Killing Them Softly? Animal Welfare and the Inhumanity of Whale Killing

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Funding

This article was made possible through the generous funding of the Alexander von Humboldt Stiftung. I amgrateful for the comments of Duncan French and the editor. Any errors or omissions remain the sole responsibility of the author.

Notes

1 Sir David Attenborough, Foreword, in Troubled Waters: A Review of the Welfare Implications of Modern Whaling Activities iv (Philippa Brakes et al. eds., 2004) (quoting Dr. Harry Lillie, a ship's physician on an Antarctic whaling expedition in 1946).

2 International Convention for the Regulation of Whaling, February 12, 1946, 161 U.N.T.S. 2124 [hereinafter Convention or ICRW].

3 Id. at pmbl.

4 Peter J. Stoett, The International Politics of Whaling 103 (1997).

5 For a comprehensive overview, see Peter L. Fitzgerald, International Issues in Animal Law ch. 6 (2012); Thomas G. Kelch, Globalization and Animal Law: Comparative Law, International Law and International Trade ch. 7 (2011); Katie Sykes, Sealing Animal Welfare Into GATT Exceptions: The International Dimensions of Animal Welfare in WTO Disputes, 13 World Trade Rev. 471–98 (2014); Katie Sykes, Nations Like Unto Yourselves: An Inquiry into the Status of a General Principle of International Law on Animal Welfare, 49 Can. Y.B. Int'l L. 3–50 (2011); Stuart R. Harrop, Climate Change, Conservation and the Place for Wild Animal Welfare in International Law, 23 J. Envtl. L. 441, 448 (2011); Malgosia Fitzmaurice, Whaling and International Law 153–183 (2015). The Convention on International Trade in Endangered Species, March 3, 1973, 993 U.N.T.S. 243 [hereinafter CITES], is the only MEA that deals with animal welfare, albeit in an incidental manner. The provisions relate to the protection of wild animals that come into trade. For a discussion, see Stuart R. Harrop, The Dynamics of Wild Animal Welfare Law, 9 J. Envtl. L. 287, 289 (1997); see also European Communities: Measures Prohibiting the Importation and Marketing of Seal Products – Report of the Appellate Body (EC – Seal Products – AB Report), 22 May 2014, WT/DS 400/AB/R and WT/DS401/AB/R.

6 For an overview, see Michael Bowman et al., Lyster's International Wildlife Law ch. 6 (2010).

7 ICRW, supra note 2, at art. V.

8 Id. at art. 1(1).

9 See Ray Gambell, I Am Here, Where Should I Be?, in The Future of Cetaceans in a Changing World 65, 66 et seq. (William C. G. Burns & Alexander Gillespie eds., 2003).

10 ICRW, supra note 2, at Schedule. The amended paragraph 10(e) of the Schedule to the ICRW provides that “catch limits for the killing for commercial purposes of whales from all stocks … shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits.” Japan, Norway, Peru, and the Soviet Union objected to the moratorium. Japan and Peru withdrew their objections. See Maria C. Maffei, The International Convention for the Regulation of Whaling, 12 Int'l J. Marine & Coastal L. 287, 294 (1997).

11 ICRW, supra note 2, at art. VIII(1) (“Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted”).

12 Id. at Schedule (Paragraph 13 of the Schedule allows for aboriginal subsistence whaling as an exception to commercial whaling. Denmark (Greenland), Russia, the United States, and St. Vincent, and the Grenadines conduct whaling under this exemption).

13 Id. at art. V(3) (allows a Member State to notify the IWC of an objection to an amendment of the Schedule. The effect of the latter notification is that the amendment is not applicable to the Member state until the withdrawal of the objection. In terms of Article 5, the ICRW Schedule may be amended with respect to the conservation and utilization of whale resources. The Schedule shall be amended only if it is necessary regarding the objectives and purpose of the Convention. Amendments shall be based on scientific findings and shall take into consideration the interests of the consumers of whale products and the whaling industry. According to Article 3(2), a three-quarter majority is required for an amendment of the Schedule).

14 Id. at art. XI (“Any Contracting Government may withdraw from this Convention on 30th June, of any year by giving notice on or before 1st January, of the same year to the depository Government, which upon receipt of such a notice shall at once communicate it to the other Contracting Governments. Any other Contracting Government may, in like manner, within one month of the receipt of a copy of such a notice from the depository Government give notice of withdrawal, so that the Convention shall cease to be in force on 30th June, of the same year with respect to the Government giving such notice of withdrawal”).

15 For a discussion, see Alexander Gillespie, Iceland's Reservation at the International Whaling Commission, 14 Eur. J. Int'l L. 977–98 (2003).

16 For a discussion, see Gambell, supra note 9, at 73.

17 Int'l Whaling Comm'n, Report of the Revised Management Scheme Working Group, IWC/58/Rep 6, (2006).

18 Int'l Whaling Comm'n, Annual Report of the International Whaling Commission 1999, (1999). For a discussion, see Keiko Hirata, Why Japan Supports Whaling, 8 J. Int'l Wildlife L. & Pol'y 129, 145 (2005). Gillespie points out that the objection to resuming whaling, especially in relation to species such as Minke whales, under the RMP cannot be scientifically justified. Alexander Gillespie, The Ethical Question in the Whaling Debate, 9 Geo. Int'l Envtl. L. Rev. 355, 355 (1997).

19 Stoett, supra note 4, at 103. A third position recognizable is the opposition to commercial whaling but the support for aboriginal subsistence whaling, as portrayed by the United States.

20 Preservation means to set aside and protect a designated resource. P. van Heijnsbergen, International Legal Protection of Wild Fauna and Flora 44 (1997).

21 The potential reintroduction of commercial whaling led anti-whaling nations to change their tactics in order to deter whaling. The strategies that have been pursued are the establishment of whale sanctuaries and the focus on humane killing. The Indian Ocean and the Southern Ocean around Antarctica have been declared sanctuaries in terms of paragraph 7 of the Schedule. The establishment of a South Atlantic Ocean sanctuary was proposed during recent IWC meetings but failed to attract the three-quarter majority required to amend the Schedule. The legality of sanctuaries is contested on the basis that the requirements for an amendment in terms of Article 5(2) are not met, as it is argued that the sanctuaries would not be necessary with regard to conservation as long as the moratorium is in force, and that it is not based on scientific findings. For a discussion, see Elisa Morgera, Whale Sanctuaries: An Evolving Concept within the International Whaling Commission, 35 Ocean Dev. & Int'l L. 319–38 (2004).

22 See Harrop, Climate Change, supra note 5, at 442. The input of science in relation to the international regulation of the trapping of wild animals provides a suitable example of the interplay between science and ethics in this regard. A controversial issue in relation to the “killing trap” is the time that it takes for the suffering of an animal to cease from the moment the trap is triggered until the loss of consciousness or death. Science is subordinated, however, to moral judgments where the question concerning the accepted period of time to death arises. See Stuart R. Harrop, The International Regulation of Animal Welfare and Conservation Issues Through Standards Dealing with the Trapping of Wild Animals, 12 J. Envtl. L. 333, 350 (2000).

23 The first IWC Workshop on Humane and Expeditious Methods of Killing Whales was held in 1959.

24 Gillespie, supra note 18, at 361 et seq.

25 This Article states that the “Commission may amend … the Schedule by adopting regulations with respect to the conservation and utilization of whale resources, fixing (e) time, methods, and intensity of whaling; (f) types and specifications of gear and apparatus and appliances which may be used.”

26 Oxford Dictionary of English (3d ed. 2010).

27 Alexander Gillespie, Whaling Diplomacy: Defining Issues in International Environmental Law 149 (2005).

28 Alexander Gillespie, Humane Killing: A Recognition of Universal Common Sense in International Law, 6 J. Int'l Wildlife L. & Pol'y 1, 2 et seq. (2003).

29 Id. at 3 et seq.

30 See generally id.

31 Id. at 2.

32 Id. at 6.

33 For a discussion, see Fitzgerald, supra note 5, at ch. 2 et seq.

34 The best example in this regard is humane considerations concerning leg hold traps. See Harrop, International Regulation, supra note 22.

35 Convention for the Conservation of Antarctic Seals art. 3.1, June 1, 1972, 1080 U.N.T.S. 175 (requires Parties to develop studies on the humane use of seals).

36 See, e.g., Int'l Whaling Comm'n, Rep. of the Working Group on Whale Killing Methods and Associated Welfare Issues, IWC/7657Rep06 Agenda Item 13 (2014).

37 See, e.g., Int'l Whaling Comm'n, Twenty-Eighth Report of the International Whaling Commission 90 (1978); Int'l Whaling Comm'n, Thirty-Second Report of the International Whaling Commission 15 (1982). Advances in primary killing methods have also been made in relation to small cetaceans.

38 See, e.g., Int'l Whaling Comm'n, Thirty-Second Report of the International Whaling Commission 26 (1984). Alternatives to the lance, such as rifles, exist. Int'l Whaling Comm'n, Forty-Sixth Report of the International Whaling Commission, Appendix 3 (1996). The attempt to ban the use of the electric lance failed.

39 For a discussion, see Alexander Gillespie, Aboriginal Subsistence Whaling: A Critique of the Inter-Relationship Between International Law and the International Whaling Commission, 21 Colo. J. Int'l Envtl. L. & Pol'y 125 (2001).

40 Int'l Whaling Comm'n, Sixty-Fourth Report of the International Whaling Commission (2012), available at https://iwc.int/reports.

41 The IWC seems to base its authority in this regard on Article V(1)(f). See Int'l Whaling Comm'n, Sixty-Fifth Report of the IWC, Appendix 3, Proposed Terms of Reference for the Ad-Hoc Intersessional Working Group on Welfare (2014).

42 The basis for this idea is that killing should be instantaneous in order to be considered humane. This is not the case with whaling. Gillespie, supra note 18, at 363; see also Int'l Whaling Comm'n, Thirty-Second Report of the International Whaling Commission (1982); Int'l Whaling Comm'n, Thirty-Fourth Report of the International Whaling Commission (1984). In terms of IWC Resolution 2004–3, the IWC noted its concern that the current methods of whale killing “do not guarantee death without pain, stress or distress.” Int'l Whaling Comm'n, Annual Report of the International Whaling Commission 67–68 (2004).

43 Hope M. Babcock, Putting a Price on Whales to Save Them: What Do Morals Have to Do with It? 43 Envtl. L. 1, 26 (2013).

44 See Bowman, supra note 6, at 680 et seq.

45 Id. at 680. They use sustainable development as an analogy. Id. at 681.

46 Bowman, supra note 6, at 681.

47 Id.

48 See Hugh W.A. Thirlway, The Sources of International Law 98 et seq. (2014). This issue has been the source of “vast amounts of doctrinal debate,” which I do not intend to discuss in this contribution. See Olufemi Elias & Chin Lin, “General Principles of Law,” Soft Law and The Identification of International Law 28 Neth. Y. B. Int'l L. 3, 5 (1997).

49 Malcolm N. Shaw, International Law 69 et seq. (7th ed. 2014).

50 Christina Voigt, Sustainable Development as a Principle of International Law 143–186 (2009).

51 Id. at 157.

52 Id. at 159.

53 Id. at 158.

54 Id. at 158 et seq.

55 See M. Cherif Bassiouni, A Functional Approach to General Principles of International Law, 11 Mich. J. Int'l L. 768, 772 (1990) (explaining that general principles may be identified from national and/or international sources).

56 See Bruce A. Wagman & Matthew Liebman, A Worldview of Animal Law 3–47, 255–273 (2011) (Chapter 1 provides a comprehensive comparative overview on domestic jurisdictions that regulate animal welfare. Chapter 5 discusses constitutional provisions of relevance); see also Margot Michel, Animal Law – Tier und Recht 593–625 (Daniela Kuhne & Julia Hauni eds., 2010). Animal welfare legislation generally applies to domestic animals.

57 See Michael Bowman, Conflict or Compatibility? The Trade, Conservation and Animal Welfare Dimensions of CITES, 1 J. Int'l Wildlife L. & Pol'y 9, 20–58 (1998) (providing a comprehensive discussion of animal welfare provisions in CITES).

58 Convention on International Trade in Endangered Species of Wild Fauna and Flora art. VIII(3), March 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243. It is clear that the minimization of the risk of injury and damage to health relates to the objective of conservation. Similar requirements are included in Articles III(2)(c), III(4)(b), IV(2)(c), IV(5)(b), IV(6)(b), IV(2)(b), and VII(7)(c).

59 See Sykes, Nations, supra note 5, at 22–29; The World Conservation Union et al., Caring for the Earth: A Strategy for Sustainable Living 14 (1991). The World Conservation Strategy states, “Every form of life warrants respect independently of its worth to people” and “[p]eople should treat all creatures decently, and protect them from cruelty, avoidable suffering, and unnecessary killing.” World Summit on Sustainable Development, The Johannesburg Declaration on Sustainable Development, UN Doc. A/CONF.199/20, annex (September 4, 2002) (striving for a “humane, equitable, caring global society” and affirming humanity's “responsibility to one another, to the greater community of life and to our children”).

60 E.g., The Universal Declaration on Animal Welfare (2011), available at https://www.globalanimallaw.org/database/universal.html (initially proposed by a group of animal welfare organisations; expresses a legal animus); Committee for the Convention for the Protection of Animals, International Convention for the Protection of Animals draft texts and protocols (1988).

61 Harrop, Climate Change, supra note 5, at 442.

62 It is not the intent of this discussion to present a detailed depiction of the existence of the reflection of the opinio juris communis in the international and domestic arenas. The preceding investigations done by authors such as Bowman are sufficient.

63 Martti Koskenniemi, General Principles: Reflexions on Constructivist Thinking in International Law, in Sources of International Law 398 (2000). As Koskenniemi aptly remarks, “greater coverage of State practice through general principles seems to be achieved only at the cost of the critical content of those principles.” Id. at 398.

64 See Bowman et al., supra note 6, at 680; Vaughan Lowe, Sustainable Development and Unsustainable Arguments, in International Law and Sustainable Development: Past Achievements and Future Challenges 19, 26 (1999). This also applies to the discourse on the legal status of sustainable development.

65 Gillespie, supra note 28, at 6.

66 Int'l Whaling Comm'n, Addressing Welfare within the IWC: The Intersessional Working Group on Welfare Summary Recommendations, 65-WKM & AW105Rev2 1 (2014).

67 See Bassiouni, supra note 55, at 783–784. The universality of the concern for humane killing contradicts the cultural relativist arguments in favour of whaling. The inclusion of the phrase “recognized by civilized nations” in Article 38(1)(c) nowadays points to the universal nature of general principles. Ironically, this phrase used to be criticized as it was suspected of invoking Western imperialism. See also Antony Anghie, Imperialism, Sovereignty and the Making of International Law 52–65 (2004) (for a discussion of the influence of this notion on the making of international law); Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 I.C.J. 78, 202 (June 14) (separate opinion of Judge Weeramantry) (different approaches emerged in relation to the problem with the phrase, such as a reading out of “civilized”); Hanna Bokor-Szegö, General Principles of Law, in International Law Achievements and Prospects 213, 214–15 (1991) (an understanding of the phrase means that civilized states refer to sovereign states irrespective of their political system and degree of economic development); Benedetto Conforti, International Law and the Role of Domestic Legal Systems 64 (1993) (another approach calls for a redefinition of the phrase, which entails that “civilized” must be understood as a reference to the commitment of states to ensure the protection of fundamental human rights); Gabcíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 92, 105–06 (September 25) (separate opinion of Judge Weeramantry) (It is clear, however, that all members of the United Nations are presumed to be “civilized nations.” The analysis of diverse ancient cultures and beliefs in the separate opinion of Judge Weeramantry in relation to his recognition of the general principles of international law supports the aforementioned view. He proclaims: “The ingrained values of any civilization are the source from which its legal concepts derive …. It would not be wrong to state that the love of nature, the desire for its preservation … are among those pristine and universal values which command international recognition.” His analysis can be found under paragraph d, aptly titled “The Need for International Law to Draw upon the World's Diversity of Cultures in Harmonizing Development and Environmental Protection”).

68 The fact that some whaling states may object to the recognition of humane killing in the context of the IWC does not invalidate the argument for the recognition of humane killing as a source of international law.

69 See Malgosia Fitzmaurice, Whaling and International Law 70 (2015) (Environmental NGOs contributed, for instance, to calls for the establishment of a moratorium on commercial whaling by constituting whaling as an ethical issue and creating public pressure on States); Michelle M. Betsill & Elisabeth Correll, NGO Diplomacy: The Influence of Nongovernmental Organizations in International Environmental Negotiations 145 (2008) (However, pro-whaling NGOs with links to whaling nations have attempted to undermine the anti-whaling stance of environmental NGOs.).

70 See the discussion on humane killing, supra Part 4.

71 This component of the determination of humane killing may therefore result in disagreement.

72 See Bassiouni, supra note 55, at 775.

73 Anthony Aust, Modern Treaty Law and Practice 216–17 (3d ed. 2013) (It is trite law that in the interpretation of a treaty in terms of Article 31 it is necessary to consider contemporary international law between parties).

74 I concede that this assumption will most probably be contested by those in favour of whaling. The issue of humane measures is, of course, also controversial and requires a subjective ethical assessment of scientific facts, which could easily be used by both camps in the whaling war.

75 See Gillespie, supra note 27, at 109–147.

76 Int'l Whaling Comm'n, Annual Rep. of the International Whaling Commission 1998, IWC Resolution 1998–4 on Whaling under Special Permit (1998).

77 Int'l Whaling Comm'n, Annual Rep. of the International Whaling Commission, IWC Resolution 1999–3 on Whaling under Special Permit (1999).

78 See also Shirley V. Scott & Lucia Oriana, Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) Judgment of 31 March 2014: A Decisive Victory—but for Whom? 29 Int'l J. Marine & Coastal L. 547 (2014); Jeffrey J. Smith, Evolving to Conservation?: The International Court's Decision in the Australia/Japan Whaling Case, 45 Ocean Dev. & Int'l. L. 301 (2014); Sonia E. Rolland, Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) 3 Am. J. Int'l L. 496 (2014) (for scholarly discussion of the Whaling case).

79 Whaling in the Antarctic (Austl. v. Japan), 2014 I.C.J. 148, ¶¶ 78, 131 (March 31).

80 Int'l Whaling Comm'n, Annual Rep. of the International Whaling Commission, IWC Resolution 1986–2 on Special Permits for Scientific Research (1998) (This resolution recommends that when states consider the issuing of a special permit, they should take into account whether “the objectives of the research are not practically and scientifically feasible through non-lethal research techniques.”).

81 Int'l Whaling Comm'n, Annex P: Process for the Review of Special Permit Proposals and Research Results from Existing and Completed Permits 1 (2008) (This annex states that special permit proposals must determine why non-lethal methods have been considered to be insufficient.).

82 Whaling in the Antarctic, supra note 79, at ¶ 78. Several other resolutions of the IWC question the justifiability of the utilization of lethal scientific research. See also Gillespie, supra note 27, at 122 (for further discussion).

83 Whaling in the Antarctic, supra note 79, at ¶ 79.

84 Id. at ¶ 130.

85 Id. at ¶ 127 (emphasis added); see also id. at ¶ 67 (The Court determined that it first had to assess whether JARPA II involved scientific research, and second whether the killing, treating, and taking of whales is for purposes of scientific research “by examining whether, in the use of lethal methods, the programme's design and implementation are reasonable in relation to achieving its stated objectives.”).

86 Id. at ¶ 83.

87 Id.

88 Id.

89 Id. at ¶ 135.

90 Id. at ¶ 144.

91 Id. at ¶ 227.

92 Id.

93 See id.

94 Id. at ¶ 245; see also Government of Japan, Research Plan for New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A) (2015), available at http://www.jfa.maff.go.jp/j/whale/pdf/151127newrep-a.pdf. (Japan responded to the judgment and submitted a plan titled “New Scientific Whale Research Program in the Antarctic Ocean (NEW REP-A)” to the IWC for review by the Scientific Committee. The program envisages the killing of 333 Minke Whales (Page 100) in order to collect data on age and maturity).

95 Statute of the International Court of Justice art. 59, June 26, 1945, 33 U.N.T.S. 993.

96 Whaling in the Antarctic, supra note 79, at ¶ 69.

97 Id. at ¶ 61.

98 ICRW, Notification of Amendments to the Schedule as amended by the Commission at the 64th Annual Meeting ¶ 30 (2012). “A Contracting Government shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them.” The proposed permits should specify: (a) objectives of the research; (b) number, sex, size and stock of the animals to be taken; (c) opportunities for participation in the research by scientists of other nations; and (d) possible effect on conservation of stock.

99 Gillespie, supra note 27, at 128. Contra Whaling in the Antarctic, supra note 79, at ¶ 133 (observing that non-lethal methods are not always feasible for scientific research, especially in relation to obtaining internal organs and stomach contents).

100 The promotion of non-lethal objectives under Article VIII is in line with the “Three R's” approach in relation to justified scientific research. The three R's are replacement, refinement, and reduction. See Gillespie, supra note 27, at 115 et seq. A core element of this approach relates to finding alternatives to lethal methods. The pursuit of non-lethal measures is also evident in international agreements. See Agreement on the Conservation of Cetaceans in the Black Sea, Mediterranean Sea, and Contiguous Atlantic Area art. II(2), November 24, 1996, 2183 U.N.T.S. 303 [hereinafter ACCOBAMS]; see also Agreement on the Conservation of Small Cetaceans in the Baltic, North East Atlantic, Irish, and North Seas, Annex ¶ 4, March 17, 1992, 1772 U.N.T.S. 217 [hereinafter ASCOBANS].

101 For a comprehensive discussion of this complex issue, see Gillespie, supra note 27, at 194 et seq.; see also Stoett, supra note 4, at 117 et seq.; Jeremy Firestone & Jonathan Lilley, Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs, 8 J. Int'l Wildlife L. & Pol'y 177 (2005).

102 For instance, see Int'l Whaling Comm'n, Res. 1997–1, 49th Annual Meeting 48 (1997); Int'l Whaling Comm'n, Res. 1999–1, 51st Annual Meeting (1999); Int'l Whaling Comm'n, Res. 2001–2, 53rd Annual Meeting (2001); see also Int'l Whaling Comm'n, 31st Report, 25 (1981) (The IWC decided to expand its considerations of humane killing to aboriginal subsistence whaling in 1985.); Bowman et al., supra note 6, at 678 (Aboriginal whalers from Greenland, Russia, and the United States committed themselves to achieving a humane death for whales within the constraints imposed by the techniques available to them.).

103 See, generally, Malgosia Fitzmaurice, Indigenous Whaling, Protection of the Environment, Intergenerational Rights and Environmental Ethics, 2 Y.B. Polar L. 254 (2010) (For instance, in Fitzmaurice's investigation of the relationship between ASW and the interests of non-human animals, advocates animal welfare. Hence, she states that aboriginal hunting should be permitted but that it should take place in a humane manner).

104 It is not the intention of the author to deal with this issue in detail.

105 Malgosia Fitzmaurice, The International Convention for the Regulation of Whaling and International Whaling Commission: Conservation or Preservation—Can the Gordian Knot Be Cut (or Untangled)?, 5 Y. B. Polar L. 451, 478 et seq. (2013).

106 Bassiouni, supra note 55, at 783, 784.

107 Fitzmaurice, supra note 5, at 152, 183.

108 Int'l Whaling Comm'n, Whale Killing Methods and Welfare Issues (WK-WI), https://iwc.int/working-group-on-whale-killing-methods-and-welfare-issues (last visited April 17, 2016); see generally Int'l Whaling Comm'n, Environmental Concerns, https://iwc.int/environment (last visited April 17, 2016) (A holistic perspective is important in this regard. The major threat to whale welfare is the environmental degradation caused by people. Hence, “Environmental Concerns” has been a long-standing item on the Commission's agenda. The human activities that affect cetaceans include anthropogenic sound, climate change, marine debris, the introduction of marine renewable energy developments, and chemical pollution. It is the task of the Scientific Committee's Working Group on Environmental Concerns to evaluate the aforementioned threats and devise mitigation measures.). For further discussion, see also Gillespie, supra note 27, at 45 et seq.; William C.G. Burns & D. James Baker, From the Harpoon to the Heat: Climate Change and the International Whaling Commission in the 21st Century, 3 J. Int'l Wildlife L. & Pol'y 50 (2000).

109 See Int'l Whaling Comm'n, Updated Discussion Paper Addressing Welfare within the IWC – Intersessional Working Group on Welfare Summary Recommendations, IWC/65/WKM & AWI05 Rev. 2 (2014) (Appendix 1 stresses that “historically, welfare considerations within the IWC have been restricted to aspects related to the direct take of whales” but “[i]t would now be appropriate for the IWC to recognize more formally its remit in this area thus ensuring it provides for a comprehensive and ongoing consideration of cetacean welfare beyond those aspects associated directly with hunting”).

110 Gillespie, supra note 27, at 178–92; see also Int'l Whaling Comm'n, Res. 2007–3 (2007) (recognizing “the valuable benefits that can be derived from the non-lethal uses of cetaceans as a resource”).

111 Bowman et al., supra note 6, at 174. The IWC's first resolution on the matter was adopted by consensus and took note of the magnitude of the industry and the economic gain generated by this sector as well as the potential risks of having an unregulated sector. Int'l Whaling Comm'n, Chairman's Report of the Forty-Fifth Annual Meeting, App. 9 (1994); see also Int'l Whaling Comm'n, Resolution 1196–2, Report of the IWC 47, 48 (1997).

112 See Int'l Whaling Comm'n, General Principles for Whale Watching (1996), available at https://iwc.int/wwguidelines#manage.

113 Jon L. Jacobson, Whales, the IWC, and the Rule of Law, in Towards a Sustainable Whaling Regime 80, 81 et seq. (Robert L. Friedheim ed., 2001).

114 Id. at 83 et seq.

115 For a discussion on the interpretation of constitutional or constitutive treaties, see Eirik Bjorge, The Evolutionary Interpretation of Treaties 37 et seq. (2010).

116 Jacobson, supra note 113, at 88. This is in line with the viewpoint that the Convention is an evolving instrument. Whaling in the Antarctic, supra note 79, at ¶ 3 (separate opinion of Judge ad hoc Charlesworth); see also Whaling in the Antarctic, supra note 79, at ¶ 27 (separate opinion of Judge Cançado Trindade). But see Whaling in the Antarctic, supra note 79 at ¶¶ 12, 46 (dissenting opinion of Judge Owada and dissenting opinion of Judge Yusuf); see also Fitzmaurice, supra note 105, at 489. Dupuy refers to this as “evolutionary interpretation towards prophecy.” Pierre-Marie Dupuy, Evolutionary Interpretation of Treaties: Between Memory and Prophecy, in The Law of Treaties Beyond the Vienna Convention 123, 131 (Enzo Cannizzaro ed., 2011); see also Catherine M. Brölmann, Specialized Rules of Treaty Interpretation: International Organizations, in Oxford Guide to Treaties 507, 507–12 (Duncan B. Hollis ed., 2012); Bjorge, supra note 115, at 26 (Bjorge disagrees with this view as he expresses the opinion that different methods of interpretation do not apply to different treaties. He therefore disagrees with adopting a fragmented approach to the interpretation of treaties).

117 Jacobson, supra note 113, at 43; see Whaling in the Antarctic, supra note 79, at ¶ 56.

118 Bjorge, supra note 115, at 7, 58 et seq.; see also Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (The intention of the parties is to be determined objectively via Articles 31–33. Article 31(1) states that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”). For a discussion on the relationship between the objectives and purpose and the intention of parties, see Bjorge, supra note 115, at 114 et seq.

119 Michael Bowman, “Normalizing” the International Convention, 29 Mich. J. Int'l L. 293, 378 et seq. (2007–2008). But see Fitzmaurice, supra note 105, at 487.

120 Bowman, supra note 119, at 384.

121 Id. at 401.

122 Id. at 429.

123 Id. at 466.

124 Int'l Whaling Comm'n, Resolution on the Safety of Vessels engaged in Whaling and Whale Research-related Activities, Res. 2006–2 (2007). In terms of this resolution, the IWC recognises “the fact that domestic and international concerns have been expressed concerning confrontation at sea and port relating to whaling and whale research activities” and subsequently “agrees and declares that the Commission and its Contracting Governments do not condone any actions that are a risk to human life and property in relation to these activities of vessels at sea, and urges persons and entities to refrain from such acts.”

125 Int'l Whaling Comm'n, Resolution on Safety at Sea and Protection of the Marine Environment, Res. 2007–2 (2008).

126 As Dupuy indicated, “[T]he ICJ only allows for a dynamic interpretation of a treaty where justified by notions and concepts in the terms of the treaty.” Dupuy, supra note 116, at 131. Bjorge indicates that good faith sometimes demands that cognisance should be taken of term changes in a treaty. Bjorge, supra note 115, at 74.

127 Convention on Biological Diversity pmbl., December 29, 1993, 1760 U.N.T.S. 79.

128 For a critical discussion, see Werner Scholtz, Animal Culling: A Sustainable Approach or Anthropocentric Atrocity?: Issues of Biodiversity and Custodial Sovereignty, 7 Macquarie J. Int'l & Comp. Envtl. L. 9, 9 et seq. (2005).

129 Bowman, supra note 119, at 463. In terms of Article II, “whale catcher” means a helicopter, or other aircraft, or “a ship used for the purpose of hunting, taking, towing, holding on to, or scouting for whales.”

130 Id. at 465. Bowman cautions against the argument that this paradigm shift has already occurred by virtue of the adoption of resolutions on the non-lethal exploitation of whales and the establishment of a whale-watching study group. This caveat is indeed justifiable, as he indicates that this does not amount to an extension of the powers of the IWC in law, and it was opposed by whaling nations.

131 Id. at 466.

132 The argument that the frustration of whaling nations with the moratorium could lead to a dissolution of the IWC, is also of relevance in this regard. Lisa Kobayashi, Lifting the International Whaling Commission's Moratorium on Commercial Whaling as the Most Effective Global Regulation of Whaling, 29 Environs 177, 205 (2006).

133 For a discussion, see Shirley V. Scott, The Political Interpretation of Multilateral Treaties 120 (2004).

134 ICRW, supra note 2, at art. V.

135 Id. at art. I, ¶1 (stating that “[t]his Convention includes the Schedule attached thereto which forms an integral part thereof”).

136 Id. at art. V, ¶1.

137 Stuart R. Harrop, From Cartel to Conservation and on to Compassion: Animal Welfare and the International Whaling Commission, 6 J. Int'l Wildlife L. & Pol'y 79, 97 et seq. (2003). Article 31(4) of the VCLT reads that “[a] special meaning shall be given to a term if it is established that the parties so intended.” I do not consider this to be viable in the current political climate of the IWC. See also Int'l Whaling Comm'n, Forty-Fourth Report of the International Whaling Commission 33–4 (1994). Harrop's view is in accordance with Appendix 9 and recognized that the ICRW included provisions for the Commission to “take into consideration the interests of the consumers of whale products and the whaling industry” and proceeded to discuss whale watching in this ambit.

138 Whaling in the Antarctic, supra note 79, at ¶ 44.

139 ICRW, supra note 2, at art. III. This provision reads that decisions of the Commission “shall be taken by a simple majority of those members voting except that a three-fourths majority of those members voting shall be required for action in pursuance of Article V.”

140 Id. at art. VI. This provision states that the Commission “may from time to time make recommendations to any or all Contracting Governments on any matters which relate to whales or whaling and to the objectives and purposes of this Convention.”

141 See William T. Burke, A New Whaling Agreement and International Law, in Towards a Sustainable Whaling Regime 51–79 (Robert L. Friedheim ed., 2001). Fitzmaurice, for instance, views this as the most viable manner of solving the conflict between conservationists and the preservation camp. Fitzmaurice, supra note 105, at 490.

142 This accords with what Garner refers to as “animal protectionism.” Robert Garner, A Defense of Broad Animal Protectionism, in The Animal Rights Debate: Abolition or Regulation? 101–178 (2010).

143 See Menno R. Kamminga, The Ethics of Climate Politics: Four Modes of Moral Discourse, 17 Envtl Pol. 673–92 (2008).

144 Jacobson states, “I am convinced that anti-whaling sentiments … will eventually win out, and the hunting of whales will one day share history's attic with the now-condemned practices of slavery and human sacrifice.” Jacobson, supra note 113, at 99. The initial Cartesian view that held the belief that animals are mere things was replaced with our understanding that animals are sentient beings that can experience pain and suffering. This was, however, a gradual process of recognition.

145 Anthony D'Amato & Sudhir K. Chopra, Whales: Their Emerging Right to Life, 85 Am. J. Int'l L. 21 (1991).