales change their ‘characteristic whistle’ to a ‘low monotone’ associated with pain (D'Amato and Chopra, Reference D'amato and Chopra1991, p. 25). There is no scientific doubt as to whether whales feel pain. The moot point seems to be whether they register it to a greater or lesser degree than we do. The loss of a group member can also have a devastating social effect: ‘there are numerous recorded incidents in which a whale has been harpooned or captured and taken to shore, and its mate or family has followed it or waited offshore for its return for days, even weeks at a time’ (Regan, Reference Regan1982, p. 104).

We may safely conclude that whaling causes pain and suffering every time a whale is killed or ‘struck and lost’.Footnote ¹⁷ Yet welfare standards in the whaling industry fall far short of those required in agricultural slaughterhouses around the world. Humane slaughter dictates that an animal should not be aware of its impending death nor should it suffer throughout: cattle in the US must be ‘stunned’ before they can be killed (Welty, Reference Welty2007, p. 176). This may now be part of customary international law (Gillespie, Reference Gillespie2003, p. 12). The ICRW, however, does not contain any welfare provisions: ‘There are no regulatory requirements for avoiding excitement, pain or suffering … no maximum pursuit times, no limit on the number of weapons or bullets that can be deployed on one animal, no upper limit on the acceptable death time, no specific requirements for the rate of instantaneous kills and indeed, in many hunts, no upper limit on the number of animals that can be struck and lost’ (Brakes et al., Reference Brakes, Butterworth, Simmonds and Lymbery2004, p. 101).

It is evident that whaling is prima facie unethical. First, many whales and dolphins are borderline persons and, as such, have a right to life. These beings must properly be regarded as ends in themselves (Kant, Reference Kant1996, p. 44). Second, even those cetaceans that do not qualify for personhood, such as minkes, are sentient, intelligent creatures, whose interests must be taken into account if they are to suffer. The whaling industry is not yet capable of humane (let alone sustainable) slaughter, and so it is ‘incumbent on those involved in the activity to justify that activity – to show, that is, that there are other, more stringent moral demands that justify this pain-causing activity’ (Regan, Reference Regan1982, p. 104). Are there any arguments that can justify whaling? I will briefly look at the three main types of whaling.Footnote ¹⁸

Commercial whaling aims to procure meat for consumption and ingredients for industrial products. Whales are killed for ‘chicken feed, cattle fodder, fertilizer, car wax, shoe polish, lipstick, cosmetics, margarine, cat and dog food’ (D'Amato and Chopra, Reference D'amato and Chopra1991, p. 22). All of these can be alternatively provided for: ‘There is nothing in the body of a whale, which is of use to us, for which we cannot find equivalents elsewhere’ (Brakes et al., Reference Brakes, Butterworth, Simmonds and Lymbery2004, p. iv). Nor is economic viability a problem. Scientific research whaling may be justified if, as the Scientific Committee has frequently stressed, it leads to genuine scientific outcomes. But in most instances non-lethal research will be more effective and less costly (Steuer, Reference Steuer2005). Aboriginal subsistence whaling has bedevilled the IWC largely because it is so difficult to define who is an ‘aborigine’ and when their whaling is ‘subsistence’ (Gillespie, Reference Gillespie2005, p. 194). Putting these issues aside, ‘self-determination’ and the maintenance of ‘traditional culture’ may in some cases justify the killing of cetaceans, but only those species not regarded as borderline persons.Footnote ¹⁹

IV. Tragedy of the global commons

The history of whaling is a textbook example of how the traditional status of the world's oceans as a global commons interacts with the weak sovereignty of international law.Footnote ²⁰ As years of unsustainable practices took their toll and stocks collapsed – despite repeated warnings from the IWC's Scientific Committee – whalers dramatically increased the size of their operations, opting for short-term benefit over the long-term cost of extinction. From the IWC's first meeting in 1949, up until the mid 1970s when the New Management Procedure (NMP) was adopted, whaling states continually set catch quotas between 15,000 and 17,000 blue whale units (BWUs).Footnote ²¹ Any serious attempt to introduce restrictions was undermined by the blanket refusals of Member States and the threat of withdrawal. In 1953, for example, the Scientific Committee recommended that the killing of blue whales be prohibited because stocks had reached dangerous levels. The response from Japan, the Soviet Union and the US was to lodge formal objections under Article V and take large catches regardless.Footnote ²²

The Scientific Committee's attempts to reduce the BWU quota reached desperate levels during the 1959–1960 season and met with climactic resistance which threatened to shatter the IWC. Two of the five major whaling nations withdrew: ‘Recognising that the management of stocks … was impossible without the participation of Norway and the Netherlands, IWC members voted under Article 5 of the ICRW to dispense with the catch quota for the 1959/1960 season’ (Burns, Reference Burns1997, p. 38). Continued infighting kept the issue on the sidelines, resulting in three years of self-imposed national quotas, reaching a staggering high of 17,780 BWUs. Such skyrocketing catches illustrate how the destructive logic of the commons runs unchecked in a system in which consent is the only means of agreement and compliance unenforceable. Recent years have seen much the same occur in fishery after fishery around the globe: ‘efforts to dampen fishing through various cooperative and mandatory measures are almost universally frustrated … while a single owner of the fishery would rationally fish to the point of rent maximization, open access extends extraction’ to the point of collapse (Stone, Reference Stone2010, p. 91).Footnote ²³

The turning point for the IWC came not in the 1960s, with its ‘economic rationalism’ and ‘sustainable yields’, but in the 1970s, with its turn against the ‘economics of overexploitation’ (Clark, Reference Clark1973). Clark famously concluded that: ‘For populations that are economically valuable but possess low reproductive capabilities, either condition [i.e. the commons or private property] may lead to the extinction of the population’ (p. 634). The idea that whaling could be rationally managed had been dealt a mortal blow in both practice and theory. The anti-whaling position hardened into a kind of secular faith as the speculative findings of early cetacean neuroscience – epitomised by John C. Lilly's The Mind of the Dolphin (1967) and Lilly on Dolphins: Humans of the Sea (1975) – entered the mainstream (Burnett, Reference Burnett2012, p. 518). It was, ironically, not reason but unreason, what Burnett calls the ‘reenchantment’ (p. 624) of whales and dolphins, that proved decisive in derailing the culture of pragmatism and compromise that had always existed at the IWC and replacing it with a fiercer, unyielding environmentalism.

The last three decades have seen the IWC shift focus from ‘conservation’ of whale stocks for sustainable exploitation to ‘preservation’ of whales for the sake of ecological diversity and intrinsic worth (Stoett, Reference Stoett2011). This was driven by an influx of new Member States in the 1970s and early 1980s, many of whom professed a desire to protect whales even though they had no historical involvement in the fishery. Indian Prime Minister Rajiv Gandhi, for example, wrote that his country had become a member so as to ‘join other nations … in their endeavour to save this most fascinating and remarkable member of our planet's living fraternity’ (D'Amato and Chopra, Reference D'amato and Chopra1991, p. 47). The IWC's new rationale was evident in its removal of maximum sustainable yield (MSY) – formerly its central organising concept – and adoption of the ‘precautionary principle’ (Peel, Reference Peel2005).Footnote ²⁴ The ultimate triumph for the anti-whaling movement came in 1982 with the adoption of the moratorium, a step which had been debated and rejected for over a decade.Footnote ²⁵ The text of the amendment evinces an intention that the moratorium be temporary and manifests a desire to scientifically review the effects of the ban and formulate a new management scheme – as Japan recently reminded Member States at IWC 65 in Slovenia – by 1990 at the latest.

Yet the IWC has been hamstrung by its inability to ensure that Member States provide accurate reporting as to annual takings. As is typical of an international body, it does not possess enforcement capacity and relies on Member States to self-regulate in terms of inspection and compliance. Until recently the IWC was unable to provide even a rough estimate of misreporting. However, in the 1990s, an ominous hint came to light when Russian scientists revealed that the former Soviet whaling industry had ‘underestimated its whaling figures for more than forty years by one hundred percent or more’ (Burns, Reference Burns1997, p. 63; Ivashchenko, Clapham and Brownell, Reference Ivashchenko, Clapham and Brownell2011; Yablokov, Reference Yablokov1994). The extent of misreporting is truly staggering: ‘During the 1961–62 season, for example, four Soviet fleets reported killing 270 humpbacks in the Antarctic, when in reality one fleet alone had killed more than 1,500. Another Soviet ship reported killing 152 humpbacks and 156 blue whales during the 1960s. Revised figures from Russia's whaling commissioner indicate that the actual figures were 7,207 humpbacks, 1,433 blue whales, and 717 right whales’ (p. 63). Other states likely conducted similar campaigns of deception. In the light of these discoveries, the IWC was forced to fundamentally rethink its estimates, realising that any scientific basis for establishing population densities had been compromised (Jackson et al., Reference Jackson, Patenaude, Carroll and Scott Baker2008). This has undermined efforts to formulate and implement a Revised Management Procedure, the long-awaited regime to replace the New Management Procedure if and when commercial whaling resumes.

V. The IWC in the twenty-first century

A major development in the battle between whaling and anti-whaling states was the establishment of the Conservation Committee at the IWC's 2003 meeting in Berlin. This was perceived to be a huge blow to the hopes of whaling states. However, the whalers' star has risen once more, thanks to Japan's aggressive campaign to induce new states into the IWC. The Future of the IWC process ‘aimed at getting compromises from both pro-whaling and anti-whaling members to resolve the bipolar and conflictive nature of the organization’ (Goodman, Reference Goodman2011, p. 63). This was abandoned at the conclusion of the 2010 meeting. The situation is thus as precarious as ever and the moratorium, indeed the future of the IWC, hangs in the balance. The IWC remains formally committed to the resumption of commercial whaling on the proviso that quotas be set for species ‘determined to be above 54 percent of pre-exploitation levels’, with the ultimate prospect being the recovery of target species to ‘72 percent of … pre-exploitation population levels within 100 years’ (Burns, Reference Burns2003, p. 261). It has gradually moved closer to realising this goal and has only been prevented by internecine wrangling between Member States over elements of the inspection and observation scheme.

Yet, in what has become a celebrated case in ‘regime analysis’ circles, the moratorium provides a lens through which to reinterpret the very purpose of the treaty: ‘a treaty originally intended to regulate whaling has through this simple device become a treaty to protect whales’ (Birnie, Boyle and Redgwell, Reference Birnie, Boyle and Redgwell2009, p. 725).Footnote ²⁶ That the IWC has managed to reinvent itself without imploding (despite coming very close on a number of occasions) has amazed many onlookers. It is frequently praised as ‘a – or perhaps the – paradigm of a successful international regime’ at the same time as it is denounced as ‘dysfunctional’, ‘deadlocked’ and subject to ‘paralysis’ (Hurd, Reference Hurd2012, p. 103).Footnote ²⁷ While a small minority of states continue to treat whales and dolphins as ‘non-sentient natural resources such as barrels of oil’ (Harrop, Reference Harrop2003), the vast majority accept the premise – or at the very least are agnostic to it – that cetaceans are borderline persons. It little matters whether they have been influenced in this regard by the speculative claims of John C. Lilly or the more robust research of Lori Marino. Between these irreconcilable positions lie the formal terms of the treaty (the subject of many ‘legal fictions’) and the ongoing problem of scientific uncertainty.

That ‘scientific uncertainty’ has been exploited – first to cast doubt on and delay the adoption of the moratorium and more recently to cast doubt on and delay a return to commercial whaling – does not prove that science at the IWC is a mere smokescreen for politics (Heazle, Reference Heazle2012, p. 188). Such a Machiavellian thesis overlooks two points. First, cognitive studies provide firm grounds for claiming that cetaceans are borderline persons; to question the validity of this claim is to question the same grounds by which we hold human beings to be persons. Second, the history of the IWC may be a depressing parable on the failure of ‘rational fisheries management’, but it is one that contains a glimmer of hope. For it shows that science can carve out a space within politics: ‘The story of whaling and whale science between 1945 and 1965 is a story of science mobilized within what was, at the time, a novel space: the committee rooms of post-war international diplomacy’ (Burnett, Reference Burnett2012, p. 357). It was scientists in the 1960s and 1970s who developed the sophisticated language (‘disinterested’ and ‘objective’) which shattered the resistance of the old whaling bloc and saved many of the great whales from extinction. In this sense, I am inclined to agree with Burnett that ‘a better example of the strategic value of boundary work would be difficult to invent’ (p. 355).Footnote ²⁸

It might be argued, as Japan has (Kim, Lee and Riley, Reference Kim, Lee and Riley2011), that there are no ‘scientific’ grounds for opposing the limited resumption of commercial whaling. Such opposition must be explained by way of an irrational attachment to charismatic mega-fauna. Certainly it is possible that those cetaceans who do warrant personhood have become mixed up with many others who do not; such a ‘super-whale myth’ has arguably compressed each species into a single ‘symbolic expression of our fundamental relations with nature’ (Kalland, Reference Kalland2009, p. 89). The mistake of applying specific traits to the genus as a whole does not, however, demonstrate that the grounds for cetacean personhood are non-scientific or based merely on ‘cultural preference’ and enforced via ‘cultural imperialism’ (Gillespie, Reference Gillespie1996, p. 373).Footnote ²⁹ Even granting the super-whale myth, the conflation of species seems a small price to pay for stopping the slaughter of those cetaceans who do genuinely qualify as borderline persons. We do not consider it appropriate to kill human beings simply because there is some confusion as to whether other primates should also be considered persons.

Upon closer inspection, the remainder of the Japanese argument collapses. Let us grant, first of all, that minke have reached 54 per cent of pre-exploitation abundance (above which they can be legally whaled).Footnote ³⁰ Second, that it is possible to whale ‘ethically’ and ‘sustainably’ (Gillespie, Reference Gillespie1996, p. 359).Footnote ³¹ It seems that opposition to a limited catch must be unreasonable; but we should not forget that the history of whaling has convinced a great many people that ‘rational’ fisheries management is a fallacy. Thus six prominent cetacean scientists (including three members of the Scientific Committee) argue that the real issue is ‘not that some whales are not abundant, but that the whaling industry cannot be trusted to regulate itself or to honestly assess the status of potentially exploitable populations’ (Clapham et al., Reference Clapham, Childerhouse, Gales, Rojas-Bracho, Tillman and Brownell2007, p. 317). The ICJ in Whaling in the Antarctic similarly rebuked Japan for ‘weaknesses’ in its scientific whaling programme: ‘the decision to proceed with the JARPA II sample sizes prior to the final review of JARPA lend support to the view that those sample sizes and the launch date for JARPA II were not driven by strictly scientific considerations … Japan's priority was to maintain whaling operations without any pause, just as it had done previously by commencing JARPA in the first year after the commercial whaling moratorium had come into effect’ (para. 156).Footnote ³²

Let me repeat that the misuse of science in no way proves that the IWC is a mere venue for the contestation of ‘culture’ and ‘values’. The whaling dispute is at bottom a confrontation between international science and a small number of states who maintain non-scientific views such as that whales and dolphins are fish.Footnote ³³ Others see whaling as a realpolitik wedge to use in negotiations over food security and fisheries issues: ‘Japanese policy on whaling cannot be viewed in isolation, but is part of a larger framework involving a perceived right to secure unlimited access to global marine resources’ (Clapham et al., Reference Clapham, Childerhouse, Gales, Rojas-Bracho, Tillman and Brownell2007, p. 314). There is, no doubt, a great deal of truth in this; and if Japan has been playing a ‘two level game’ then so too has Australia, using this issue to relieve domestic political pressure as against its strong bilateral relationship with Japan (Heazle, Reference Heazle2013, p. 332). But this merely goes to show how desperately states in their ‘subjectivity’ need the ‘objectivity’ of international law to render disputes practical and resolvable. For the agenda of international law is of a piece with the agenda of international science: ‘As Kepler reportedly said, in midst the massacres of religious wars, the laws of elliptical motion belong to no man or principality’ (Steiner, Reference Steiner2002, p. 214).

VI. The Whaling in the Antarctic case

In many ways the Whaling in the Antarctic case follows on from the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (1999). These cases featured the same interlocutors and centred on a disagreement over Bluefin tuna populations and their rates of recovery (an analogous problem to that before the IWC).Footnote ³⁴ The International Tribunal for the Law of the Sea restrained Japan from ‘undertaking an experimental fishing program’ and asked all parties to ‘act with prudence and caution in order to ensure that effective conservation measures are taken’ (Rothwell, Kaye, Akhtarkhavari and Davis, Reference Rothwell, Kaye, Akhtarkhavari and Davis2014, p. 477). Rothwell et al., conclude that, while the Tribunal did not ‘expressly refer to, or endorse, the precautionary principle its decision revealed a classic precautionary approach’ (p. 477).Footnote ³⁵ The precautionary approach is usually traced to Principle 15 of the Rio Declaration on Environment and Development (1992): ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.’ International lawyers, however, see it less as a ‘principle’ and more as a general ‘call for scientific uncertainty to be taken into account in making decisions on how to address threats of serious or irreversible environmental damage’ (Peel, Reference Peel2004, p. 498).Footnote ³⁶ This distinction may shed some light on the Court's approach in Whaling in the Antarctic.

International lawyers predicted that the case would turn on whether Japan's programme was ‘for the purposes of scientific research’ under Article VIII of the ICRW, and pointed out that the Court would have to choose between a ‘subjective’ and ‘objective’ test for determining the meaning of this phrase (Anton, Reference Anton2010; Mossop, Reference Mossop2009). The former would ‘simply identify what Japan considers to be scientific’, whereas the latter would require a determination as to what might ‘objectively be deemed scientific’ (Park, Reference Park2011, p. 204). Now that the decision has been handed down we can see that Australia was not, in fact, ‘attempting the impossible’ (Park, Reference Park2011), but merely giving the Court the opportunity to authoritatively declare what many international lawyers had already concluded about Japan's so-called ‘scientific’ whaling programme.Footnote ³⁷ However, while the Court's decision is far-reaching – it has been described as a ‘more decisive judgment than even the most strident anti-whaler could legitimately have hoped for’ (Vincent, Reference Vincent2014, p. 266) – it is at the same time very narrow in scope.

Nowhere does Whaling in the Antarctic speak to the legality or otherwise of whaling. The Court emphatically ruled out any sense in which it was ‘called upon to resolve matters of scientific or whaling policy’ and stated that although ‘members of the international community hold divergent views about the appropriate policy towards whales and whaling’, it is ‘not for the Court to settle these differences’ (para. 69). There is nothing to stop Japan from reformulating its programme so as to bring it within the letter, if not the spirit, of the law. Indeed, the IWC recently met in September 2014 at Portoroz, Slovenia, where Japan has already announced its intention to do so.Footnote ³⁸ Japan continues to argue that, as there is no longer any ‘scientific uncertainty’ as to minke populations, a limited catch should be allowed. And there is every reason to believe that whaling and anti-whaling states will continue to strive for ‘consensus’, which would logically have to include some form of commercial whaling.Footnote ³⁹

Yet Whaling in the Antarctic contains reasons to be sanguine about the future of international environmental law.Footnote ⁴⁰ For the Court did, to a large extent, agree with Australia's submissions and dismiss Japan's. First, it found that it unreservedly had jurisdiction to hear the case (there was no need to make a determination as to Australia's disputed exclusive economic zone (EEZ) in the Antarctic). Second, it found that, since JARPA II was not ‘for the purposes of scientific research’, Japan was in breach of its obligations under the ICRW. The Court declared that, with respect to Article VIII of the ICRW, the ‘standard of review is an objective one’ (para. 67). This necessarily entails a consideration of ‘whether the elements of a programme's design and implementation are reasonable in relation to its stated scientific objectives’ (para. 88). Thus, while lethal methods are not ‘per se unreasonable’, Japan nevertheless needed to be able to show that they were ‘not being used to a greater extent than is necessary’ (para. 224).

One major implication of the judgment is that Japan's ‘approach in self-determining scientific validity has been found to be incorrect’ (de la Mare et al., Reference De La Mare, Gales and Mangel2014, p. 1126). For state practice to be ‘scientific’ under the ICRW, it must be able to show ‘objectives, methods, and sample sizes’ that are ‘sufficiently detailed so as to be capable of quantitative evaluation using normal scientific procedures’ (p. 1126). The Court's objective test (‘reasonableness’) allowed it to adjudicate on ‘the logic, rather than the details, of science’ (p. 1126) without having to transform itself into a de facto scientific body. Such an approach tacitly acknowledges that the best practices of the international scientific community change over time (non-lethal research on cetaceans did not exist in 1946).Footnote ⁴¹ This will no doubt ‘serve as a useful model in resolving other disputes over complex technical issues’ (p. 1126). The Court's conception of the ICRW as an ‘evolving instrument’ also opens a narrow window onto the idea that, just as our normative reasoning towards cetaceans has changed, so too have our duties and obligations towards them.

The reasoning of the majority occupies a middle ground between the ‘restrictive’ reasoning of Judges Owada and Abraham and the ‘expansive’ reasoning of Judge Cançado Trindade and Judge ad hoc Charlesworth. Judge Owada found that the ‘object and purpose of the Convention’ must be understood by looking at the original intentions of the contracting parties: ‘to pursue the goal of achieving the twin purposes of the sustainability of the maximum sustainable yield (“MSY”) of the stocks in question and the viability of the whaling industry. Nowhere in this Convention is to be found the idea of a total permanent ban on the catch of whales’ (para. 9). The ICRW, in his view, is ‘a kind of self-contained regulatory regime on whales and whaling’ which guarantees ‘autonomy to the parties’, although not so much as to render it ‘free from the process of judicial review by the Court in accordance with the power given to it for interpreting and applying its constitutional document’ (para. 14). Judge Owada's approach – what we may call legal formalism – may be familiar to readers from recent debates over the meaning of the US Constitution. His position is, for example, consistent with that taken by Justice Antonin Scalia (‘Originalism’) of the US Supreme Court.Footnote ⁴² Such a narrow judicial role prevents the Court from usurping the powers conferred upon the IWC and its Scientific Committee.

Judge ad hoc Charlesworth cited the Court's previous decision in Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010) and found that international environmental treaties ‘should be interpreted wherever possible in light of the precautionary approach, regardless of the date of their adoption’ (p. 3). Her emphasis on the precautionary approach as part of customary international law explains, crucially, why ‘non-lethal methods of research’ must be used ‘wherever possible’ (p. 3). This goes somewhat further than the majority's ‘reasonableness’ test in acknowledging that Article VIII of the ICRW has evolved in tandem with the other ‘sources’ of international law. For this reason, Japan needed to be able to show that lethal methods were ‘indispensable to the purposes of scientific research on whales’ (p. 3). This shifts the onus of proof from the plaintiff (who ordinarily needs to show harm) to the defendant (who must now show that their actions are not likely to cause harm). Yet even the majority's emphasis on non-lethal research as the de facto position in determining whether a state programme is ‘for the purposes of scientific research’ arguably raises a similar burden of proof issue.Footnote ⁴³

Judge Cançado Trindade's opinion comes closest to my argument in this paper. He described the ICRW as a ‘Living Instrument’ inseparable from the ‘evolving opinio juris communis’ (para. 27). He noted the ‘systemic outlook’ of conservation treaties which supports a ‘teleological interpretation’ of the ICRW as evolving towards the ‘protection of wild fauna and flora’ (para. 26). His opinion hinges on the idea that the ICRW must be interpreted in the light of ‘a gradual move away from unilateralism and towards multilateral conservation of living marine resources’ (para. 24). Like Judge ad hoc Charlesworth, Judge Cançado Trindade construed Article VII in the light of the other ‘sources’ of international law. The ICRW, he declared, does not ‘stand alone as a single international Convention aimed at conservation and management of marine mammals’, but sits alongside a ‘plethora of international instruments adopted in recent years, aiming at conservation with a precautionary approach’ (para. 57). To complete the analogy to the US Constitution, we might say that Judge Cançado Trindade and Judge ad hoc Charlesworth more closely resemble Ronald Dworkin, who argued for a ‘coherent, principled and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution’, an approach he called ‘constitutional integrity’ (Reference Dworkin2006, p. 118).

The reasoning of the majority – neither ‘restrictive’ nor ‘expansive’ – may perhaps be compared to the ‘legal realism’ of Richard A. Posner and Cass Sunstein (and others of the Chicago School). Theirs is a ‘pragmatist’ line of argument which draws inspiration from the philosophy of William James, John Dewey and more recently Richard Rorty. Whatever the case, Whaling in the Antarctic sets a clear precedent for future matters involving scientific expertise and international environmental treaties. The Court has positioned itself between description and prescription, facts and values, the positivist realm of state practice and the normative ideals of global justice; it continues, as it were, the grand tradition in which international law is ‘about lifting idiosyncratic (“subjective”) interests and preferences from the realm of the special to that of the general (“objective”) in which they lose their particular, political colouring and come to seem natural, necessary or even pragmatic’ (Koskenniemi, Reference Koskenniemi2005, p. 597). The parties to the dispute as well as other IWC Member States and onlooking NGOs (‘norm entrepreneurs’) can now go forward with a clearer sense of where the law ends and politics begins.Footnote ⁴⁴

VII. Customary international law

Whaling in the Antarctic lends weight to the claim that international law has ‘evolved drastically: from being subjective [it] has become more objective, from relative it has turned more universal’ (Besson, Reference Besson, Besson and Tasioulas2010, p. 165). The treaties primarily relevant to cetaceans include the ICRW, UNCLOS and, to a lesser extent, CITES. These must be read alongside one another.Footnote ⁴⁵ The major provision from the Law of the Sea is Article 65, which establishes that ‘marine mammals are not subject to the obligation of optimum utilisation. Hence while the LOSC itself does not forbid whaling, it does give states and international organisations a right to do so’ (Rothwell and Stephens, Reference Rothwell and Stephens2010, p. 308). Many states have ‘enacted legislation prohibiting the taking of whales in their EEZs’, while on the high seas whaling is ‘substantially limited by the ICRW’ (p. 308). States which originally restrained themselves because of the moratorium have seen now fit to outlaw whaling on their own terms.Footnote ⁴⁶ The vast majority would not resume commercial whaling even if the moratorium were to be lifted. What began as a strict legal obligation has, in a compelling demonstration of the ‘norm life cycle’, been internalised as a new normativity (Finnemore and Sikkink, Reference Finnemore and Sikkink1998).

Yet a fixation on treaties and domestic legislation may belie the relative cohesion of customary international law. Behind states' divisive rhetoric and divergent practice we may discern coherence and obedience to what H. L. A. Hart (Reference Hart2012) called ‘second order rules’, that is, those rules that give rise ‘not merely to physical movement or change, but to the creation or variation of duties or obligations’ (p. 81).Footnote ⁴⁷ The whaling dispute shows that, whatever else they may desire, states see themselves as bound by international law: ‘A legal sceptic might use the case to illustrate how self-interested states are capable of evading legal obligations … But such a view is too simplistic … The pro-whaling states reveal themselves to be intensely interested in how the rules are written and in finding means to fit their behavior within them’ (Hurd, Reference Hurd2012, p. 110). Japan has gone to great lengths to legitimate its actions within the existing framework of the ICRW. There are strong geopolitical reasons why Japan may not wish to tarnish its reputation as a model international citizen at this time, i.e. its simmering dispute with China over the Senkaku or Diaoyu islands. One of the most basic reasons for having an international legal system is that it provides an avenue for resolving disputes without the need for force.

The catastrophic overfishing that led to the creation of the IWC resembles nothing so much as the hypothetical founding moment of social contract theory. Grotius, Hobbes and Pufendorf all regarded ‘sovereign states as analogous to individuals in the state of nature’ and subject only to ‘commerce as a driver of sociability’ and ‘norm-structured interactions not dependent on an overarching state’ (Kingsbury and Straumann, Reference Kingsbury, Straumann, Besson and Tasioulas2010, p. 34). But it is the establishment of law and a monopoly on violence which enables society to move from ‘a stark Hobbesian nightmare to a more “communitarian” image’ (Koskenniemi, Reference Koskenniemi2005, p. 599). And as with all contracts, we do not interpret them in a vacuum, but imply certain conditions and obligations: ‘Most ordinary cases of contract occur when the idea of making a formal contract could not be further from the minds of the contracting parties’ (McClelland, Reference McClelland1996, p. 181). As every student of contract is taught, the law adjudicates over the interpretation of contracts, but also implies and even allows for the implicit alteration of contracts without formal consent. So it is with the IWC, even though a handful of states dispute the shift from ‘conservation’ to ‘preservation’, and have been ‘persistent objectors’ all the way down the line. Only a normative understanding of international law can make sense of this shift; the ‘persistent objector’ doctrine is rightly regarded as the ‘litmus test of positivism’ (Tasioulas, Reference Tasioulas2007, p. 10).

If we look at state practice and the additional element of opinio juris, it is clear that states feel legally bound not to kill whales and dolphins, and when they do, to justify that killing in legal terms.Footnote ⁴⁸ There is every reason to believe, as D'Amato and Chopra (Reference D'amato and Chopra1991) argued, that ‘[w]hat states do becomes what they legally ought to do’ (p. 22). However, it must be shown that state practice ‘follows from a sense of legal obligation rather than from a sense of moral obligation or political expediency’ (Hunter, Reference Hunter and Harris2014, p. 127). In recent years, state practice has shifted from the latter to the former and become sufficiently concrete to be able to declare a cetacean right to life. Birnie et al. (Reference Birnie, Boyle and Redgwell2009) describe the evolution of IWC policy as ‘an example of the application in a wildlife context of a rather stronger version of the precautionary approach than that applied to fish by the UN Fish Stocks Agreement’ (p. 726). The meaning and purpose of the ICRW has changed as a result of the emergence of international norms, such as the ‘precautionary approach’ and the cetacean right to life, and so too have the duties and obligations owed by Member States.