The past five months have not been encouraging for those hoping to see the end of whale hunting in our time.

Japan announced that it would withdraw from the International Whaling Commission in order to resume commercial whaling in its territorial waters. Iceland increased its self-allotted whaling quota to two thousand whales over the next five years, including over one thousand endangered fin whales.

Most recently, the US National Marine Fisheries Service proposed to allow the Makah Tribe to resume hunting gray whales after seventeen years of regulatory gridlock.

Federal approval 

I have spent much of the last nine years studying the Makah whaling conflict — including ten months of research on the Makah Reservation — and I am not at all surprised by the federal government’s decision.

As I argue in my forthcoming book, Contesting Leviathan (University of Chicago Press, 2019): “The default outcome, given the current structure of US law, will always be federal approval for a tribal whale hunt.” 

This is one of the most important and least understood aspects of the situation around whales and whaling in the world today: when it comes to the legal and political status of whales and dolphins, they were never really saved at all.

The IWC’s moratorium on commercial whaling is technically just that, a temporary restriction meant to assure the recovery of whale “stocks” for later “harvest”. The IWC is an organization originally built for the management, not the abolition, of whaling. 

For several decades, the delegations of anti-whaling nations, some of which include animal rights organizations, have been using the IWC’s platform to enact a whale protectionist agenda — creating whale sanctuaries, funding non-lethal science, and restricting whaling to certain aboriginal or scientific exceptions.

Now that some whale populations have recovered to their pre-industrial whaling levels, some member nations say the commission lacks the moral or bureaucratic authority to further restrict whale hunts.

‘Sustainable populations’

The domestic situation is very much the same. The US places the management of whales and dolphins under the purview of the National Marine Fisheries Service within the Department of Commerce, which oversees whale populations in terms of “stocks”.

The US federal government continues to look upon whales essentially as if they were large fish, like any other marine resource to be managed, despite the iconic status of whales and dolphins in the popular imagination. 

Like fish, decisions about whales depend almost entirely on periodic “stock assessments”. Like fish, potential “harvests” are based on estimates of “sustainable yield”.

Consider the Makah whaling conflict and the causes of the nearly two decades of delays.

The hunt has been held back by a federal court order that required the tribe to seek a waiver to the Marine Mammal Protection Act, a 1972 piece of legislation that places its own moratorium on the “takes” (a euphemism for killing or extreme harassment) of all marine mammals in US waters (the hunt has already been approved by the IWC).

But as one attorney with ties to the US IWC delegation observed four decades ago: “Once scientists have determined that a population of a species is at or above its ‘optimum sustainable population level,’ the Secretary of Commerce can permit the taking of animals from this population for virtually any use so long as the population is not reduced below the  level.”

Save the whales

Anti-whaling activists, of course, are not motivated solely by concerns over dwindling populations.

One could argue that the entire Save the Whales movement, which helped usher in the era of environmental protection in this country nearly fifty years ago, was driven not by concerns over “sustainable harvests” or catch limitations, but by the conviction that whales were uncommonly intelligent, majestic, and peaceful beings whose deaths in whaling are almost unavoidably grisly, prolonged, and painful.

Polling data in 1997 showed that over three-fourths of Americans opposed whaling for any reason, regardless of whether the species was endangered.

US and international law never caught up with this common public sentiment. Today, as we see the retrenchment of whaling by a number of countries, we find the anachronistic mechanisms in place for dealing with whales — and, really, for almost all nonhuman animals — do not just guarantee an outcome to debates about whaling, but preclude the very possibility of even having the conversation. 

Anti-whaling activists in the Makah whaling conflict have learned to adapt themselves to the language and logics of fisheries management. They have focused on the conservation of smaller and smaller subpopulations of gray whales, hoping to show that the risk of a hunt to these more vulnerable groups constitutes environmental harm.

As one activist told me, one cannot write a comment to the government saying, “you just don’t kill whales [because] it’s not right”. But why can’t you? This is a question we need to ask ourselves.

Intrinsic rights

It isn’t easy to shift an entire legal system away from the default assumption that whales and other beings are resources to be treated as commodities.

The long, slow struggle of nonhuman personhood projects can attest to this. But in the case of whales, no one is even having that conversation.

With the exception of new tools for managing whale stocks using population genetics, not much has changed since the days of commercial whaling. 

Now is the time to discuss intrinsic rights for whales and dolphins, not so that all whaling will be rendered illegal, but so that we can finally have the debate that Makah whalers and anti-whaling activists have not been allowed to have.

This Author 

Les Beldo is a cultural anthropologist specializing in morality, science and the environment. He has been a postdoctoral fellow at Williams College and the American Academy of Arts & Sciences, and he is currently a visiting assistant professor of anthropology at Oberlin College. He is the author of Contesting Leviathan: Activists, Hunters, and State Power in the Makah Whaling Conflict.