Hostname: page-component-cd9895bd7-7cvxr Total loading time: 0 Render date: 2024-12-25T07:23:42.144Z Has data issue: false hasContentIssue false
  • English
  • Français

Recent Negotiations toward the International Regulation of Whaling

Published online by Cambridge University Press:  12 April 2017

L. Larry Leonard
Get access Rights & Permissions [Opens in a new window]

Extract

Prior to the outbreak of the European war on September 3, 1939, progress had been made, by means of international agreements for the conservation of whales, toward the creation of what M. Suarez in 1925 characterized as a new jurisprudence “ of which today we have no inkling, owing to the fact that the necessity which now arouses our legitimate apprehensions was never contemplated.” In 1931, due to the efforts of the League of Nations, a Convention for the Regulation of Whaling was opened for signature at Geneva; in 1937, an International Agreement for the Regulation of Whaling was signed at London; in 1938, a Protocol Amending the International Agreement was signed at London.

Type
Research Article
Information
American Journal of International Law , Volume 35 , Issue 1 , January 1941 , pp. 90 - 113
Copyright
Copyright © American Society of International Law 1941

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Report of M. José Suarez on the “Exploitation of the Products of the Sea,” Report to the Council of the League of Nations on the Questions Which Appear Ripe for Codification, League of Nations Doc. C.196.M.70.1927.V., p. 120 ff., at 123; this Journal, Spl. Supp., Vol. 20 (1926), p. 230 ff., at p. 236.

2 U. S. Treaty Series, No. 880; this Journal, Supp., Vol. 30 (1936), p. 167. (Hereinafter cited as the Convention.)

3 U. S. Treaty Series, No. 933; this Journal, Supp., Vol. 34 (1940), p. 106. (Hereinafter cited as the Agreement.)

4 U. S. Treaty Series, No. 944; this Journal, Supp., Vol. 34 (1940), p. 115. (Hereinafter cited as the Protocol.)

5 See International Whaling Statistics, published annually since 1930 at Oslo, by the Norwegian Government.

6 See Report on the Progress of the Discovery Committee’s Investigations, issued by the Discovery Committee Colonial Office (Cambridge: University Press, June, 1937), and the studies cited on page 48; also, reports of the Whaling Committee of the Conseil Permanent International pour l’Exploration de la Mer (hereinafter cited as the Copenhagen Council) in Rapports et procès-verbaux des réunions, Vol. 84 (1934), p. 44, and Vol. 107 (1938), p. 43.

7 Early treaties such as the Convention for Defining and Regulating the Limits of Exclusive Right of the Oyster and other Fishery on the Coasts of Great Britain and France, Br. and For. State Papers, Vol. 27 (1838–39), p. 983 ff., and the North Sea Convention of 1882, ibid., Vol. 73 (1881–82), p. 39 ff., sought to avoid disputes between fishermen of the different nations frequenting these waters, and were not essentially conservation measures. Cf. Halibut and Sockeye Salmon Treaties between the United States and Canada, U. S. Treaty Series, Nos. 701, 837, 917, and 918. An abortive attempt was made between 1887 and 1890 by the United States to secure international measures for the protection of fur seals in Behring Sea, but it was not until 1911, 18 years after the Fur Seal Arbitration Award, that an agreement was reached by the United States, Great Britain, Russia and Japan. Ibid., No. 564; Fur Seal Arbitration, Appendix to the Case of the United States (Washington: Gov’t Printing Office, 1892), Vol. 1, pp. 168–194, 204–223. See the study of fishery treaties by A. P. Daggett in this Journal, Vol. 28 (1934), pp. 693–717.

8 League of Nations Document (cit. supra, note 1), p. 122.

9 Paris, 1928.

10 Recueil des Cours, Académie de droit international, Vol. 29 (1929), pp. 481–503; reprint (Paris, 1929), pp. 81–103.

11 The Norway Year Book, Per Vogt, ed. (Oslo, 1938), p. 267. Cf. D’Arcy W. Thompson: The “harpoon gun was used in Ireland a hundred years before Svend Foyn invented, or reinvented it.” Fishery Board for Scotland, Scientific Investigations, 1928 (Edinburgh), No. 3, pp. 3–4. See Dr. Remington Kellogg, “Whales, Giants of the Sea,” The National Geographic Magazine, Vol. 77 (1940), pp. 38, 40.

12 The Basques were the first to perfect the method of hunting whales so that it became a profitable industry. Their early activity was confined to the coasts along the Bay of Biscay, but, toward the end of the fifteenth century, operations were extended to the coasts of Newfoundland and of Labrador. When, in the seventeenth century, the whale became rare in these regions, whalers turned to the waters off Spitzbergen where the whale was again found in abundance. The hunt for the Sperm Whales was carried on off the American coasts and reached its height in the 1860’s. In 1882 whaling was carried on off the coast of Iceland, ten years later off the coast of the Faroe Islands, and in the early 1900’s off the coasts of the Shetland Islands, the Hebrides, and Ireland. Raestad, op. cit., pp. 16–22.

13 One year earlier, the steamship Telegraf, converted into a floating factory, had been used in operations off the coasts of Spitzbergen and met with great success. This encouraged the Norwegians to use their floating factories in the South Seas the following year. Ibid., pp. 23,24.

14 Pelagic whaling had been successfully carried out during the 1923–24 season by the factory ship Sir James Clark Ross under a British Government license to hunt in Ross See. Isachsen, Fridtjov, “The New Norwegian Dependency in the Antarctic,” Le Nord, Vol. 2 (1939), p. 73 Google Scholar. See Birger Bergensen, “The International Whaling Situation,” ibid., Vol. 1 (1938), p. 112. The writer is grateful to Dr. Kelloggg for having called his attention to “The History of Whaling,” by Sidney F. Harmer in Proc. Linnean Soc. of London, 140th Sess. (1928), pp. 51–95.

15 Isachsen, loc. cit., p. 73.

16 Raestad, op. cit., p. 24.

17 See the report of the Whaling Committee of the Copenhagen Council, Rapports et procès-verbaux des réunions, Vol. 84 (1934), p. 42.

18 These statistics, though arbitrarily chosen, illustrate the definite trend of development. The curtailed operation during 1931–32 was due to the poor world economic conditions when the Norwegians failed to take part in the hunt. International Whaling Statistics, Vol. 14 (1940), p. 4. It may be noted that during the 1937–38 season, the total expeditions for all areas consisted of 33 shore stations, 35 floating factories, and 350 catchers. Ibid., Vol. 13 (1939), p. 17. The efficiency of the modern factory ships may be gleaned from the fact that the largest ship, the Terje Viken, is 633 feet long and weighs 30,000 tons, and requires ten catchers to keep it operating 24 hours a day. Kellogg, loc. cit., p. 40.

19 By far the most important whaling region is the Antarctic (South Georgia, South Shetland, South Orkney, and Ross Sea) where 91.9 per cent of all whales were caught during the 1937–38 season. Other whaling areas are: the Arctic (the Faroe Islands, Iceland, the Coast of Norway, West Greenland, and Newfoundland), Africa (the Coast of Natal, Cape Colony, the Coast of Congo, South of Madagascar), the North Pacific (Alaska, British Columbia, California, Mexico), Japan and Korea, Kamtchatka, Chile and Peru, West Australia, and the Azores. Before 1906, the Arctic was the most important whaling district; from 1910 to 1914 Africa was; and since 1908, the Antarctic has become the most important region. This is indicated by the average percentage for whales caught in these areas from 1909–10 to 1937–38 as follows: the Antarctic 83.3 per cent, the Arctic 2.3 per cent, Africa 7.3 per cent, other areas 7.1 per cent. Based on International Whaling Statistics, seriatim.

20 Ibid., Vol. 13 (1939), pp. 3–4. At least two factors, aside from the increase in the number of immature whales killed (infra, p. 94) should be taken into account in attempting to evaluate the significance of the decreased oil yield. As the following statistics for the same years as listed above indicate, the Fin, Humpback, and Sperm species have been subjected to more intensive slaughter:

Season Blue Fin Humpback Sei Sperm
1930–31 29,410 10,017 576 145 51
1935–36 17,731 9,697 3,162 2 399
1936–37 14,304 14,381 4,477 490 926
1937–38 14,923 28,009 2,079 161 867

Ibid., Vol. 12 (1939), pp. 4–5. In order to take mathematical notice of this, other species have been reduced to what is known as the “Blue-Whale Unit” by which 1 Blue Whale is calculated to be equal to 2 Fin Whales, 2½ Humpback Whales, or 6 Sei Whales. Ibid., p. 13, n.1. Actually, the calculated whale is equal to 75 feet Blue, equal 110 feet Sperm, equal 110 feet Fin, equal 120 feet Humpback, equal 200 feet Sei. Dr. Kellogg to this writer, Jan. 26, 1940.

Another factor is the self-imposed restrictions by the whaling companies, prior to 1936, and since that time, government regulations which shorten the whaling season, but which increase the number of immature whales taken. Ibid., Vol. 7 (1936), p. 11.

21 The percentage of immature Fin and Humpback Whales killed is equally as great, as the following statistics reveal:

Species 1931–8$ 1985–86 1986–87 1938–89
Fin 12.09 17.31 15.18 21.14
Humpback 78.41 36.38 38.77 54.59

Ibid., Vol. 14 (1940), p. 10.

22 Ibid., p. 6.

23 Another explanation for the killing off of the Humpback Whale, is that it frequents breeding grounds in tropical waters and for this reason is subjected to intensive killing. Letter of Lieut. Commander A. C. Richmond to this writer, Jan. 27, 1940.

Though the Blue and Fin Whale species are of chief importance in the Antarctic, this does not hold true for other regions as the following statistics (for the 1937–38 season) reveal:

Region Total Sei Sperm Humpback
Antarctic 46,039 161 867 2,079
Japan and Korea 1,970 553 785 60
North Pacific 483 ... 315 16
Africa 3,044 66 473 1,927
Chile and Peru 902 44 767 6
West Australia 917 … … 917

Ibid., Vol. 12 (1939), p. 4; Vol. 13 (1939), pp. 7–11.

24 Report of the Progress of the Discovery Committee’s Investigations, op. cit., p. 17. See Dr. Kellogg, he. cit., p. 57 ff. Cf. Agreement, Art. 5, this Journal, Supp., Vol. 34 (1940), p. 107.

25 Report of the Progress of the Discovery Committee’s Investigations, op. cit., p. 17.

26 Ibid., pp. 19, 22. Lieut. Commander Richmond has pointed out that should the stock of whales near exhaustion, it would “not be able to reproduce itself, as most species of whales do not frequent breeding grounds. In other words, it is not a case of taking a relatively small number, and through complete protection allowing the stock to be gradually built up, as was done for example in the case of the seal herds on the Pribilof Islands.” Letter to this writer, Oct. 23, 1939.

George Grafton Wilson and Sir John Fischer Williams, Rapporteurs of the Twenty-Third Commission of the Institut de droit international, reported that, aside from the pollution of waters, one of the greatest dangers to sea products was “L’épuisement des richesses de la mer par une exploitation exagérée.” Annuaire, Vol. 40 (1937), p. 94.

27 Prices had declined from $90 a barrel in the 1920–21 season to $26 a barrel of whale oil in the 1930–31 season. International Whaling Statistics, seriatim. See infra, pp. 103–105.

28 Supra, note 20.

29 International Whaling Statistics, Vol. 5 (1934), p. 2. Cf. ibid., Vol. 7 (1936), p. 11.

30 Ibid., Vol. 6 (1935), p. 1. Two British companies and one Norwegian company failed to join the 1933–34 agreement.

31 Ibid., Vol. 7 (1936), p. 1.

32 See Senate Exec. Doc. C (hereinafter cited as Ex. Doc. C), 76th Cong., 1st Sess., p. 21; also, Agreement, Final Act, Par. 10, this Journal, Supp. Vol. 34 (1940), p. 114.

33 Rapports et procès-verbaux des réunions, Vol. 84 (1934), p. 42.

34 See comments by Philip C. Jessup, this Journal, Vol. 24 (1930), p. 752; William R. Vallance, ibid., Vol. 31 (1937), p. 119.

35 The Committee of Experts, convened by the League Council in accordance with the Assembly resolution of Sept. 22,1924, was authorized, after communicating with the various governments, to draw up a list of questions which were sufficiently ripe for codification. On April 2, 1927, the Committee reported on the seven questions which were ripe; among these was No. 7. See League of Nations Doc. C.196.M.70.1927.V.

36 The Rapporteur presented a strong statement on the need for immediate action to protect the whales, and took the Norwegian companies to task for their heavy exploitation in order to secure tremendous profits. He went on to state that but 100,000 whales remained on the hunting grounds. Ibid., pp. 123–124. Cf. Gilbert Gidel, Droit international public de la mer, Tome 1, p. 470; Raestad, op. cit., p. 29.

37 The British view was that “the exploitation of the products of the sea cannot be made the subject of any general convention, but should be attempted rather by particular conventions relating to particular products and particular areas between countries interested.” League of Nations Doc. C.196.M.70.1927.V, p. 146. Japan stated that “it would be preferable to settle question No. 7 . . . by means of bilateral and plurilateral agreements between countries directly concerned.” Ibid., p. 172.

38 Ibid., p. 181. France believed that it was “desirable, practicable and urgent to regulate the matter by international agreement.” Ibid., p. 164. Denmark considered the question of “high practical importance.” Ibid., p. 152. Rumania believed the committee was “most happily inspired” when it included Questionnaire No. 7 which was “of the highest importance for the future of mankind” and could “only be solved by international agreement.” Ibid., p. 222. Though Portugal believed the whole problem of the conservation of marine products could only be solved by an extension of the zone of territorial waters to 12 or 15 miles, it recognized that in the case of whales, “it would be sufficient for the Powers concerned to conclude a special treaty or agreement” which would prevent the killing of pregnant females, young whales, and which would prohibit the use of floating factories. Ibid., p. 193. Sweden agreed that “a real danger threatens whales in the Antarctic seas—the only waters in which these cetaceans are still encountered in considerable numbers. . . . It would, therefore, be desirable to regulate its exploitation as soon as possible. . . .” Ibid., p. 240. The United States was of the opinion “that an international conference is desirable to consider the problem of conserving the whale.” Ibid., p. 161.

39 League of Nations Doc. C.199.M.73.1927.V; also, this Journal, Spl. Supp., Vol. 22 (1928), pp. 44–45.

40 League of Nations Doc. A.18.1927.V, p. 7; also, this Journal, Spl. Supp., Vol. 22 (1928), p. 226.

41 League of Nations Docs. A.105.1927.V, p. 5; A.133.1927.V.

42 See Rapports et procès-verbaux des réunions, Vol. 49 (1928), p. 112 ff.; also, Jessup, L’exploitation des richesses de la mer, pp. 35–36.

43 League of Nations Official Journal (1929), p. 1590 ff.

44 Though the committee believed the fisheries were economically more important, it advised international measures for the protection of whales because the former are at the present in “no danger of commercial extermination.” Then, too, scientific groups such as the Copenhagen Council were studying the fisheries with a view toward securing their rational exploitation. The committee had been advised by the Copenhagen Council that the protective regulation of food fishes was a problem which did not lend “itself to treatment by means of an international convention of general application . . . fishery problems are so localized as to be of interest only to those nations whose fishermen have access to the localities and fisheries concerned and, if and when the necessity for regulation of any of the local fisheries arises, it will be a matter for treatment by agreement between the nations interested and between them alone.” Ibid., pp. 1591–1592.

45 The Bowhead and Right Whale have almost been exterminated, according to the Committee Report, because these were easy to kill, and the value of their oil and whalebone was considerable, whereas the capital required for an expedition was small. Loc. cit. See Dr. Kellogg, loc. cit., p. 38 ff. This is not the situation with regard to the Blue, Fin, Sperm, and Humpback, which are the chief species hunted today.

46 League of Nations Official Journal (1929), p. 1594.

47 Ibid., p. 1595. See the account of the marking experiments carried on by the Discovery Committee to determine the extent of these migrations. Report on the Progress of the Discovery Committee’s Investigations, p. 21.

48 League of Nations Official Journal (1929), p. 1596.

49 The Norwegian law is to be found in Jessup, op. cit., pp. 100–101. See Vallance, this Journal, Vol. 31 (1937), pp. 112–119.

50 The Act also forbade the killing of young whales, or whales giving suck, or female whales accompanied by young, or Fins under 50 feet, or Blue Whales under 60 feet. Companies were required to pay a royalty of 20 ore per barrel of oil.

51 League of Nations Doc. A.64.1931.II.B.

52 See Agreement, Final Act, Par. 9, this Journal, Supp., Vol. 34 (1940), p. 113.

53 Ibid., Supp., Vol. 30 (1936), p. 167.

54 The Convention was ratified by the United States, Canada, Denmark (including Greenland), Great Britain and Northern Ireland (not including colonies), Finland, France, Italy, Mexico, Netherlands (including Netherland India, Surinam, Curacao), New Zealand, Norway, Poland, Spain, Switzerland, Union of South Africa, Turkey, Yugoslavia. It was adhered to by Brazil, Ecuador, Egypt, Eire, Great Britain in respect of British colonies, Latvia, Monaco, Nicaragua, Newfoundland, and Sudan. U. S. Department of State Press Releases, April 10, 1939. The nations that signed but failed to ratify the Convention are: Albania, Australia, Belgium, Colombia, Germany, Greece, India, and Rumania.

55 The Convention provided that it would come into effect after 8 states, including Norway and Great Britain, had deposited ratifications at Geneva. Art. 17, this Journal, Supp., Vol. 30 (1936), p. 172. Great Britain ratified the Convention on Oct. 18, 1934.

56 Supra, p. 97.

57 Report of Wilson and Williams, Annuaire, op. cit., p. 94.

58 International Whaling Statistics, Vol. 10 (1937), p. 1. Three British companies received special treatment.

59 Ex. Doc. C, p. 20.

60 This Journal, Supp., Vol. 34 (1940), p. 106 ff.

61 Ex. Doc. C, p. 18.

62 See the discussion at the 1938 Conference, infra, pp. 103–105.

63 This Journal, Supp., Vol. 34 (1940), p. 111.

64 Certificate of Extension of Agreement for the Regulation of Whaling, ibid., p. 118.

65 The attempts of the companies to bolster the price of whale oil has already been noted supra, p. 96. The following statistics (given in pounds per barrel) indicate the declining trend of prices:

Year High Low Year High Low
1914 23.5 21 1934 12.0 8.1
1917 59.1 48 1936 23.0 17.1
1920 90.0 82 1937 22.0 17.0
1926 37.0 34 1938 17.0 12.0
1930 26.0 17 1939 15.1 12.0

International Whaling Statistics, seriatim.

66 Ex. Doc. C, pp. 19–21. See supra, p. 99.

67 Rapports et procès-verbaux des riunions, Vol. 107 (1938), p. 44.

68 Protocol, Final Act, Par. 7, this Journal, Supp., Vol. 34 (1940), p. 120.

69 See Protocol, Final Act, Par. 8, ibid., pp. 120–121.

70 “This proposal was advanced by the delegation of the United States of America. While the delegates were generally agreed that such a measure was, perhaps, the only completely effective method of conservation suggested, the proposal received little support because of the immediate practical difficulties.” Ex. Doc. C, p. 17. More light is shed upon this scheme by the comment of Lieut. Commander A. C. Richmond, American delegate to the 1939 London Whaling Conference, who, in a letter to the writer on Oct. 23, 1939, stated: “The conventions do impose seasonal and regional restrictions, but an analysis of these will show that while they are valuable and desirable, they nevertheless only follow the general terms that the whalers already abided by. Por example, whales taken in the Antarctic prior to the beginning of the season are apt to be thin and consequently of low oil content. The obvious answer is, of course, some sort of a quota. . . . That is to say, each country can send any number of expeditions out, and during the season take whales as fast as they can, reporting periodically the oil production to a central committee, possibly international. When the total oil production of all expeditions reaches a specified maximum amount, the season shall be closed. Thus the season might last one week or two months depending upon the catch. To date other countries have been unwilling to accede to such a proposal, principally because some have large economic interests involved which presumably would rather get what they can now than worry about the eventual collapse of the entire industry some day in a not too distant future.”

71 This received little consideration because of the practical difficulty of arriving at equitable allotments. Ex. Doc. C, p. 17.

72 The difficulties involved were those of reaching an “equitable agreement that would take cognizance of the differences between small, inefficient factories and large, modern factories, and also of the considerable variations in the efficiencies of the catchers and their personnel.” Ex. Doc. C, p. 16.

73 See Protocol, Final Act, Par. 13, this Journal, Supp., Vol. 34 (1940), pp. 121–122.

74 “ I t proved impossible to obtain the general agreement of the Conference to this proposal, chiefly because some land stations depend mainly upon humpbacks for their output of oil, and it was contended that the total prohibition, even for one year, of the hunting of humpbacks would have an effect on these land stations disproportionate to that which it would have on pelagic expeditions.” Loc. cit. See supra, p. 102.

75 Protocol, Art. 2, ibid., p. 115. Infra, pp. 106–107.

76 Protocol, Art. 7; Protocol, Final Act, Par. 15, ibid., pp. 116, 122.

77 Ex. Doc. C, p. 13. Infra, notes 80, 81, 85, 87.

78 Protocol, Art. 3, this Journal, Supp., Vol. 34 (1940), p. 115. For the French reservations, see ibid., p. 123.

79 U. S. Department of State Press Releases, July 5, 1939. Lieut. Commander A. C. Richmond, American delegate to the conference, described its work as follows: “Since the conference was informal, it was felt that the majority of the resolutions and recommendations would not require formal ratification on the part of the signatory governments but could be carried into effect by regulations or decrees after an exchange of diplomatic notes. I might say that generally the conference was directed towards extending the protection of the humpback whale, covered by the Protocol; obtaining the adherence of the Japanese Government to the Agreement and the Protocol; and recommending the adoption of certain uniform practices on the part of whaling inspectors aboard factory ships.” Letter of Oct. 4, 1939.

80 The Agreement was ratified by the United States, Germany, the United Kingdom of Great Britain and Northern Ireland, Eire, New Zealand, Norway, and acceded to by Mexico and Canada. U. S. Department of State Press Releases, April 10, 1939. Denmark has acceded to the Agreement of 1937 and the Protocol of 1938 as of July 10, 1939. International Whaling Statistics, Vol. 14 (1940), p. 3.

81 The Protocol was ratified by the United Kingdom and Northern Ireland, Germany, Norway, and the United States. U. S. Department of State Press Releases, April 10,1939. See supra, note 80, for Denmark. Both the Agreement and the Protocol were accompanied by a Final Act signed by the delegates, and independent of the respective treaties. In each case the Pinal Act interpreted some of the provisions of the treaties and established the policy which it was expected each nation would adopt in carrying out the provisions of the agreements. The Final Acts did not require ratification. Ex. Doc. C, pp. 2, 3.

82 This is an arbitrary classification and is adopted in order to facilitate a discussion of the treaty conservation measures.

83 Art. 4 of the Convention contains the Right Whale prohibition, this Journal, Supp., Vol. 30 (1936), p. 169; Art. 4 of the Agreement includes the Grey Whale, ibid., Vol. 34 (1940), p. 107. Final Act, Par. 22, of the Protocol states: “The Conference learned with concern that during the Antarctic whaling season of 1936–37, and the summer of 1937, no less than 15 right whales had been killed. . . .” Ibid., p. 124. Dr. Kellogg has informed this writer that these whales illegally taken were killed by a South African ship and that South Africa has not ratified the agreements. Note of Jan. 26, 1940.

84 Ex. Doc. C, p. 14; Protocol, Final Act, Par. 13, this Journal, Supp., Vol. 34 (1940), p. 121. See supra, p. 104.

85 The prohibition applied to factory ships and whale catchers in the waters south of 40 degrees south latitude during the period from Oct. 1, 1938, to Sept. 20, 1939. Protocol, Art. 1, ibid., p. 115. On Jan. 27, 1940, Lieut. Commander Richmond notified this writer that “it would appear that the whaling factories in the Antarctic are acceding to the provision extending the protection of the humpback for at least another year. I have been informed that the Norwegian Government has instructed their gunners to this effect. . . .” The Japanese Government has taken some measures to enforce the treaty regulations. See comment by Ellery C. Stowell, this Journal, Vol. 34 (1940), p. 325; also, International Whaling Statistics, Vol. 14 (1940), p. 4.

86 Agreement, Art. 7, this Journal, Supp., Vol. 34 (1940), p. 107.

87 Protocol, Art. 2, ibid., p. 115. It appears that no commercial whaling had been undertaken in this area up to the time the Protocol was signed, but investigations have shown that Baleen Whales do inhabit the region. There is some belief that the whales from this area travel into the adjoining areas, or vice versa, and the protection of the whales in the area would have useful results. See Protocol, Final Act, Pars. 8 and 14, ibid., pp. 120–121,122. It is reported that during the 1939–40 season, the Japanese, in accordance with the article, began their whaling activities about Dec. 8. International Whaling Statistics, Vol. 14 (1940), p. 3.

88 Agreement, Art. 8 as amended by Art. 6 of the Protocol to refer to Baleen Whales only. This Journal, Supp., Vol. 34 (1940), pp. 107, 116. Since the catch of Japanese land stations operating throughout the year consists of Sperm Whales, the conference adopted this amendment in order to make Japanese accession to the agreements more likely. Protocol, Final Act, Par. 20, ibid., pp. 123–124; Ex. Doc. C, p. 15.

It would appear from these articles that both the Protocol and the Agreement refer to all species of whales, unless other specific provision is made in the treaties. This differs from the Convention in that the latter referred to the “baleen or whalebone” as distinguished from the “toothed” whales. The difference between these is that the toothed whales have teeth for eating, whereas the Baleen or whalebone whales have a substance known as whalebone in their mouths which allows water to rush out but keeps the food back; also, the Baleens have two nostrils or blowholes and the toothed have one. Dr. Kellogg, loc. cit. See Convention, Art. 2, this Journal, Supp., Vol. 30 (1936), p. 169; also, Agreement, Art. 18, ibid., Vol. 34 (1940), p. 109.

This provision was inserted to protect the whales in tropical waters where they are usually lean and give less oil. By offering the choice of one or the other regions, it is expected that Antarctic waters will be chosen. Bergensen, loc. cit., p. 117.

89 Agreement, Art. 5, this Journal, Supp., Vol. 34 (1940), p. 107. This is modified by Art. 4 of the Protocol, which excepts Blue Whales of not less than 65 feet, Fin Whales of not less than 50 feet and Sperm Whales of not less than 30 feet when “the meat of such whales is to be used for local consumption as human or animal food.” Ibid., p. 115. This was inserted at the suggestion of the Danish and Japanese delegations. Protocol, Final Act, Par. 18, ibid., p. 123. See Ex. Doc. C, pp. 14,18. The Convention similarly excludes aborigines from its provisions. Art. 3, this Journal, Supp., Vol. 30 (1936), p. 169. Cf. supra, p. 95.

90 A concession was here made at the “urgent recommendation” of the Japanese delegation. Ex. Doc. C, p. 15. For a definition of the areas, see Protocol, Art. 7, this Journal, Supp., Vol. 34 (1940), pp. 108, 116.

91 Protocol, Final Act, Par. 16, Ibid., p. 122; Ex. Doc. C, p. 18.

92 This Journal, Supp., Vol. 34 (1940), p. 115. See Ex. Doc. C, p. 18.

93 Convention, Art. 6, this Journal, Supp., Vol. 30 (1936), p. 170; Agreement, Art. 11, ibid., Vol. 34 (1940), p. 108.

94 Convention, Art. 6, Par. 3, ibid., Vol. 30 (1936), p. 170.

95 Convention, Art. 7, he. cit.; Agreement, Arts. 13,14, ibid., Vol. 34 (1940), pp. 108–109.

96 Protocol, Art. 8, ibid., p. 116. This replaced Art. 12 of the Agreement, which proved inoperative. Ibid., p. 108. Protocol, Final Act, Par. 21, ibid., p. 124; Ex. Doc. C, p. 15. See Hearings on H.R. 4592 and H.R. 4593, the Whale Fishery, before the Committee on Merchant Marine and Fisheries, House of Representatives, 76th Cong., 1st Sess., May 25 and 26, 1939, p. 28.

97 Convention, Art. 1, this Journal, Supp., Vol. 30 (1936), p. 169; Protocol, Arts. 1 and 3, ibid., Vol. 34 (1940), p. 115. Accordingly, legislation was passed in Great Britain (The Whaling Industry Regulation Act, 24 and 25 Geo. V, c. 49), Norway (Legal Gazette, June 30,1935), Denmark (Lovtidende for Kongeriget, 1934, pp. 578–580), and the United States (49 Stat. 1246; this Journal, Supp., Vol. 30 (1936), p. 198). Cf. infra, p. 109.

98 Agreement, Art. 1, ibid., Vol. 34 (1940), p. 107. Since the factory ships operate 24 hours a day it was necessary to send more than one inspector to enforce the regulations.

99 Agreement, Art. 14, ibid., p. 109.

100 Agreement, Art. 16, ibid., p. 109; Convention, Arts. 10 and 11, ibid., Vol. 30 (1936), p. 171. This includes the number of whales and the species treated at factory ships and land stations, the quantities of oil, meal, guano and other products obtained from each, the date and place of taking of each whale, the sex and length of the whale; if the whale contains a foetus, the length and sex of it.

101 Convention, Art. 12, ibid., p. 171; Agreement, Art. 17, ibid., Vol. 34 (1940), p. 109.

102 Convention, Art. 8, ibid., Vol. 30 (1936), p. 170. Art. 10 of the Agreement allows each government to grant special permits to its nationals which would allow, for scientific purposes, the killing of whales otherwise prohibited by the Agreement. Ibid., Vol. 34 (1940), p. 108.

103 Supra, note 83. In order to prevent similar violations by nationals of states that are parties to the agreements, the Agreement, Final Act, Par. 9, suggested that “the contracting Governments should take steps to prevent this Agreement and any regulations made thereunder from being defeated by the transfer of ships registered in their territories to the Flag of another Government not a party to this Agreement . . .” Ibid., pp. 113–114; Protocol, Final Act, Par. 24, ibid., pp. 124–125.

104 On March 8, 1939, the Senate passed S. 1045, a bill introduced by Senator Gillette of Iowa. A similar bill (H. R. 8895), introduced on March 12, 1940, by Representative Sol Bloom, Chairman of the Committee on Foreign Affairs, is before the House. This bill seeks “to enable the United States to carry out its international obligations concerning the regulation of whaling, to prevent the indiscriminate slaughter of whales and the depletion of stocks thereof, to restore the stocks of species of whales threatened with extinction, and generally to promote conservation, sustained production, and the economic utilization of whales.” The bill gives new strength to the treaty provisions, many of which it incorporates, by providing appropriate penalties for violations after suitable trial. These penalties include the forfeiture of all whales, oil, and other whale products (Sec. 6a), the forfeiture of factory ships and catcher ships and their implements (Sec. 6f), the imposition of fines up to $10,000 and/or 6 months’ imprisonment for violations of the act (Sec. 7a). In addition, the court may revoke the violator’s whaling permit for such a period as it may fix (Sec. 7a). See the comment by Ellery C. Stowell, this Journal, Vol. 34 (1940), pp. 324–325.

105 The first time the factory ship, Frango, came in, a certain amount of oil taken from short whales was libeled. The case was not contested, but a compromise was effected for an amount approximating $3,100, which was the appraised value of the oil. The same was true in the case of the factory ship, Ulysses, $1,600 or $1,900 being the value of the seized oil. Further, the first cargo transshipped from the Ulysses gave rise to an interesting case (U. S. v. 12,536 Gross Tons of Whale Ex. the Charles Racine, 29 Fed. Supp., No. 6332). The oil was transshipped to the Norwegian vessel, Charles Racine. The Department of Commerce took the view that this was a violation of the shipping laws on the basis that the Ulysses was an American vessel and as such was American territory. Therefore, bringing oil from American territory to American territory was coastwise trade which could not be undertaken by a foreign vessel. The Charles Racine and the full cargo of oil were libeled, not for violating any provisions of the Whaling Treaty Act, but for violation of the navigation laws. The case was tried at Norfolk and lost by the Government. Lieut. Commander Richmond to this writer, Jan. 27, 1940.

106 The oil which was seized on the American tanker, the S.S. California, while in New York harbor, had been obtained from the Ulysses. The latter had operated in Antarctic waters from Dec. 8, 1938, to Jan. 24, 1939. According to Mr. Lord, attorney for the company, “One of the Blue Whales that was killed, the limit being 70 feet, was 69 feet 11 inches long. Now how anybody can guess under those circumstances whether a whale is 69 feet 11 inches, or 70 feet, I do not know. . . . That was 19 out of 1,900 whales killed that were killed in violation of the law, and about 4 or 5 of these were over 69 feet and I think about 7 or 8 over 68 feet in length.” Hearings, op. cit. (supra, note 96), p. 108. Cf. the lengths at which these whales are actually mature, supra, p. 95.

107 The whales had been captured in waters surrounding Shark Bay, Western Australia, on or about June 26,1938. The vessel was seized on Dec. 10,1938, while in New York harbor.

108 Though nations have been zealous of their right to exclusive jurisdiction over the ships registered with them when on the high seas, in earlier fishery treaties foreign cruisers were given the right to board and examine national ships to determine whether provisions of the treaty had been violated. Thus, according to Art. 27 of the North Sea Convention (1882), “The execution of the regulations . . . is placed under the exclusive superintendence of the cruisers of the nation of each fishing boat. Nevertheless commanders of cruisers shall acquaint each other with any infractions of the above-mentioned regulations committed by the fishermen of another nation.” Cruisers were allowed to authenticate infractions regardless of the nationality of the ship (Art. 28), and in extreme cases the foreign cruiser could take a ship into the port of the nation that registered it (Art. 30). Br. and For. State Papers, Vol. 73 (1881–82), p. 39. See the Northern Pacific Halibut Convention of 1923, Arts. 8 and 9, U. S. Treaty Series, No. 701; the Halibut Treaty of 1930, Art. 2, ibid., No. 837; the Sockeye Salmon Treaty of May, 1930, Art. 3, ibid., No. 917; the Fur-Seal Convention of 1911, Art. 7, ibid., No. 564.

109 International Whaling Statistics, Vol. 14 (1940), p. 18. During the 1935–36 season, at the Antarctic hunting grounds, Norway killed 46.5 per cent of the whales and produced 45.8 per cent of the oil; Great Britain killed 40.4 per cent of the whales and produced 40.9 per cent of the oil; Japan 2.0 per cent of the whales and 1.8 per cent of the oil; Panama captured 7.9 per cent of the whales and produced 8.4 per cent of the oil; Germany did not participate. In the season that followed (the percentage of whales killed is followed by the oil production percentage): Norway 43.4, 43.6; Great Britain 35.7, 36.8; Japan 5.7, 5.9; Germany 2.7, 2.3; Panama 6.9, 6.8. In the 1937–38 season: Norway 32.5, 34.7; Great Britain 35.0, 34.5; Japan 12.1, 11.6; Germany 11.4, 10.7; Panama 3.3, 3.5. In the 1938–39 season: Norway 30.0, 29.9; Great Britain 29.2, 31.6; Japan 19.7,17.1; Germany 13.2,13.3; Panama 2.4, 2.4. Ibid., p. 17.

The expeditions operated by the different countries in all regions (given in the order: shore stations, floating factories, catchers) are as follows:

Country 1935–36 1936–37 1987–38
Norway 4 16 105 4 16 102 4 11 95
Great Britain 8 11 131 8 15 146 4 11 117
Japan 17 1 28 8 2 37 21 4 55
Russia .. 1 3 .. 1 3 .. 1 3
United States 2 2 15 2 3 22 1 2 20
Germany .. .. .. .. 1 6 .. 5 38
Panama .. 2 15 .. 2 13 .. 1 9
Denmark 1 .. 3 1 1 9 1 .. 4

Ibid., seriatim.

110 Until the 1934–35 season the men were almost exclusively Norwegians. In the 1935–36 season 455 or 6 per cent were non-Norwegians, most of them being Japanese. Since that time the following shift has taken place:

Season Total Norwegian British Japanese German Others
1936–37 9,321 7,678 454 837 255 97
1937–38 11,227 7,615 675 1,840 886 211
1938–39 12,705 7,517 866 2,793 1,386 143

Ibid., Vol. 14 (1940), p. 19.

111 Agreement, Final Act, Par. 10, this Journal, Supp., Vol. 34 (1940), p. 114.

112 Loc. cit. (supra, note 14), p. 120.

113 The most recent statistics reveal that only 883 Humpback Whales were taken in the Antarctic during the 1938–39 season, as compared with 2,039 for the previous season; also, the total number of whales killed has decreased. International Whaling Statistics, Vol. 14 (1940), pp. 5, 9.

114 See this Journal, Supp., Vol. 34 (1940), p. 124.

115 “The Conference as a whole, in the opinion of the delegation of the United States, recognized that under the present Agreement the number of whales killed annually was so great as to threaten the perpetuation of the whole stock. While appreciating this danger, both from the biological and the commercial viewpoint, the delegates could not agree, under the existing conditions, on any measures which would impose restrictions drastic enough to strike a reasonable balance between the number killed annually and the natural increase of the stock.

“Now that all countries having an important interest in the production of whale oil have become parties to the International Agreement for the Regulation of Whaling, further progress may well be anticipated in the acceptance of the necessary measures of conservation.” Ex. Doc. C, p. 19.

Lieut. Commander Richmond expressed similar views in his letter of Oct. 23,1939: “With respect to the protection which is attempted through the various whaling conventions, I might say that it is my opinion, and I am not alone in this, that they are all ineffective in that they do not go far enough. Generally speaking they only protect the calves and certain species already commercially extinct. If you evaluate the number of calves taken annually with respect to the total number of whales taken, you will see that if you could attain 100 per cent enforcement, you still would not solve the problem of conservation.” He then proceeded to outline the plan he believed should be adopted, cited supra, note 79.

116 The report of George Grafton Wilson and Sir John Fischer Williams to the Institut de droit international concluded: “La conservation des richesses de la mer ouvre un champ favorable à la coopération intemationale, étant donné qu’il ne s’agit pas ici d’intérêts par lesquels les États sont opposes les una aux autres, mais d’intérêts concordants et opposés seulement à l’intérêt égoiste de l’exploitation effréiée de la mer.” Annuaire, Vol. 40 (1937), p. 96.