After the widespread unregulated commercial whaling of the 18th, 19th, and early 20th centuries, humankind finally began to recognize the importance of managing whaling and whale stocks in order to conserve, not just exploit, them. In 1931, the League of Nations (the precursor to the United Nations) drew up a Convention for the Regulation of Whaling (CRW), which came into force in 1935. The CRW failed to regulate the competition between the main whaling nations. In 1946, in the aftermath of World War II, the 15 leading whaling nations of the day agreed to the International Convention for the Regulation of Whaling (ICRW), which recognizes the "interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks." The United States was one of the initial signatories, and acts as the depository government for the International Whaling Commission (IWC). The IWC now numbers 87 nations, many of which have never whaled and several of which are landlocked.
The United Nations Convention on the Law of the Sea (UNCLOS) Article 65 and Article 120 (which extends the provisions of Article 65 to the high seas) states that the IWC is the most appropriate international organization for management of cetaceans. Additionally, United Nations' Agenda 21 recognizes the responsibility of the IWC for the conservation and management of whale stocks and the regulation of whaling pursuant to the ICRW, as well as the work of the IWC Scientific Committee in undertaking studies of cetaceans.
Despite this clear global mandate, and the preamble to the ICRW that declares a desire to conclude a "convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry," disagreement still exists among the members as to whether its mandate addresses conservation and welfare of cetaceans and if its jurisdiction extends to all cetacean species, not just the "great whales" that were the target of commercial whaling.
The IWC regulates whaling by allocating catch limits on specific populations (stocks), authorizing approved whaling methods, and establishing open and closed seasons and areas. While this brought some measure of control, for the most part commercial whaling continued to be unsustainable and poorly regulated in the decades following its formation. Because the ICRW lacked any enforcement mechanisms, the IWC was unable to prevent or punish extensive illegal hunting and misreporting or nonreporting of catches. The scale of abuse was as brazen as it was devastating: Between 1947 and 1973, the Soviet Union’s pelagic whaling fleet killed approximately 180,000 more whales than it reported to the IWC. Over the same period, the Japanese fleet is also suspected of falsifying catch records on a scale that still has serious implications for the reliability of current population estimates.
By the 1960s, legal whaling peaked at 70,000 whales a year, most on their feeding grounds in Antarctica. Although some measures were adopted in the 1960s and 1970s to prohibit hunting on certain species whose populations were in steep decline, it took the IWC until 1982 to agree to a worldwide ban, known as the “moratorium,” which set zero quotas for commercial whaling on all stocks. Most remaining whaling nations had given up in good faith by the time the ban came into effect in 1986, and the moratorium is widely considered one of the 20th century’s leading conservation victories.
Several countries, however, immediately took advantage of a clause in the ICRW that allows members that file an objection to IWC decisions to not be bound by them. Japan, Norway, Peru, and the Soviet Union filed objections to the moratorium decision. Peru and Japan withdrew their objections in 1983 and 1986 respectively, leaving just Norway and the Soviet Union (now Russian Federation) with extant objections, with only Norway whaling under objection. After withdrawing its objection, Japan began to exploit a provision in ICRW that allows lethal scientific research on whales.
Iceland did not file an objection to the moratorium, but also exploited the lethal scientific research loophole; it conducted scientific whaling until 1989 and eventually withdrew from the IWC in 1992. It rejoined in 2002 and immediately lodged a reservation (similar to an objection) to the moratorium. Iceland continued to conduct scientific research whaling until 2007 and resumed commercial whaling in 2006 through its reservation.
Over 42,000 whales have been killed under objection/reservation and in special permit hunts since the commercial whaling moratorium came into effect, with the minke whale (now considered two species—the Antarctic minke (Balaenoptera bonaerensis) and the common minke (Balaenoptera acutorostrata)) being the primary target. Bryde's, sperm, and humpback whales were also killed for commercial gain in the early 21st century, but today, only sei and fin whales are taken in addition to the two minke whale species.
The extent of the IWC’s role in the management of small cetaceans (small whales, dolphins, and porpoises) remains unresolved among member counties. Nevertheless, regulation of their hunting has continued to be undertaken at the national level (e.g., in the United States through the Marine Mammal Protection Act and the Endangered Species Act). There are also regional agreements that give management advice rather than set quotas for removals. For example, the North Atlantic Marine Mammal Commission (NAMMCO), comprised of Greenland, Norway, the Faroe Islands, and Iceland, provides scientific and management advice over small cetacean hunts by those nations and reviews and advises on killing methods. Although the NAMMCO Scientific Committee does recommend quotas (which are often used to challenge the more precautionary advice of the IWC), NAMMCO has never actually set quotas for any cetacean species. Similarly, the Joint Commission on the Conservation and Management of Narwhals and Belugas gives advice on those species to its two members, Canada and Greenland, but has no explicit regulatory role and does not set quotas.
In the European Union, all cetaceans are listed in Annex A of the Habitats Directive (Directive 92/43/EEC), which obliges member states to prohibit all forms of deliberate capture or killing and prohibit the keeping, transport, sale, exchange, and offering for sale or exchange, of specimens taken from the wild. Notably, the Faroe Islands and Greenland are not part of the European Union.
The Convention on Migratory Species (CMS) prohibits parties from taking any migratory species included in its Appendix I, with limited exceptions for science that enhances the survival of the affected species, or where the taking is to accommodate the needs of traditional subsistence users of the species. The CMS has no explicit regulatory role in the management of small cetaceans.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) regulates international trade in live specimens, parts, and derivatives of endangered species, including all species of cetaceans. Twelve species of small cetaceans, and all species of great whales, are listed on CITES Appendix I (which prohibits trade for primarily commercial purposes), with all other cetacean species listed on Appendix II (which allows for regulated, commercial trade). CITES explicitly defers to the IWC’s specific expertise in cetaceans and the primacy of its management mandate. Norway, Iceland, and Japan have repeatedly sought to “downlist” species of whales from Appendix I to Appendix II but have not convinced other CITES parties that international trade in cetacean products should resume.
The IWC and Animal Welfare
The 1946 International Convention for the Regulation of Whaling (ICRW) was drafted at a time when society did not prioritize animal welfare highly. Nevertheless, the ICRW created the International Whaling Commission (IWC) and empowered it to undertake research and collect data related to whales and methods used to kill them. Specifically, Article IV. 1 of the ICRW provides that the IWC “may encourage, recommend or organize studies and investigations relating to whales and whaling.”
The ICRW also mandates the IWC to adopt measures to improve the efficiency of whaling methods and equipment. In particular, Articles V.1 (f) and (e) permit the commission to “amend the Schedule to prohibit or specify the types of gear and apparatus to be used in whaling operations” as well as to adopt regulations “fixing the … methods and intensity of whaling.”
Since the late 1950s, these treaty provisions (although not always explicitly cited) have provided the IWC with the legal foundation for a series of decisions and initiatives to better understand and improve the efficiency of whaling methods. These actions seek to ensure that hunted whales are killed as swiftly as possible and with a minimum of pain and distress—a joint objective memorialized by the IWC as a working definition of “humane killing” in 1980. In recent years, the IWC has built upon this foundation to consider other, nonhunting-related threats to the welfare of whales and cetaceans generally.
As early as 1959, the IWC established an expert working party (EWP) to “examine the advantages and disadvantages of the various methods with the aim of improving existing methods and developing new ones.” Recognizing promising elements in different methods, the EWP recommended collaboration between respective whaling industries. This collaboration, led by Norway, has continued to drive welfare improvements in whaling over the last 50 years. But the IWC did not leave research to the whaling nations alone. Instead, to inform its consideration of welfare issues in the early 1980s, it commissioned its own investigations, including funding field studies of the relative efficacy of different killing methods at an Icelandic whaling station.
Since establishing the EWP, the IWC has hosted six further technical Whale Killing Methods workshops (1980, 1992, 1995, 2003, and 2006) with the aim of facilitating deeper understanding of killing methods than was possible in the relatively short annual meetings of the Humane Killing Working Group (later renamed the Whale Killing Methods and Associated Welfare Issues Working Group (WKMAWI-WG)) established in 1978.
The IWC has amended the WKMAWI-WG’s terms of reference several times over the decades, from a narrow consideration of specific hunting methods in commercial whaling in the late 1970s to the most recent iteration (in 2000), which reflects its growing interest in welfare issues beyond killing methods: “to review information and documentation available with a view to advise the Commission on whale killing methods and associated welfare issues.” Similarly, the terms of reference for its workshops have evolved to reflect both the IWC’s widening focus and its specific concerns. Despite progress, the development of criteria for determining the onset of irreversible insensibility and death has remained a constant, but elusive, priority.
To record and measure progress against its agreed priorities for data collection and research and its recommendations for and against specific killing methods, the IWC regularly updates the action plan that was adopted at its second workshop in 1992. The focus of the plan has changed significantly over the years, particularly as understanding of whale physiology and morphology has improved. For example, the most recent action plan seeks the development of guidelines for collecting biological samples to determine reliable indices of stress in hunted whales, as well as for recording major indications of death.
Considering that disagreement endures over the IWC’s competence to address welfare issues at all, it is notable that it has adopted by consensus 9 of 13 welfare-related resolutions—including those urging improvements in, and seeking specific welfare information from, whaling operations. These consensus decisions also notably include a resolution adopted in 1985 expanding the IWC’s consideration of “humane killing” to aboriginal subsistence whaling (ASW) operations, as well as subsequent resolutions urging more efficient methods of killing whales in ASW hunts.
The IWC has also adopted two welfare-focused Schedule amendments. The first, adopted by consensus in 1978, set out the welfare data on whale hunts to be collected and submitted for analysis. The second, adopted in 1980 by a resounding majority, prohibited use of the cold harpoon, which research had determined to be particularly inhumane. Although another proposal to amend the Schedule, to ban the use of the electric harpoon (lance), was not adopted in 1996, Japan—the only nation using this secondary killing method—voluntarily transitioned to an alternative method the following year.
Since 2009, the IWC has significantly expanded its consideration of welfare issues to include nonwhaling anthropogenic threats to cetaceans, including vessel strikes, entanglement in fishing gear, whale watching, and noise, as well as euthanasia for stranded and entangled whales. In each case, the IWC has advanced understanding of the threat and appropriate responses through workshops that bring together relevant experts, compare existing response models, and develop protocols for future action.
At its 2014 meeting, the IWC agreed to an updated action plan for the WKMAWI-WG and held a workshop in 2015 to consider development of a “cetacean welfare assessment tool” for nonhunting threats, including vessel strikes, entanglement, bycatch, and whale watching.
This progress to understand and reduce the pain and suffering of hunted and otherwise compromised whales has been achieved despite ongoing disagreement between contracting governments as to whether the IWC actually has competence to address welfare issues. Yet, it is clear from the body of work undertaken by the IWC over the last five decades that most whaling nations, whether or not they accept an IWC mandate on welfare issues, have taken significant steps (including through collaborative efforts) to make their whaling less inhumane. While those nations may not have welcomed the IWC’s involvement, it is hard to dispute its valuable role in facilitating, informing, and encouraging the progress they have made. As a result of decades of research, development, and sharing of new technologies and a better understanding of whale physiology, morphology, and neuroanatomy, as well as of ballistics and explosives, most present day whaling techniques are more efficient and effective than they were 50 years ago.
Despite these improvements, welfare experts and knowledgeable observers remain concerned that a significant number of hunted whales—particularly in ASW operations—are still not killed instantaneously, are struck and injured but lost before they are secured, or are hunted with inadequately powered weapons, resulting in protracted suffering. They also note with frustration the lack of, or incomplete, reporting of welfare data needed for analysis by the WKMAWI-WG and other experts.
For their part, whaling nations and subsistence hunters’ groups feel that critics of their whaling keep moving the goalposts. They point to their decades of long-term research and other efforts to, at their own expense, improve hunting methods. They assert the need to ensure the safety of whaling crews and note the high cost of weapons and ammunition. They also highlight the difficulty of data collection at sea, especially under challenging operational conditions in subsistence operations. Norway and Japan have expressed their frustration at what they perceive to be unfair criticism of their efforts and data by declining to submit any more welfare data to the WKMAWI-WG.
However, recent developments in the WKMAWI-WG, concurrent with the IWC embracing a broader conservation agenda, present a key opportunity for the commission in its eighth decade of existence—to redefine itself beyond its historical role as whaling management body.
The IWC and Cetaceans’ Ecosystem Services
Historically whales were valued economically only as body parts, providing meat and oil. Today, however, live cetaceans are an important source of revenue through whale and dolphin watching, supporting a multibillion-dollar industry worldwide. A growing body of peer-reviewed scientific literature demonstrates that live cetaceans have another economically quantifiable value thanks to the significant ecological contributions they make to the healthy functioning of the marine ecosystem.
Cetacean species, in particular large whales, enhance marine productivity by fertilizing ocean waters with iron-rich feces and helping to pump, from deeper to shallower waters, other micronutrients that influence the biogeochemistry of the marine ecosystem. Their large biomass also represents an important and stable repository for carbon, and their carcasses contribute to biodiversity and carbon sequestration on the ocean floor. The economic value of these services to the planet is significant and a new source of interest to ecological economists.
In 2016, the IWC took the first step towards recognizing the importance of this issue, adopting a resolution on “Cetaceans and Their Contribution to Ecosystem Functioning.” The IWC now recognizes “that cetaceans make significant contributions to ecosystem functioning that are beneficial for the natural environment and people” and initiated a review process within the IWC about the role of cetaceans on ecological, management, environmental, social, and economic issues. It is hoped that this process will shift IWC members toward placing greater emphasis on protecting whales, in recognition of the valuable ecosystem services they provide—including increasing fish populations subject to commercial use.
The IWC and Bycatch and Entanglement
The International Whaling Commission (IWC) has long recognized that bycatch in fishing gear is a problem for cetaceans. The IWC hosted the first global symposium on cetacean bycatch in 1990. The report from that meeting provided a review of available data by region, fishery, and species and outlined the effects bycatch has had on the world’s cetacean populations. Since that time, the IWC Scientific Committee has continued to collate data on the nature and degree of the entanglement threat. Based on this information, the IWC has adopted numerous resolutions related to the subject, which have requested member governments to both provide information and take action to address critical conservation concerns related to entanglement.
Not only does bycatch occur in a variety of fishing gear, from small-scale artisanal fisheries to global industrial fishing operations, it also impacts both large and small cetaceans. The Scientific Committee has agreed that bycatch is currently the most serious threat to global cetacean populations, with more than 300,000 whales, dolphins, and porpoises dying each year due to entanglement in fishing gear.
Several small cetaceans are in imminent danger of extinction, with entanglement in fishing gear posing the major threat to their survival. Among these are the vaquita, endemic to Mexico’s northern Gulf of California, with fewer than 30 individuals remaining; New Zealand’s Maui’s dolphins, with only 55 animals left; and the Mekong River Irrawaddy dolphin, which numbers about 85 individuals. Large whales are also not immune to the dangers of entanglement. A recent paper in the journal Frontiers in Marine Science noted that increasing numbers of endangered North Atlantic right whales are killed due to entanglement in fishing gear, and a staggering 83 percent of these animals bear scars consistent with having been caught in fishing gear.
Entanglement presents a serious animal welfare challenge. Whales and dolphins caught in fishing gear often drown, and even if released from a net the animals can suffer from lacerations and infections. In the worst case scenarios, cetaceans can drag fishing gear in which they have become entangled for weeks and even months, causing them to die slowly and painfully from starvation when the gear impedes their ability to feed. In an effort to train responders in safe methods of freeing cetaceans from nets, the IWC created the Entanglement Response Network in 2011.
At its 2016 meeting, the IWC took a further step to formalize its work on bycatch, and created the Bycatch Mitigation Initiative (BMI). The program seeks to help governments deal with the challenges posed by bycatch and to work to develop effective and practical solutions. The BMI program serves as a clearinghouse for information on research related to entanglement mitigation and will offer evaluations of mitigation measures, including monitoring schemes. The group will seek to liaise with international fisheries bodies and other international organizations in order to provide a regular exchange of information and expertise. The BMI includes a standing working group (which will oversee the initiative’s work program and the provision of information and advice to the IWC and its relevant subgroups), a panel of scientific experts, and a coordinator.