¹ Dr. Carl Sagan writes:

Though the search for extraterrestrial intelligence may take a very long time, we could not do better than to start with a program of rehumanization by making friends with the whales and the dolphins. … They have behaved benignly and in many cases affectionately towards us. We have systematically slaughtered them.

C. Sagan, The Cosmic Connection 178–80 (1973).

² D. Day, The Whale War 152 (1987). Although the whale has a very large body in relation to its brain size, only a minor percentage of the cerebral cortex is directly concerned with control of the body; the whale’s cerebral cortex (functioning as memory and conceptual thought) is much larger than a human’s. Bunnell, The Evolution of Cetacean Intelligence, in Mind in the Waters 52 (J. McIntyre ed. 1974) [hereinafter McIntyre]. According to Dr. John Lilly, “To think the way we do he [the whale] would need to use about one-sixth of his total brain.” J. Lilly, The Mind of the Dolphin: A Nonhuman Intelligence 63 (1967). A capacity for humor and playfulness is generally associated with high human intelligence; whales and dolphins, too, conspicuously exhibit playful and humorous behavior. Id. at 58 (“play is a hallmark of intelligence and is indispensable for creativity and flexibility”).

³ Lilly, A Feeling of Weirdness, in Mclntyre, supra note 2, at 71. Dr. Lilly’s statement is the best description we have seen about what it is like to be dealing with a possibly superior intelligence.

⁴ See generally J. Lilly, supra note 2.

⁵ Humans, of course, have been unable to develop interspecies communication, except for the most rudimentary signals. See generally J. Lilly, Man and Dolphin (1961).

⁶ Morgane, The Whale Brain: The Anatomical Basis of Intelligence, in McIntyre, supra note 2, at 84, 91–92. If all brains are “learning machines,” as artificial-intelligence researcher Marvin Minsky suggests (M. Minsky, The Society of Mind 120 (1986)), and these learning machines constitute an efficacious survival mechanism (as the theory of natural selection indicates), the size of whales’ brains may indicate a spectacularly efficient survival mechanism. Dr. Lilly speculates: “If a sperm whale, for example, wants to see-hear-feel any past experience, his huge computer [brain] can reprogram it and run it off again. His huge computer gives him a reliving, as if with a three-dimensional sound-color-taste-emotion-re-experiencing motion picture.” After thus reviewing the original experience, the whale “can set up the model of the way he would like to run it the next time, reprogram his computer, run it off, and see how well it works.” J. Lilly, supra note 2, at 63-64.

⁷ Morgane, supra note 6, at 93 (quoting L. Eiseley, The Long Loneliness). Dr. Lilly asks why sperm whales do not attack humans unprovoked. He suggests that they recognize that “we are the most dangerous animal on this planet” and that if attacked unprovoked, “we would … wipe them off the face of the earth. I believe they recognize that we now have the means to do this. A large fraction of our atomic and nuclear weapons testing is done over and in the Pacific Ocean close to the ocean routes of the big whales.” J. Lilly, supra note 2, at 65.

⁸ Indeed, human hunting and killing of whales may have occurred largely because whales are vulnerable; if whales could have fought back successfully, humans might have learned to respect them and leave them alone. It is one of the darker aspects of human psychology that victims can gain respect by resort to violence. Cf. W. M. Reisman, The Art of the Possible: Diplomatic Alternatives in the Middle East 44–58 (1970) (discussing Palestinian self-respect resulting from fedayeen terrorism).

⁹ “Whales are killed for chicken feed, cattle fodder, fertilizer, car wax, shoe polish, lipstick, cosmetics, margarine, cat and dog food, and to raise minks and foxes for fur coats.” McIntyre, Let Us Act, in McIntyre, supra note 2, at 224, 224.

¹⁰ Falk, Introduction: Preserving Whales in a World of Sovereign States, 17 Den. J. Int’l L. & Pol’y 249, 253(1989).

¹¹ Quoted by D. Day, supra note 2, at 19 (statement of Prime Minister Fraser).

¹² See Chopra, Whales: Toward a Developing Right of Survival as Part of an Ecosystem, 17 Den. J. Int’l L. & Pol’y 255 (1989).

¹³ Cf. D’Amato, Do We Owe a Duty to Future Generations to Preserve the Global Environment?, 84 AJIL 190, 197–98(1990).

¹⁴ We use the term “presentation” to denote the present instantiation of legitimately realizable expectation. See I. Macneil, The New Social Contract 60 (1980) (“presentiation … is the bringing of the future into the present”).

¹⁵ For a general description of the custom-creating process, see A. D’Amato, The Concept of Custom in International Law (1971).

¹⁶ For reasons we give later in this essay, we are not invoking whales as a surrogate for all animals, or claiming that animal rights are logically implicated by human rights. However, we sometimes refer to “cetacean rights” when we see no reason to exclude dolphins and porpoises from a general point made about whales.

¹⁷ This human-centered way of conceptualizing the duty is challenged in D’Amato, supra note 13. But see Weiss, Our Rights and Obligations to Future Generations for the Environment, 84 AJIL 198 (1990); Gündling, Our Responsibility to Future Generations, id. at 207.

¹⁸ D. Day, supra note 2, at 144-47 (quoting David Moody in Ecologist, July 1979).

¹⁹ A canoa is a 35-foot, narrow, double-ended, sailing/rowing boat usually towed by a motorized support launch.

²⁰ Id. at 147. As a mammal, a whale must take oxygen from the air; it cannot “breathe” in the water as does a fish. The naturalist Farley Mowat, observing a dying whale, was amazed to see her 80-ton bulk deliberately going ashore. Why would the whale do that when she could take refuge in the ocean? Someone explained to Mowat that the whale was too sick to swim and must have known that if she stayed in deep water, she would sink and drown. Mowat then heard the whale emit a desolate cry—a “muffled, disembodied, and unearthly sound, seeming to come from an immense distance … a deep vibration, low-pitched and throbbing, moaning … . [I] knew, and know today, that this was her leave-taking.” Mowat, The Trapped Whale, in McIntyre, supra note 2, at 13, 28.

²¹ J. Bentham, The Principles of Morals and Legislation 311 note (1789). Immanuel Kant accepted the Cartesian position but tried to modify it by moral pragmatism: “Animals are not self-conscious and are there merely as means to an end. That end is man… . Our duties to animals are merely indirect duties towards humanity… . [Man] must practise kindness towards animals, for he who is cruel to animals becomes hard also in his dealings with men.” I. Kant, Lectures on Ethics 239–40 (L. Infield trans. 1963).

²² Warshall, The Ways of Whales, in McIntyre, supra note 2, at 110, 139–40. The author continues: “The whistle provides a great deal of information: the location of the whistler, the identity of friends, the whereabouts of companions, and the desire to hear a response. Choruses of whistles may be a way to confirm and reconfirm the mood, state of being, or purpose of the group.” Id. at 140.

²³ Jacobs, The Whale Brain: Input and Behavior, in McIntyre, supra note 2, at 78, 83.

²⁴ See generally T. Regan, The Case for Animal Rights (1983); see also P. Taylor, Respect for Nature: A Theory of Environmental Ethics 219–40 (1986); R. Attfield, The Ethics of Environmental Concern 140–62 (1983).

²⁵ See supra text at notes 1–2.

²⁶ N. Chomsky, Cartesian Linguistics 6 (1966) (quoting The Philosophy of Descartes 284–87 (Torrey ed. 1892)). The Cartesians who are still among us deny that chimpanzees use “language” by increasingly restricting their definition of what “language” is. Thus, as chimpanzees are taught to use sign language, and communicate to us their own spontaneous combinations of thoughts, some Cartesian doubters argue that the only language that counts is speech through vocal cords! Others argue that until chimpanzees display a knowledge of grammatical syntax, they are not using language. For a skeptical view, see H. Terrace, Nim: A Chimpanzee Who Learned Sign Language (1979).

²⁷ Quoted by L. Rosenfield, From Beast-Machine to MAN-Machine 54 (1968).

²⁸ L. Wittgenstein, Philosophical Investigations §§293–304 (1953).

²⁹ See L. Wittgenstein, The Blue and Brown Books 44–54 (1958); 1 L. Wittgenstein, Remarks on the Philosophy of Psychology §§137–54 (1980).

³⁰ Since whales were already well equipped for survival in the oceans when they first appeared 50 million years ago, there is no clear Darwinian reason that their brains grew to the large size attained 30 million years ago. Dr. Bunnell speculates, instead, that the most likely explanation “seems to be social and sexual selection—that is, the society of the whales—since the sea does not seem to be a demanding enough habitat to require such an increase in brain size.” Using dolphins as an example, he continues:

With echolocation,… a dolphin gets a three-dimensional, detailed cognition of the physical and emotional state of another dolphin’s entire body and it appears that the eroticism of dolphins is related to group organization and hierarchy as well as reproductive functions. … In short, the brains of whales and dolphins may have continued to enlarge as an adaptation to intelligent societies ….

Bunnell, supra note 2, at 65.

³¹ See, e.g., J. Lilly, supra note 5; B. Gilbert, How Animals Communicate (1966).

³² Quoted by R. W. Clark, The Survival of Charles Darwin: A Biography of a Man and an Idea 76 (1984).

³³ Cf. P. Singer, Animal Liberation: A New Ethics for Our Treatment of Animals 223-58 (1975).

³⁴ What about the right to vote? The right to shelter? The rights of other animals? Of plants? People who ask these kinds of questions may not be sincerely interested in the answers we might offer. Our general answer is that a powerful case can be made on behalf of the entitlement of whales to a right to life. We make no claim that the entitlements asserted in this article should apply exclusively to whales, or that these are the only entitlements that should apply to whales. We make a minimal case; it is compatible with reasoned argument for extensions in either of these directions. In addition, we are in complete accord with the limited arguments made on behalf of elephants by Professor Michael Glennon, Has International Law Failed the Elephant?, 84 AJIL 1 (1990).

That much said, a general case can be made on behalf of all sentient animals, including whales, for a right not to be inflicted with unnecessary or arbitrary pain. There is a substantial history of anticruelty laws regarding animals that suggests that the majority of the population believes that it is morally wrong to torture or inflict unnecessary pain upon animals. See generally E. Leavitt, Animals and Their Legal Rights (2d ed. 1970). This book provides a survey of American laws from 1641 to 1970 and of the laws of many other countries. See also B. Rollin, Animal Rights and Human Morality 77 (1981).

⁵⁵ D. Hume, Enquiries concerning Human Understanding and Concerning the Principles of Morals 190–91 (Selby-Bigge & Nidditch 3d ed. 1975) (1777).

⁵⁶ Buchanan, Justice as Reciprocity versus Subject-Centered Justice, 19 Phil. & Pub. Aff. 227, 230 (1990).

³⁷ Of course, it is impossible ever to know for sure that we will be incurring a net cost. The question is as old as Glaucon’s challenge to Socrates in Plato’s Republic. For an illuminating discussion, see R. Nozick, Philosophical Explanations 403–570 (1981). For a brief discussion of deontological morality, see D’Amato & Eberle, Three Models of Legal Ethics, 27 St. Louis U.L.J. 761, 772–73 (1983).

³⁸ Indeed, all “legal materials” exhibit this synthesis; in international law, it is more explicit because of the relative lack, compared to domestic legal systems, of authoritative codification institutions. See A. D’Amato, Jurisprudence: A Descriptive and Normative Analysis of Law 180-227 (1984); T. Franck, The Power of Legitimacy Among Nations 3-26 (1990).

³⁹ One writer has characterized whaling as the “most infamous example of human mismanagement of the earth’s natural resources.” S. Lyster, International Wildlife Law 17 (1985).

⁴⁰ Id. at 17; 1 P. Birnie, International Regulation of Whaling 66 (1985). For histories of whaling, see generally G. Small, The Blue Whale (1971); I. Sanderson, Follow the Whale (1956); M. Raestal, La Chasse à la baleine en mer libre (1928); A. Starbuck, History of the American Whale Fishery (1878); E. Slipjer, Whales (1962); R. Robertson, Of Whales and Men (1954); C. Ashley, The Yankee Whaler (1962); Jessup, L’Exploration des richesses de la mer, 29 Recueil des Cours 401, 481 –502 (1929 IV). The most recent comprehensive work is J. Tonnessen & A.Johnson, The History of Modern Whaling (1982).

⁴¹ The right whale is a major species of intermediate size—somewhat more than half the size of the largest species, the blue whale.

⁴² 1 P. Birnie, supra note 40, at 66; E. Slipjer, supra note 40, at 17; N. Mackintosh, The Stock of Whales 146(1965).

⁴³ The third largest whale of the major species.

⁴⁴ E. Slipjer, supra note 40, at 22; I P. Birnie, supra note 40, at 68. See generally G. Jackson, The British Whaling Trade 3–156 (1978).

⁴⁵ E. Slipjer, supra note 40, at 25; 1 P. Birnie, supra note 40, at 69.

⁴⁶ S. Lyster, supra note 39, at 17; 1 P. Birnie, supra note 40, at 69 n.10.

⁴⁷ Leonard, Recent Negotiations Toward the International Regulation of Whaling, 35 AJIL 91 (1941); E. Slipjer, supra note 40, at 31–32; P. Bock, A Study in International Regulation: The Case of Whaling 66 (1966) (unpublished thesis, New York University, obtainable from University Microfilms Inc., Ann Arbor, MI); J. Tonnessen & A. Johnson, supra note 40, at 23–33; 1 P. Birnie, supra note 40, at 71.

⁴⁸ 1 P. Birnie, supra note 40, at 72.

⁴⁹ Within a year, seven floating factories were operating. By 1910, two land factories and 14 factory ships were operating. J. Tonnessen & A. Johnson, supra note 40, at 178–82.

⁵⁰ Leonard, supra note 47, at 91, 96.

⁵¹ E. Slipjer, supra note 40, at 33–34; 1 P. Birnie, supra note 40, at 73. Earlier catches were primarily of humpback whales; 5,755 were killed in 1911–1912. This overexploitation led to scarcity and in the later years the catch of humpbacks was drastically reduced; blue whales, however, were harvested in the thousands.

⁵² 1 P. Birnie, supra note 40, at 73 n.26.

⁵³ Id. at 74.

⁵⁴ D.Johnston, The International Law of Fisheries 398 (1965).

⁵⁵ Conservation is a more acute problem for whales than for fish, owing to their long life cycle. Whales give birth to live calves and suckle their young. Female sperm whales take about7–13 years to mature, while males take up to 20 years, and breeding often does not begin until the age of 30. C. Lockyer, Estimates of Growth and Energy Budgets for the Whales 5, UN Doc. FAO/ACMMR/MM/SC 38 (1976); R. Gamble, Changes Observed in Pregnancy Rate and Age at Sexual Maturity of Some Baleen Whales in the Antarctic 11–12, UN Doc. FAO/ACMMR/MM/SC 37 (1976); R. Harrison & J. King, Marine Mammals 91 (1965); E. Slipjer, supra note 40, at 388–90; 1 P. Birnie, supra note 40, at 23. Baleen (or toothless) whales are thought to follow the same pattern, but under reduced population conditions are able to reproduce at the age of 5–6 years.

⁶⁶ D. Johnston, supra note 54, at 398–99.

⁵⁷ Convention for the Regulation of Whaling, Sept. 24, 1931, 49 Stat. 3079, TS No. 880, 155 LNTS 349.

⁵⁸ The Convention was negotiated by a subcommittee of the Economic Committee of the League. See Leonard, supra note 47, at 98–100; D. Johnston, supra note 54, at 399; C. Colombos, The International Law of the Sea 380 n.3 (1962). Japan, the USSR, Argentina and Chile were among the whaling states that did not ratify the Convention. For a detailed account, see Vallance, The International Convention for Regulation of Whaling and the Act of Congress Giving Effect to Its Provisions, 31 AJIL 112, 112–19 (1937).

⁵⁹ Convention for the Regulation of Whaling, supra note 57, Art. 9.

⁶⁰ Id., Art. 1.

⁶¹ Id., Art. 8.

⁶² Id., Art. 5.

⁶³ Id., Art. 4.

⁶⁴ See Leonard, supra note 47, at 100.

⁶⁵ D. Johnston, supra note 54, at 399; J. Tomasevic, International Agreements on the Conservation of Marine Resources 282–84 (1943).

⁶⁶ D. Johnston, supra note 54, at 399; J. Tomasevic, supra note 65, at 285; 1 P. Birnie, supra note 40, at 120–24. A 1936 agreement between the United Kingdom and Norway, negotiated after both countries joined the 1931 Convention for the Regulation of Whaling, was designed to further strengthen its protectionist measures. For the first time, an international penalty was provided. In addition, the regulated area was increased, and the hunting season shortened. A sanctuary area was also introduced. See 10 International Whaling Statistics 1 (1937). Since the agreement was between only two states and since many major whaling countries such as Japan, the USSR, and Germany were reluctant even to join the 1931 Convention, the new restrictions between Britain and Norway did not prove to be effective.

⁶⁷ D. Johnston, supra note 54, at 400; 1 P. Birnie, supra note 40, at 125. According to Johnston, nine states participated in the negotiations, but Japan refused. Birnie refers to ten states, of which three (Portugal, Canada and South Africa) sent only observers. Other states that participated in the negotiations were Argentina, Australia, Germany, the Irish Free State, New Zealand, the United Kingdom and the United States. For other accounts, see Leonard, supra note 47, at 101–02.

⁶⁸ June 8, 1937, 52 Stat. 1460, TS No. 933, 190 LNTS 79.

⁶⁹ Right whales were already protected under the 1931 Convention; in addition, the 1937 Agreement, in Article 4, prohibited the taking of gray whales.

⁷⁰ 1 P. Birnie, supra note 40, at 125; D. JOHNSTON, supra note 54, at 400.

⁷¹ Protocol on Regulation of Whaling, June 24, 1938, 53 Stat. 1794, TS No. 944, 196 LNTS 131. This Protocol was hardly an improvement, although it provided for a new sanctuary in waters that were not being fished (Art. 2). So far as the Antarctic catch was concerned, this measure did nothing.

⁷² D. Johnston, supra note 54, at 400.

⁷³ See Taylor & Ward, Chickens, Whales, and Lumpy Goods: Alternative Models oj Public-Goods Provision, 30 Pol. Stud. 350, 359–60 (1982).

⁷⁴ 1 P. Birnie, supra note 40, at 126.

⁷⁵ 1938 Protocol, supra note 71, Art. 1; 1 P. Birnie, supra note 40, at 127.

⁷⁶ 1 P. Birnie, supra note 40, at 128; D. Johnston, supra note 54, at 400; Leonard, supra note 47, at 105. See U.S. Department of State Press Release, July 5, 1939.

⁷⁷ 1 P. Birnie, supra note 40, at 129–30.

⁷⁸ Nov. 26, 1945, 61 Stat. 1213, TIAS No. 1597, 11 UNTS 43. Signatories to the Protocol were Australia, Canada, Denmark, France, Mexico, the Netherlands, New Zealand, Norway, the Union of South Africa, the United Kingdom and the United States. The Soviet Union acceded later. For the Protocol of Feb. 7, 1944, see 1946 Gr. Brit. TS No. 61 (Cmd. 6990); and for the Protocol of Dec. 2, 1946, extending the 1945 Protocol, see 62 Stat. 1577, TIAS No. 1708, 161 UNTS 361.

⁷⁹ 1945 Protocol, supra note 78, Art. 4(1).

⁸⁰ Id., Art. 4(2).

⁸¹ Proclamation on the Continental Shelf, 10 Fed. Reg. 12,303, 12,304 (1945); Watt, First Steps in the Enclosure of the Oceans: The Origins of Truman’s Proclamation on the Resources of the Continental Shelf 28 Marine Pol’y 211 (1979). See also Jessup, The Pacific Coast Fisheries, 33 AJIL 129 (1939); Bishop, International Law Commission Draft Articles on Fisheries, 50 AJIL 627 (1956); Bishop, Exercise of Jurisdiction for Special Purposes in High Seas Areas Beyond Outer Limit of Territorial Waters, 99 Cong. Rec. 2493 (1953); M. S. McDougal & W. Burke, The Public Order of the Oceans 630–33 (1962).

⁸² See Hollick, The Origins of 200-Mile Offshore Zones, 71 AJIL 494 (1977). Chile established the first 50-mile zone in 1947, to protect offshore whaling operations. Ecuador and Peru followed in 1951 and 1947, respectively, with declarations extending their coastal zones. In 1952 Chile, Ecuador and Peru adopted the Declaration on Maritime Zones asserting their sovereignty, up to 200 miles, over the sea, the sea floor and its subsoil. The basis of these claims has been criticized by M. S. McDougal & W. Burke, supra note 81, at 453–65; and D. Johnston, supra note 54, at 337. See generally F. V. García-Amador, The Exploitation and Conservation of the Resources of the Sea (1968).

⁸⁵ Dec. 2, 1946, 62 Stat. 1716, TIAS No. 1849, 161 UNTS 72. The Convention was amended in 1956 to incorporate regulations on methods of inspection, and to extend the definition of “whale catchers” to cover aircraft and helicopters. This amendment has since allowed the IWC to revise its schedule annually. Protocol of Nov. 19, 1956, 10 UST 952, TIAS No. 4228, 338 UNTS 366.

⁸⁴ 1 P. Birnie, supra note 40, at 265. On freedom of the seas, see D. Johnston, supra note 54, at 157–72, 303–08; on territorial sea, see id. at 173–252; H. Grotius, De Jure belli ac pacis libri tres, bk. 2, ch. 3, pt. 15 (Carnegie ed., F. Kelsey trans. 1925) (1625); H. Grotius, Mare liberum 37 (Magoffin trans. 1916) (1608); J. Selden, Mare clausum, bk. 1, at 2 (Nedham trans. 1652) (1636); and the final response of Grotius, the pamphlet Defense of Chapter 5 of Mare liberum, in 7 Bibliotheca Visseriana 154 (Wright trans. 1928). For an account of the Grotius-Selden controversy, see J. L. Hargrove & A. D’Amato, Environment and the Law of the Sea (1974). See also T. Fulton, The Sovereignty of the Seas 366–77 (1911); P. T. Fenn, The Origin of the Right of Fisheries in Territorial Waters 150–52 (1926); Hudson, The First Conference for the Codification of International Law, 24 AJIL 447, 456 (1930); Walker, Territorial Waters: The Cannon-Shot Rule, 22 Brit. Y.B. Int’l L. 210(1945); Kent, The Historical Origins of the Three-Mile Limit, 48 AJIL 537 (1954); P. Jessup, Law of Territorial Waters and Maritime Jurisdiction 73 (1927); S. Riesenfeld, Protection of Coastal Fisheries under International Law 279 (1942).

⁸⁵ Preamble, ICRW, supra note 83. See also Article 1(2), which describes the ICRW as applying to “factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments, and to all waters in which whaling is prosecuted by such factory ships, land stations, and whale catchers.”

⁸⁶ Id., Preamble.

⁸⁷ See generally Smith, The International Whaling Commission: An Analysis of the Past and Reflections on the Future, 16 Nat. Resources Law. 543 (1984).

⁸⁸ ICRW, supra note 83, Art. V.

⁸⁹ In 1959 the IWC meeting was attended by 15 member states. The Netherlands, Norway and Japan threatened to withdraw because of disagreements over quota allocations. See International Whaling Commission, Report, App. I, at 8–9 (1960) [hereinafter IWC/REPORT/year of publication]; 1 P. Birnie, supra note 40, at 247. Brazil and Panama were absent in 1959. The Netherlands returned in 1962. See id. at 304 n.4.

⁹⁰ IWC/7th Report/1956, at 5, paras. 16–18.

⁹¹ IWC/10th REPORT/1959, at 7, para. 15.

⁹² Agreement Relating to the Organization of Permanent Commission of the Conference on Exploitation and Conservation of the Marine Resources of the South Pacific, Aug. 18, 1952, 1006 UNTS 331. For a detailed account of the PCSP, see M. Saviani, Report on International and National Legislation for the Conservation of Marine Mammals 25–35 (FAO Fisheries Circular No. 326), UN Doc. FIRD/C/326 (1974); 1 P. Birnie, supra note 40, at 230, 269–73.

⁹³ 1 P. Birnie, supra note 40, at 269.

⁹⁴ Id.

⁹⁵ At present (1990), Japan is the sole nation, joined only by various aboriginal claimants, asserting that some whaling is necessary for consumption.

⁹⁶ Apr. 29, 1958, 17 UST 138.TIAS No. 5969, 559 UNTS 285 (entered into force Mar. 20, 1966).

⁹⁷ The first resolution, Resolution on International Fishery Conservation Convention, states, in part:

Taking note of the opinion of the International Technical Conference on the Conservation of the Living Resources of the Sea, held in Rome in April/May 1955, as expressed in paragraph 43 of its report, as to the efficacy of international conservation organizations in furthering the conservation of the living resources of the sea,

Believing that such organizations are valuable instruments for the co-ordination of scientific effort upon the problem of fisheries and for the making of agreements upon conservation measures,

Recommends:

1. That States concerned should co-operate in establishing the necessary conservation regime through the medium of such organizations covering particular areas of the high seas or species of living marine resources and conforming in other respects with the recommendations contained in the report of the Conference … .

2 United Nations Conference on the Law of the Sea, Official Records 144, UN Doc. A/CONF.13/38, UN Sales No. 58.V.4, Vol. II (1958) [hereinafter Official Records]. The second resolution, Co-operation in conservation measures, states:

Taking note of the opinion of the International Technical Conference on the Conservation of the Living Resources of the Sea, held in Rome in April/May 1955, as reported in paragraphs 43 (a), 54 and others of its report, that any effective conservation management system must have the participation of all States engaged in substantial exploitation of the stock or stocks of living marine organisms which are the object of the conservation management system or having a special interest in the conservation of that stock or stocks,

Recommends to the coastal States that, in the cases where a stock or stocks offish or other living marine resources inhabit both the fishing areas under their jurisdiction and areas of the adjacent high seas, they should co-operate with such international conservation organizations as may be responsible for the development and application of conservation measures in the adjacent high seas, in the adoption and enforcement, as far as practicable, of the necessary conservation measures on fishing areas under their jurisdiction.

Id.

⁹⁸ See R. Beverton & S. Holt, On the Dynamics of Exploited Fish Populations 372–73 (1957). See also D. Johnston, supra note 54, at 51 (quoting Gordon, Obstacles to Agreement on Control in Fishing Industry, in The Economics of Fisheries (Proceedings of Round Table held under joint auspices of the FAO and the International Economic Association) (R. Turney & J. Wiesman eds. 1957)).

⁹⁹ D. Johnston, supra note 54, at 51 (quoting Gordon, supra note 98).

¹⁰⁰ Res. V, Humane Killing of Marine Life, 2 Official Records, supra note 97, at 144.

¹⁰¹ Dec. 1, 1959, 12 UST 794, TIAS No. 4780, 402 UNTS 71, reprinted in 1 W. Bush, Antarctica and International Law: A Collection of Inter-state and National Documents 46 (1982).

¹⁰² Antarctic Treaty, supra note 101, Preamble. The Treaty was preceded by the creation of the Scientific Committee of Antarctic Research (SCAR). 1 W. Bush, supra note 101, at 5. SCAR is the Scientific Committee of the International Council of Scientific Unions, a much larger organization covering all areas of the sciences. It is charged with furthering the coordination of scientific activity in Antarctica, with a view to framing a scientific program of circumpolar scope and significance.

Article IX(1)(f) of the Antarctic Treaty refers to the “preservation and conservation of living resources in the Antarctic.” Other measures to conserve Antarctic flora and fauna have been taken since 1959. See, e.g., Convention for the Conservation of Antarctic Seals, June 1, 1972, 29 UST 441, TIAS No. 8826.

¹⁰⁵ The Preamble to the Convention, supra note 102, refers to the need “to maintain a satisfactory balance with the ecological system.”

¹⁰⁴ ATCP Recommendation III-VIII, 1 W. Bush, supra note 101, at 146.

¹⁰⁵ Although the Antarctic Treaty evaded the issue of direct regulation of whales, which falls under the IWC’s jurisdiction, the ATCP group has consistently striven to preserve the ecosystem, and through this approach, individual habitats. For the species to survive, whales must be left alone and given the opportunity to replenish their stock in their natural habitat, and their ecosystem must be left undisturbed. The Antarctic Treaty established a sound international regime for the preservation of the whole ecosystem, which will permit individual species to grow undisturbed by too much adverse effect from human activity. Gulland, The Antarctic Treaty System As a Resource Management Mechanism, in Antarctic Treaty Regime 116, 116–24 (G. Triggs ed. 1987).

¹⁰⁶ IWC/15th Report/1963, at 20–21, para. 18, and Appendix to Chairman’s Report at 23–26.

¹⁰⁷ 1 P. Birnie, supra note 40, at 273–75. The fisheries commissions were (1) Permanent Commission of the Conference on the Use and Conservation of the Maritime Resources of the South Pacific (PCSP), supra note 92; (2) International Convention for the North West Atlantic Fisheries, Feb. 8, 1949, 157 UNTS 157; (3) Convention Relating to the Establishment of An International Commission for the Scientific Investigation of Tuna, Jan. 25, 1949, 99 UNTS 4; (4) International Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952, 4 UST 380, TIAS No. 2786, 205 UNTS 65; (5) Convention Concerning the High Seas Fisheries of the Northwest Pacific Ocean, May 14, 1956, reprinted in 53 AJIL 763 (1959); (6) Agreement Between Norway and the USSR on Measures for Regulation of the Catch and Conserving Stocks of Seals in the North-Eastern Part of the Atlantic Ocean, Nov. 22, 1957, 309 UNTS 269; (7) North-East Atlantic Fisheries Convention, Jan. 24, 1959,486 UNTS 158; (8) Convention for Cooperation in the Execution of Fisheries, Oceanologi-cal and Limnological Research in the Western Pacific (1956), International Fisheries Bodies 18 (FAO Fisheries Technical Paper No. 64, 1966); (9) Convention Concerning Fishing in the Black Sea, July 7, 1959, 377 UNTS 203; (10) Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean, Mar. 2, 1953, 222 UNTS 78; (11) Protocol between the United States and Canada to the Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fisheries in the Fraser River System, Dec. 28, 1956, 8 UST 1057, TIAS No. 3867, 290 UNTS 103; (12) Interim Convention on Conservation of North Pacific Fur Seals, Feb. 9, 1957, 314 UNTS 105.

¹⁰⁸ 1 P. Birnie, supra note 40, at 270–71.

¹⁰⁹ IWC/22D Report/1970, at 20, para. 3.

¹¹⁰ IWC/23D Report/1971, at 22, para. 17, and Chairman’s Report at 18–19.

¹¹¹ IWC/24th Report/1972, at 13–14, and Chairman’s Report at 21.

¹¹² GA Res. 2398 (XXIII) (Dec. 6, 1968); see also 1 P. Birnie, supra note 40, at 365.

¹¹³ 1 P. Birnie, supra note 40, at 365. The resolution was passed in committee by a vote of 52-3, and in the plenary by 53-0, with 12 abstentions including Japan.

¹¹⁴ Stockholm Declaration on the Human Environment, Principle 4, UN Doc. A/CONF.48/14/ Rev.1, reprinted in 11 ILM 1416 (1972) [hereinafter Stockholm Declaration]. Some of the 26 principles that are also of importance to whales include states’ responsibility to adopt an integrated and coordinated approach to development planning so as to achieve more rational resource management (Principle 13), states’ responsibility not to cause damage to the environment of other states or of areas beyond the limits of their national jurisdiction (Principle 21), and the duty of states to ensure the effectiveness of international organizations set up to protect and improve the environment (Principle 25).

¹¹⁵ Stockholm Action Plan, Recommendation 33, UN Doc. A/CONF.48/14/Rev.1 (1972), reprinted in 11 ILM at 1421.

¹¹⁶ 1 P. Birnie, supra note 40, at 422; IWC/24th Report/1972, Report of the Scientific Committee, at 28.

¹¹⁷ Gulland, The Management of Antarctic Whaling Resources, 31 Journal du Conseil International pour l’Exploitation de la Mer 330 (1968) [hereinafter Gulland, Whaling]; Gulland, The Management Regime for Living Resources, in The Antarctic Legal Regime 222 (C. Joyner & S. Chopra eds. 1988); 1 P. Birnie, supra note 40, at 407.

¹¹⁸ 1 P. Birnie, supra note 40, at 407; Gulland, Whaling, supra note 117, at 334.

¹¹⁹ U.S. Dep’t of State, U.S. Delegation Press Release No. HE/13/72, at 1–2 (June 9, 1972).

¹²⁰ 1 P. Birnie, supra note 40, at 408.

¹²¹ Id. at 432–34. It should be noted that the Scientific Committee may have felt that its own existence would be jeopardized by a blanket moratorium.

¹²² IWC/25th Report/1973, Verbatim Record, at 9 (Statement by Mr. Dasman, IUCN).

¹²⁵ Id. at 23 (Statement by Mr. White, U.S.).

¹²⁴ IWC/26th Report/1974, App. I at 25, para. 9. All 15 nations attended this meeting.

¹²⁵ IWC/26th Report/1974, at 30, para. 16.

¹²⁶ Id., para. 17.

¹²⁷ The meeting in 1977 saw the return of the Netherlands to the IWC. It was attended by all 17 members, the largest number in many years. IWC/29th Report/1977, at 14–15. For the first time, scientifically qualified observers were permitted to attend the meetings of the Scientific Committee. Professor Birnie says that the media were allowed to attend the opening and closing proceedings of the plenary sessions as a public-relations initiative by the IWC to improve its image in the face of growing international criticism. 1 P. Birnie, supra note 40, at 475–76.

¹²⁸ About 70 states by then had proclaimed an exclusive 200-mile fisheries zone. 1 P. Birnie, supra note 40, at 478.

¹²⁹ IWC/29th Report/1977, at 22; see also Art; 54, Revised Single Negotiating Text, UN Doc. A/CONF.62/WP.8/Rev. 1, pt. 1, 5 Third United Nations Conference on the Law of the Sea, Official Records 125, UN Sales No. E.76.V.8 (1976).

¹³⁰ Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 6, 1973, 27 UST 1087, TIAS No. 8249, 993 UNTS 243. CITES will be covered in detail later in this paper. For descriptions of CITES and how it operates, see S. Lyster, supra note 39, at 239; Chopra, Introduction: CITES, 5 B.U.J. Int’l L. 225 (1987).

¹³¹ IWC/29th Report/1977, App. B.

¹³² 1 P. Birnie, supra note 40, at 479-80 n.58.

¹³³ See supra text at note 98.

¹³⁴ The Scientific Committee recommended that “from a biological point of view the only safe course is for the kill of bowhead whales from the Bering Sea stock to be zero.” IWC/31st Mtg./1979, Chairman’s Report, para. 12.

¹³⁵ Adams v. Vance, 8 Envtl. L. Rep. 20,160 (D.C. Cir.; order filed Oct. 24, 1977, opinion filed Jan. 17, 1978). For detailed discussion of the 31st meeting, see generally Birnie & Sandbrook, IWC—Increasing Complexities, 3 Marine Pol’y 69 (1979).

¹³⁶ The bowhead whaling exception continues to tarnish the reputation of the United States. In 1980 the United States claimed that the catch limit should be 18 landed or 26 struck, and a majority of the members of the IWC supported this claim. Despite the severely endangered status of the bowhead, by 1987 the United States was requesting an increase in the catch limit to 32 struck for that year and 35 struck for 1988; both of these requests were adopted by the IWC. Sumi, The “Whale War” Between Japan and the United States: Problems and Prospects, 17 Den. J. Int’l L. & Pol’y 317, 327 (1989).

¹³⁷ 1 P. Birnie, supra note 40, at 499.

¹³⁸ For a detailed report on this meeting, see Birnie, 31st Meeting of the International Whaling Commission London, U.K., 4 Marine Pol’y 72 (1980). There were six new members, four of which were whaling states. Twenty observer states and thirty nongovernmental organizations were added as well.

¹³⁹ IWC/31st Mtg./1979/OS (opening statement [OS] of the United States).

¹⁴⁰ IWC/31st Mtg./1979/OS (Australia) (emphasis added).

¹⁴¹ Id.

¹⁴² IWC/31st Mtg./1979/OS (New Zealand).

¹⁴³ IWC/31st Mtg./1979, at 26.

¹⁴⁴ 1 P. Birnie, supra note 40, at 505.

¹⁴⁵ See note 130 supra. For additional discussion of CITES, see 1 P. Birnie, supra note 40, at 394–98; 2 id. at 576–77; H. Mitchell, History of Cites (1977). For various aspects of its application, see Symposium: CITES, 5 B.U.J. Int’l L. 225 (1987); D. Favre, International Trade in Endangered Species: A Guide to CITES (1989). CITES originated in Resolution V of the Eighth General Assembly of the IUCN in 1963. 1 P. Birnie, supra, at 391; S. Lyster, supra note 39, at 239. The resolution called for “an international convention on regulation of export, transit and import of rare or threatened wildlife species or their derivative products.” This principle was endorsed by the Stockholm Conference, which recommended that a conference be convened to adopt such a convention. See Stockholm Action Plan, supra note 115, Rec. 99(3).

¹⁴⁶ S. Lyster, supra note 39, at 243–46; 1 P. Birnie, supra note 40, at 393.

¹⁴⁷ 1 CITES, Proc., Apps. I & II (listings on p. 49) (1976); see also 1 P. Birnie, supra note 40, at 394.

¹⁴⁸ 1 P. Birnie, supra note 40, at 394.

¹⁴⁹ 2 CITES, Proc. 1136 (1979); for detailed proposals, see id. at 949–1018.

¹⁵⁰ Id. at 43; see also statement by CITES Secretary-General to 31st meeting of the IWC (1979), IWC/31st Mtg./l 979/OS. CITES also recommended that nonparties be encouraged to adhere to the ICRW.

¹⁵¹ 3 CITES, Proc. 1304(1981). For details of various proposals and reports, see id. at 1196–1286; IWC/32d Mtg./l 980, Ann. D at 4, and Ann. F at 14; 1 P. Birnie, supra note 40, at 576.

¹⁵² For a detailed account of this meeting, see generally Birnie, IWC Bargaining and Compromise, 5 Marine Pol’y 79 (1981).

¹⁵³ IWC/32d Mtg./l980/OS (Australia).

¹⁵⁴ 2 P. Birnie, supra note 40, at 602. The United States was caught between its advocacy of a moratorium on commercial whaling and its support of aboriginal whaling of the bowhead whale. The United States representative indicated that if the take of bowheads continued at 1979 levels, the species would become endangered. Although the United States sought short-term quotas to satisfy aboriginal needs, its representative promised to seek aboriginal support for alternatives and an eventual phaseout of aboriginal whaling. See id. at 604–05.

¹⁵⁵ Id. at 602–03. The vote on the U.S. proposal was 13 in favor and 9 against (Canada, Chile, Iceland, Japan, the Republic of Korea, Peru, South Africa, Spain, the USSR), with 2 abstentions (Brazil, Norway). The vote on the latter proposal was 14 in favor and 6 against (Canada, Chile, Iceland, Japan, the Republic of Korea, the USSR), with 4 abstentions (Norway, Peru, Spain, South Africa).

The 1980 meeting was also notable for recognizing ecosystemic effects; a resolution was passed urging member states to take measures to prevent degradation of the marine environment that might adversely affect whale populations. Id. at 607; IWC/32d Mtg./1980, Chairman’s Report, App. 10 at 32.

¹⁵⁶ IWC/33d Mtg./1981, Chairman’s Report at 17–42. For a summary of this meeting, see generally Birnie, IWC-A New Era, 6 Marine Pol’y 74 (1982). There were eight new members: China, Costa Rica, Dominica, India, Jamaica, St. Lucia, St. Vincent and the Grenadines, and Uruguay. These were primarily states favoring conservation. Canada was represented only by an observer; it had withdrawn because of internal political struggles over the IWC.

¹⁵⁷ IWC/33d Mtg./1981/OS (Costa Rica and India).

¹⁵⁸ The vote was 16 for and 8 against, with 3 abstentions. See 2 P. Birnie, supra note 40, at 609.

¹⁵⁹ The vote was 15 for and 8 against, with 4 abstentions. Id. at 610.

¹⁶⁰ By France. The vote was 13 for and 9 against, with 5 abstentions. Id.

¹⁶¹ By Australia. The vote was 15 for and 8 against, with 4 abstentions. Id. at 610–11. Australia pointedly concluded that the industry was jeopardizing an international resource heritage.

¹⁶² The vote was 24 for and 1 against (Japan), with 3 abstentions (China, Iceland, the USSR). Id. at 610.

¹⁶³ Opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

¹⁶⁴ See D’Amato, An Alternative to the Law of the Sea Convention, 77 AJIL 281 (1983). As of 1990, 125 nations have signed the Convention, 23 have ratified without qualifications, and 14 have ratified with qualifications. For a listing of the states, see B. Weston, R. Falk & A. D’Amato, Basic Documents in International Law and World Order 946–47 (2d ed. 1990).

¹⁶⁵ This provision is extended to the high seas by Article 120, which says that “Article 65 also applies to the conservation and management of marine mammals on the high seas.”

¹⁶⁶ See generally D. Day, supra note 2.

¹⁶⁷ Although Dominica and Jamaica were absent, eight new members were present: Antigua, Belize, Egypt, Kenya, Monaco, the Philippines, the Federal Republic of Germany and Senegal. For a detailed account of this meeting, see generally Birnie, Count down to Zero, 7 Marine Pol’y 68 (1983); IWC/34th Mtg./1982, Chairman’s Report at 17–42.

¹⁶⁸ IWC/34th Mtg./1982/OS (the Seychelles).

¹⁶⁹ See amended para. 10 of the ICRW schedule. For the full text of the moratorium, see 2 P. Birnie, supra note 40, at 713. The IWC also granted Japan’s request for a two-year respite from its earlier moratorium on sperm whaling.

¹⁷⁰ Voting in favor were Antigua, Australia, Belize, Costa Rica, Denmark, Egypt, France, the Federal Republic of Germany, India, Kenya, Mexico, New Zealand, Oman, St. Lucia, St. Vincent, Senegal, the Seychelles, Spain, Sweden, the United Kingdom, the United States; voting against were Brazil, Iceland, Japan, the Republic of Korea, Norway, Peru, the USSR; and Chile, China, the Philippines and South Africa abstained.

¹⁷¹ ICRW, supra note 83.

¹⁷² See Doubleday, Aboriginal Subsistence Whaling: The Right of Inuit to Hunt Whales and Implications for International Environmental Law, 17 Den. J. Int’l L. & Pol’y 373 (1989).

¹⁷³ Art. 1, Council Regulation No. 348/81, 24 O.J. Eur. Comm. (No. L 39) 1 (1981).

¹⁷⁴ Art. 235, Treaty Establishing the European Economic Community, Mar. 25, 1957, 1973 Gr. Brit. TS No. 1, pt. II (Cmd. 5179 II), 298 UNTS 11.

¹⁷⁵ IWC/35th Mtg./1983, at 23.

¹⁷⁶ Martin & Brennan, Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments, 17 Den. J. Int’l L. & Pol’y 293, 300–03 (1989).

¹⁷⁷ ECO, No. 1, July 18, 1983, at 4–5; 2 P. Birnie, supra note 40, at 626–27. A U.S. boycott of Norwegian fishing products was expected to be catastrophic for the Norwegian economy since Norway was dependent upon such exports. Japan was already limited under the Packwood-Magnuson Amendment to catching no more than 100,000 tons of fish in U.S. coastal waters.

¹⁷⁸ 4 CITES, Proc. 1063–69, 1118 (1986); 2 P. Birnie, supra note 40, at 577.

¹⁷⁹ CITES in 1983 had an impressive membership of 90 signatory states and 76 that had ratified the Convention. The latter figure is even higher now. 2 P. Birnie, supra note 40, at 577.

¹⁸⁰ IWC/36th Mtg./1984/OS (Brazil).

¹⁸¹ Id. (Japan).

¹⁸² Id. (the Republic of Korea).

¹⁸³ Id. (the USSR). On the whole, there were no significant developments at the IWC’s 1984 meeting beyond those relating to the 1982 moratorium. Of the countries that supported the moratorium, many cited their national laws and policies in support of the conservation measures.

¹⁸⁴ IWC/37th Mtg./1985/OS (Japan).

¹⁸⁵ Id. (the Philippines).

¹⁸⁶ Id. (the USSR).

¹⁸⁷ Id. (India).

¹⁸⁸ IWC/38th Mtg./1986/OS (Brazil).

¹⁸⁹ Id. (Japan).

¹⁹⁰ Id. (Oman).

At the 39th meeting, in 1987, Japan continued to protest the moratorium but officially continued to adhere to it. IWC/39th Mtg./1987/OS (Japan). South Korea and Brazil also reported complying with the moratorium, despite attendant economic hardships. Id. (South Korea and Brazil).

¹⁹¹ ASIL, International Environmental Law Interest Group Newsletter, October 1990, at 5–6.

¹⁹² However, Japan and Iceland continue to exploit a large loophole in the name of “scientific research.” For example, in 1987 Japan submitted a scientific research program to the IWC Scientific Committee stating that approximately 825 minke whales and 50 sperm whales would be lethally taken. IWC/39th Mtg./1987, at 48–53. Iceland’s 1987 research program involved the hunting and killing of 80 fin and 20 sei whales. IWC/40th Mtg./1988, Report of the Scientific Committee, para. 4. Inasmuch as even a single whale, by its sheer size, would overwhelm any modern scientific research laboratory, providing enough material to keep a team of scientists busy for months, the label “scientific research” must be critically examined in light of such claims. It is estimated that some 600 great whales will have been slaughtered in 1990 under various “scientific research” programs.

¹⁹³ See International whaling ban upheld; dolphins may get protection, Chicago Trib., July 8, 1990, § 1, at 9, cols. 1–5; GA Res. 44/225 (Dec. 22, 1989). Drift-net fishing has been widely condemned for indiscriminately killing small cetaceans that swim into the nets.

¹⁹⁴ UNEP was itself a direct consequence of the Stockholm Conference of 1972.

¹⁹⁵ IUCN-UNEP-WWF, World Conservation Strategy, Item 18.5 (1980).

¹⁹⁶ See Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1713–22 (1976).

¹⁹⁷ See Balkin, The Rhetoric of Responsibility, 76 Va. L. Rev. 197, 206–12 (1990).

¹⁹⁸ Cf. Professor Christopher Stone’s call for “moral pluralism” with respect to animals and the environment. C. Stone, Earth and Other Ethics: The Case for Moral Pluralism (1987). Moral pluralism in Professor Stone’s sense would clearly be a fruition of the more generalized concept of broadening international cultural consciousness. However, Professor Stone would not want to extend rights to whales; he says it “seems more appropriate to fabricate our relations with them out of our duties rather than out of their rights.” Id. at 219.

¹⁹⁹ Although the opinio juris component of international custom is psychological, it is evidenced by completely objective materials: the articulations of rules by states. See A. D’Amato, supra note 15, at 74–87. For a brief description of the customary law process in terms of the clash between thesis (assertion of an entitlement) and antithesis (violation), see A. D’Amato, International Law: Process and Prospect 97–98 (1987).

²⁰⁰ C. Stone, Should Trees Have Standing? Towards Legal Rights for Natural Objects (1974).

²⁰¹ For specific examples and citations, see id. at 3–5.

²⁰² For specific examples and citations, see id. at 5–6.

²⁰³ See Developments in the Law—Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv. L. Rev. 1227 (1979).

²⁰⁴ This is not an example given by Professor Stone.

²⁰⁵ One could imagine a highly formalistic court taking such an approach, but even then, only if impelled to do so because of some other extrinsic equitable factor such as the unconscionableness of the contract.

²⁰⁶ C. Stone, supra note 200, at 41.

²⁰⁷ Professor Stone does not argue in these natural-law terms. He makes a comparable argument on the basis of the “force” of “ordinary language.” Id.

²⁰⁸ Id.

²⁰⁹ 478 U.S. 221 (1986).

²¹⁰ Id. at 230 n.4.

²¹¹ The decision has been widely criticized. See, e.g., Whitney & Perles, Critical Issues Left Unresolved in Japan Whaling Association v. American Cetacean Society: The Relationship of the Administrative Procedure Act to the Pelly and Packwood Amendments, 28 Va. J. Int’l L. 679 (1988); Gibson, Narrow Grounds for a Complex Decision: The Supreme Court’s Review of an Agency’s Statutory Construction in Japan Whaling Association v. American Cetacean Society, 14 Ecology L.Q. 509 (1987); Wilkinson, The Use of Domestic Measures to Enforce International Whaling Agreements: A Critical Perspective, 17 Den. J. Int’l L. & Pol’y 271 (1989).

²¹² The immediate effect of Japan Whaling Ass’n v. American Cetacean Soc’y was to permit Japan to kill 1,200 sperm whales—a species that is “widely believed” to be “under the threat of extinction.” Note, Japan Whaling Association v. American Cetacean Society, 6 Wis. Int’l L.J. 129, 150 (1987). While it might be difficult for the American Cetacean Society or Greenpeace to prove that the removal of 1,200 sperm whales from the oceans of the world would actually result in a diminution of their members’ ability to watch and study whales—given the difficulty of finding and studying even one whale not in captivity—the contrasting enormity of the loss to the sperm whale species of 1,200 of their number suggests that perhaps the Justices were not sufficiently empathetic to the asserted “injury in fact” of the environmental organizations.

²¹⁸ See D’Amato, The Moral Dilemma of Positivism, 20 Val. U.L. Rev. 43 (1985).

²¹⁴ H. L. A. Hart, The Concept of Law 199–200 (1961).

²¹⁵ For discussion and references, see D’Amato, Lon Fuller and Substantive Natural Law, 26 Am. J. Juris. 202(1981).

²¹⁶ “Law” cannot be an objective “fact” only because people are asked to respect it and judges are asked to enforce it. Thus, “law” has an inherent normativeness. For a general discussion, see A. D’Amato, supra note 38, at 221–27. For an account of the normative dimension of law affecting the content of international law through the imperative of international justice, see D’Amato & Engel, State Responsibility for the Exportation of Nuclear Power Technology, 74 Va. L. Rev. 1011, 1042–49 (1988).

²¹⁷ Calabresi & Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089(1972).

²¹⁸ Id. at 1090.

²¹⁹ Id. at 1111–15.

²²⁰ Falk, supra note 10, at 251.

²²¹ Sumi, supra note 136.

²²² Id. at 322.

²²³ Id. at 338–39.

²²⁴ Id. at 339–40.

²²⁵ Id. at 339.

²²⁶ Id. at 321.

²²⁷ In 1987 the Chairman of the IWC reported Japan’s position on this point to be that “the only way to reduce uncertainty in knowledge of the stocks is by carrying out research.” IWC/39th Mtg./1987, Chairman’s Report, para. 8.2(c).

²²⁸ Sumi, supra note 136, at 327.

²²⁹ Id. at 340.

²³⁰ Id. at 321.

²³¹ Nor are we informed whether any of the executives of the dissolved Nippon Kyodou Hogei Co. found new employment in the Institute of Cetacean Research or, if they did, whether they retained or even increased their former salaries.

²³² To his credit, Professor Sumi quotes Dr. Roger Payne, representative of Antigua and Barbuda in the IWC: “There is nothing scientific about killing 875 whales and selling the meat. It’s just a scam, cloaked, unfortunately, in pseudo-science.” Sumi, supra note 136, at 360 (quoting World Wildlife Fund, Press Release (Sept. 1, 1987)). Professor Sumi immediately follows this quotation with the observation that “it is truly regrettable that the WWF, with a worldwide reputation, has been in fluenced by the narrow-minded and prejudiced view of a radical protectionist.” Id.

²³³ Id. at 327.

²³⁴ Id. at 336. The IWC’s Technical Committee specified, among other things, that any permits for killing whales for scientific research should specify the number, sex, size and stock of the animals to be taken, “opportunities for participation in the research by scientists of other nations,” and “possible effect on conservation of the stock.” IWC/31st Mtg./1979, Chairman’s Report, para. 7.

²³⁵ Professor Sumi does not claim that international law is nonexistent; to the contrary, he invokes international legal reasoning in support of the Japanese position on whaling.

²³⁶ Sumi, supra note 136, at 363.

²³⁷ For a similar analysis with respect to the lawmaking impact of the United Nations Charter, see D’Amato, Trashing Customary International Law, 81 AJIL 101 (1987).

²³⁸ Sumi, supra note 136, at 318.

²³⁹ Id.

²⁴⁰ “We rarely stop to consider that the animal that kills with the least reason to do so is the human animal,” observes Professor Singer. “We think of lions and wolves as savage because they kill; but they must kill, or starve. Humans kill other animals for sport, to satisfy their curiosity, to beautify their bodies, and to please their palates.” P. Singer, Animal Liberation: A New Ethics for Our Treatment of Animals 235 (1975).

²⁴¹ Compare this remark of H. S. Salt: “[S]poken with friendly,earnestness, [the question] was this: ‘Don’t you think that animals were sent us as food?’ I have since heard the same pathetic question asked many scores of times. What can one say in reply to it except that the invoice has not yet been received?” H. S. Salt, Seventy Years Among Savages (1921), quoted by S. Godlovitch, Utilities, in Animals, Men and Morals 173, 173 (S. Godlovitch, R. Godlovitch & Harris eds. 1971).

²⁴² See the special issue, Bowhead Whale: Whaling and Biological Research, 42 Marine Fisheries Rev. 1 (1980).

²⁴³ Doubleday, supra note 172.

²⁴⁴ Dec. 16, 1966, 999 UNTS 171.

²⁴⁵ See M’Gonigle, The “Economizing” of Ecology: Why Big, Rare Whales Still Die, 9 Ecology L.Q. 142 (1980).

²⁴⁶ Doubleday, supra note 172, at 385.

²⁴⁷ Id. at 390.

²⁴⁸ Id. at 391.

²⁴⁹ Id. at 393.

²⁵⁰ C. Stone, supra note 198, at 220.

²⁵¹ Doubleday, supra note 172, at 392.

²⁵² For a discussion of this legal-historical progression, see A. D’Amato, supra note 199, at 194–204, 215–22.

²⁵⁵ Doubleday, supra note 172, at 392.

²⁵⁴ The Inuit have not “farmed” the whales either. As regards a chicken farm, for instance, the argument can be made that, but for the raising and nurturing of the chickens on the farm, they would never have come into existence; therefore, there is perhaps some justification for using them as human food. To be sure, animal rightists would disagree with such a justification. See, e.g., T. Regan, The Case for Animal Rights 347–49 (1983). But in any event, a similar justification would not apply to indigenous people who hunt and kill wild animals such as whales.

²⁵⁵ Cf. the marauding armies of the fourteenth century described by B. Tuchman, A Distant Mirror: The Calamitous Fourteenth Century (1978).

²⁵⁶ Another way of looking at this matter is to say that entitlements, by their nature, cannot be intertemporal rights. Cf. D’Amato, International Law, Intertemporal Problems, in [Installment] 9 Encyclopedia of International Law 191 (R. Bernhardt ed. 1986).

²⁵⁷ Obviously, as stated, this proposal could lead to a form of social blackmail. To implement it fairly, one would have to take into account not the continued threat to allow hunters to hunt wild animals, but rather the discounted expectation of how long the animals would remain in existence to be hunted given their exploitation at the hands of hunters. The latter is a much more manageable price to pay, and is purely compensatory.

²⁵⁸ See L. Fuller, The Law in Quest of Itself (1940).

²⁵⁹ Professor Franck has recently written an extended account of the normativity that comes from social expectation of a pattern of evenhanded authority and control. See T. Franck, supra note 38.

²⁶⁰ For a discussion in the law of the sea context of the customary-law transformation of the implicit into the explicit, see D’Amato, How Does Customary International Law Develop?, in Consensus and Confrontation: The United States and the Law of the Sea Convention 170 (J. M. Van Dykeed. 1985).