562.8F3/267
The Secretary of State to the Delegates to the Conference on the Regulation of Whaling (Johnson, Richmond, Walsh)
Sirs: With reference to your appointment as delegates on the part of the United States of America to the International Whaling Conference to be held at London beginning July 17, 1939, you will be guided by the following observations and instructions.
The conference to which you have been appointed as delegates will consist of (1) a general meeting at which there will be considered a number of points including the following agenda: (a) results of the 1938–39 whaling season; (b) the desirability of extending for a further year or two the prohibition on the killing of the humpback whale contained in Article 1 of the Protocol of 1938; and (c) the possibility of securing greater uniformity in the duties and practices of the inspectors; and (2) a meeting of the inspectors who will discuss the practical application of the whaling agreement and protocol and consider points in which the duties and practices of inspectors appointed by the various interested governments varies with a view to making recommendations looking toward uniformity in whaling regulations adopted by the several governments.
The Government of the United States has been informed by the British Government that it will not be the object of the proposed discussions to make any alteration in the existing agreement or protocol; that any recommendations made by the conference should not form the subject of any formal act but should be communicated to all the governments concerned; and that if they are accepted, such acceptance would be notified by a diplomatic note in each case.
The primary object of the United States in participating in the international whaling conferences and agreements is to further the [Page 39] cause of conservation. However, there exists doubt whether the international whaling agreements have resulted thus far in conservation. The conservation efforts have not resulted in a decrease in the number of whales taken and the number of barrels of whale oil produced during the period these agreements have been in force. On the other hand, it is not to be overlooked that the number of whales taken during the past few years would probably have been higher in view of increased world demand for whale oil had there been no international regulation of whaling. The absence of any international restriction on the taking of whales for whale oil would, in view of present world requirements, undoubtedly result within a short time in the depletion of the stock of whales to a point where the whaling industry would collapse; or would probably result in extinction of certain commercial types of whales. Although the past and present conservation efforts may not have been in vain, it is apparent that unless the results of the past season’s catch are encouraging from the standpoint of conservation and indicate that a more actual conservation is being effected, consideration must be given to the adoption of measures for further reduction of the number of whales taken to permit replenishment of the stock of whales.
It may be stated, if it should appear to you advisable to do so, that if the present stock of whales continues to be depleted at a rapid rate and no effective measures are agreed upon and enforced by all governments concerned, the Government of the United States will find it necessary to consider whether it will continue to participate in international whaling conferences or conventions.
Your attention is invited to the following points which may arise in the discussions at the general meeting, and the proposals which are likely to be advanced for effecting the purposes of the Agreement of 1937 and the Protocol of 1938.
I. Effect on Whale Stock of Past Season’s Catch
Should the results of the past season’s catch indicate that further efforts toward conservation are essential to protect the stock of whales, consideration should be given to what steps are necessary to increase conservation under the present Agreement and Protocol, and what modifications should be made with respect to the provisions of those two acts to further their purposes.
II. Agreement by the United States to the Extension of Full Protection to Humpback Whales in the Antarctic Until September 1940 or 1941
The extension of full protection to all humpback whales in Antarctic waters until September 30, 1940 or 1941 is desirable and should [Page 40] be recommended. In this relation you should point out that this Government would desire to submit to the Senate for its approval any agreement for the extension of the time beyond that stipulated in Article 1 of the Protocol of 1938.
III. Future of Whaling
The immediate future of the whaling stock depends upon adequate enforcement of the agreement and protocol now in force. Any new convention or protocol modifying or replacing the present agreements would probably not enter into force until at least six months or a year after it is signed. Accordingly, every effort should be made to increase the effectiveness of the provisions of the agreements now in force. In increasing the effectiveness of the Agreement of 1937 and the Protocol of 1938 the following are regarded as essential:
- (a)
- Rigid enforcement by all interested Governments of the provisions of the Agreement and Protocol. It is recognized that some consideration must be given to the likelihood of the killing of protected whales through inadvertence. Nevertheless, every infraction of the whaling agreement should be punished by a penalty measured by the character of the infraction. Such penalties should be as uniform as practicable in the different countries and should be severe enough to encourage an earnest effort to comply with the terms of the Agreement and Protocol.
- (b)
- Uniformity, as nearly as practicable, in the procedure of the interested Governments in the libeling of cargoes. Since oil and other products of whales taken during the season are transported in part at least by tanker vessels in advance of the arrival of the factory ship at the home port, a uniform procedure for enforcing the confiscation of the products of illegally taken whales is desirable.
- (c)
- Uniformity in regulations. It is presumed that the results of the deliberations of the inspectors’ meeting will be considered in the general meeting. Uniformity of regulations is regarded as essential to effective international enforcement of the Agreement of 1937 and the Protocol of 1938. Detailed consideration of the inspectors’ meeting appears below.6
- (d)
- Adherence by all countries engaged in the whaling industry to the Agreement of 1937. This point is discussed under V below.
IV. Modification of Present Agreements; Consideration of New Treaty or Agreement
In order that some measure of stability might be given to the whaling industry and at the same time bring about more effective conservation [Page 41] of whales, the present whaling agreement and protocol should be allowed to remain as they are, so far as may be practicable. In this relation, however, this Government considers that an agreement for the extension of the time stipulated in Article 1 of the Protocol in relation to the prohibition of the taking of humpback whales in the area defined, and the necessary measures to bring Japan into the Agreement are desirable.
If there is proposed any amendment to the existing whaling agreement or a new whaling agreement is proposed, you may take part in the discussions thereof, keeping the Department informed of the matter by cable.
As to new proposals which may be advanced for modifying and extending the London Agreement and Protocol, 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 Sea7 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 as breeding 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 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 are reached, whereupon whaling should be prohibited to all countries which had joined the convention. A proposal along these lines was presented by the American Delegation to the London Whaling Conference of 1938.
As of possible use in considering the working of the system of control and regulations for the preservation of the above-mentioned halibut fishery there are attached hereto copies of the Convention between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, signed at Ottawa on January 29, 1937, and copies of the present regulations adopted pursuant to the provisions of that convention.
In relation to the limitation of whaling activities by means of a limitation of the amount of whale oil to be taken in any one season your attention is invited to the following resolution adopted by the Whaling Committee of the International Council for the Exploration of the Sea at a meeting held in Copenhagen on May 23, 1938: [Page 42]
“The Committee viewing with alarm the evident decline of the stock of Blue Whales, is of the opinion that nothing less than a limitation of the total amount of whale oil which may be taken in any whaling season can be effective in preserving the stock of Blue Whales from being reduced to the level at which it can no longer be the object of economic exploitation.”
This resolution is printed in the paper designated ICW/1938/4, pertaining to the London Whaling Conference of 1938.
In the Final Act of the Conference held in 1938, there are mentioned in paragraph 7, as having been considered by the Conference, a number of measures of general application which might be expected to limit the destruction of whales. Measure (c) is as follows:
“An overhead limitation of output during the Antarctic Whaling season, by which is meant that a limit of output should be fixed, after which all whaling should cease, though the limit might be reached before the end of the open season.”
In paragraph 10 of the Final Act, it is stated in relation to (c) of paragraph 7 that “the Conference did not feel able at the present time to recommend its adoption.” However, if you consider it advisable in the light of the discussions which take place, you may again advocate the establishment of a limitation on the total amount of whale oil which may be taken in one season.
The limitation of the number of catchers which might be used in connection with each expedition, mentioned in (b) of paragraph 7 of the Final Act may be discussed in connection with a proposal for the establishment of a limitation on the total amount of whale oil that may be taken in one season.
Careful attention should be given to all of the contents of the Final Act of the 1938 Conference.
V. Adherence by Japan to the Whaling Agreement of 1937 and Protocol of 1938
It is desirable, in the international efforts toward conservation of whales that all countries which produce considerable amounts of whale oil take part in that conservation. In all probability the matter of Japan’s adherence to the agreement and protocol will be brought up at the Conference by several countries, particularly Norway. The Japanese Delegation to the International Whaling Conference held in London in 1938 informed the Conference, as recorded in the Final Act of the Conference, which is signed by the Japanese Delegate, that their Government was prepared to take the necessary legislative and other measures to enable them to adhere to the 1937 London Agreement [Page 43] and the 1938 Protocol after an interval of one year, subject to a reservation in respect of the first paragraph of Article 3 of the Protocol, and that their Government was prepared to observe the principles of the Agreement of 1937 as nearly as possible until that time.
Informal inquiries made at the Japanese Foreign Office by this Government in May 1939 revealed that Japan has not changed its attitude expressed at the 1938 whaling conference of adhering to the international whaling agreement; that the matter was still under consideration.
The first paragraph of Article 3 of the Protocol is as follows:
“(1) No factory ship which has been used for the purpose of treating baleen whales south of 40° South Latitude shall be used for that purpose elsewhere within a period of twelve months from the end of the open season prescribed in Article 7 of the Principal Agreement.”
Japan insists upon reserving the right to use its factory ships and catchers which have been fishing south of 40° South Latitude, during the open season there, for fishing at other times in the waters between 66° North Latitude and 72° North Latitude from 150° East Longitude eastwards as far as 140° West Longitude. This Government is desirous of seeing Japan become a party to the agreement and protocol and would be disposed to accept a Japanese reservation in the sense of the foregoing as regards the first paragraph of Article 3 of the Protocol; provided that the exception embodied in the reservation is made applicable to the whaling vessels of all countries parties to the Protocol when all of those countries have formally given notification of their acceptance of the reservation. It may be advisable to suggest that the life of the reservation be limited to a period of not more than three years. In relation to acceptance by the United States of the reservation you will at the appropriate time state that any agreement to a modification of the provisions of the Agreement of 1937 or the Protocol of 1938 requires the approval of the Senate of the United States and the ratification of the President to be made binding on the United States.
Consideration may be given to the proposition that Japan immediately notify her adherence to the Agreement and Protocol and that formal acceptance of the reservation by all countries concerned be given as soon as possible. Even though the Agreement and Protocol would not be technically in force between Japan and the other parties to them until they notified their acceptance of the reservation, the participation by Japan in the Agreement and Protocol would further strengthen the regulation provided in the two acts and would measurably advance the cause of conservation.
[Page 44]In relation to uniform regulations for the whaling industry the following points are considered especially important.
1. Number of whaling inspectors on each ship and at each shore station.
No satisfactory compliance with the existing agreements can be hoped for until adequate inspection is provided by the Government of each country engaged in the whaling industry. As all factory ships operate on a twenty-four hour basis it is impossible for one inspector to check all whales that are hauled on board. The assignment of at least two inspectors to each factory ship should be mandatory. The present policy of the Government of the United States is to assign two whaling inspectors to each factory ship.
The assignment of at least one inspector to each shore station to which the whaling agreements relate should be mandatory to insure compliance with the provisions of those agreements. Two inspectors should be assigned to a shore station when it is operated on a twenty-four hour basis.
2. Measuring whales.
So far as the preservation of the whale stock is concerned one of the most important provisions of the Agreement of 1937 is the definition of “length” in Article 18. To insure compliance with this article some effective punitive provision for failure to accurately measure and record each whale taken should be incorporated in the regulations of the respective governments concerned. The stepping off of the length of the whale on the flensing deck or the estimating of the whale’s length by the deck foreman must be prohibited. Reports from our own whaling inspectors indicate that the measurements taken by the inspector and those entered in the book by the deck foreman do not always agree. It is desirable to have the inspector certify that the measurements reported are correct.
3. Responsibility for accurate recording of the catch—tally board.
The person responsible for the accurate recording of the kind, length, sex, whether lactating or not, and other pertinent data with respect to all whales taken should be clearly set forth in the regulations of the interested governments. These data should be recorded at the time the whale is hauled on the flensing deck. Instances have been reported where the deck foreman relied on his memory to make such entries at the end of his shift.
Consideration may be given to a requirement in all regulations that a tally board be placed on the flensing deck of each factory ship on which board there shall be recorded the required data concerning each whale taken. Such a tally board is essential in order to insure an accurate record of all whales taken.
[Page 45]4. Lactating or milk-fitted whales.
Article 6 of the London Whaling Agreement of 1937 prohibits the taking or killing of “calves, or suckling whales or female whales which are accompanied by calves or suckling whales”. These female whales which are accompanied by calves or suckling whales are known as “lactating whales” and in the Norwegian gunner contracts such whales are referred to as “milk-filled whales”. A memorandum submitted by a whaling committee to the Norwegian Whaling Control supports the proposal that a fine be imposed on those gunners whose catch of undersized or milk-filled whales exceeds a certain fixed number. The Committee recommends that this fine should be made progressive according to some predetermined scale. Furthermore, gunners who in two successive seasons have an illegal catch that exceeds the stipulated number should be refused consent to accept position as gunners during the following season. Regulations for the enforcement of the existing agreements should contain a definition of lactating whales.
As of possible interest in this relation your attention is invited to certain provisions of a bill entitled “An Act To give effect to the International Agreement for the Regulation of Whaling, signed at London, June 8, 1937, and for other purposes”9 which has been passed by the Senate of the United States and is now pending before the House of Representatives. Section 2 (r) of the bill contains the following:
“‘Lactating whale’ means a female whale with milk in the sinuses of the mammary glands and with everted teats.”
Section 3 (b) of the bill reads as follows:
“For the purposes of this section, the taking or killing of a lactating whale shall be prima-facie evidence that such whale was accompanied by a calf at the time it was taken or killed.”
All such lactating whales should be entered in the logbook of the factory ship and appropriate penalties provided for failure to make such entries should be put in force. Uniform penalties for the taking of such whales are highly desirable.
Norwegian gunner’s contracts stipulate that no bonus is to be paid for milk-filled whales. Nevertheless, American whaling inspectors have noted that the deck foreman and company officials do not always record on the official W-1 forms such lactating or milk-filled whales when they are hauled on the flensing deck of the factory ship. Since no record is made, the gunner is not deprived of his bonus. Thus the provisions of the gunner’s contract and of the agreement are evaded.
[Page 46]5. Withholding of pay from gunners and crews of whaling vessels.
Most of the countries parties to the Agreement of 1937, not including the United States, have promulgated regulations that prohibit the gunner and crews of catcher boats from receiving pay for all undersized and milk-filled whales that are taken. In the acts of most of these countries there are provisions under which the illegal taking of whales is also punishable by fine, imprisonment, and seizure of equivalent value. However, these provisions do not seem to have been applied in any instance. According to the United States Whaling Treaty Act of 1936,10 penalties can be levied against the operating companies for such violations.
6. Fender whales.
The Norwegians are reported as having advocated the confiscation of the value of all fender whales caught in the closed season. It has been the practice of most whaling companies to take fender whales in advance of the open season in order to facilitate the refueling and the transferring of supplies from the factory ship to the whale catcher boats. Article 8 of the Protocol of 1938 provides that “The taking of whales for delivery to a factory ship shall be so regulated or restricted by the master or person in charge of the factory ship that no whale carcass shall remain in the sea for a longer period than 33 hours from the time of killing to the time when it is taken up on the deck of the factory ship for treatment”. This provision should be rigidly enforced even in the case of fender whales. Appropriate penalties for failure to observe this article are necessary to insure compliance.
7. Conference on uniform regulations.
More satisfactory results can be expected if one of the countries having a larger interest in whaling than the United States sponsors a conference on uniform whaling regulations. The attitude of Great Britain on such a proposal is of prime importance for in the past their delegates have expressed the opinion that the writing of uniform regulations into any agreement is in effect passing some sort of international legislation. It is believed to be advisable to have one of the leading whaling countries take the lead in proposing uniform regulations. You may, however, take such part in the proposal and discussion of uniform regulations as you may consider advisable to further the conservation of whales. At the same time you will avoid and oppose any measure which would have the effect of placing the whaling industry of the United States at a disadvantage as compared with the whaling industries of other countries.
[Page 47]General
In general, you will be guided by the understanding that the primary object of the United States is to further the cause of conservation, as stated on page 2 above. You are authorized to make such recommendations and to discuss and support such proposals as will further the cause of conservation.
Should you be called upon to express an opinion with respect to matters about which you are uncertain as to the views of this Government, you should communicate with the Department by telegraph before stating your position.
At the conclusion of the work of the Conference you should submit a full report on the matter, setting forth in particular the position taken by you, and transmitting any pertinent documents or draft regulations and conventions that may be drawn up by the Conference.
Very truly yours,