Foreign Relations of the United States Diplomatic Papers, 1938, General, Volume I

562.8F3/38

The Secretary of State to the American Delegates⁴ to the Whaling Conferences at Oslo and London

Washington, May 3, 1938.

Sirs: With reference to your appointment as a delegate on the part of the United States to the International Whaling Conference to be held at London beginning June 13, 1938, and to a preliminary conference to be held at Oslo on May 19, 1938, you will be guided by the following observations and instructions.

In the absence of an agenda of the conference at Oslo, it is expected that its main purpose is to convoke the representatives of the countries which ratified the London Agreement of June 8, 1937, with a view to discussing the reasons for the failure of that agreement to achieve its objectives and the modifications that should be made to that agreement in order to produce the desired results. It seems clear that conservation of the world whale stock has not resulted from the London Agreement. This conclusion may be drawn from the statistics of whale oil production during the past year which show an increase from 2,658,000 barrels to approximately 3,367,000 barrels. Factors that have caused this increase appear to be the barrel tax on all whale oil produced in Australian territorial waters and the demand for whale oil which it has been reported certain countries are storing up for future use. Unquestionably under present conditions, the whale stock of the world is being rapidly depleted and neither minimum size limits, prohibited areas nor restriction of the season to ninety days has tended toward conservation. The whaling industry of the United States is less than that of any other country which will be represented at the Oslo conference. The United States has only two floating factories engaged in whaling, one of which it is understood is owned to the extent of eighty percent by foreign interests. The primary object of the United States in participating in the international whaling conferences and agreements is to further the cause of conservation. It may be doubted, as above stated, that the international whaling agreements have resulted thus far in conservation and it becomes vital to obtain tangible results from the forthcoming Oslo and London conferences. Unless this is done, it may be stated that this Government will find it necessary to consider whether it will continue to participate in international conferences or conventions dealing with the regulation of whaling. It is thought that an indication of this Government’s attitude, along this line, might help to bring results out of the Oslo and London conferences more effective than the provisions of the existing convention and agreement.

Your attention is invited to the following points which may arise in the discussions at Oslo concerning experience under the London Agreement of 1937, and the proposals which are likely to be advanced for the purpose of strengthening that Agreement:

1. There is a definite distinction in the United States between treaties and other international agreements, the former requiring the advice and consent of the Senate for ratification, the latter not requiring such advice and consent. Provisions in the London Agreement contained in Articles 15, 20 and 21 created a confusing situation. The international convention for the regulation of whaling signed at Geneva September 24, 1931,⁵ being a treaty in fact, required approval by the United States Senate before it could become binding on the United States. Because the agreement of 1937 which supplemented the convention added measures of regulation not contained in the convention, it also was a treaty in fact from the point of view of this Government, and had to be referred to the Senate for advice and consent to ratification. This situation should be kept in mind in considering the provisions relating to bringing any agreement reached at Oslo or London into force as to the United States. This Government has been guided by the provisions of Article 19 of the London Agreement and it should be made known, should the question come up, that this Government endeavored to cooperate in every way it could to bring the London Agreement into force. Ratification was given promptly in the United States, namely, on August 13, 1937, and this ratification was deposited at London on September 3, 1937, completing the action necessary on the part of the United States to bring the London Agreement into force. The reason the Agreement has not come into force has been lack of compliance with the provisions of Article 19 by signatory countries other than the United States.

2. The interpretation of the provisions of Articles 8, 9 and 18 has led to some difficulty largely due to the ambiguous definition of a land station appearing in Article 18, which should be clarified. It seems advisable also to make clear the intent of Articles 8 and 9 with respect to the use of killer boats attached to factory vessels and land stations, and whether the use of killer boats attached to factory vessels would preclude their use with respect to land stations or vice versa.

3. It is also important to stipulate whether a factory vessel which operates in the Antarctic at one season is disqualified from operating under a shore station license during another season. This point was not made definite in the London Agreement of 1937, although it seems to have been the intent of that Agreement to restrict, if not disqualify altogether, vessels which operated in the Antarctic, from operating as land stations.

4. Difficulty has arisen in the United States in connection with the licensing of whaling vessels which have given notice that they intend to operate as land stations in Shark’s Bay in the territorial waters of Australia. It would seem clear that the projects of operation in Shark’s Bay are inconsistent with the spirit, if not the letter, of the London Whaling Agreement. In considering the points of difficulty here, it may be observed that these vessels have Norwegian killer boats attached thereto which are licensed or chartered from Norwegian companies with the approval of the Norwegian Ministry of Commerce, and are licensed by the Norwegian authorities to engage in whaling. It is also necessary for these vessels to obtain whaling licenses from the Australian Government to carry on operations in Australian territorial waters. Since the governments of the United States, Norway and Australia all signed the London Whaling Agreement, it might be advisable to consider what action is necessary to be taken by the respective governments so that each government will share the responsibility of taking measures to prevent the continuance of the disastrous slaughter of whales in the proximity of Shark’s Bay, which is understood to be close to breeding areas. In view of the ambiguous nature of several of the provisions of the London Agreement, it is doubted whether this Government could prevent the American factory vessels Frango and Ulysses from engaging in whaling in the territorial waters of Australia, even if that Agreement had come into force as to the United States.

As to the new proposals which may be advanced for modifying and extending the London agreement, it is suggested that the methods utilized by the International Fisheries Commission appointed under the convention between the United States and Canada for the preservation of the halibut fishery of the Northern Pacific Ocean and Bering Sea, might be given consideration. These measures have proven successful in regulating a deep sea fishery. It is thought that by establishing closed areas which are recognized breeding areas, placing time limitations on other areas and providing a maximum catch of whales determined annually by an administrative body, that might be taken from the latter areas, more efficient regulation of whaling might be effected. An administrative body might be set up by empowering the International Bureau of Whaling Statistics at Oslo to perform certain functions. It could doubtless check on the activities of whaling vessels in the various sectors which might be open to whaling until the limitations provided for in those sectors had been reached, whereupon whaling would be prohibited to all countries which had joined the convention. It is not believed that this Government would favor any system establishing quotas by countries or provisions which would outlaw equipment or limit the number of killer boats that might be attached to vessels but would prefer to see measures taken as above indicated which would prohibit whaling altogether in certain areas, place a limitation on the catch of whales in other areas, and place limitations on the quantity of oil processed and the number of whales taken from given areas.

Upon the completion of the conferences it is desired that you submit a comprehensive report of the conference activities, including copies of all official documents and suitable for publication.⁶

Further instructions will be sent to you in regard to the London conference.⁷

Very truly yours,

Cordell Hull

4. Herschel V. Johnson, Counselor of Embassy in the United Kingdom, Dr. Remington Kellogg, and Commander Wilfrid Neville Derby.
5. Signed on the part of the United States, March 31, 1932; Department of State Treaty Series No. 880, or 49 Stat. 3079.
6. Despatch of May 27 entitled “Report of the Delegates of the United States to the Preliminary Whaling Conference Held in Oslo May 19 to 21, 1938”, not printed. For report of the London Whaling Conference, see despatch No. 640, June 28, p. 957.
7. Such further instructions do not appear to have been of a substantive nature, but concerned travel orders, quarters, and similar routine matters.