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Bowman, Michael --- "Transcending the Fisheries Paradigm: Towards a Rational Approach to Determining the Future of the Internation Whaling Commission" [2009] NZYbkIntLaw 4; (2009) 7 New Zealand Yearbook of International Law 85

Last Updated: 14 April 2013


Michael Bowman*


While “Save the Whales” has become something of a clarion call in recent times, the translation of this mere slogan into a rational scheme of management for cetacean species remains a formidable task, and one which depends upon securing answers to a number of complex questions. From what, exactly, are whales to be saved, for whose benefit and to what end? Even within the International Whaling Commission, the institution with global management responsibility in this area, nothing resembling a consensus on these issues has yet emerged. Plainly, the IWC’s functions must be understood by reference to the declared objectives of its constituent instrument, as seen in the light of the broader contemporary values and goals of the international community, but until very recently little in the way of informed inter-governmental debate on these matters seems ever to have occurred. A further major impediment to the formulation of a rational strateg y is the grave uncertainty which currently attaches to the notion of rationality itself, of which our intuitive, everyday understanding has been shown to be profoundly deficient. Even within academic disciplines which have traditionally accorded it a pivotal role, such as philosophy and economics, confusion and uncertainty remain rife. It is evident that meaning ful progress in this area will be dependent upon standing back from all purely individual perspectives – whether personal, professional, cultural or disciplinary in origin

– in order that a much keener and more comprehensive appreciation of the

concept of rationality, in all its many forms, may be achieved, and current misapprehensions regarding its specifically psychological dimension in humans thereby dispelled. In any event, no rational plan for the management of living resources can conceivably be developed unless it is moulded very precisely around the multifarious manifestations of biological rationality which, thanks to natural selection, permeate the living world itself. Careful study of such matters may even lead to an enhanced appreciation of the institutional processes and structures through which human decision-making might itself be made more rational. Elements of enlightenment on all these aspects may, moreover, be obtainable from the most unlikely sources.

* Associate Professor, University of Nottingham and Director, University of Nottingham

Treaty Centre.


I. Introduction: A Brief Behaviour al Digression

Nature has a strange way of disclosing its mysteries to us via a drip-feed of scientific discovery, much of which serves only to confound long-cherished assumptions. In the zoological sphere, the outcome is commonly manifest in a much keener appreciation of the extraordinary diversity and complexity of animal behaviour, and the grudging abandonment of previously entrenched modes of explanation, which have commonly been grounded in trite assumptions of genetically determined, fixed action patterns that were specific to, and uniform throughout, particular species. In the case of the common side-blotched lizard (Uta stansburiana) of south-west America and Mexico, for example, it came to light some years ago that the various morphs of the species adopt an interlocking network of diverse mating strategies in order to keep themselves in business, so to speak.1 Fortunately, these are clearly signalled to all concerned by the colour-coded throat patches exhibited by males: otherwise, scientists might well have taken forever to stumble across them and the lizards in question have battled themselves into oblivion in the meantime.

To elaborate, research suggests that, with a view to cornering the market in females, orange-throated males maintain large territories of their own which they constantly seek to expand, adopting a highly aggressive approach towards any other male they encounter. Wherever possible, however, they seek to avoid establishing territories close to others of their stripe, gravitating instead towards those of a second group, the less assertive blue-throats. To meet this threat, the blues set up smaller, contiguous territories of their own which they then co-operate to defend against such aggression, while preferring always to engage in purely formal displays of hostile intent rather than actual combat. Such co-operation is not, it seems, restricted to close relatives – as conventional kin selection theory2 would demand – but extends to any conspecific of the appropriate hue. Yet, if it comes to outright confrontation between individuals, orange-throats invariably triumph. Blues are, however, sufficiently assertive to see off members of the third contingent, the yellow- throats, whose own lack of combative inclination causes them to eschew the territorial game entirely, and skulk instead around the domains of their orange brethren to snatch a surreptitious liaison while the lord of the manor is engaged in conquest abroad. Since the throats of females are also yellow, any orange-throat on patrol may temporarily be fooled into tolerating their presence; furthermore, should the latter’s attentions towards them actually become amorous, yellow-throats are likely to deflect them by mimicking a female rejection display.

1 See B Sinervo and C Lively “The rock-paper-scissors game and the evolution of alternative male strategies” (1996) 380 Nature 240 and further studies by Sinervo’s team at (2000) 38

Hormones and Behavior 222 and (2003) 300 Science 1949.

2 As to which, see J Smith “Group Selection and Kin Selection” (1964) 201 Nature 1145; R Dawkins The Selfish Gene (2nd ed, Oxford University Press, Oxford, 1989); D Queller and J Strassman “Quick guide: Kin selection” (2002) 12 Current Biology R832.

In this way, each of the three morphs has established a mating strategy that is likely, in appropriate circumstances, to prevail over that adopted by one in particular of its rivals. Although their relative population sizes rise and fall continuously, none of these various morphs ever disappears entirely. Plainly, each must have contrived to maintain a broadly acceptable strike-rate over the course of time, or there would no longer be individuals around to sport its colours and thereby proclaim the success of its game-plan. Thus, just as agriculture appears originally to have been devised by ants and language by bees,3 it seems that it was reptiles who first invented the familiar (and potentially interminable) game of “Rock, Paper, Scissors”.

Yet despite the unexpected variation and intricacy of these behaviour patterns, they would doubtless still seem rudimentary in the extreme by comparison with those of the human species, which are commonly supposed to have been elevated to a different plane of complexity and sophistication entirely. On this view, human intelligence, rationality, language and ethics have long ago liberated our species from such primitive and crudely restricted arrays of behavioural strategem. Yet such assessments may require to be treated with a measure of circumspection, on the grounds that they are always susceptible to distortion by other less vaunted but equally prevalent human characteristics – namely a tendency towards self-aggrandisement, self- justification and, ultimately, self-deception. Certainly, it is no great challenge to uncover instances of human activity where the participants appear to have become trapped in a broadly similar time-lock of trichotomous tribulation, endlessly repeating the same ritualised manoeuvres, as though incapable of reasoned advance.4 But whereas such behaviour in lizards serves admirably to preserve the species in all its divergent forms, in the case of humans the only perceptible outcome of the process – arguably, indeed its only discernible objective – is the perpetuation of conflict itself.

An obvious case in point in this respect is the International Whaling Commission (IWC), established in the immediate aftermath of World War II under the terms of the 1946 International Convention for the Regulation of Whaling (ICRW).5 Whereas the majority of international institutions in the conservation field have displayed some measure of corporate capacity to work together for the advancement of the common good, the IWC has for years remained stalled in an endlessly repetitive cycle of recriminatory stalemate.

3 See respectively on these issues K Dumpert The Social Biology of Ants (Pitman Publishing, Boston, 1981) and B Holldobler and E Wilson The Ants (Harvard University Press, Cambridge (Mass), 1990); M Lindauer Communication among Social Bees (Harvard University Press, Cambridge (Mass), 1961); K Von Frisch The Dance Language and Orientation of Bees (Harvard University Press, Cambridge (Mass), 1967).

4 This was, after all, essentially the model for Jean-Paul Sartre’s allegorical view of the entire human condition in his play Huis Clos: “L’enfer, c’est les (deux) autres.”

5 International Convention for the Regulation of Whaling (opened for signature 2 December

1946, entered into force 10 November 1948). For discussion, see M Bowman, P Davies and C Redgwell Lyster’s International Wildlife Law (2nd ed, Cambridge University Press, Cambridge, forthcoming 2010), chapter 6.

Although recent developments have offered some glimmers of hope for progress, this depressing cycle still has not yet actually been broken. While arguably less closely identifiable with particular protagonists, the basic tactical measures deployed in the ongoing IWC pantomime have not, in truth, differed greatly from the repertoire of their reptilian counterparts; accordingly, the struggle to trump rival interests has manifested itself in a widespread disposition towards confrontation, with overt aggression here and there; the recurrent formation of opportunistic alliances; regular recourse to bluff, posturing and threats (veiled or otherwise); and the use of stealth, dissimulation and outright deception on occasions. The protagonists themselves assume the form of disputant factions of states, each espousing its own distinctive perspective on the question of cetacean conservation. Thus, the pro-whaling contingent, in which Japan, Norway and Iceland assume the predominant roles, characterises the ICRW as essentially a fisheries operation, and the sole purpose of conservation as being to ensure that sufficient stocks are maintained to enable exploitation to continue into the future.6 A second, whale-watching, contingent, in which certain Latin-American states are particularly prominent, favours the non- consumptive exploitation of whales through the further development of an industry built around the recreational and educational potential generated by human fascination with cetaceans.7 Finally, a third, anti-whaling, contingent, amongst which the US, UK, Australia and New Zealand have been to the fore, emphasises the need for protection of whales for their own sake, focusing upon the considerable cruelty involved in the taking of such large and manifestly sentient creatures under the exacting conditions prevailing at sea and the extent to which the very survival of whale species has been imperilled by commercial exploitation in the past.

To casual observers, the practical distinction between the latter two perspectives might appear elusive, especially since whale-watching is in fact now well-established in many parts of the world, including countries in both (indeed, all three) categories. Representatives of the Latin-American group have, however, often been at pains to distinguish their own “discrete agendas” from those of both the other factions,8 which they have characterised as no more than contrasting versions of “developed country” perspective. As they see it, the distinction between their own position and that of the so-called “Like-Minded” group of anti-whaling nations lies specifically in the fact that:9

6 For expositions of the Japanese perspective, see, for example, K Sumi “The ‘Whale War’ Between Japan and the United States: Problems and Prospects” (1989) 17 Denver JILP 317; K Hirata “Why Japan Supports Whaling” (2005) 8 JIWLP 129.

7 See in particular J Palazzo, Jr “Whose Whales? Developing Countries and the Right to Use Whales by Non-Lethal Means” (1999) 2 JIWLP 69. The author, though writing in a personal capacity, confirms his own regular participation in IWC meetings, whether as an accredited observer or as a member of the Brazilian delegation, since 1984.

8 On this point, see especially Palazzo, ibid, at 72-76.

9 Ibid, at 73. See further, to similar effect, S Segi “The coexistence of whaling and whale watching in a traditional whaling region: The case of Taiji, Wakayama Prefecture, Japan” in SPC Traditional Marine Resources Management & Knowledge Information Bulletin (Noumea Cedex, New Caledonia, July 2003) 21, especially at 25.

the apparently disproportionate interest in formulating policy and taking action regarding cetaceans in Brazil and other developing countries is not based on philosophical or aesthetic considerations. Any policy based solely on these grounds would not survive in a nation beset by problems that are more down-to-earth. Rather, the conservation of cetaceans is viewed as one mechanism to help Brazil achieve the elusive objective of sustainable development.

Nevertheless, such differences of perspective have plainly not precluded the making of common cause wherever the respective interests of the two factions happen to coincide: thus, they have been united in recent times in their opposition to a resumption of commercial whaling, which has been the subject of a moratorium since the mid-1980s.10

II. The Plur alistic Nature of Conservation Philosophy

The existence of diverse motivations for conservation is, of course, nothing new. Indeed, from the very emergence of modern conservation thinking, and its translation into the realms of international regulation in the late 19th century, the involvement of several distinct constituencies has been evident. These have been described by one commentator as including, first, “conservationists, often government officials or professionals, who were concerned with the efficient management of natural resources for economic development”; secondly, “preservationists, who were intent on saving some areas in their natural state for aesthetic and spiritual values”, and, thirdly, “sports hunters, those interested in saving game for hunting”.11 While opinions may differ as to the precise contributions made by these various groups,12 there can be little doubt that all have played some part at least in the evolution of modern conservation efforts. Sport hunting in particular was championed by former US President Theodore Roosevelt, himself a keen huntsman, who is heralded by certain commentators as a key figure

10 The major whaling nations have, of course, both reserved and actually exercised the right to continue to take whales notwithstanding the moratorium – Norway, by virtue of its (prima facie valid) objection to the original decision, registered under Article V(3), ICRW; Iceland, pursuant to a far more controversial reservation to its recent instrument of re-accession to the Convention, as to which, see A Gillespie “Iceland’s Reservation at the International Whaling Commission” (2003) 14 EJIL 977; and Japan, in purported exercise of the right to take whales for the purposes of scientific research under Article VIII(1), the long-running controversy over which – for discussion, see Sumi, above n 6, especially at 317-340; A Gillespie “Whaling under a Scientific Auspice The Ethics of Scientific Research Whaling Operations” (2000) 3 JIWLP 1; G Triggs “Japanese Scientific Whaling: An Abuse of Right or Optimum Utilisation?” (2000) 5 APJEL 33; P Sand “Japan’s ‘Research Whaling’ in the Antarctic Southern Ocean and the North Pacific Ocean in the Face of the Endangered Species Convention (CITES)” (2008) 17 RECIEL 56 – has very recently culminated in the reference of the dispute by Australia to the International Court of Justice.

11 T Dunlap “Sport Hunting and Conservation, 1880-1920” (1988) 12 Environmental Review

51 at 51.

12 Regarding sports hunters in particular, see J Reiger American Sportsmen and the Origins of Conservation (2nd ed, University of Oklahoma Press, Norman, (OK), 1986) and the same author’s response to Dunlap, ibid, in the same volume of the Environmental Review.

in the development of North American environmentalism generally.13 Yet it is unlikely that he would have come to be viewed in this light had his own personal philosophy in these matters remained fixed throughout his life, and shown no signs of benefiting from the lessons of experience. As it happens, there is substantial evidence both in his conduct and his writings of a certain maturation from mere unrefined youthful machismo, self-indulgence and excess14 to a rather more thoughtful and nuanced perspective that emphasised sportsmanship, humaneness and field naturalism over mere trophy-bagging and butchery.15 Ideally, indeed, he came to believe, the true sportsman should become adept at photography, because “hunting with the camera” was both more demanding and more satisfying.16

A similar trend towards greater sensitivity and sophistication has been evident in the evolution of international wildlife and conservation law itself,17 and in the wealth of literature from the fields of ecological theory and environmental ethics by which it has been informed.18 On the basis of these writings, it is possible to discern a number of forms of value exhibited by elements of the natural world, upon which all conservation efforts must

13 See, for example, G Pinchot The Fight for Conservation (Doubleday, Page & Co., New York, 1910); R Nash The Rights of Nature: A History of Environmental Ethics (University of Wisconsin Press, Madison (Wis), 1989).

14 As a young man, it seems, he “shot birds of all kinds, including songbirds for his personal museum”, and was “determined to kill a ... buffalo, before the animals were all gone”: R Di Silvestro “Theodore Roosevelt, Hunting, and Wildlife Protection” Roger L Di Silvestro

< _and_conservation.html> .

15 For a sample of his own writings, see Hunting Trips of a Ranchman (G. P. Putnam’s Sons, New York, 1885); The Wilderness Hunter (G. P. Putnam’s Sons, London, 1893); Outdoor Pastimes of an American Hunter (Charles Scribner’s Sons, New York, 1905). For evaluation, see L Underwood (ed) Theodore Roosevelt on Hunting (The Lyons Press, Guilford (CT), 2003).

16 See Di Silvestro, above n 14; F Dunaway “Hunting with the Camera: Nature Photography, Manliness, and Modern Memory” (2000) 34 Journal of American Studies 207.

17 See generally Bowman, Davies and Redgwell, above n 5, especially chapters 1-3; M Bowman “The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law” in M Bowman and C Redgwell International Law and the Conservation of Biological Diversity (Kluwer Law International, London,1996) 5; A Gillespie International Environmental Law, Policy and Ethics (Oxford University Press, Oxford, 1997); J Alder and D Wilkinson Environmental Law & Ethics (Palgrave Macmillan, Basingstoke, 1999); C Stone “Ethics and International Environmental Law” in D Bodansky, J Brunnée and E Hey (eds) The Oxford Handbook of International Environmental Law (Oxford University Press, Oxford,

2007) 291; S Besson and J Tasioulas (eds) The Philosophy of International Law (Oxford

University Press, Oxford, 2010), section XI.

18 On the evolution of environmental ethics generally, see Nash, above n 13. For individual perspectives, see, for example, R Attfield Environmental Ethics (Polity Press, Cambridge, 2003); W Fox Toward a Transpersonal Ecology: Developing New Foundations for Environmentalism (State University of New York Press, Albany, 1995); F Mathews The Ecological Self (Barnes

& Noble Books, Savage (MD),1991); H Rolston III Conserving Natural Value (Columbia University Press, New York, 1994); S Sarkar Biodiversity and Environmental Philosophy: An Introduction (Cambridge University Press, Cambridge, 2005), and, for overviews of the field as a whole, R Attfield (ed) The Ethics of the Environment (Ashgate, Surrey, 2008); A Light and H Rolston III (eds) Environmental Ethics: An Anthology (Blackwell Publishing, Malden (Mass), 2003); and the extensive on-line bibliography prepared by the International Society for Environmental Ethics at <>.

necessarily be based. Although absolute uniformity of terminology remains elusive,19 the principal categories include instrumental, inherent and intrinsic value, which, as it happens, correspond very closely to the triplet of perspectives exhibited by the various factions within the IWC, as described above.

The instrumental value of an entity lies in the practical purpose it serves or the use to which it may be put, as in the case of fish consumed for food or trees cut down for timber. In the case of whales, their bodies represent a store-house of commodities that were once most highly prized, including meat, baleen (whalebone) and, above all, whale oil – in the US alone, such products were sufficient to sustain an industry that at its peak in the middle of the 19th century encompassed some 700 vessels and 70,000 employees, and yielded proceeds of US $11 million per year, an astronomical sum by the standards of the day.20 So intensively were whale stocks exploited in pursuit of these commodities that population levels collapsed in species after species. Today, these various forms of consumptive utility have been marginalised by the emergence of more attractive alternative products, with the American industry in particular having been all but extinguished as early as the mid-

1920s through the growing availability of petroleum oils, plastics and sprung steel. Only in a few countries, where the fisheries industry has historically been dominant, have traditional practices and perspectives on the harvesting of cetaceans tended to persist.

In the meantime, conceptions of instrumental utility itself have expanded considerably. Although human nature is such as to gravitate towards instrumentality of the most direct and anthropocentrically-oriented kind, the ultimately self-defeating nature of this propensity has now become too obvious to be ignored: it is plainly futile, for example, to seek to protect a species for the purposes of direct exploitation unless attention is simultaneously paid to the conservation of all those other species upon which it is itself ecologically dependent, especially as food sources. Accordingly, it is recognised, at least in principle, that contemporary conservation policy must embrace far less obvious and immediate manifestations of instrumentality. The 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR),21 for example, had as a central objective the protection of krill, which, although not a significant focus of direct human exploitation at the time, were known to lie at the heart of the Antarctic food web, thereby sustaining numerous other species, including whales themselves. Other forms of indirect utility have also

19 Particular confusion is evident in the usage of the terms “inherent” and “intrinsic” value.

This is scarcely surprising, as the precise distinctions of meaning presented here are in essence merely conventional, rather than deriving from any nuance which is intrinsically (or inherently) implicit in the words themselves.

20 For discussion, see J Cherfas The Hunting of the Whale: A tragedy that must end (Bodley Head, London, 1988); E Dolin Leviathan: The History of Whaling in America (W W Norton & Company, New York, 2007); P Hoare Leviathan, or The Whale (Fourth Estate, London, 2008).

21 Convention on the Conservation of Antarctic Marine Living Resources (opened for signature

5 May 1980, entered into force 7 April 1982).

been recognised, albeit somewhat selectively. Thus, one early conservation endeavour sought protection for certain species of birds which, as prodigious consumers of insects which might otherwise levy an excessive toll on crop yields, were considered vital to European agricultural interests.22 Eventually, this progressive extension of protective focus must reach its rational apotheosis with the realisation that every species exists and survives not in isolation but as a contributing part of a functioning ecosystem, and that human survival ultimately depends upon the preservation of all the diverse and interlocking life support systems of the biosphere.23

Inherent value, by contrast, is that which an entity exhibits of itself – that

is, by virtue of being prized for its very existence, rather than for its practical or

ecological utility. Seemingly, therefore, its realisation must depend upon the

perceptions of a conscious valuer capable of recognising the special qualities of

the entity in question. Such value is typically manifest in aesthetic terms and,

in the case of whales, is exemplified through the practice of whale-watching,

which now sustains a global industry that has completely dwarfed its fisheries

counterpart in terms of scale and economic significance, having recently been

estimated to be worth over US $2 billion per annum.24 Inherent value is

not confined to the realm of aesthetics, however, but may also be reflected

in the symbolic or totemic significance that many plants and animals carry

for particular communities.25 Here again, whales have certainly been held in

such esteem in the spiritual traditions of some indigenous communities,26

and it may be that this once localised manifestation of value is currently

undergoing a process of gradual globalisation, as the growing popularity

of whale-watching serves to highlight the iconic status of whales as potent

symbols of the conservation process itself, and of humankind’s struggle

to liberate itself from its own ecologically destructive tendencies. Inherent

value, in all its forms, is also widely recognised within the international legal


22 Convention for the Protection of Birds Useful to Agriculture (opened for signature 19 March

1902, entered into force 6 December 1905).

23 See especially IUCN/ UNEP/ W WF, World Conservation Strategy (IUCN, Gland, Switzerland, 1980), and its 1991 revised version, Caring for the Earth (Earthscan, London,


24 S O’Connor et al, Whale Watching Worldwide: Tourism Numbers, Expenditure and Expanding

Economic Benefits (IFAW, Yarmouth Port (Mass), 2009).

25 For classic accounts, see J Frazer The Golden Bough (Ware, Herts., UK, 1993); C Lévi-Strauss Totemism (translated by Rodney Needham, Merlin Press, London, 1964) and for a modern overview, see P Passariello “Me and My Totem: Cross-cultural Attitudes towards Animals” in F Dolins (ed) Attitudes towards Animals (Cambridge University Press, Cambridge, 1999) 12. On symbolic significance more generally, see Dolins, ibid; T Ingold (ed) What Is an Animal? (Unwin Hyman, London, 1988); L Daston and G Mitman (eds) Thinking with Animals: New Perspectives on Anthropomorphism (Columbia University Press, New York, 2005).

26 The idea is graphically captured in Niki Caro’s acclaimed feature film, Whale Rider (2002).

27 Aesthetic, cultural and other inherent values are acknowledged in numerous treaties, featuring especially prominently in the Convention on Nature Conservation and Wildlife Protection in the Western Hemisphere (opened for signature 12 October 1940, entered into force 1 May 1942); the Convention concerning the Protection of the World Cultural and

Intrinsic value, finally, is the value which an entity exhibits of itself, for itself, quite independently of the interests or utility of others. It is sometimes referred to as moral value,28 on the grounds that all entities which exhibit it can be said to have a good of their own, and therefore to fall within the scope of moral considerability.29 Whereas a great many items (trees, tractors, trinkets, trigonometry and more) may embody utility of some description, plainly only those of a very special kind can be said to have a good of their own, in the sense that things can turn out well or badly for them in their own right, regardless of the effects upon others. Thus, although tractors are sometimes said to need oil in much the same way that animals need food, such usage is in fact entirely figurative, as tractors themselves plainly have no needs or interests of their own at all.30 Rather, it is humans who require that tractors be oiled to enable them to serve the human purposes for which humans have designed then – a quite different matter from an animal’s need for nutrition, which stems from and in turn sustains the internally generated biological programme by which every living thing is continuously motivated. In consequence, this specialised category of intrinsically valuable entities has become associated in the literature with the phenomenon of autopoiesis, that special property of self-generation which is characteristic of all living entities.31 Autopoietic intrinsic value theory might therefore be said to represent a more fully elaborated version of earlier approaches based on respect or reverence for life.32

It seems inevitable that any bioethical code that affords recognition to

intrinsic values will be required to address considerations beyond the mere survival of the species, to embrace considerations of individual well-being also. That is to say, all life-forms, whether at the level of the species or the individual organism, are capable of flourishing, languishing or perishing and – all other things being equal – bioethical policy should embrace the aspiration (already familiar to lawyers from the canon of principles governing treaty interpretation) that they flourish rather than perish (ut res magis valeat quam pereat). Policies of conservation are directed specifically at preserving

Natural Heritage (opened for signature 16 November 1972, entered into force 17 December

1975); and the Convention on the Conservation of European Wildlife and Natural Habitats

(opened for signature 19 September 1979, entered into force 1 June 1982).

28 B Norton “Commodity, Amenity, and Morality: The Limits of Quantification in Valuing

Biodiversity” in E Wilson (ed) Biodiversity (National Academy Press, Washington DC, 1988)


29 K Goodpaster “On Being Morally Considerable” (1978) 75 Journal of Philosophy 308.

30 See further R Frey “Rights, Interests, Desires and Beliefs” (1979) 16 American Philosophical

Quarterly 233.

31 Autopoiesis – from the Greek autos (self ) and poiein (to produce) – is in origin a biological term first coined by the Chilean biologists Humberto Maturana and Francisco Varela: see their Autopoiesis and Cognition: The Realization of the Living (D Reidel Publishing Company, Dordrecht, Holland,1980). For accessible explanations, see L Margulis and D Sagan What Is Life? (Simon & Schuster, New York, 1995); S Rose Lifelines: Biology Beyond Determinism (Oxford University Press, Oxford, 1997); F Capra The Web of Life: A New Scientific Understanding of Living Systems (Anchor Books, New York, 1996).

32 See further on this point Gillespie, above n 17, chapter 9.

the good-of-its-kind which, being encapsulated primarily within the genotype of each individual organism, is essentially shared with all its conspecifics and transmissible across the generations.33 Effective action in this regard ensures that the germline in question is preserved, guaranteeing a continuing lineage of individuals of that kind into the future. At the same time, it is now well understood that even conspecifics are not genetically identical, and that the individual variation which they exhibit considerably enhances the resilience of each species in the face of the endlessly varying challenges presented by its natural environment, whether in the form of disease, patterns of predation or parasitism, climate change etc.34 The variability of individuals, accordingly, is part of the good of every natural kind, and the survival prospects of any species in which it is lacking are inherently less secure. That is why biological diversity itself, including that which exists within species, has become a key focus of international conservation concern.35 The unique genetic profile of every organism that is the product of sexual reproduction provides the foundation for its individuality, which is then elaborated developmentally through the organism’s own (equally unique) sequence of life experiences, which, in the case of many animal species, are profoundly shaped by sophisticated learning processes. The totality of the characteristics of any organism (whether morphological, physiological or behavioural), which are the product of the interaction of its genotype with the environment, is referred to by biologists as its phenotype,36 and it is from this composite feature that the good-of-its-own inevitably emerges.

To illustrate the distinction, it may be noted that the capacity to form familial and social relationships represents an aspect of the good-of-its-kind of many species, including both whales and humans, since it helps to define and particularise the way in which that species functions and flourishes. The benefits derived by any individual from relationships actually formed represent part of the good-of-its-own, and deprivation of such benefits may in some circumstances prove devastating for the individuals concerned.37

Accordingly, human activities such as the culling of elephants or whales, if they are to be permitted at all, should have regard to the social and experiential implications for those that are left behind, in order to minimise the scale of suffering involved. Equally, the capacity to feel pain represents, by definition, part of the good-of-its-kind of any sentient species, since it provides a means

33 Biological heritage is not expressed exclusively in genetics, however, as epigenetic, behavioural and symbolic factors may also play a part: E Jablonka and M Lamb Evolution in Four Dimensions: Genetic, Epigenetic, Behavioral, and Symbolic Variation in the History of Life (Massachusetts Institute of Technology, Cambridge (Mass), 2005).

34 See generally the World Conservation Strategy, above n 23, section 3.

35 Note especially the Convention on Biological Diversity (opened for signature 5 June 1992, entered into force 29 December 1993), especially the definition of such diversity in article 2.

36 See, for example, E Mayr This Is Biology: the science of the living world (Belknap Press of

Harvard University Press, Cambridge (Mass), 1997), Glossary.

37 Note, for example, Harlow’s notorious experiments on social isolation in monkeys: D Blum

The Monkey Wars (Oxford University Press, Oxford, 1994), chapter 4.

by which individuals may protect themselves from future harm. At the same time, the interests of any particular individual plainly lie in avoiding harm wherever possible, at least if there are no important lessons to be learned from it. Accordingly, any acceptable ethical system should seek to minimise the pain and distress inflicted upon animals by human agency, especially where no compensating benefit to the animal or species in question is possible. Hence, recourse to unnecessarily cruel methods of killing, from which no good can possibly come, is almost universally condemned as unacceptable and offensive,38 at least beyond the ranks of those whose vested interests have prompted them to banish such considerations from active contemplation.39

The recognition of intrinsic values in nature does not, of course, imply

any absolute or indefeasible interest on the part of any particular repository of such value: this could not possibly be the case, since all living things are intrinsically valuable, and it is inevitable that their respective interests will routinely come into conflict. All that is entailed is an entitlement to moral consideration – an entry into the register of beings whose welfare is to be taken into account by moral actors – and it goes without saying that this will invariably require the accommodation of numerous interests. Furthermore, possession of intrinsic value implies only that the entity in question be not treated solely as a means to an end, and certainly does not negate the existence of instrumental and inherent utility in the same subject, or automatically preclude its exploitation. After all, part of the ecological role of every organism, humans and cetaceans included, is ultimately to be consumed, and thereby to contribute to the maintenance of the system. Thus, many life forms exhibit all forms of value concurrently, and all such considerations must be given due weight in the ethical calculus. Clearly, therefore, determining the precise balance which is ultimately to be struck is likely to prove both challenging and controversial. What can be stated with confidence, however, is that the wholly wanton infliction of cruelty or death is most unlikely to be justifiable in any circumstances, and that the total destruction or extinction of any particular life-form at human hands is to be considered a matter of grave consequence, to be avoided wherever possible.

III. Intrinsic Value Theory Challenged

Notwithstanding the caveats mentioned, it is clear that the extension of protective focus implicit in the recognition by any normative code of the concept of autopoietic intrinsic value will add appreciably to the substantive demands and practical complexities inherent in the operation of the system. Accordingly, it is no surprise to discover that the concept has come under

38 See on this point Bowman, Davies and Redgwell, above n 5, chapter 20.

39 On this, now well-established, phenomenon, see, for example, J Serpell In the Company of

Animals: A Study of Human-Animal Relationships (Cambridge University Press, Cambridge,

1986); L Birke Feminism, Animals and Science: The Naming of the Shrew (Open University

Press, Buckingham (UK), 1994).

heavy fire from certain quarters, and particularly from those whose personal proclivities, professional preoccupations and/or academic training incline them towards an essentially materialist and anthropocentric view of the world. The discipline of economics, for example, ignores it entirely, since its foundational concept of human utility, however widely drawn, simply has no means of taking it into account. The more perspicacious practitioners in the field readily acknowledge this as a potential difficulty,40 but others seek instead to marginalise the significance of intrinsic values altogether. As one noted commentary puts it:41

Intrinsic values are relevant to conservation decisions, but they are generally not measurable. As such they do not help to define actions in the context where choices have to be made against the backdrop of scarce conservation funds.

Yet this observation in truth reveals more about the limitations of the discipline of economics than about any entailed by the notion of intrinsic value;42 it may, indeed, even help to explain why, historically, economists have probably contributed more to the exacerbation of current declines in biological diversity than to the enhancement of viable conservation solutions.43 If value is to be determined, as economists insist, exclusively by reference to what people are prepared to pay, then many of the things which humans actually esteem most highly of all – life, love, freedom etc – will ultimately be denied recognition entirely: put simply, a crucial determinant of value here is surely that one would insist on not having to pay for such things, on the grounds they can only be trivialised and demeaned by being brought within the realms of commerce.

The shortcomings of economic analysis in this regard were recently brought home when its attention was directed upon our own species, whose members have (unsurprisingly!) always been accredited with intrinsic value for ethical

40 See, for example, N Hanley “The Economic Value of Environmental Damage” in M Bowman and A Boyle (eds) Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford University Press, Oxford, 2002) 27.

41 D Pearce and D Moran The Economic Value of Biodiversity (Earthscan Publications, London,

1994) at 1.

42 A more accurate and persuasive analysis might entail the acknowledgement that “while intrinsic values are fundamental to conservation decisions, they are not measurable by the mechanisms employed by economists. Accordingly, economists can provide only limited assistance in defining actions where choices have to be made against the backdrop of scarce conservation funds.”

43 Willingness to pay to protect nature is first of all dependent on fully appreciating its

instrumental value to humans as life support. As Clive Ponting notes in A Green History of the World (Sinclair-Stevenson, New York, 1991) at 155-156, classical economics and all its offshoots, from Marxist to ultra-liberal, have tended to treat nature as a free resource, just waiting to be turned into profit. Yet this completely ignores both its finite character and the extent to which humans are dependent on its preservation. Contemporary economists have undoubtedly made great progress towards capturing the instrumental values of wildlife more effectively – see, for example, L Tacconi Biodiversity and Ecological Economics: Participation, Values and Resource Management (Earthscan Publications, London, 2000); J Rietbergen- McCracken and H Abaza (eds) Environmental Valuation (Earthscan Publications, London,

2000) – valuing wetland services, for example, at around US $14 trillion per annum, but the

constraints regarding intrinsic values remain systemic: see further Gillespie, above n 17.

purposes. Specifically, in attempting to calculate the financial implications of climate change, a team of IPCC economists sought to take account of the costs of human mortalities that could be expected to occur. Since for this purpose life, like everything else, was to be valued in terms of what people were prepared to pay to preserve it, and willingness to pay depends crucially upon the ability to do so, the lives of people in developed countries were rated as being worth vastly more than those of their counterparts in the developing world. So much for the Universal Declaration of Human Rights and its ringing affirmations of the equal dignity and worth of all human beings! The economists in question reacted with a mixture of bafflement and irritation to the storm of protest which predictably ensued, arguing that they were merely implementing established scientific principles in making these calculations.44

In reality, however, the foundations of such an approach are essentially ideological rather than scientific, and the ideology in question is one which leaves much to be desired where the appreciation of fundamental values is concerned. It may be that the International Law Commission was influenced by such considerations when, in devising rules to govern the calculation of compensation for the purposes of state responsibility, it decided to replace a statement that it might “cover any economically assessable damage” with a reference to “any financially assessable damage”.45 It should also be noted that the IPCC economists themselves ultimately felt obliged to append an explanatory note to their final report indicating that the sums in question could not be taken to represent a true assessment of the value of human lives, but only a notional assessment for the purposes of an economic exercise.46

The alleged peripherality of intrinsic values has, however, by no means proved the sole focus of discontent in this context. Some development theorists, for example, have sought to question its very legitimacy, characterising it as merely a manifestation of Western “eco-fundamentalism”,47 whereby industrialised countries have sought to constrain the aspirations of developing nations through the imposition of alien values. This seems a curious critique, however, since the notion of respect and care for the community of life as a whole is one which has been authoritatively declared to find reflection in

44 See generally F Pearce “Global Row over the Value of Human Life” New Scientist (19 August

1995). The team’s decision may not actually have been unimpeachable even by their own lights, since, given the nature of the losses to be expected, it is not obvious why the willingness- to-pay method of valuation (WTP) was selected in preference to the willingness-to-accept- compensation method (WTAC), which would certainly have increased the ultimate cost substantially: for an accessible account of these distinctions, see Hanley, above n 40.

45 See Article 36(2) of 2001 Articles on the Responsibility of States for Internationally Wrongful Acts, and Associated Commentary, Report of the 53rd Session of the ILC, GAOR A 56/10. Note further in this regard the principles established by the UN Compensation Commission in its handling of environmental claims against Iraq.

46 See J Bruce, H Lee and E Haites (eds) Climate Change 1995: Economic and Social Dimensions of Climate Change (Press Syndicate of the University of Cambridge, Cambridge, 1996), Introduction and chapter 6 (especially [6.2.8] and Box 6.1). It was conceded that “the value of life has meaning beyond monetary considerations.”

47 D Lal “Eco-fundamentalism” (1995) 71 International Affairs 515.

all the world’s major belief systems,48 and, in so far as it might be associated with any particular geo-political region, features most prominently in Eastern traditions, such as Buddhism, Hinduism and Jainism.49 When the first faint glimmers of recognition of the need to protect wildlife for its own sake were inserted into the 1972 Stockholm Declaration on the Human Environment,50 it was at the behest of the Indian delegation,51 while the international “soft law” instrument which contains the most forthright affirmation of intrinsic values

– the 1982 World Charter for Nature – was essentially a developing country initiative, spearheaded by the government of Zaire.52 It would therefore be closer to the truth to acknowledge that the recognition of intrinsic values in nature has been an enduring feature of almost all societies and cultures, albeit one that attracts highly disparate levels of endorsement by different internal constituencies, and may also fluctuate markedly across different phases of social and economic development.

Reservations regarding intrinsic value have also emanated from the realm of philosophy, where its espousal is sometimes supposed to infringe the principle, first formulated by Hume,53 that one cannot logically derive a value (that is, an “ought”) from a mere fact (or an “is”), since values (or ethics) represent a logically autonomous field.54 Yet while this argument appears formally correct as far as it goes, its practical significance is gravely diminished for present purposes by the realisation that, as Hume himself recognised, our most fundamental moral values are not (and cannot be) derived by purely

48 In “Towards a Global Ethic: An Initial Declaration”, a statement approved in 1993 by the Council for a Parliament of the World’s Religions: for text and discussion, see J Beversluis (ed) Sourcebook of the World’s Religions: An Interfaith Guide to Religion and Spirituality (3rd ed, New World Library, Novato (CA), 2000), chapter 22; P Morgan and M Braybrooke (eds) Testing the Global Ethic: Voices from the Religions on Moral Values (International Interfaith Centre, Oxford, 1998). See further M Wright One Love, One Life, One Creation: Christian Spirituality and the World Religions (Interfaith Press, Princes Risborough, Bucks, UK, 1999); Caring for the Earth, above n 23, “Respect and Care for the Community of Life”.

49 In addition to the relevant chapters of Beversluis, ibid, see the entry “Religion and Animals” in M Bekoff and C Meaney Encyclopedia of Animal Rights and Animal Welfare (Greenwood Press, Westport (CT) 1998); J and J Engel Ethics of Environment and Development (University of Arizona Press, Tucson, 1990), especially chapters 17-19; D Keown (ed) Contemporary Buddhist Ethics (Curzon Press, R ichmond (UK), 2000), especially chapter 4; and the separate opinion of Judge Weeramantry in the Gabcikovo-Nag ymaros case (1997) ICJ Rep 7.

50 Principle 4, which adds little to what was already contained within Principles 2 and 3, unless

interpreted as a recognition of the need to preserve wildlife for its own sake.

51 On the drafting history, see L Sohn “The Stockholm Declaration on the Human Environment” (1973) 14 Harv Int’l LJ 423 at 459.

52 See generally W Burhenne and W Irwin (eds) The World Charter for Nature (2nd ed, Erich Schmidt Verlag, Berlin, 1986). The Charter was approved by 111 votes to 1, with only the United States voting against (and not on account of the issues under discussion here).

53 See especially D Hume A Treatise of Human Nature (1739-1740), Book III, Part I.

54 This argument is sometimes (understandably) confused with that which deplores the so- called “naturalistic fallacy” of seeking to define what is good in terms of what is natural: see G Moore Principia Ethica (Cambridge University Press, Cambridge, 1903).

logical means in any event.55 To the extent that philosophers have supposed that they could, they have tended to overlook or misunderstand the cultural, emotional and biological predispositions upon which such values are truly based.56 Logic may play its part in refining and developing foundational normative standards, but is not the means by which they are initially derived. Consequently, this objection to the recognition of intrinsic value is easily overcome.57

A further claim is that the concept of intrinsic value simply makes no

sense philosophically, on the grounds that there can be no value of any kind

without an evaluator, and, since it is only humans that are capable of conscious

evaluation, all values must necessarily be grounded in human preferences.58 Yet

this argument, too, is open to various objections. Most importantly, it seems

to misunderstand the essential nature of value itself, effectively substituting a

secondary and derivative meaning for what is actually its original and most

fundamental sense. Although it arguably reflects predominant everyday usage

in so doing, it should not be forgotten that the most basic connotation of value

(as is still evident in such etymologically related words as valency, valediction,

avail, prevail and countervail ) is that of strength, vitality, durability and/or

excellence – in short, it encapsulates the notion of flourishing.59 While this

concept may indeed imply the existence of a “valuer” of some description, this

requirement may as easily be satisfied through the identification of a beneficiary

as through that of a conscious appraiser. Thus, as regards instrumental values,

it can hardly be doubted that plants have long been of value to herbivores and

krill to whales, quite regardless of the presence of humans (or other conscious

evaluators) to observe these effects. In the case of intrinsic value, as the term

itself implies,60 it is simply that the exhibitor and the beneficiary of the value

in question are one and the same.

Yet this attempted rebuttal might still seem to leave one key question essentially unanswered, which is that if intrinsic value is defined as meaning the value that an entity exhibits of itself, for itself, on what precise grounds

55 Hume, above n 53, section I. See further the discussion of emotions and reason in Section 5 below.

56 Hume, ibid, section II.

57 The idea has also occasionally been floated that such recognition might involve commission of the naturalistic fallacy, above n 54 (see, for example, J Callicott “Intrinsic Value, Quantum Theory and Environmental Ethics” (1985) 7 Environmental Ethics 257 at 258), but this can easily be refuted, on the basis that it is impossible to determine what is good for, or about, any particular organism other than by reference to its biological nature: see Fox, above n 18, at


58 See, for example, J Callicott “Animal Liberation, A Triangular Affair” (1980) 2 Environmental

Ethics 311 (but cf also his later “Intrinsic Value in Nature: a Metaethical Analysis” (1995) 3

EJAP); I Sugg and U Kreuter “Elephants and Whales as Resources from the Noosphere” in M Freeman and U Kreuter (eds) Elephants and Whales: Resources for Whom? (Gordon and Breach Science Publishers, Basel, 1994) 17.

59 The Latin valere, from which it derives, was an intransitive verb signifying to flourish or be strong, while the exhortation vale meant, quite literally, “fare well”.

60 The Latin root intrinsecus carried the connotation of something completely self-contained, meaning literally “inwardly” or “pursued within”.

should that entirely auto-referential interest in self-realisation be translated into a value which humans themselves are obliged, as moral agents, to respect? To many philosophers, the answer is extremely straightforward, in that to recognise any identity as having a good of its own is of itself decisive for ethical purposes. Thus, according to Mathews:61

If something is characterized as intrinsically valuable, then it is simply analytic that, other things being equal, it should not be destroyed or prevented from existing. It has a prima facie claim to our moral consideration. ... In Kantian terms, this being is an end- in-itself, rather than a mere means to ends of ours, and we are morally obliged to treat it as such. We may choose to disregard this obligation, but in this case we are choosing to be immoral.

Yet while it is difficult to dispute this claim as a matter of principle, there may nonetheless seem to be something slightly unsatisfying in the espousal of any particular proposition as being axiomatic or “simply analytic”, and those whose moral standards are intuitively more self-oriented and whose affiliations rather more narrowly circumscribed may feel particularly disinclined to accept these ethical implications that others deem inescapable. It is therefore important to note that there are additional, more practical and self-serving, reasons for treating intrinsic values with the utmost seriousness for the purposes of our ethical judgments.

In particular, it should be apparent that the ongoing renewability of living

resources, even if prized for entirely utilitarian purposes, is in fact ultimately

dependent upon the reality of intrinsic value as a biological phenomenon,

since it is futile to expect that other life-forms will survive and evolve in the

wild in pursuance of anyone’s programme but their own.62 Consequently,

unless we take care to ensure that species we value instrumentally are allowed

to flourish in accordance with their own biological natures, we are simply

increasing the risk of their ultimate extinction, and the concomitant forfeiture

of all opportunity of continued exploitation. To illustrate the point, it was the

crass human disregard of the breeding behaviours of the heavily exploited

Northern fur seal which caused its population to crash towards the end of the

19th century, and it was only the conversion to methods of exploitation which

accorded greater respect to the seals’ own natural behavioural proclivities

that permitted the subsequent restoration of their numbers.63 Since the

maintenance of instrumental and inherent values over time is so clearly

conditional upon the preservation of the autopoietic processes by which they

are initially generated, there is powerful reason to enshrine the recognition

61 Above n 18, at 118-119.

62 Both animals and plants may, of course, be domesticated in order to meet human needs more effectively, though even then the extent to which their internal biological programme is actually modified is usually relatively marginal.

63 For overviews of this particular episode, see A Lowe International Law (Oxford University Press, Oxford, 2007) at 235-239; P Sands Principles of International Environmental Law (2nd ed, Cambridge University Press, Cambridge, 2003) at 561-566, and, for a more detailed account, S Barrett Environment and Statecraft: The Strategy of Environmental Treaty-Making (Oxford University Press, Oxford, 2005), chapter 2.

of intrinsic values into our moral calculus and legal frameworks, if only as an indirect means of protecting our own best interests in the long term, through the creation of additional normative counterweights to the self-defeating human tendency towards exploitative excess. In addition, there is simply no way of knowing what utility may lie in wildlife species which have not as yet been exploited, investigated, or even discovered, and unless all species are deemed to merit protection for their own sake in the interim, we are likely to deny ourselves many benefits which are as yet unappreciated or unquantified.

Indeed, ample evidence is now to hand that the fulfilment of complex, ongoing human aspirations that are themselves dependent on multiple contingencies and conditions is in the very nature of things much more likely to be successfully secured if pursued indirectly or obliquely, rather than by enshrining them as specific objectives. In this vein, John Kay, research director of the UK’s Institute of Fiscal Studies, has recently produced a catalogue of case studies to demonstrate that (and, to some extent, explain why) the happiest people are not those who pursue happiness overtly, the most profitable companies are not those that are the most profit-oriented and the wealthiest people are seldom the most materialistic.64 The pervasive theme of his work is that human objectives which are discretely conceived, strictly defined and operationally privileged often prove incapable of achievement precisely on account of the narrowing of focus they inevitably encourage, the concomitant loss of sight of other desiderata that may turn out to be prerequisites to the objectives in question, and the failure to recognise the inherent fluidity in a practical sense between ends and means. Oblique approaches are more likely to succeed because they aim to accommodate a wider range of goals and values simultaneously, recognise the limitations of factual knowledge and predictive models, and constantly adjust themselves to the evolving situation.

The point should require little elaboration in the present context, as

the unfolding saga of whaling regulation illustrates the process almost to perfection. Thus, the prototypical regulatory instruments, which were specifically geared towards securing the profitability of the whaling industry,65 achieved little success of any description, while the principal early control mechanism – global catch quotas based upon the “blue whale

64 J Kay Obliquity: Why Our Goals Are Best Achieved Indirectly (Profile Books, London, 2010).

65 For a succinct history of international regulation, see R Gambell “International Management of Whales and Whaling: An Historical Review of the Regulation of Commercial and Aboriginal Subsistence Whaling” (1993) 46 Arctic 97 and for more comprehensive accounts, P Birnie International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale-Watching (Oceana, New York, 1985); A Gillespie Whaling Diplomacy: Defining Issues In International Environmental Law (Edward Elgar Publishing, Cheltenham (UK), 2005). Following early attempts at self-regulation by the industry, the first formal treaty was concluded in 1931. The preamble to its replacement, the International Agreement for the Regulation of Whaling (opened for signature 8 June 1937, entered into force 7 May 1938), comprised a single recital which recorded the parties’ desire “to secure the prosperity of the whaling industry and, for that purpose, to maintain the stock of whales ...”.

unit” – must go down as one of the most misguided and inflexible of all those employed within the entire history of conservation practice.66 Being conceived from a narrowly anthropocentric, commercial viewpoint, and ignoring the ecological implications of exploitation completely, it could only serve to exacerbate the very problems it was aiming to solve. Human interests would actually have been served more effectively by the adoption of a better informed, more oblique approach, based upon a plurality of values, from the very outset.

Fortunately, however, the reactionary reservations and rumblings of discontent which continue to emanate from certain quarters over the notion of intrinsic value can now largely be treated – at least for present purposes

– as the dying echoes of battles lost, since it is clear that the international community has finally absorbed the lessons of history by according the concept a secure formal role in the theoretical foundations of contemporary environmental law. Thus, in addition to the various affirmations in soft law instruments referred to above, the very first recital of the preamble to the Biodiversity Convention (CBD), which has now attracted the support of almost the entire international community,67 explicitly endorses

the intrinsic value of biological diversity and ... the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components ...

It is noteworthy that intrinsic value is highlighted here not only by being placed first in the list, but also by being set apart syntactically from the catalogue of instrumental and inherent values which follow. This would seem to reflect strong and unambiguous recognition of the need for protection of all life forms for their own sake as well as for other reasons. Although some authors have sought to downplay the significance of this preambular reference,68 their arguments do not seem convincing, since the preamble is undoubtedly part of the text of a treaty, and of indisputable significance for the purposes of its interpretation.69 While it may be true to assert that it does not of itself import binding effect, that outcome is explicable simply on the basis that it is not the place where obligations are conventionally articulated. For the purposes that it is intended to serve – that is, to clarify the factual and/or legal background to the treaty, to highlight the principal motivations

66 See Gambell, ibid, at 98-100.

67 By August 2010, the Convention boasted 193 parties. Somalia and Iraq were the latest to accede, during 2009. The US signed in 1993 but has not ratified, largely on account of concerns regarding the financial and intellectual property dimensions of the Convention.

68 On this point specifically, see, for example, P Birnie, A Boyle and C Redgwell International Law and the Environment (3rd ed, Oxford University Press, Oxford, 2009) at 618-619 and, for a somewhat dismissive approach towards treaty preambles generally, A Aust Modern Treaty Law and Practice (2nd ed, Cambridge University Press, Cambridge, 2007) at 425-426.

69 Vienna Convention on the Law of Treaties (opened for signature, 23 May 1969, entered into force 27 January 1980), art 31. Naturally this point is not in any way disputed by the authors cited in the previous footnote.

for its adoption and to elucidate its object and purpose – the preamble is no less authoritative than the dispositive provisions,70 which it may, moreover, have a decisive effect in shaping.

In the case of the CBD, indeed, the substantive obligations seem actually

to have been structured around the recognition of this multiplicity of values.

Thus, although fairly frequent reference is undeniably made in the text71 to the

concept of “biological resources” – which are formally defined,72 in extremely

broad terms, to include any biotic element “with actual or potential use or value

for humanity” – it is quite clear that the conservation programme which the

Convention envisages is by no means restricted to this category. Rather, the

focus of its first-stated objective, and of the vast majority of the conservation

obligations which follow, is biotically all-embracing, being directed explicitly

upon “biological diversity” per se – that is, “the variability among living

organisms from all sources”.73 Such duties would therefore seem to have been

conceived quite independently of any past record, or even future expectation,

of anthropocentric utility. The continued exercise of rights and obligations

deriving from any earlier international agreements (including, for example, trade

or commercial treaties) is expressed to be legally contingent upon the absence

of serious damage or threats to biological diversity, not biological resources,

nor indeed to the possibility of sustainable utilisation of the latter, which is

not even mentioned in this context.74 Where the term “biological (or genetic)

resources” is expressly employed,75 it is usually, as might be expected, in relation

to obligations specifically concerning sustainable utilisation, and even in that

context the principles and guidelines which have been adopted by the CoP for

the implementation of the duties in question expressly require that account

be taken of intrinsic, as well as instrumental values.76 To underline the point,

governments are urged to consider non-consumptive as well as consumptive

uses of biodiversity and promote the more efficient, ethical and humane use

of its components.77 Furthermore, when the two bio-oriented expressions are

actually juxtaposed in the text of the CBD, in Article 8(c), it is for the purpose

of creating obligations to “regulate and manage biological resources [which are]

important for the conservation of biological diversity”, rather than, as a more

overtly anthropocentric formulation might have insisted, the converse.

70 See, for example, G Fitzmaurice “The Law and Procedure of the International Court of

Justice: Treaty Interpretation and Other Points” (1957) 33 BYIL 203 at 229.

71 In addition to the preamble and articles 1 and 2, see, for example, articles 9(d), 10, 12(c), 15,

17, 19.

72 Article 2, which provides definitions of a number of key terms, listed alphabetically.

73 Ibid. The definition adds that these sources include “terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part”, while diversity itself includes that which exists within species, and amongst both species and ecosystems.

74 Article 22 (1).

75 See above n 71.

76 Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity, adopted by the CBD CoP in 2004 pursuant to Decision VII.12. See especially Practical Principle 10(b).

77 As to the former, see [4] and [8(f )] and the Operational Guidelines to Practical Principles 5 and 6; as to the latter, note the Operational Guidelines to Practical Principle 11.

It is true that recognition is expressly accorded in the preamble to the fact that “economic and social development and poverty eradication are the first and overriding priorities of developing countries”, but it is at the same time acknowledged that the conservation and sustainable use of biological diversity is itself “of critical importance for meeting the food, health and other needs of the growing world population”, and can also be expected to produce a “broad range of [other] environmental, economic and social benefits”.78 It is ultimately, therefore, no surprise at all that intrinsic values should feature so prominently in the array of justifications for the modern, comprehensive conservation regime that the CBD seeks to establish, since, properly understood, they are critical not only to the current formulation of a coherent bioethical policy, but arguably also, as explained above, to the fulfilment of our own purely material aspirations in the medium to long- terms. It is against this background that the future evolution of the IWC must itself necessarily be considered.

IV. Current Negotiations Within the IWC

After the years of institutional sclerosis referred to above, the opportunity for the IWC to move into a completely new historical phase was presented by the adoption in 2006 of the St Kitts and Nevis Declaration,79 which called for the “normalization” of the IWC in accordance with the terms of its constituent instrument, the ICRW. This resolution is, of course, not of itself legally binding, but as the constitutionally adopted decision of an international body composed of sovereign states, it is nonetheless entitled to respect, and arguably entails a formal legal duty on the part of IWC members to give serious consideration, in all good faith, to the question of its implementation.80 Yet, given the fact that it was adopted by just a single vote, and the unlikelihood of even that slender majority being attainable in any other recent year, such consideration is bound to have regard to the underlying substantive merits of the arguments marshalled, or capable of being constructed, in its support.

In that respect, it is evident that the promoter of the resolution, Japan, was seeking a radical reconsideration of the status quo, whereby the Convention might be re-aligned more effectively with what it understood to be its original purpose of allowing “controlled and sustainable whaling”. The moratorium (which was noted in any event not to have been founded on advice from the IWC’s own Scientific Committee) was described as a purely “temporary

78 See the preamble, 18th-20th recitals.

79 IWC Resolution 2006-1, adopted by 33 votes to 32, with one abstention. The draft was accompanied by a brief position paper, “Normalizing the International Whaling Commission”, IWC Doc 58/12, prepared by the Japanese delegation.

80 This, at least, is one interpretation of the legal significance of “soft law”. On the nature of this phenomenon, see M Shaw International Law (6th ed, Cambridge University Press, Cambridge, 2008) at 117-119, and the various further sources there cited.

measure” that was “no longer necessary”, and the position of members that were “opposed to the resumption of commercial whaling” was declared to be “contrary to the object and purpose” of the ICRW.81 In that respect, the Convention was seen as essentially similar to the battery of other treaties that have been concluded since the 1920s with a view to regulating particular fisheries operations through the creation of an international organisation dedicated to that aim.82 It would be difficult, in all fairness, to dispute that, seen purely in structural and functional terms, the ICRW was indeed established essentially as a fisheries treaty, employing the familiar mechanisms of catch quotas, open and closed seasons, regulation of fishing gear etc. that were first brought to international prominence long ago in the Bering Sea Fur Seals arbitration83 and have since become ubiquitous in the field of marine resource regulation generally. From this perspective, opposition in principle to the restoration of “business as usual” through the setting of new catch quotas might indeed seem a thoroughly perverse stance to adopt, at least to the extent that it could be established that there were whale stocks capable of sustaining some level of commercial exploitation.

Yet it is far from clear that the perspective in question is grounded in an

adequate understanding of the Convention’s object and purpose as actually

conceived and expressed,84 which appears to have been significantly more

sophisticated than Resolution 2006-1 would suggest. When viewed in terms

of its founding philosophy, the ICRW appears very much less closely akin

to a simple fisheries treaty than has been commonly supposed. Japan, in

common with many other states that supported the measure, did not number

amongst the original negotiating states of the Convention, and therefore its

perceptions on the matter lack any privileged status that such participation

might conceivably afford.85 On the other hand, naturally enough, it enjoys

the same right as any other existing member, subject to the constraints

imposed by contemporary legal norms, to contribute to the shaping of the

organisation’s future. That being so, it is plainly necessary to have regard to the

extent to which the ongoing processes of implementation and interpretation

of the ICRW – including its fundamental object and purpose – may, or

indeed must, be fine-tuned in order to harmonise with the current state of

evolutionary development of the wider legal system. In short, it seems clear

that the future of the IWC must be resolved in the light of two principal

considerations, namely (i) the range of options that are constitutionally

81 Preamble, 5th and 9th recitals.

82 On this point, see in particular the Japanese position paper, above n 79. For the texts of relevant instruments and further information, see the website of the UN Food and Agriculture Organization at <> and the International Fisheries Treaty database at


83 (1898) 1 Moore’s Int. Arbitration Awards 755; 1 IELR 43 .

84 Viz, “... to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry ...”.

85 On this point, see in particular Vienna Convention on the Law of Treaties, above n 69, art


available to the parties in the light of all relevant legal parameters; and (ii) the particular option or options that seem most attractive and productive in policy terms – that is, what might be regarded as the most rational approach.

As far as the first question is concerned, it has already been explored, at

considerable length, in a preliminary assessment that was prepared within the

University of Nottingham Treaty Centre in 2007,86 and subsequently made

available to the IWC itself at the request of its Secretary, as prompted by the head

of the New Zealand delegation. Accordingly, the primary focus of this present

piece is upon the second question highlighted above. Nevertheless, it may be

useful to recapitulate the principal conclusions of the earlier study simply in

order to set the remainder of the discussion into clearer context, especially since

they proved contrary to conventional wisdom in various respects (and, indeed,

significantly at variance with what the author himself had actually expected to

discover). The first point – which must surely be regarded as beyond dispute

– is that, in order to determine the original object and purpose of the ICRW,

the Convention, and the preamble in particular, must be read as a whole, and

against the background of the factual circumstances and the preparatory work

that led to its adoption.87 If that task is undertaken with due care, various

features emerge which serve to set this instrument apart from the mainstream

of fisheries treaties which were concluded in the immediate post-war period.

In particular, it might be noted that:

• the Convention was explicitly designed to protect the global interest in preserving whales, rather than the interests of the parties exclusively, or primarily;

• it was for that reason that it was, quite deliberately, left open for accession by all states, regardless of their actual or potential involvement in whaling;

• the common interest was declared to lie not in securing any particular level of harvest but in achieving the “optimum level of whale stocks”, subject only to the need to avoid causing “widespread economic and nutritional distress”;

• the possibility of establishing as an actual objective the maximum sustainable yield of whale fisheries was specifically canvassed but deliberately rejected, and replaced by a simple observation that proper regulation would create an opportunity for increased take in due course;

• the interests of the whaling industry itself were downgraded to the level of a mere factor to be taken into account in fixing catch quotas, and the previously established goal of securing its profitability was simply abandoned as an avowed aim;

86 Later published as M Bowman “‘Normalizing’ the International Convention for the

Regulation of Whaling” (2008) 29 Mich J Int’l L 293.

87 Vienna Convention on the Law of Treaties, above n 69, art 31-32. It is of little moment whether the parties to any dispute regarding interpretation of the ICRW are also parties to the Vienna Convention, as its provisions on interpretation have been repeatedly declared by the International Court of Justice to represent customary international law.

• the new objective of securing the “orderly development of the whaling industry” must in all the circumstances – especially (i) the immediately post-war context in which the Convention was itself adopted, (ii) the precipitate expansion of whaling activities at the time as ships once more became available for commercial use, (iii) the widely expressed fears of conflict and threats to security posed by these activities, particularly in Antarctica, (iv) the drafting Conference’s acquiescence to the Chair’s refusal to admit into the text any reference to issues concerning the development of the industry generally, and his repeated reminders that the parties had convened to discuss the question of conservation specifically, and (v) the reasonably well-established usage amongst the negotiating states with regard to the term “orderly development” itself – be seen as reflecting primarily a concern for order within the industry rather than development;

• the key objective was accordingly to provide for the conservation of whale stocks, on a basis that was not only “effective” but “proper”, however that might be interpreted; and

• the one aim that was expressly declared to be “essential” was the protection of all species of whales, which, in the light of evolving practice concerning the deployment of such terms in international legal instruments of that era, is at least open to the interpretation that the regulatory regime to be established with respect to whales (which were themselves described at the drafting Conference as “wards” of the entire world) was designed at least in part for their own sake, as well as with a view to preserving whatever utility they might hold for humans.

In the light of these considerations, it is apparent that the conventional perception of the IWC as merely a “cartel” or “whalers’ club” is extremely misleading. In particular, it overlooks the fact that the government which both hosted the diplomatic Conference convened to secure the adoption of the ICRW and undertook all the preliminary drafting work, the United States, though once a major whaling nation, no longer had any significant direct involvement in the industry. Furthermore, one of its key policy aims was actually the breaking of the power of cartels. It seems that some of the original motivations underlying the Convention may then have become submerged for a while as the competitive drive to exploit whales once again intensified,88 and the influence of its original architect, Remington Kellogg, gradually declined,89 before re-emerging with the abandonment of whaling

88 A brief resurgence of whaling in the US itself during the 1960s, albeit on a very small scale, may also have influenced these developments.

89 Kellogg, who had represented the US on whaling matters since the 1930s, and led its delegation at international conferences during the following decade, was by profession an academic palaeobiologist and senior administrator at the Smithsonian Institute. He not only chaired the Conference in Washington at which the ICRW was adopted, but the IWC itself from 1952-4, having previously served as vice-chairman. He continued as US Commissioner until 1967, but attended his last IWC meeting in 1964, by which time advancing years,

by certain key states and the admission into the IWC of increasing numbers of non-whaling nations following the 1972 Stockholm Conference on the Human Environment.90

The reference to these later developments provides a timely reminder of the process through which the meaning of any given treaty, especially one which creates an international institution, is properly to be determined. It is becoming ever clearer that the correct approach to interpretation here is not to be founded upon an essentially static picture of the agreement as originally conceived, but rather envisages a process of dynamic evolutionary development of the instrument over the course of time in accordance with a number of key parameters.91 These include the actual practice of the parties in the performance of their obligations under the treaty, the developing impact of cognate legal norms which bear upon its implementation, and the flexibility inherent in the original wording employed in the text, which may be susceptible of modification or fine-tuning in accordance with the unfolding factual circumstances and developing legal environment. With regard to these principles, it is clear that a considerable amount of flexibility undoubtedly exists within the terms of the ICRW itself, in the sense that crucial concepts such as “optimum utilization of whale resources”, the “whaling industry” and even “whale catcher” are certainly capable of being remoulded – with surprisingly ease – around contemporary perspectives upon the appropriate utilisation of whales and the increasing economic importance of whale-watching activities.92 Such questions, moreover, must necessarily be given due consideration if the parties are to fulfil their ongoing constitutional commitments to secure the “proper conservation” of whales and the “orderly development” of the whaling industry.

When all these matters are taken into account, it becomes clear that all three of the major perspectives evident within the IWC are prima facie capable of being harmonised with the object and purpose of the ICRW, as that term

must be understood for the purposes of international law. As seen above,

increasing ill-health and pessimism over the performance of the IWC had begun to take their toll. He died in 1969, aged 77: see generally F Whitmore Jr Remington Kellogg 1892-

1967: A Biographical Memoir (National Academy of Sciences, Washington DC, 1975).

Kellogg’s successor, J McHugh, who also chaired the IWC, was seemingly imbued with a more conventional fisheries perspective, which the whaling states appear to have found much more compatible with their own: see respectively J McHugh “The Role and History of the International Whaling Commission” in W Schevill (ed) The Whale Problem (Harvard University Press, Cambridge (Mass), 1974) 305; Sumi, above n 6, especially at 319-321.

90 A key development was the adoption by the US in 1972 of the Marine Mammal Protection

Act, which prohibited its citizens and registered vessels from engaging in whaling on the high seas. McHugh, who was firmly opposed to the adoption of a moratorium on commercial whaling, resigned around that time, to be replaced as US Commissioner by Robert M White.

91 This point has, indeed, become even more firmly established in the jurisprudence of the

International Court of Justice in the relatively short period since the original article was written: see, for example, the Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, at [64]; Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment of 20 April 2010, at [204].

92 The ICRW definition of a whale catcher, for example, by a happy coincidence already includes any vessel used for the purpose of “scouting for whales”: see art II(3).

moreover, all three correspond to forms of value that are widely recognised within the system, insofar as it impacts upon conservation questions. Finally, the regime established in the ICRW to regulate traditional forms of exploitation is readily translatable to the practice of whale-watching, as is apparent from a comparison with the purely recommendatory measures that the IWC has already adopted in that regard.93 That being so, the persistent attempts by the pro-whaling faction to portray its own perspective as uniquely “rational”, and that of other constituencies as purely “emotional”, appear both presumptuous and misconceived,94 and lacking in adequate understanding either of human psychology generally or of the complexities specifically inherent in the concept of rationality itself. Given that the achievement of an appropriate accommodation of these various perspectives remains critical to the future of the IWC, and that any viable strategy for conservation and sustainability must, as the World Conservation Strategy itself points out,95 be grounded in a rational appreciation of the special nature of living resources – most notably their potential for both renewability and destructibility – it may be that the question of rationality itself would benefit from closer examination.

V. Planning the Future: The Quest for a R ational Approach

The issue is fundamental, since terms such as rationality and emotion are widely used in everyday speech without serious attention being given to their meaning, with the consequence that misunderstandings appear to be rife. For example, the widely-held belief that human cognition does in fact comprise two distinct and essentially independent processes – the emotional and the rational – and that these are specifically associated with the two hemispheres of the brain, is, it seems, grossly overdrawn, albeit not entirely lacking in scientific foundation.96 In reality, although the brain may indeed display elements of structural specialisation and operational modularity, it is also characterised by extreme interconnectivity, plasticity and dispersion of function.97 In particular, contemporary research findings provide no support at all for the popular

93 See further Bowman, above n 86, Part IV(C)(2).

94 See especially on this point, McHugh, above n 89, Sumi, above n 6, and both Resolution

2006-1 itself and the Japanese paper presented in support, above n 79.

95 Above n 23, section 1, [5].

96 For a varied sample of relevant writings, see R Carter Mapping the Mind (University of California Press, Berkeley, 1998); A Damasio Descartes’ Error: Emotion, Reason and the Human Brain (Putnam Publishing, New York, 1994) and Looking for Spinoza: Joy, Sorrow, and the Feeling Brain (Harcourt, New York, 2003); K Devlin Goodbye Descartes: The End of Logic and the Search for a New Cosmology of the Mind ( John Wiley & Sons, New York, 1997); R and B Lazarus Passion & Reason: Making Sense of our Emotions (Oxford University Press, New York/ Oxford, 1994); J Le Doux The Emotional Brain: The Mysterious Underpinnings of Emotional Life (Simon & Schuster, New York, 1996).

97 The cerebral hemispheres are linked by a connecting structure, the corpus callosum, damage to which may cause serious impairment of function. Moreover, the limbic system (the basic source of emotion) functions in constant communication with cortical areas that are crucial to the development of conscious experience: see generally N Carlson The Physiology of Behaviour (10th ed, Allyn & Bacon, Boston, 2009).

notion that individuals would be capable of achieving a more rational standard of decision-making if only they could free themselves from the pull of their emotions. To the contrary, the amply-documented experience of patients who have suffered traumatic injury to those parts of the brain that are most heavily implicated in generating the emotions strongly suggests that they would in such circumstances probably prove incapable of arriving at concluded decisions at all.98 As the eminent neuroscientist Antonio Damasio has explained, although such patients may well retain the ability to identify and discuss perfectly rationally the pros and cons of the choices available, they cannot then actually decide between them, becoming mired in interminable procrastination.99

In the absence of underlying emotion, none of the available choices appears preferable to any of the others. It seems likely indeed, that “rationality” (in this particular sense) has evolved specifically in order to mediate between the influences of contradictory emotional drives. Thus, Hume’s original intuition was essentially correct: rationality without emotion is like logic without a premise or mountaineering without mountains – there is simply no purchase that it can gain or progress that it can make. Accordingly, the desire to protect whales from unnecessary suffering is in itself no more or less emotional in character than the desire to preserve the tradition of coastal whaling or the availability of whalemeat as a food-source: each represents a rational response to a particular form of affective motivation.

The task therefore becomes one of reconciling or prioritising these contrasting preferences but, here again, our ability to do so on a truly rational basis cannot simply be taken for granted. Although rationality is commonly equated for such purposes with what is sane, sensible, reasonable or “normal”, it is evident that our judgments in this regard are always at risk of being subverted by individual idiosyncrasies of perspective. A regrettable, but undeniable, human propensity towards intolerance of values different from our own commonly causes us to categorise as “abnormal” or “irrational” attitudes that are simply not those that we ourselves would commend. In recent years, for example, a number of authors have sought explicitly to appropriate the mantle of rationality, or “reason”, in order to castigate what they see as the excesses of modern environmentalism in relation to such issues as conservation or climate change.100 Yet what they have succeeded in demonstrating most clearly is

98 For an interesting instance of the dawning of this realisation, note the development of the character Spock in the American TV series Star Trek. Having conceived him originally as a passionless automaton, the creators of the programme were astute enough to realise that he would then be incapable of contributing a rational viewpoint at all, so he was endowed with a human mother and a sufficient glimmer of human emotion to render his superior logical prowess feasible: see further J McCrone The Myth of Irrationality: The Science of the Mind from Plato to Star Trek (Macmillan, London, 1993), especially at 295.

99 Note especially the case of “Elliott”, discussed in Carter, above n 96, chapter 4; Damasio

Descartes’ Error, above n 96, chapter 3.

100 For notable examples, see, R Taverne The March of Unreason: Science, Democracy, and the New Fundamentalism (Oxford University Press, Oxford, 2005); N Lawson An Appeal to Reason: A Cool Look at Global Warming (Duckworth Publishers, London, 2008); M Ridley The Rational Optimist: How Prosperity Evolves (Harper, New York, 2010).

their own profound sense of irritation that not everyone shares their personal endowment of preferences and preconceptions. Certainly there is little in the quality of their analysis, or in their marshalling of relevant evidence, to suggest that they have achieved any higher level of objective validity or reasoned debate than the targets of their criticism.101 Quite commonly, indeed, they appear simply to have misunderstood or misrepresented important elements of the controversy, while failing to recognise those personal character traits of their own that have led them to do so.

Accordingly, there is much to be said for seeking to liberate ourselves, as far as is “humanly” possible, from all conceptions of rationality and normality that are grounded in mere uncritical self-affirmation. Indeed, as the psychologist Steven Reiss has convincingly demonstrated,102 the very idea of a “normal personality” is one which has customarily attracted far too much credence both amongst ordinary laymen and within the practice of his own discipline: it would be more appropriate to recognise the existence of a wide spectrum of normalities of attitude and behaviour across the human species as a whole. Human conduct generally is driven by a range of basic motivations

– Reiss himself identifies sixteen103 – which are common to all of us, though the balance amongst them varies markedly from one person to another, as determined by the interaction between a range of genetic and experiential factors. Thus, quite apart from any innate propensities they may exhibit, individuals who have undergone acute deprivation in relation to one or other of these needs – for sustenance, order or tranquillity, say – may be inclined to set much greater store by its satisfaction in the future.104 In addition, where entire communities have undergone traumatic shared experiences, such as the threat of famine or military aggression, it may be that their individual reactions become consolidated into collective values and traditions, producing highly divergent interpretations of the universal need for security. With regard to the specific question of whaling, for example, and the political circumstances

101 Which is not to suggest, of course, that their works are entirely without value or interest.

102 S Reiss The Normal Personality: A New Way of Thinking about People (Cambridge University

Press, Cambridge, 2008).

103 See Reiss, ibid, and also Who Am I? The 16 Basic Desires that Motivate our Actions and Define our Personalities (Tarcher/Putnum, New York, 2000). They are, in no particular order and with slight modifications of Reiss’ own terminology, the desires for sustenance, sexual activity, physical activity, independence, family life, social contact, social acceptance, order, tranquillity, power, status, honour, social justice, vengeance, acquisition/saving and satisfaction of curiosity. In chapter 2 of the later work, Reiss explains how his schema builds upon the foundations laid by earlier Harvard psychologists from William James onwards. It also represents a more empirically-based development of the field previously covered by other well-known theories, such as Abraham Maslow’s “Hierarchy of Needs”, as to which, see A Maslow “A Theory of Human Motivation” (1943) 50 Psychological Review 370; Motivation and Personality (Maslow: Harper & Row, New York, 1954). For an alternative modern perspective, see D Laming Understanding Human Motivation: What Makes People Tick? (Blackwell Publishing, Malden (Mass), 2004).

104 Of course, this is in no way inevitable, since human responses to such situations are extremely diverse – surviving deprivation may cause certain individuals to conclude that the needs in question could not have been so fundamental after all.

out of which the current regulatory system emerged, it would not be at all surprising that certain communities (such as the Japanese generations that lived through the 1940s) might rate the issue of food security most highly, while others (including their Australasian counterparts) might be motivated more by considerations of political security.105 However, while both are, on the face of it, perfectly rational responses to underlying human needs, it does not follow that either should necessarily be allowed to dominate or dictate the process by which future global policy must itself be rationally determined. To the contrary, a vital function of the policy-making process might be to liberate the community from some of its traditional preoccupations, and to emphasise previously subordinate concerns, or even to encourage the adoption of a wider array of values and perspectives altogether, particularly where the challenges it is likely to face in the future may differ markedly from those encountered in the past. Accordingly, the appropriate policy can only emerge from some overarching and, ideally, more thoughtful and objective deliberative process whereby the entire range of elementarily rational responses may themselves be evaluated, synthesised and – there is simply no escape from it – rationalised.

What these observations serve to demonstrate is that rationality itself is

neither inherently a concept of very great specificity or precision, nor one that

commands any single, uniform or definitive role within the context of formal

analytical discussion: rather, it tends simply to re-emerge in a fresh guise in

every different phase, context or forum in which the debate is conducted. This

tendency is in turn attributable to the fact that the word “rationality” per se

conveys, in keeping with its etymological origins, little more than a broad sense

of balance, coherence, consistency or conformity to what is appropriate.106 As

such, it has always been ripe for appropriation by almost any constituency

or discipline, which is then free to imbue it with its own particular nuance

or contextual orientation. In recognition of this point, Oxford behavioural

scientist Alex Kacelnik has recently identified at least three distinct disciplinary

versions of the concept,107 which he labels b-, e- and pp-rationality, to denote the

highly disparate senses in which the word is conventionally used by biologists,

economists, and philosophers and psychologists respectively. The first two

conceptualisations focus primarily upon behaviour itself, seen essentially as

an outcome and judged respectively in terms of its evolutionary adaptivity or

its propensity to maximise (or “satisfice”) individual preference or utility. The

third attends more to the processes which determine behaviour, especially the

means by which decisions are, or should be, reached, and the reasons upon

which they are, or should be, based.

105 See further on these aspects Bowman, supra n 86, Section III.B.2(a). Note that the issue of ensuring that the quest for food does not lead to conflict in the Antarctic region resurfaces explicitly as late as 1980, in the penultimate recital of the preamble to CCAMLR.

106 In its most basic sense in Latin, the word ratio connoted a reckoning or account, though it came to be applied in a host of more extended meanings as well, including several that are canvassed in this piece.

107 See, for example, his “Meanings of Rationality” in S Hurley and M Nudds (eds) Rational

Animals? (Oxford University Press, Oxford, 2006) 87.

Arguably, however, the respective conceptions of rationality which tend to prevail amongst philosophers and psychologists may need to be distinguished more sharply than this framework allows, while Kacelnik himself recognises that yet further disciplinary perspectives may need to be accommodated;108 it is therefore no surprise that there is currently ample room for confusion as to what precisely is to be judged to constitute “rational” behaviour. In particular, it is evident from the literature that rationality may variously be conceived as either a matter of substance or of process, as fulfilling a function that is either descriptive or prescriptive, and as a hallmark either of the continuity or discontinuity between humans and other species. It is, moreover, arguably within the disciplines in which it fulfils the most central role – economics and philosophy – that the greatest degree of confusion and uncertainty regarding these distinctions has been evident. In both cases, it seems, there is an urgent need for much more attention to be paid to the findings of psychologists, ethologists and neuroscientists regarding the ways in which cognitive and behavioural processes actually operate, rather than placing reliance on mere speculation or intuition for that purpose.

As regards philosophy, long traditions of celebrated works in this area have been gravely undermined by their authors’ uncritical assumptions regarding the ubiquity and uniqueness of human rationality as a form of higher thought process, and the reliability of their own untutored intuition as a means of reaching conclusions on the matter. In defence of their authors, they have, of course, lacked the benefit of acquaintance with the findings of modern scientific research, which demonstrate not only the significant limitations by which human rationality is actually constrained (and the extent to which it is in fact encountered in other species), but also the various specific categories of misapprehension to which our intuition is systemically subject.109 Pertinent examples of the latter include the tendency to equate (i) mere correlations and coincidences with causes,110 and (ii) confidence

108 He notes specifically the idea of “ecological rationality”, which connotes the broad array of rules of thumb – “fast and frugal heuristics” – through which much decision-making, including that of humans, seems actually to be conducted: see, for example, G Gigerenzer, P Todd and the ABC Research Group Simple Heuristics that Make Us Smart (Oxford University Press, Oxford, 1999). While he sees this as quite different from the other three concepts, it may be that it could in fact be utilised to provide some sort of bridge between them.

109 For a very recent and highly accessible introduction by academic psychologists, see C Chabris and D Simons The Invisible Gorilla, and Other Ways Our Intuition Deceives Us (Harpercollins Publishers, London, 2010). For a journalistic account, see K Schulz Being Wrong (Ecco, New York, 2010). For specific linkage of the notion of intuitional unreliability with that of rationality, see M Piattelli-Palmarini Inevitable Illusions: How Mistakes of Reason Rule Our Minds ( John Wiley & Sons, Hoboken (NJ), 1994).

110 This should come as no surprise, since the basic mechanism of learning in both humans and other animals is associative: thus, equating correlations with causes has plainly proved rational and adaptive as an overall rule of thumb, even though it remains strictly irrational in any given case (especially where we seek to influence the outcome of football matches by wearing our “lucky” clothes).

of manner with competence in performance,111 as well as to substantially overestimate (i) the extent of our own knowledge, understanding and intelligence,112 (ii) the robustness and reliability of memory113 and (iii) the plenitude of our attentiveness.114 It is, of course, possible to make due allowance for such vagaries, and even to counteract them up to a point, but only if they are first fully understood. Unfortunately, philosophers are still sometimes more inclined, even in the modern era, to devote their energies to the (entirely necessary) task of expostulating on the general role of science in modern society than to take the trouble of absorbing its specific lessons before doing so.115

Where economics is concerned, the inherent shakiness of conventional disciplinary assumptions regarding the nature, prevalence and significance of human rationality seem to be confirmed by the fact that hardly any experts in the field succeeded in predicting the current economic crisis,116 despite clear signals that bank lending and risk management policies were running completely out of control. It seems that the welcome (albeit surely inevitable) demise of communism in Eastern Europe may have generated a wholly unwarranted confidence in the infallibility of unrestrained free market capitalism, when it might more sensibly have been viewed as removing the last possible excuse for its continuance. Certainly there can no longer be any justification for simply assuming that the pursuit of individual self-interest will be “guided by an invisible hand” to advance the general welfare,117 as the current problems facing the global economy represent precisely the cumulative

111 The process whereby witness testimony is evaluated in the legal forensic process is cited as an instructive example.

112 Thus, surveys conducted by psychologists suggest that around 75% of subjects believe themselves to be of greater than average intelligence: it does not require great statistical expertise to conclude that this is unlikely to be the case, at least if the sample is properly representative.

113 Contrary to popular belief, memory is essentially a process of continual re-creation, rather than simple retrieval: for an illuminating discussion by a Nobel laureate, see E Kandel In Search of Memory: The Emergence of a New Science of Mind (Norton, New York, 2006).

114 Repeated experiments have demonstrated that, if asked to perform a task requiring close attention – typically, counting the number of passes completed by one team in a short, filmed sequence of a basketball game – fully 50% will fail to notice a “gorilla” (ie, a person dressed in gorilla costume) walk amongst the players and wave to the camera: it is from this now famous experiment that the title of Chabris and Simons’ work is derived.

115 For a conspicuous example by an author expressly purporting to speak on behalf of the discipline, see R Trigg Philosophy Matters (Blackwell Publishers, Malden (Mass), 2002). Happily, there are a growing number of exceptions to the general rule. On the broader issue, see E Slingerland What Science Offers the Humanities: Integrating Body and Culture (Cambridge University Press, Cambridge, 2008).

116 Honourable exceptions included Yale’s Robert Shiller: see in particular R Shiller Irrational Exuberance (2nd ed, Princeton University Press, Princeton, 2005) and The Subprime Solution: How Today’s Global Financial Crisis Happened, and What to Do about It (Princeton University Press, Princeton, 2008).

117 The idea derives, of course, from the writings of Adam Smith, especially The Wealth of Nations (1776); for a convenient modern abridgement, see The Invisible Hand, by Adam Smith (Penguin Books, London, 2008) especially at 58-59.

consequence of individual egoistic excess.118 It is difficult to avoid the conclusion that public opinion had over a period of time been systematically conditioned to tolerate such financial imprudence – and the public interest subverted by the elevation of Adam Smith’s essentially superstitious speculation to the status of a universal truth – by the very free-market fundamentalists who saw themselves as having most to gain from the process.119 Sadly, therefore, it seems that the only people who are truly guided by invisible hands are those who have not yet realised they are being manipulated or molested. Accordingly, while the noticeable recent reinforcement of trends within the discipline of economics towards incorporation of more realistic models of human behaviour is very much to be welcomed,120 it seems wise for the time being to remain wary of its pronouncements and prescriptions, at least in the absence of convincing corroboration from other quarters.

It is clear from all of this that there is a need for far more effective co-

ordination of the diverse existing perspectives upon the question of rationality, but, while Kacelnik himself has diffidently postulated the possibility of arriving at some grand inter-disciplinary synthesis, it seems that this aspiration is as yet some way from fulfilment, and that the pursuit of a truly rational approach to decision-making in any given context must for the time being proceed on an essentially speculative basis. In the light of Kay’s compelling advocacy in favour of “oblique” approaches, it might in any event prove preferable in principle to act on the basis of some rough-and ready, suitably malleable, pluralistic matrix, rather than to aspire to the creation of any highly formalised and streamlined, single-value, mathematically expressible model. Clearly, the task remains formidable, although the gradual emergence of an increasingly coherent set of principles to govern the conservation of natural life-forms and the sustainable utilisation of renewable resources should at least be of some assistance in the present context.

118 For a brief and diverse sample of the veritable deluge of books on the matter, see G Tett Fool’s Gold: How the Bold Dream of a Small Tribe at J. P. Morgan was Corrupted by Wall Street Greed and Unleashed a Catastrophe (Free Press, New York, 2009); N Ferguson The Ascent of Money: A Financial History of the World (Penguin Press, New York, 2008); L McDonald and P Robinson A Colossal Failure of Common Sense: The Inside Story of the Collapse of Lehman Brothers (Crown Business, New York, 2009); C Reinhart and K Rogoff This Time Is Different: Eight Centuries of Financial Folly (Princeton University Press, Princeton, 2009).

119 Faith in the virtues of competition, in particular, appears to be strongest amongst those who are themselves competitive by nature, and/or imagine that they will be the ones to profit from it.

120 For an overview of the current state of the discipline, see “Leader: What Went Wrong with

Economics” and “Briefing: The State of Economics” The Economist (United Kingdom, 18

July 2009) at 11; 70. The emerging approach, which builds upon earlier work by Daniel Kahneman, Amos Tversky, Herbert Simon and others is usually referred to as behavioural economics, as to which, see R Thaler and S Mullainathan “Behavioural Economics” in D Henderson (ed) Concise Encyclopedia of Economics <> D Ariely Predictably Irrational: The Hidden Forces That Shape Our Decisions (HarperCollins, New York, 2008); P Diamond and H Vartiainen (eds) Behavioural Economics and Its Applications (Princeton University Press, Princeton, 2007); G Akerlof and R Shiller Animal Spirits: How Human Psychology Drives the Economy, and Why It Matters for Global Capitalism (Princeton University Press, Princeton, 2009).

A broad and highly simplistic outline might be sketched as follows. At its most basic level, rationality essentially is the pursuit of individual, internal motivation, as that is how all autopoietic entities must inevitably behave: indeed, failure to follow this programme would lead to, and/or be evidence of, terminal dysfunction and decline. As organisms become more complex, they tend to acquire a wider range of drives and emotions, which exist in a relationship of dynamic tension through which functional coherence is maintained, at least as long as no single one is pursued so intensively as to throw the organism out of kilter entirely. The precise balance, however, whether in humans, whales, lizards or other creatures, is likely to be struck differentially by different sub-populations and individuals, a feature which is itself to be seen as a source of strength – and therefore biologically rational for the species as a whole – in view of the widely divergent and constantly evolving challenges which the environment may present. That is why variability as such is made the focus of attention in the Biodiversity Convention itself, as explained above. As genuinely social species emerge, moreover, individuals acquire the opportunity to benefit directly and personally from this variation, through the diversity of temperaments and talents it generates, and the consequent differentiation of behavioural functions that it permits. Thus, in species as diverse as humans, wolves and ants, individuals contrive to specialise in the tasks they are best equipped to perform and the overall workload is thereby rationalised.121 On the other hand, excessive specialisation has the potential to increase individual vulnerability, so there may be benefit in each one retaining some element of plenary capacity, and the ability to exchange roles, as in the case of co-operative hunting strategies amongst dolphins.122 Thus, each emerging trait has a natural tendency, under the spotlight of natural selection, to generate a counterweight to keep it in check.

Precisely the same is true at the higher levels of biological organisation, such as the ecosystem, where the network of interactions between species and abiotic elements contrives again to produce an element of dynamic equilibrium. Certain forms, known as keystone species, have been identified as playing a particularly pivotal role in the maintenance of ecosystem function, with large predators commonly ascribed such roles.123 Obviously, they serve to

121 Adam Smith asserted that this trait was unique to humans, Invisible Hand, above n 117, at

19, but see, for example, Wilson, above n 3; M Bekoff “Wild Justice, Cooperation and Fair Play” in R Sussman and A Chapman (eds) The Origins and Nature of Sociality (Walter de Gruyter, Hawthorne, NY, 2004) 53; S Ellis, with P Junor, The Man who Lives with Wolves (Harpercollins, London, 2010), chapter 24.

122 See, for example, V Bel’kovich et al “Searching and Hunting Behavior in the Bottlenose Dolphin (Tursiops Truncatus) in the Black Sea” in K Pryor and K Norris Dolphin Societies: Discoveries and Puzzles (University of California Press, Berkeley and Los Angeles, 1998) 38 at 39.

123 See, for example, P Colinvaux Why Big Fierce Animals are Rare: An Ecologist’s Perspective (Princeton University Press, Princeton, 1979); I Payton, M Penner and W Lee Keystone species: the concept and its relevance for conservation management in New Zealand (Department of Conservation, Wellington (NZ), 2002); W Stolzenburg Where the Wild Things Were: Life, Death and Ecological Wreckage in a Land of Vanishing Predators (Bloomsbury, London,


regulate the population size of prey species (some of which may themselves be predatory), but the converse is also true, since otherwise predators (specialist feeders, at least) would simply be precipitating their own extinction – thus, during times of food shortage the offspring of large predators are obviously less likely to survive, and birth rates may even decline of their own accord. When large predators themselves ultimately die, the wealth of nutrients stored up in their carcasses is released back in to the ecosystem to replenish the food sources of innumerable smaller species. In this way an element of continuity and balance is preserved.

It may be that natural selection also has an inherent tendency to channel the development of these multi-layered, systemic manifestations of biological rationality towards the emergence of rationality of a more cerebral kind, especially in social species. Living in close proximity and continuous interaction with others, for example, and coping with the plethora of problems which that entails, may well precipitate, or presuppose, the emergence of behavioural adaptations to minimise conflict and preserve harmony. Dominance hierarchies, reconciliation protocols and the ability to interpret and predict the responses of others are important mechanisms through which the level of conflict may be contained within manageable levels.124 The development of advanced cognitive and meta-cognitive skills is likely to assist this process significantly. The precise distribution and extent of these capacities in non-human animals, by comparison with humans, is still very much the subject of controversy, but there is little doubt that the vast cognitive gulf conventionally postulated by generations of scientists and philosophers is being rapidly spanned or shrunk by a wealth of experimental data.125

On the other hand, there are inherent limitations upon the capacity of individuals to process information, and for this and other reasons the natural tendency will be for growing populations to fragment into discrete social groups of lesser size,126 which might be seen as a further stage in the socio-biological rationalisation process. The existence of such discrete communities then creates the opportunity for a range of different life- styles and cultural traditions to evolve, presenting a plethora of options for collective survival and development. Civilisations rise and fall in accordance with the internal socio-political viability of these strategies, and the ease with which they can be accommodated within the external constraints of the natural environment. While contemporary research again casts increasing doubt upon the traditional perception of culture

124 See generally J Krebs and N Davies (eds) Behavioural Ecology: An Evolutionary Approach (4th ed, Blackwell, Oxford, 1997); C Barnard Animal Behaviour: Mechanism, Development, Function, and Evolution (Pearson Education, Harlow (UK), 2004).

125 For an invaluable overview, see Hurley and Nudds, above n 107.

126 Neocortical expansion generally, and the development of language specifically, serves to enhance capacity in that respect: see generally R Dunbar Grooming, Gossip and the Evolution of Language (Faber and Faber, London/ Boston, 1996).

as a uniquely human phenomenon,127 there is little doubt that it is most extensively developed in our species, and is also sufficiently highly valued to have attracted formal legal protection. Cultural rights are safeguarded through a range of human rights instruments,128 while the importance of cultural diversity itself is specifically recognised in a sequence of measures adopted by UNESCO, including the 2001 Universal Declaration to which Japan made specific reference in its position paper on normalization.129 The IWC itself has traditionally shown respect for such diversity to the extent of setting harvesting quotas for indigenous communities notwithstanding the moratorium, while the Biodiversity Convention recognises the possibility that such communities may possess valuable wisdom from which urbanised and industrialised societies might learn, given the sensitivity to environmental sustainability that they have commonly (albeit not invariably) exhibited.130 Finally, with increasing globalisation, and the associated reintegration of human cultures, which has been driven by rapid advances in travel, trade, technology and communications, the opportunity arises to rationalise the entirety of human perspectives upon, and relationships, with the natural environment. Indeed, the need for such a project seems all the more urgent in view of (i) humankind’s apparent ability to transcend the normal ecological constraints upon over-exploitation through the sheer breadth, intensity and ingenuity of exploitative effort and (ii) the very real possibility that this apparent transcendence is purely illusory, in that it is merely setting the scene for ecological disaster in the longer term.

It therefore seems clear that no truly “rational” approach to the management of natural ecosystems can be conceived unless due account is taken of all the many internal rationalities of which they are themselves composed. Furthermore, despite popular perceptions of nature as “red in tooth and claw”, it is plain that co-operation is just as ubiquitous in nature as competition.131 It is against this background that the most promising paradigm for a rational approach to the exploitation of whales must be sought. In principle, it should be that which achieves the most appropriate and effective accommodation of all the various interests involved, and the most faithful reflection of the declared values of the international community, as projected against the backcloth of the specific object and purpose of the

127 J Bonner The Evolution of Culture in Animals (Princeton University Press, Princeton, 1983); R Sapolsky “Culture in Animals: The Case of a Non-human Primate Culture of Low Aggression and High Affiliation” (2006) 85 Social Forces 217.

128 F Francioni and M Scheinin (eds) Cultural Human Rights (Koninklijke Brill NV, Leiden,


129 For the text of the Declaration, see < pdf>. Note that culture is defined for this purpose as embracing the “distinctive spiritual, material, intellectual and emotional features of a society or social group” (preamble, fifth recital, emphasis added).

130 See especially art 8(j).

131 See, for example, L Margulis The Symbiotic Planet: A New Look at Evolution (Basic Books, New York, 1998).

ICRW, and considered over the short, medium and long terms. Plainly, this will be no easy task! In deference to Resolution 2006-1, and bearing in mind the functional orientation of the Convention, the fisheries paradigm should be the first to be considered.

VI. Evaluating the Fisheries Par adigm

On the face of it, the fisheries sector would appear to represent an excellent place to search for a model approach to rational solutions to conservation problems. Fish have formed a crucial component of the human diet throughout history, and the need to ensure that stocks are not exploited more rapidly than they can be replenished has long been appreciated. Accordingly, treaty arrangements concerning the conservation of marine resources have been frequently concluded, culminating currently in almost a century of experience of formal regulation through dedicated international institutions.132 Many of these have, indeed, been explicitly motivated and conditioned by the desire to achieve “rational” exploitation.133 Undoubtedly, the reliable assessment of fish populations presents even more formidable problems than in the case of terrestrial species, but that consideration is more than balanced by the fact that protective efforts are not continually hampered by ever-growing competition from humans for use of the natural habitat in which conservation work must be performed, as occurs on land. Consequently, there is every reason to suppose that conservation efforts should by now have achieved conspicuous success.

Unfortunately, the reality appears to be depressingly at odds with these expectations. Appraisals by legal scholars of the effectiveness of international institutional arrangements for fisheries regulation appear uniformly unfavourable, regardless, it would seem, of the precise time at which the assessment was made, the national or professional background of the commentator concerned, or whether their particular perspective derives from

132 The International Pacific Halibut Commission, created by the Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean, Canada – the United States (2 March

1923), was the first such organisation, and was for that reason originally known simply as the

International Fisheries Commission.

133 Note, for example, the preambles to the Convention concerning Fishing in the Waters of the Danube (opened for signature 29 January 1958, entered into force 20 December 1958); the 1959 North-East Atlantic Fisheries Convention (opened for signature 24 January 1959, entered into force 27 June 1963; the Convention on the Conservation of the Living Resources of the South-East Atlantic (opened for signature 23 October 1969, entered into force 24

October 1971); the Convention for the Conservation of Antarctic Seals (opened for signature

11 February 1972, entered into force 11 March 1978); the 1973 Convention on Fishing and

Conservation of the Living Resources in the Baltic Sea and the Belts (opened for signature 13

September 1973, entered into force 28 July 1974). See also art II(2) of the Interim Convention on the Conservation of North Pacific Fur Seals, as amended (opened for signature 9 February

1957, entered into force 14 October 1957 , and of the Convention on the Conservation of

Antarctic Marine Living Resources (opened for signature 5 May 1980, entered into force 7

April 1982).

a focus upon the law of fisheries specifically, or the law of the sea or of the environment more generally.134 The most recent assessment available at the time of writing, by Davies and Redgwell, sums up as follows:135

Given the ‘tragedy of the commons’ with respect to high seas fishing, it might have been expected that the extension of coastal state jurisdiction over a 200-mile EEZ would lead to more sustainable fishing. To the contrary, fish stocks continue to be over-exploited in many regional areas, including the North Pacific, the Behring Sea, the Antarctic, the North Atlantic and the North Sea. Competition for high seas stocks has intensified, with adverse consequences for highly migratory and straddling stocks in particular. The SSA,136 despite containing a ‘code of good practice’ for sustainable fishing, has not yet succeeded in addressing depletion of such stocks, in which IUU137 continues to play a significant adverse role. Institutional failure at the regional and international level in achieving effective sustainable use of fisheries resources remains a weakness in the international regulation of fisheries, with a 2005 study confirming that NAFO, CCAMLR and other post-UNCLOS fisheries commissions continue to exhibit deficiencies first identified in the 1970s. A recent EU report pessimistically concludes that ‘[f ]isheries management in the European Union is not working as it should and the objective of achieving long-term sustainability is not being reached.’ There is little cause for optimism with respect to fisheries management in other regions of the oceans.

As the passage itself confirms, these gloomy assessments by scholars are fully consistent with, and in large measure derive from, the conclusions drawn in a succession of official assessments.138 The principal differences lie only in the degree of deference to the fisheries regulation sector itself which is

134 For a random sample, coincidentally embracing all these variables, see D Johnston International Law of Fisheries: A Framework for Policy-Oriented Inquiries (Yale University Press, New Haven, 1965), Part Four; J Gulland The Management of Marine Fisheries (Scientechnica, Bristol, 1974), chapter 8; S Oda International Control of Sea Resources (Martinus Nijhoff, Dordrecht, 1989); W Burke The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clarendon Press, Oxford, 1994), chapter 8; E Hey (ed) Developments in International Fisheries Law (Kluwer Law International, Cambridge (Mass), 1999); R Churchill and A Lowe The Law of the Sea (3rd ed, Manchester University Press, Manchester, 1999), chapter 14; S Kaye International Fisheries Management (Kluwer Law International, The Hague, 2001); P Sands, above n 63, at 558-600; M Lodge and S Nandan “Some Suggestions towards Better Implementation of the 1995 UN Fish Stocks Agreement” (2005) 20 IJMCL 345; P Birnie, A Boyle and C Redgwell International Law & The Environment (3rd ed, Oxford University Press, Oxford, 2009), chapter 13.

135 See their “Conclusions” in Bowman, Davies and Redgwell, above n 5, chapter 5.

136 That is, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (opened for signature 4 August 1995, entered into force 11 December 2001) : for discussion, see P Davies and C Redgwell “The International Legal Regulation of Straddling Fish Stocks” (1996) 67

BYIL 199.

137 That is, illegal, unregulated and unreported fishing, which is claimed currently to represent some 11-26 million tons of fish annually (around 20% of global reported catch), worth around $23.5 billion: S Flothmann et al, “Closing Loopholes: Getting Illegal Fishing under Control” (2010) 328 Science 1235.

138 Note for example B Groombridge (ed) Global Biodiversity (Chapman and Hall, London,

1992), chapter 33 (prepared for UNCED); The State of World Fisheries and Aquaculture (Food and Agriculture Organization of the United Nations, Rome, prepared bi-annually); Fishing Opportunities for 2009: Policy Statement from the European Commission, COM (2008) 331 final.

evident in the language employed to describe its deficiencies of performance. Non-governmental organisations, by contrast, generally feel no need to pull their punches, speaking openly in terms of a global fisheries crisis.139 Concern has reached a sufficient pitch to have impacted upon the general public consciousness, through a succession of news items, TV documentaries and books intended for lay readership.140

As might be expected, the background to these damning appraisals lies in a succession of profoundly troubling assessments by marine biologists of the current state of fish stocks, and indeed of the marine environment more generally. One which attracted particular attention, both on account of its broad range and its highly pessimistic conclusions, was led by Boris Worm of Canada’s Dalhousie University and published in 2006.141 It noted that despite the advent of larger vessels and better equipment, total global catch had fallen by 13% between 1994 and 2003, by which time 29% of open sea fisheries were producing less than 10% of their original yield.142 Media coverage inevitably highlighted the somewhat apocalyptic forecast of total global collapse of stocks by 2048.143 Unsurprisingly, this prognostication was hotly disputed, though the main lesson to emerge from the ensuing furore is that the one piscine species unlikely ever to go extinct is the red herring. The crucial question is surely whether there is currently an unacceptably high risk of an intolerable decline in stocks, not the exact date and scale of the apocalypse. Worm’s research sought to take account not merely of catch levels, but of the cumulative impacts of biodiversity loss in marine ecosystems which fishing brings about, and these are notoriously difficult matters to calculate. It is therefore inevitable that there will be wide differences of interpretation over the details.144 Nevertheless, a very recent global survey of marine biodiversity,145 involving some 2,700 marine

139 See generally the Greenpeace website at < . html> and <>.

140 See, for example, C Clover The End of the Line: How Overfishing is Changing the World and What We Eat (University of California Press, Berkeley and Los Angeles, 2008), also available as a DVD; T Grescoe Dead Seas: How the fish on our plates is killing our planet (Pan Macmillan, London, 2009); P Greenberg Four Fish : A journey from the ocean to your plate (Penguin Books, London, 2010).

141 B Worm et al “Impacts of Biodiversity Loss on Ocean Ecosystem Services” (2006) 314

Science 787. For various comments, and the Worm team’s responses, see (2007) 316 Science

1285 (a-d).

142 R Black “‘Only 50 Years Left’ for Sea Fish” (BBC News Channel, 2 November 2006), viewable online at <> .

143 See, for example, ibid; C Dean “Study Sees ‘Global Collapse’ of Fish Species” New York Times

(New York, 3 November 2006).

144 See, for example, the collection of studies published in (2008) 105 Proceedings of the

National Academy of Sciences, especially at 924, 2740, 5420, 10456, 11458 and (2008) 275

Proceedings of the Royal Society B, especially at 149, 1803.

145 This ten-year survey is known as the Census of Marine Life (COML), 2000-2010, and will not be published in full until October. For an invaluable advance summary, published online on 2 August 2010, see M Costello, et al “A Census of Marine Biological Knowledge, Resources and Future Challenges” (2010) PLoS ONE 5(8): e12110.

scientists from 80 countries,146 paints the same depressing picture regarding the general impact of fisheries operations on the marine environment. Over-fishing was reported not only to be the most serious of all known factors threatening marine biodiversity globally,147 but also the greatest (or equal greatest) threat in almost every individual area surveyed.148 It was a major cause of depletion not merely of fish stocks themselves, but of species affected by by-catch, especially turtles, albatrosses and marine mammals.

In the light of these considerations, it is plainly pertinent to question exactly how fisheries organisations could have allowed such a situation to occur in relation to what is, after all (no wordplay intended), the sole item on their agenda. Ultimately, the answer seems to lie in the misapprehensions the fisheries sector as a whole has conventionally displayed with regard to each of the two principal determinants of conservation outcomes in this field – namely marine ecology on the one hand and human psychology on the other. As to the first, it is possible to entertain some sympathy, since the path towards effective understanding of the predatory, migratory and reproductive behaviour of marine species is undeniably strewn with obstacles, but even when due allowance is made for such complexities the standard of performance appears inexcusably low. These failings are themselves a function of the second key determinant, for far from serving as a means of recognising and counteracting the well-known foibles of human psychology, institutional arrangements seem in this case only to have nurtured and compounded them. Thus, the fisheries sector has continuously overrated the reliability of its own knowledge and understanding of the matters in hand and failed to come adequately or expeditiously to terms with problems of cause and effect. Attention to relatively mundane mathematical tasks of quota calculation has been allowed to divert attention from the broader ecological picture. An air of overweening self-confidence is invariably presented in the hope that it will be mistaken for operational competence.

In many respects, indeed, the global fisheries crisis is strongly evocative

of its counterpart in the world of finance, albeit that the time-scale of events is more protracted. In both cases, the chain of events grew out of initially laudable objectives – on the one hand, the achievement of economic stability

146 It also embraced many other collaborators, involved well over 500 field expeditions, cost

US$650 million and generated some 2,600 publications.

147 Threats were rated on a scale of 1to 5 and, for the areas covered in Table 5, overfishing rated a median score of 4.0, and a cumulative rating of 66. This compared with median scores of 3.0 for habitat loss (total 62), pollution (60), alien species (52), and temperature (51), and 2.0 for hypoxia (36) and acidification (30).

148 The areas in question were the Mediterranean, Gulf of Mexico and China (score in each case 5), the Baltic, Caribbean, US (South-East), US (North-East), Brazil and Tropical West Atlantic, Humboldt Current/ Patagonian Shelf, New Zealand and Atlantic Europe (score in each case 4); Tropical East Pacific, Japan and Australia (all score 3) and Antarctica (score 2). The only areas where overfishing was not listed as the greatest threat were North Indian Ocean (score 3, cf. habitat loss and pollution, each score 4), South Africa (score 3, cf. pollution, alien species and hypoxia, all 4) and Canada (score 2, cf. temperature 5 and habitat loss 4).

through the management of financial risk, and on the other, the pursuit of food security through the management of fishery resources – yet both projects were to be derailed by a similar combination of greed, over-recruitment of participants, competitive fervour, institutional inadequacy, narrowness of aspirational focus and a resistance to external scrutiny, coupled with a determination to ignore the warnings from those insiders who had resisted being blinded by the sector’s own insubstantial science. These problems have all been well-documented in relation to the financial sector,149 where those involved in the development of the credit derivatives market seem to have operated in a state of sublime detachment from the remainder of the banking sector, let alone the real world upon which their innovatory schemes would impact. The extraordinary initial profitability of their activities served not merely to guarantee them a free hand, but to generate a culture in which time-honoured traditions of caution and prudence were cast aside, and replaced by one built largely around the payment of exorbitant bonuses to all concerned. These in turn attracted numerous new players to the field, many of whom had little firm grasp of their business even at an abstract theoretical level, still less in terms of practical applications or effects. Nonetheless, they constantly sought out new applications for their techniques and products in the desperate quest for further profits. Although such practices seemed sustainable on the basis of mathematical models, that was largely because their data sets excluded the very factors that magnified risk. Regulatory arrangements, meanwhile, were alarmingly slack, and any attempt to bolster them vigorously opposed. In these circumstances, should it really have come as any surprise that catastrophe ensued?

In a similar way, fishing endeavours have been characterised historically by an ethos of excessive acquisitive zeal, leading to a vast and perennial superabundance of fishing vessels, currently estimated at up to 50% of the total. In many cases, moreover, this over-capacity is actually sustained by the disbursement of significant government subsidies. This has in turn served to exacerbate an endemic tendency towards acute competitiveness, resulting not merely in the gross over-exploitation of target stocks, but also in quite appalling levels of collateral damage, whether in the form of by-catch, pollution or habitat destruction. In addition, it has not infrequently engendered outright conflict amongst participants, ranging from isolated confrontations between individual vessels to long-running hostilities between entire national fleets.150

Diplomatic controversy has been rife and litigation between governments over fisheries matters recurrent.151 Resentment of official regulation has been intense, so much so that government departments have commonly preferred to yield to the attendant pressures, and sometimes seemed virtually to assume the mantle of mere spokespersons or apologists for the industry.

149 See especially Hett, above n 118.

150 At the time of writing, tension is once again mounting between Scottish and Icelandic fishing interests.

151 For a convenient summary, see Sands, above n 63, at 561-568, 578-583.

Fishermen themselves contrive to justify their depredations by subconsciously downgrading their perceptions of historical fish abundance to tally with current levels, so that everything continues to appear “normal”,152 while attempts to encourage them to engage with ecological reality are usually contemptuously dismissed.153 A recent British TV documentary showed industry representatives declaring that they obviously would not contemplate engaging in bottom trawl fishing if it prejudiced the environment on which their very livelihoods depend, even as the accompanying film showed the barren and denuded condition of the sea-bed their activities had left behind.154

Like the subjects in the invisible gorilla experiment, fishermen seem to be missing something, though in their case the illusion lies not in overlooking an unexpected arrival in the game but in failing to perceive that many of the original players have simply disappeared.

Throughout all of this, the international institutions with specific

responsibility for fishing appear to have made little positive impact, either

individually or collectively. The overt historical preoccupation of regional

fisheries bodies (RFBs) with improved fishing efficiency and maximum

sustainable yield has tended, as Kay’s obliquity theory would suggest, largely

to undermine their own conservation objectives. Quotas have typically

proved difficult either to establish or enforce, while conventional restrictions

on membership – or other forms of participation – have served unduly to

cocoon the parties from salutary outside influence or pressure from other

stakeholders. The language of intrinsic value has remained entirely foreign, as

fish are essentially regarded merely as “seafood”, and consequently no more

than a source of potential profit. Hoki and cod, indeed, are scarcely seen

as “wildlife” at all – more akin to oil and coal than okapi and koalas – and

fishing states have strenuously resisted attempts to draw commercially fished

piscine species into the ambit of wildlife conservation regimes.155

At the same time, the degree of institutional collaboration within the

sector has been far less extensive than might have been expected, with the

first half-century of overall supervisory responsibility on the part of FAO

contributing only minimally to the achievement of coherence. It was not

until 1999 that the first all-inclusive meeting of RFBs, whether operating

under FAO aegis or not, was convened upon its initiative. There have now

152 See D Pauly “Anecdotes and the Shifting Baseline Syndrome of Fisheries” (1995) 10 Ecology and Evolution 430, discussed in Greenberg, above n 140, at 147-148.

153 See, for example, R Thurstan, S Brockington and C Roberts “The Effects of 118 Years of Fishing on UK Bottom Trawl Fisheries” (2010) 1 Nature Communications Article No 15, and for an indication of typical responses by fishermen, see < forums/showthread.php?t=2525>.

154 Panorama: Britain’s Disappearing Wildlife (BBC TV, screened 30 August 2010).

155 On the original insistence of fisheries states that commercially exploited fish remain outside the remit of the Convention on the Conservation of Migratory Species of Wild Animals (opened for signature 23 June 1979, entered into force 1 November 1983) (CMS), see Bowman, Davies and Redgwell, above n 5, chapter 16, and on the recent attempt to bring Atlantic bluefin tuna within the scope of CITES Appendix I, see S Earle and S Lieberman “Fishing in Troubled Waters” Guardian (UK, 14 March 2010).

been six of these, the latter two under the newly-adopted rubric of the Regional Fishery Body Secretariat Network (RSN).156 Yet a perusal of the report of its most recent session157 reveals little indication either of a strong institutional commitment to contemporary standards of good governance or of any real urgency to address substantive problems. Overcapacity was the subject of only meek exhortations to governments, and enthusiasm for the establishment of protected areas extremely muted. Levels of response to FAO resolutions, and to requests for information, had been poor, not merely on the part of governments but of RFBs themselves. Confidentiality seemed to be rated more highly than transparency. A mere six institutions out of

46 had completed performance reviews, with only another half-dozen in hand. Yet several of those already faced “substantial recommendations for improvement”.

Thus, the factors which produced the collapse in global finance would seem largely to have been replicated in the fisheries sector. Although this comparison has been made purely impressionistically, and as an outsider, it is interesting to discover that precisely the same parallel was recently drawn by experts on risk management, following extensive interdisciplinary deliberations in the US on systemic risk.158 Their particular concern was to identify the conditions under which complex regimes may be plunged into catastrophe by the crossing of crucial thresholds or tipping points, and the kind of safeguards that are required to ensure stability. In general, “disassortative” networks, such as natural ecosystems, where the linkages of well-connected nodes were with a much larger number of randomly selected, less well-connected nodes, were judged more stable than more assortative networks, where connections were consciously constructed between smaller numbers of equally well-connected nodes of similar disposition. Communities established by human agency tend all too frequently to be of the latter character, with the fisheries and financial risk management sectors featuring as particularly egregious examples.

The lessons to be drawn from this experience seem clear. First, sectors and systems that are driven by a plurality of values and incorporate a range of perspectives are more likely to prove successful in the long term than those that are overtly constructed around narrower and more selfish interests. Secondly, competition within such sectors is very much a two-edged sword: like salts, fats and sugars in the human diet, a modicum is essential for life itself, but over-indulgence may easily prove fatal. Extremely careful regulation is therefore required to ensure that competitiveness does not get out of hand. Thirdly, in the quest for a rational approach towards the management of natural resources, the functioning of natural ecosystems must be accorded

156 See generally <>.

157 FAO Fisheries and Aquaculture Report No 908, FIEL/R908 (2009).

158 See J Kambhu, S Weidman and N Krishnan (rapporteurs) New Directions for Understanding Systemic Risk (The National Academies Press, Washington, DC, 2007), and at (2007) 13(2) Economic Policy Review; R May, S Levin and G Sugihara “Complex Systems: Ecology for Bankers” (2008) 451 Nature 893.

pride of place, both in their capacity as the very subject-matter of regulation, and as a model for the construction of institutional arrangements. On any rational approach, fish would be recognised as wildlife species like any other, and fisheries management would be addressed as a subordinate function of institutions concerned with the wider problem of management of the marine ecosystem. Fishermen would be encouraged to embrace these broader values and required to contribute to their protection and advancement.

Of course, it would be wrong to suggest that no progress at all has been

made in this regard (though it is interesting to note the extent to which individual governmental initiatives, in the US at least, seem to have resulted from NGO pressure.)159 New Zealand numbers amongst the states that have attracted particular praise for their pioneering approach, including the establishment of a network of protected areas where fishing is prohibited,160 and the institution of a tradeable “catch share” system, whereby individual participants are guaranteed a fixed portion of a total allowable catch set by scientists, so that competition is eliminated.161 At the institutional level, some advances have been made through the adoption of the FAO Code of Conduct on Responsible Fisheries and the widespread endorsement of the Ecosystem Approach to Fisheries.162 Yet no-one imagines that these solutions are universal panaceas – indeed, notes of caution have already been sounded with regard to each of them.163 Although CCAMLR was initially praised for embracing an ecosystem approach, assessments of its operational effectiveness have not by any means been uniformly favourable.164 Indeed, there is evidently still considerable uncertainty regarding the precise implications and requirements of the ecosystem approach in any given situation:165 in particular, it seems

159 Greenberg, above n 140, at 143-147.

160 For (handsomely illustrated) discussion, see K Warne “Blue Haven” National Geographic, April 2007, at 70.

161 See C Costello, S Gaines and J Lynham “Can Catch Shares Prevent Fisheries Collapse?” (2008) 321 Science 1678.

162 See, for example, S Garcia, et al The Ecosystem Approach to Fisheries: Issues, terminology, principles, institutional foundations and outlook (FAO Fisheries Technical Paper No.443, Rome, 2003); Ecosystem-Based Management: Markers for assessing progress (United Nations Environment Programme, 2006).

163 See, for example, L Wood et al “Assessing progress towards global marine protection targets: shortfalls in information and action” (2008) 42 Oryx 340; T Essington “Ecological indicators display reduced variation in North American catch share fisheries” (2010) 107

Proceedings of National Academy of Sciences 754; S Zhou et al “Ecosystem-based fisheries management requires a change to the selective fishing philosophy” (2010) 107 Proceedings of National Academy of Sciences 9485; M Peterson et al “Obscuring Ecosystem Function with Application of the Ecosystem Services Concept” (2010) 24 Conservation Biology 113.

164 M Howard “The Convention on the Conservation of Marine Living Resources: A Five Year Review” (1989) 38 ICLQ 104; J Heap “Has CCAMLR Worked? Management Policies and Ecological Needs” in A Jorgensen-Dahl and W Ostreng (eds) The Antarctic Treaty System in World Politics (Palgrave Macmillan, Basingstoke 1991) 49; C Redgwell “The Protection of the Antarctic Environment and the Ecosystem Approach” in Bowman and Redgwell, above n 17, 109; H Shiffman “CCAMLR Fisheries: Challenges to Effective Conservation and Management” (2009) 12 JIWLP 180.

165 Note especially the report cited above n 157.

likely that the interpretations adopted by fishermen themselves will be very different from those that ecologists might advocate. The fisheries paradigm therefore still leaves a very great deal to be desired.

VII. Conclusions

The extraordinary scale and complexity of the vested interests tied up in fisheries management,166 and the many obstacles which they characteristically place in the way of rational planning, render it naive to expect that any major revolution in management arrangements will take place across the sector as a whole in the near future,167 especially one which entails significant transference of responsibility to other sectors. Yet smaller-scale advances and shifts in the balance of power may still be possible: the adoption in February 2010, under the aegis of the Bonn Convention, of a Memorandum of Understanding on the Conservation of Migratory Sharks is an interesting development, it being the first such “daughter” instrument within the CMS family to concern itself with commercially exploited fish species.168 By the same token, the restoration of a “fisheries” paradigm under the ICRW should be resisted. It has been tried before and has failed spectacularly, and protestations that such disasters will not be repeated are to be viewed with scepticism, given the recidivist tendencies which seem to be inherent within the stereotypically “assortative”, closed circles of the fisheries sector, in common with its financial counterpart. Such a development is, moreover, certainly not specifically required either under the dispositive terms of the Convention or by reference to its overall object and purpose, which is far more forward-looking and enlightened than is commonly supposed. Mathematical models which appear to demonstrate safe harvesting levels are only as good as the quality and inclusivity of their input, and the lessons to be learned from the recent experience of the financial sector shows how misleading such models may ultimately prove.169 In the whaling context, they might, for example, fail to make adequate allowance for previously undetected or newly emerging behavioural variations, which, as in the case of side-blotched lizards, might somehow prove critical to the overall

166 For illustration of this point in the whaling context specifically, see A Ishii and A Okubo “An

Alternative Explanation of Japan’s Whaling Diplomacy in the Post-Moratorium Era” (2007)

10 JIWLP 55.

167 In S Abbott-Jamieson and P Clay “The long voyage to including socio-cultural analyses in NOA A’s National Marine Fisheries Service” (2010) 72(2) Marine Fisheries Review 14, the authors note that it took 25 years of persistent advocacy before NOA A was persuaded to include such analyses in their programmes.

168 See <>. Of course, a number of major fishing nations are not party to CMS, though this is not a prerequisite to participation in ancillary agreements concluded thereunder – thus, the US is one of eleven current signatories to the Sharks MoU.

169 For recent discussion of a specific instance of inadequacy in the ecological context, see N van Vliet and R Nasi “Why do models fail to assess properly the sustainability of duiker (Cephalophus spp.) hunting in Central Africa?” (2008) 42 Oryx 392.

viability of particular cetacean species, while being less readily signalled to human observers. At least it can be said that, for IWC purposes, catch algorithms are to be employed within the context of a broader management scheme, though it remains uncertain whether a sufficient array of safeguards could ever be established to fully guarantee the rationality of the system.

The need for caution is underlined by the fact that no compelling

socio-economic case has yet been mounted to demonstrate the necessity of

persisting with traditional forms of whaling (still less the risk of “widespread

economic and nutritional distress”) other than the indigenous variety. The

claims of certain coastal communities in Japan do seem at least to be worthy

of consideration in that context, although the extraordinary lack of openness

and candour which has typically attended the existing forms of cetacean

exploitation by such communities, and their apparent unwillingness to

consider alternative forms of exploitation or means of economic development,

are bound to be seen as weakening their case considerably.170 Demands for

the culling of whales on account of their alleged depletion of fish stocks do

not deserve to be taken seriously until such time as they can be shown to be

supported by comprehensive and impartial research into the overall ecological

impact of whales upon the marine ecosystem generally,171rather than simply

an attempt to advance the immediate interests of the fisheries sector itself.

Such research would need fully to address the extent, if any, to which the

great whales may actually serve to maintain or enhance marine biological

diversity, productivity and stability,172 including through such phenomena

as “whale fall”.173 Finally, the intensity of the suffering which is likely to

be involved (even if only occasionally) in the taking of such large, sentient

mammals at sea, and the extreme antipathy which such activities are in

170 As to the latter point, see Segi, above n 9; Bowman, above n 86, at 441-443. The problem of obsessive secrecy is graphically illustrated in Louis Psihoyos’ 2009 documentary, The Cove. Press reports suggest that plans by certain cinemas to screen the film in Japan itself were abandoned in consequence of intimidation by nationalist groups, though some screenings appear to have gone ahead: see H Tabuchi “In Reversal, Some Japan Theatres to Screen

‘The Cove’” Asia Pacific section, The New York Times (New York, 21 June 2010); M Willacy

“Japanese Protests over Dolphin Documentary” AM programme, ABC news (Australia, 5

July 2010).

171 See further L Gerber, et al “Should Whales be Culled to Increase Fisheries Yield?” (2009) 323

Science 880; D Balata and S Mariani “Culling Whales: Ethically and Ecologically Wrong” (2009) 324 Science 464-b.

172 See generally J Estes et al (eds) Whales, Whaling and Ocean Ecosystems (University of California

Press, Berkeley, 2006).

173 See on this point Bowman, above n 86, at 483-484 and A Haag “Marine biology: Whale fall” (2005) 433 Nature 566. For a brief sample of recent research, see A Glover et al “World- wide whale worms? A new species of Osedax from the shallow North Atlantic” (2005) 272

Proceedings of the Royal Society B 2587; L Levin et al “Advances in Vent, Seep, Whale- and Wood-Fall Biology” (2007) 28 Marine Ecology 1; Y. Fujiwara et al “Three-year investigations into sperm whale-fall ecosystems in Japan” (2007) 28 Marine Ecology 219 and “Extracellular and Mixotrophic Symbiosis in the Whale-Fall Mussel Adipicola Pacifica” (2010) PLoS ONE

5(7): e11808; S Goffredi et al “Temporal evolution of methane cycling and phylogenetic diversity of archaea in sediments from a deep-sea whale fall in Monterey Canyon, California” (2008) 2 The ISME Journal 204.

consequence certain to arouse in many quarters, are important considerations to be taken into account when determining the most appropriate blueprint for the “proper” conservation of whales, and the “orderly” development of the whaling industry. Just as sports hunters have come to recognise the need for reflection upon the ethical implications of their craft, so too the international whaling community must strive towards more scrupulous adherence to the fundamental principles of respect and care for the community of life which are enshrined in the revised World Conservation Strategy. If conducted sensitively, capitalisation upon the recreational and educational values of whales should ensure their continued survival into the future, and their consequent availability for whatever form of exploitation future generations might judge appropriate, in the light of evolving needs, and (hopefully) more complete and reliable information. The substantive provisions of the Convention are more than capable of accommodating whale-watching as the modern manifestation of whaling activity, alongside such indigenous, artisanal or other limited forms of exploitation as the parties might see fit to authorise.

On the other hand, the various loopholes to which whaling states currently have recourse render outright compulsion towards the achievement of these goals unfeasible and co-operation therefore essential: it is open to question whether the scheme that was proposed at the last annual meeting of the IWC, involving the suspension of such unilateral powers for a fixed period in return for the establishment of modest harvesting quotas, would have marked the transition to a new era of cetacean conservation or the first step in a relapse to the old. A revised version of such a proposal may still be worthy of consideration, and the institution by Australia of legal proceedings before the ICJ, which might conceivably result in the outlawing of research whaling as currently practiced, will add an extra dimension of pressure to the backroom bargaining process. Hopefully the relevant parties will take the opportunity to arrive at a negotiated solution in the meantime. Any organisation in which the outgoing Secretary can be serenaded by battle-weary commissioners with Elvis Presley ballads cannot be all bad.174 Now the delegates need to raise their collective game to the altogether dizzier heights of multi-layered Beach Boys harmony. Plainly this will not be easily accomplished, especially since, given the progressive consolidation of the ethical foundations of international biodiversity law, and the intrinsically problematic nature of the fisheries paradigm generally, the achievement of a truly rational, long-term solution would seem to require a transformation of an altogether more radical kind than was envisaged by the compromise arrangement that was on the table at the IWC’s last meeting.

As it happens, a useful pointer to what is ideally required is provided by further research findings concerning the side-blotched lizard referred to at the beginning of this article. For it seems that the extraordinary behavioural

174 “IWC 62: Epilogue: The Voice of The Two Hundred” WDCS Blog – From the Front Line (28

June 2010) <>.

variability exhibited by this species is not restricted to the diversity of life-styles associated with its various morphs, but is manifest at the individual level also. Natural selection, it seems, has determined that a fixed and inflexible system of colour-coding does not represent the optimally rational survival strategy for the species as a whole. Specifically, researchers have discovered that, late in the breeding season, when the circumstances which favoured their original strategy may have changed,175 a proportion of yellow-throated individuals are hormonally emboldened to transform to a more bluish hue, whereupon they promptly adopt the behaviour patterns associated with that particular morph. Dissimulation is abandoned and a more open approach adopted. In this way the reproductive success of the species as a whole can be preserved and extended still further.

In the light of the various crises that sectoral intransigence has foisted upon the international community of late, how very welcome it would be if those human agencies that are entrusted with determining the future of the great whale species could find it in themselves to exhibit the same flexibility! Indeed, given the many reasons which have been identified for favouring carefully regulated whale-watching over more traditional forms of exploitation, the time is surely now ripe for those IWC members who have continued to view cetacean species in purely instrumental terms, and retained the motivation to harvest them commercially, to contemplate a transition in policy that would see them don the colours of their erstwhile rivals within the institution and whole-heartedly embrace the inherent and intrinsic values that the wider legal system so clearly proclaims. History suggests that it would be foolish to entertain great optimism on this score, but surely rationality must break through eventually ...?

175 Typically, with the death or disappearance of the local orange-throated specimen.

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