562.8F4/31

The Secretary of State to the Curator of Mammals of the National Museum ( Kellogg )22

Sir: With reference to your appointment as a delegate on the part of the United States of America to the informal conference to be held in London to discuss the question of making certain amendments of a technical nature to the provisions of the Agreement for the Regulations of Whaling signed at London on June 8, 1937, you will be guided by the following observations and instructions.

In the note of March 31, 1943 from the British Embassy in Washington inquiring whether the United States could appoint a delegate to attend the proposed conference, there were listed five amendments which might be proposed and discussed at the conference. A copy of that note is enclosed.23 The British Government has informed this Government that the agenda of the proposed conference will be the same as that outlined in the aforementioned note but that one or two additional points will be raised. Those suggested amendments and the additional points with respect to which the Department has been informed might be raised at the conference are discussed herein-below.

[Page 1142]

In the event that amendments and points are brought up at the conference which are not discussed in these instructions, you are requested to transmit the text of those amendments and information regarding those points to the Department along with any relevant comments for study.

This Government is participating in the conference with a two-fold purpose, namely (1) meeting in so far as may be practicable the desire of other Governments to effect some modifications in the existing international whaling regulations as embodied in the Whaling Agreement of 1937 and (2) to lay the groundwork for the holding of a subsequent whaling conference in Washington as soon as international conditions permit.

In the consideration and discussion of any of the proposed amendments and points raised at the conference you will endeavor to counteract and forestall any tentative commitments with respect to any matter on which it may be desirable to defer judgment and action until a later date. You will make every practicable effort to lay groundwork looking to the holding of a subsequent whaling conference in Washington.

At the first opportune moment the American representatives will announce to the conference that the Government of the United States of America intends to call a whaling conference in Washington as soon as international conditions permit. In making the announcement you will explain that the experts of this Government are of the opinion that a conference held in Washington would offer the best opportunity of formulating in the near future a program, based on sound principles of conservation, that would give effective protection to existing stocks of whales. You may also say in this connection that our own national requirements of certain whale oil along with our interest in the conservation of the existing stocks of whales, warrant the active interest of the Government of the United States of America in the international whaling situation.

In connection with the proposed modification of the Whaling Agreement of 1937, your attention is invited especially to the fact that 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 to ratification. The International Convention for the Regulation of Whaling concluded at Geneva on September 24, 1931 (Treaty Series 880), the Agreement for the Regulation of Whaling signed at London on June 8, 1937 (Treaty Series 933) and the Protocol to the London Agreement of 1937 signed at London on June 24, 1938 (Treaty Series 944) are treaties in fact and required approval by the United States Senate before they could become binding [Page 1143] on the United States. These treaties are still considered by the Government of the United States as in force.

In connection with an inquiry by this Government whether it is contemplated that any agreement may be drawn up or signed at the conference, the American Embassy has reported to the Department as follows:

“With regard to the proposed amendments and signing of an agreement at the conference the British note states, ‘it will be seen, therefore, that the possible amendments that have been suggested to the international agreement and the subsequent protocols are of a comparatively minor character and it was not proposed to amend the agreement at this stage by any formal document even if a majority of the above points were agreed mutually’”.

However, it may be contemplated that the conference will formulate some understanding or agreement embodying some or all of the five amendments mentioned and possibly additional amendments. In this connection you are instructed to telegraph the Department the text of any proposed agreement before concurring in the provisions thereof other than for purposes of discussion. Should any agreement for signature be drafted at the conference, the signature of that agreement on behalf of the United States of America will be the subject of additional instructions. With regard to any proposed agreement which would change or affect the provisions of the Whaling Agreement of 1937 or of the Protocol thereto signed at London June 24, 1938 you will point out that this Government would desire to submit to the Senate for its consideration any such agreement, and that modification of the Whaling Treaty Act approved May 1, 1936 (49 Stat. 1246) may be necessary. Your attention is invited especially to the fact that the Whaling Treaty Act prohibits the killing of all right whales, gray whales, females accompanied by suckling whales and calves or suckling whales. Section 4 of the Act prescribes minimum lengths for certain whales and Section 6 requires that the fullest possible use shall be made of the carcass of every whale taken.

Four of the five amendments suggested by the British Government for discussion would, if adopted, relax present international whaling regulations as contained in the provisions of the Whaling Agreement of 1937 and the Protocol thereto of 1938. The general intent of the Agreement and Protocol is for the conservation of whales of commercial value, and it is pointed out that the primary object of the United; States in participating in the international whaling conferences and agreements is to further the cause of conservation.

Notwithstanding the regulation provided by the Convention for the Regulation of Whaling concluded at Geneva on September 24, 1931 and by the above-mentioned Agreement of 1937 and Protocol of 1938, [Page 1144] we have been witnessing what, without much doubt, is the last phase in the history of whaling, for after the present exploitation of the Antarctic sea reaches its culmination, where in the past 40 years more than 750,000 whales have been killed, no unexplored seas will remain to be harvested. Any alteration of existing whaling regulations should give consideration to the possibility of further depletion of existing stocks of whales, and to the effect that such changes may have on the whaling industry under post-war conditions. Accordingly, this Government is of the view that consideration should be given at the present time to a relaxation of existing International whaling regulations solely (1) because whale oil and other whale products are of great importance in the prosecution of the war, (2) because the needs for fats and oils in the immediate post-war period may be serious, and (3) because it is understood that there has been a considerable reduction in the number of countries and in the number of whaling ships that are at present engaged in whaling operations.

This Government considers it imperative that any relaxation of international whaling regulations should be restricted to the period of the present war and the immediate post-war period.

The amendments which the British Government has suggested for discussion are as follows, each amendment being underlined24 and followed by observations which have been added for your information and guidance:

(a) An expansion of the period of three months fixed for Antarctic whaling by Article 7 of the 1937 Agreement to six or eight months.

1.
The limitation on the operation of factory ships in waters south of 40° South Latitude to the “period from the 8th day of December to the 7th day of March following” was based on biological data. Whales taken before December 8 will not have spent sufficient time on the Antarctic feeding grounds to accumulate the usual amount of fat.
2.
The purpose of the limitation to the period from December 8 to March 7 was to limit the number of whales killed and to restrict whaling operations to the period when the maximum quantity of oil could be obtained from the captured whales.
3.
During the five years of whaling operations preceding the present war, the records showed a steady decline in the number of blue whales killed and a corresponding increase in the number of finbacks killed. The average length of each kind of whale in the annual catch also diminished in a corresponding manner. Evidence from all available sources indicated that the stocks of whales were being seriously depleted by the operations of factory ships.
4.
During the 1937–38 season, 54,664 whales were killed. Of these, 46,039 were taken in the Antarctic waters during the 97 day season, extending from December 8 to March 15, by 256 whale catcher boats operating with 31 floating factories and two land stations.
5.
During the 1938–39 season, which ended on March 7, 1939, at least 31 factory ships were operated in waters south of 40° South Latitude.
6.
The factory ships of German and Japanese registry, numbering 13 at least, so far as is known, have not operated since the commencement of the war. Furthermore, it is understood that a number of the factory ships of British and Norwegian registry have been sunk. Others have been converted into oil tankers. Consequently, one may surmise that not more than ten factory ships are now available for operation; these ten factory ships can not be expected to equal the catch of the 31 that operated in this area prior to the war, even though the period is extended to six or eight months. Ice and weather conditions will restrict operations before and after the season specified in the Whaling Agreement of 1937. In the event that you should learn that more than ten factory ships may be available for operations, please inform the Department.

Any relaxation of Article 7 of the Whaling Agreement of 1937 should be restricted to the period of the emergency existing during the present war and the immediate post-war period.

The American Embassy at London has reported to the Department that the British Government has communicated to the Embassy the following comments regarding this amendment:

“The period during which whaling is permitted under the international agreement runs from 8th December to 7th March, but, in view of the great need for whale oil and the relatively small number of factory ships which can be operated in the immediate postwar period, it was felt by the United Kingdom that the period might, by mutual agreement, be extended for a certain period during the first year or so after the war. Three to five months was suggested, as above, but it is understood now that the Norwegian Government would be hostile to so great an extension but would be prepared to see the period 8th December to 7th March altered to 15th November to 15th March, or even to 31st March. Whales are not in good condition much before the beginning of December, while at the end of the season the weather begins to get bad.”

(b) Exemption from the requirements of Article 11 of the Agreement as regards the comparatively unprofitable back-meat.

Under an emergency such as now exists, and the emergency that may exist in the immediate post-war period, no objection could be offered to the suggested exemption from the provisions of Article 11 as regards back-meat. It is pointed out that Article 6 of the Convention [Page 1146] for the Regulation of Whaling concluded at Geneva on September 24, 1931 provides in part that “The fullest possible use shall be made of the carcasses of whales taken”. This provision is the same as the first sentence of Article 11 of the Whaling Agreement of 1937. Any relaxation of this provision in the Convention and in the Agreement should be based upon and justified by circumstances arising from the present war, such as scarcity of shipping space to carry products other than oil obtained from back-meat, the absence of markets for the disposal of such products, the serious need for fats and oils in the immediate post-war period and the existence of a considerably smaller number of vessels engaged in whaling operations, and should be limited to the duration of the war and the immediate post-war period.

It would seem that the expression “fullest possible use” might be construed as an “escape clause” in the event that it should be decided that circumstances require some relaxation of past procedures followed in observance of the provision regarding back-meat. The Department understands that one of the Norwegian experts has suggested that the processing of lean whales should be enforced only after consultation by the inspector of an expedition with the manager of that expedition. It would seem inadvisable to leave such matters to the discretion of an inspector, especially if provisions for relaxing the present requirement regarding back-meat are embodied in a written agreement.

The American Embassy at London has reported to the Department that the British Government has communicated to the Embassy the following comments regarding this amendment:

“The United Kingdom sees no reason why the requirements of article 11 should be literally imposed for the first season after the war, when the great urge will be to obtain whale oil. Only a limited number of expeditions will be operating and the urge to get oil should not be delayed by too rigid an enforcement of this requirement of the international agreement.”

(c) Relaxation of Article 9 of the Agreement and Articles 3 and 7 of the 1938 Protocol so as to permit factory ships that take part in the Antarctic whaling season to operate elsewhere in other seasons, more particularly off the coast of West Australia.

1.
As regards factory ships which will operate in the off-season in waters where mainly sperm whales are taken, no serious objection can be offered for the period of the emergency existing during the war and which may exist in the immediate post-war period.
2.
As regards the proposal for operating factory ships in Australian waters, the provisions of Article 9 of the Agreement, and of Articles 3 and 7 of the Protocol should not be set aside or modified. The catch [Page 1147] of factory ships in Australian waters is limited almost entirely to humpback whales. It is generally recognized that on migrating northward humpbacks generally tend to resort to coastal waters. Consequently, if factory ships are stationed on concentrated migration routes, whaling operations might succeed in killing about as many humpbacks as all Antarctic factory ships combined.

Interference with the breeding stock in Australian waters and elsewhere in warmer waters during the winter season, which is the breeding and calving period, is likely to have a more harmful effect on the stock of humpbacks than the same amount of interference in the Antarctic during the summer (December 8 to March 7), especially since the breeding grounds of this species are more circumscribed than those of other species. The following may be of interest in connection with this matter:

Average length of humpbacks taken in Antarctic is 42.26 feet. Female humpback becomes adult at about 41 feet. Male humpback becomes adult at about 39½ feet. During the 1934–35 season, about 700 female adult humpbacks were killed, of which 241 had fetuses.

The humpback stock in Australian waters was so depleted that a proposal was made in 1938 to give complete protection to humpback whales for a suitable period after September 30, 1939 (see last sentence, paragraph 13 of Final Act of Whaling Conference of 1938, Treaty Series 944). The embargo on the taking of humpback whales provided for in Article 1 of the Protocol of 1938 expired on September 30, 1939. A recommendation made by the informal conference held in London in July, 1939, that the provisions of Article 1 of the Protocol should be extended for another year from October 1, 1939 to September 30, 1940, was subsequently put into effect by regulations of the governments concerned. Concentration of factory ships in that area will seriously aggravate already existing conditions in the humpback stock.

The American Embassy at London has reported to the Department that the British Government has communicated to the Embassy the following comments regarding this amendment:

“This suggestion was included at the request of the whaling industry. Under the original agreement a factory ship operating in the Antarctic was not allowed to engage in any other whaling operations elsewhere in the same year, and the United Kingdom are of opinion that this is a proper precaution and should not be relaxed, having regard to the still urgent need to preserve and maintain the whale stocks, particularly as any subsequent operations would be likely to be directed largely against humpbacks and whales carrying calves.”

(d) Reduction of the minimum size limit for sperm whales from thirty-five to thirty feet.

[Page 1148]

The American Embassy at London has reported to the Department that the British Government has communicated to the Embassy the following comments regarding this amendment:

“Objection is seen by the United Kingdom (and it is believed by Norway) to the proposed reduction of the minimum size for sperm whales.”

The Department understands from information informally received that the British experts and Norwegian experts are opposing any change in the existing minimum length of 35 feet. Since there seems to be some agreement on this point you should take the same position in view of the serious need for continued protection for sperm whales.

(e) The resumption of the embargo on the taking of humpback whales in any waters south of latitude south which was included in the 1938 Protocol and extended for a year in 1939 and has now lapsed.

On biological grounds the resumption of the embargo on killing humpbacks in waters south of 40° south should be recommended (see also remarks above under (c)–2).

It would seem advisable that in any agreement embodying some or all of the amendments set forth in (a), (b), (c), and (d) above there should be included a provision limiting the permissible catch of baleen whales along the lines mentioned herein below as suggested by the Norwegian Government. A global limitation on the total annual take of whales has been supported by the American representatives at each of the previous whaling conferences in which this Government has participated. Such a provision would not only have the effect of giving some assurance that an adequate stock of whales in the post-war period would be available but would also tend to assure a continuing stock of whales during the period of the war.

In connection with any proposals that may be advanced for limiting the number of whales killed, it is suggested that the methods utilized by the International Fisheries Commission appointed under 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 (Treaty Series 917) might be given consideration. These measures have proven successful in regulating a deep sea fishery. It is believed 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 upon the return of normal conditions by empowering the International Bureau of Whaling Statistics in Norway to perform certain functions. Such an administrative [Page 1149] body could doubtless check on the activities of whaling vessels in the various areas which might be open to whaling until the limitations established for those areas had been reached, whereupon whaling would be prohibited to all countries with respect to which the international whaling regulations are made effective. 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.

With regard to a limitation on the total seasonal catch of whales, your attention is invited to the following comments made by the British Government to the American Embassy at London:

“It is possible that at the forthcoming conference one or two additional points may be raised by delegates, but these should be capable of adjustment round the table without previous notice. One, for example, is that when it again becomes possible to hold annual international whaling conferences, a limit should be imposed on the number of blue whale units to be caught in any one season and the figure of 15,000 to 17,000 blue whale units has been mentioned. It is not possible that, with the few factory ships likely to be available in the first year after the war, anything like this number will be caught, but it is nevertheless considered desirable, both by the United Kingdom and the Norwegian Governments that the principle of putting a limit of the number of blue whale units to be caught should be ventilated at the earliest possible date, so that it may be brought into effective operation as soon as the number of factory ships increases and renders the imposition of a maximum quantity necessary. It may also be proposed to revive the provisions of article 2 of the 1938 protocol, creating a temporary sanctuary for baleen whales in the Antarctic.”

The Department understands that one of the Norwegian experts has recommended that the total permissible catch of baleen whales should not exceed 20,000 blue whale units annually and since it is generally recognized that further protection should be given if possible to the blue whale stocks in Antarctic waters, that expert proposes that the catch should be restricted to 15,000 to 16,000 blue whale units. One blue whale unit represents approximately 100 barrels, although the actual amount of oil now obtained from the average blue whale is somewhat less than this quantity. On this basis, the calculated blue whale unit is as follows:

  • 1 blue whale equals 2 finbacks or
  • 2½ humpbacks equals 1 blue whale or
  • 6 sei whales equal 1 blue whale.

[Page 1150]

According to the above proposal, the total annual Antarctic catch should be limited to 1,500,000 to 1,600,000 barrels.

  • 1,600,000 barrels of whale oil equals 266,666 long tons (at 2240 lbs.)
    [metric ton equals 2204.6 lbs.]25
    equals 270,970 metric tons
  • Total Antarctic Production in 1938/39 equals 2,820,771 bbls.

A limitation on the annual catch of whales would be appropriate, in as much as the general intent of the International Agreement is to conserve the stocks of whales and to prevent overfishing. Hence a modification of this kind can be advocated as strengthening the general agreement.

The Department understands from information which it has received in connection with the proposed whaling conference that some consideration might be given to the question of participation in pelagic whaling after the present war by countries with which the United Nations are at war. You will avoid bringing up this matter on your own initiative. However, if the matter should be presented for discussion and it appears that the representatives of other governments are desirous of considering it you will be guided by the following:

1.
It appears that it would be very difficult at the present time to formulate any definite policy with respect to this subject;
2.
All countries with which the United Nations are at war should be required by the peace treaty or treaties to observe, in the event that those countries engage in whaling operations, existing and future international treaties and agreements for the regulation of whaling. Consideration might be given to the inclusion of specific provisions regarding this matter in the peace treaty or treaties.

In general, you will be guided by the understanding that the primary object of the United States in participating in international conferences and agreements regarding the regulation of whaling is to further the cause of conservation as stated above. Any relaxation of present whaling agreements to which the United States is a party should be justified by circumstances and requirements resulting from the present war. You are authorized to make such recommendations and support such measures as will assure a reasonable regulation of whaling and at the same time agree to such exploitation as may be permissible to meet the needs of the war effort of the United Nations and to meet the humanitarian needs for fats and oils in the period immediately following the cessation of hostilities, bearing in mind all the while that existing stocks of whales should be maintained to the greatest possible extent.

Should you be called on to express an opinion with respect to matters about which you are uncertain as to the views of this Government, [Page 1151] you should communicate with the Department by telegraph before stating your position.

At the conclusion of the conference you should submit a full report on the proceedings, setting forth in particular the position taken by you, and transmitting four sets of any pertinent documents or agreements that may be drawn up by the conference, and the daily mimeographed copies of conference proceedings. Copies of all such documents should be collected each day of the conference.

Copies of the Treaty Series and a copy of the Whaling Treaty Act mentioned hereinabove, copies of the Whaling Regulations of 1940 as amended in 1941 and a copy of the 1943 Halibut Fishery Regulations are being transmitted to the American Embassy in London for the use of the American Delegation to the conference.

Very truly yours,

For the Secretary of State:
Breckinridge Long
  1. Similar instructions, on the same date, to the other members of the delegation. For composition of the delegation, see telegram No. 8250, December 31, to the Ambassador in the United Kingdom, p. 1151.
  2. Ante, p. 1127.
  3. Printed in italics.
  4. Brackets appear in the original.