Cetaceans: From Bare Life to Nonhuman Others

THE PREMISES

In the first half of the nineteenth century, a white sperm whale of prodigious size and strength terrorized whalers1 off Chile. Mocha Dick, as the whale came to be known, retaliated with audacity and cunning when attacked. According to a contemporary report, in one occasion he suddenly breached to come to the aid of a distraught cow whose calf had just been slain by the whalers. When, old and half-blind, he was killed, his body, which was 21 meters long, bore almost twenty harpoons. It is related that, in his career, he stove three whaling ships and a number of boats, killing more than thirty men, and that — perhaps extending his hatred to all human beings – he also sunk an Australian trader and a French merchantman.2 Mocha wasn’t the only whale who fought back. In 1820, in the south Pacific, another sperm whale, coming down hastily with his head about half out of the water, twice struck the whaleship Essex, sinking it and causing the subsequent, slow death of a dozen whalers.3 In 1851, the Ann Alexander was drowned by a whale who, after being hit in the head,  disappeared for a while, and then rushed at it at such a speed that there was no time to make any avoiding action, and the ship was shaken from stern to stern.4

These and other occurrences could be seen as cases of what, within the field of genocide studies, is defined as the resistance of victim groups. For, starting at least from the Seventeenth century, whales and dolphins have been killed by the hundreds of thousands, so that the history of human relationships with cetaceans can be actually seen as a genocidal history. True, we normally use the term “genocide” to refer to a practice concerning human beings, but there is nothing in it which logically prevents it from being  applied to nonhuman beings. And it is clear that the notion, which refers to intergroup violence as contrasted to violence between individuals,5 plainly fits this context.

Indeed, one can detect in the past human-cetacean scenario many of the elements characterizing genocidal practice. 6 Among them are: economic exploitation (“total carcass utilization” was the slogan of the leading companies); accessibility of victim group (the catch of the fastest and heaviest cetaceans — the rorqual whales – was made possible by steam-powered ships and harpoon cannons); massacre (some 1.4 million whales were killed in the Antarctic alone); slavery (small cetaceans have been kept in captivity since the half of the nineteenth century); disruption of families (the Basques would catch northern right whales when they gathered to breed); destructuration of codes of behavior (since the 1930 dolphins were employed in a display industry for public entertainment); and rationalization of misdeed (historians celebrated the  myth of those who could “destroy in its own element the mighty monarch of the ocean,”7 and writers praised “the whale-ship, that cleared the way for the missionary and the merchant”.8 Moreover, if one considers that great and small cetaceans typically wandered free in an area of the planet that human beings hadn’t as yet entirely colonized and enframed, even the notion of supersessionism – or intergroup violence prompted by the view that “inferior” groups can be superseded by “superior” groups – can be applied to the dislodgment of the various species of whales from the oceanic areas to which the whaling fleets progressively penetrated, or to the fishermen’s crusades to eradicate dolphins from the waters where they expanded their activities.

As a consequence of such policies, around the middle of the past century large scale hunting, developed into a commercial industry, had already lead to the near extinction of many species. In that very period, however, there was an externally induced caesura. It is acknowledged that the disasters of the first half of the twentieth century prompted a pervasive moral and juridical reflection aimed at curbing forms of institutionalized violence in varied areas. Among the results of such reflection, there was on the one hand the affirmation of the idea that the traditional order based on full state sovereignty was coming to an end, and that it was time that international law should compensate for nation states’ failures; and, on the other, the appearance on the global scene of new areas of international law, ranging from arms control to minority rights to refugee law, and including for the first time environmental protection. Both these developments had an impact on the question of cetacean hunt, and the year 1946 saw the creation of the International Whaling Commission (IWC), which aimed at coordinating the different national industries and also at identifying particular species to be protected.

The history of the IWC is well known. If for the first two decades its presence was hardly noticeable, soon afterwards the growing international interest in the plight of cetaceans made it the locus of a clash between the pro- and anti-whaling camps. After the Convention on International Trade in Endangered Species outflanked the IWC on its left, listing as threatened ever more whale species, and in the face of the escalating “whale wars” of the 1980’s9 and of the release of imprisoned dolphins in Hawaii and in Japan,10 the year 1986 saw a victory of the conservationist countries with the approval of a five-year moratorium, implying a ban on commercial whaling that exempted only “aboriginal subsistence whaling” and “scientific whaling”. In 1990, when the moratorium was renewed, the reformist process underwent an acceleration, and the IWC condemned as unnecessary the killing “for research”. Just while the public opinion and the great majority of states responded favourably to the global anti-whaling movement, however, a pro-whaling bloc crystallized. In the last two decades, such bloc made every effort to counter the  progressive trend. Norway lodged an official objection to the moratorium and continued to whale commercially; Iceland awarded itself a quota for “scientific” whaling; and Japan started a systematic program of “scientific research”. The three nations also threatened to leave the IWC if it did not repeal the ban.

CETACEANS AS BARE LIFE

What is the situation that such pro-whaling resistence has determined ? At present about two thousand whales are slaughtered annually under the heading of “scientific research”, as well as a consequence of the possibility for member countries of opting out of IWC rules; and hundreds are legally killed on the basis of catch limits for “aboriginal subsistence whaling” set by the IWC. As for small cetaceans, while IWC, in its role of “scientific advisor”,11 recognizes the need for further international cooperation “to conserve and rebuild depleted stocks”, thousands are slaughtered yearly in the so-called drive hunts, in which dolphins are corralled into bays and then stabbed to death.

There is, in the philosophical landscape, an ethico-political theme that well captures this situation — a situation in which, even in the absence of extensive intergroup violence, individual existences remain under constant threat. It is the theme of  “bare life”. Despite some indeterminateness in its use, which makes it sometimes allude to a structural condition, the notion of bare life12 essentially refers to a contingent situation of powerlessness which can be administratively imposed upon individuals. Forged from the beginning in connection with an analysis of the relation between lawmaking and menace of death, the notion was revived in the context of more recent reflections on the entanglements between political power and the realm of arbitrary violence.13 Bare life is the life of those beings who, through a complex form of “inclusive exclusion”14 from the juridical order, are so completely deprived of rights and prerogatives that no act committed against them can appear as a crime. In other words, bare life is life “exposed to an unconditioned threat of death.”15  Though the focus is exclusively on human beings,16 and on their being reduced to bare life, as it dramatically occurred in not too distant decades through a gradual process of denaturalization, deportation and segregation, it is difficult to ignore the fact that, if human beings can be reduced to this condition, nonhuman beings tend to be such as a matter of course. Thus, when in this context it is argued that the extermination of bare life is nothing but the actualization of the victims’ liability to be killed, a parallel with animals immediately makes its appearance; and when it is emphasized that a legacy of modern totalitarianisms is the predisposition to handle  individuals as bare life, we are soon told that, at this point in history, “humanity… has become animal again.”17 In its archetypal form, bare life manifests itself in nonhuman beings.

Literally, in our societies, animals are caught in a juridical apparatus which includes their exclusion by ratifying the harms that can be inflicted upon them. This holds in a particularly distinct way for the current situation of cetaceans. Differently from what was the case when, being definitely seen as fair game, they were objects of genocidal practices, in fact, their present deprivation of rights does not stem from a total exclusion from the juridical order, but is rather inserted in an international legal system which frames and countenances it, with the IWC still sticking to the conventional conceptual and pragmatic framework revolving around “quotas”, “catch reports” and “humaneness of killing operations.”18 All considered, what one confronts in whales and dolphins is the instantiation of a life that as such remains exposed to violence “precisely in the most profane and banal ways”19 – that is to say, bare life.

Yet if, in the case of normally protected human beings, quite inadequate legal provisions can be the mark of an appallingly demoted status, in the case of routinely defenseless nonhuman beings they can be taken as providing an objective springboard for  an impending, important shift. This is, in fact, the direction in which a legal argument for cetaceans’ rights based on a reasoned survey of international jurisprudence leads.

A NEW PERSPECTIVE

A few years ago, legal scholars Anthony D’Amato and Sudhir Chopra published a dense essay in which they claimed that it was time to extend to whales the most fundamental of all human rights – the right to life.20 In support of such claim, they advanced a juridical argument connected with the broadening world consciousness which has manifested itself in the history of the policies of the involved international institutions. Alleging that a detailed reconstruction shows how such policies moved through five incremental stages – free resource, regulation, conservation, protection and preservation –  D’Amato and Chopra, employing purposive as well as descriptive materials, in view of the fact that customary international law is a synthesis of qualitative and quantitative elements, argue that this very progression naturally paves the way for a sixth stage – entitlement. And while their main focus is on the large cetaceans who since the outset were brought within the IWC’s legal competence, their reasoning can be easily extended to small cetaceans, since, as we have seen, dolphins too incrementally passed from a free resource stage to a scenario in which, while not setting official regulations, the IWC itself deals with their conservation.21

D’Amato and Chopra admit that the idea of entitlement implies a major theoretical change: to claim that cetaceans are “entitled” to life means to recognize that they must be raised from the sphere of bare life governed by instrumental calculations to the favoured realm where rights and prerogatives apply. They nonetheless show how, while involving a crucial shift, the entitlement stage can be logically construed as a mere incremental advance in the series of the progressive stages in question. For, set within the framework of international jurisprudence, what the involved historical process reveals is that trend in the component of customary international law which is called opinio juris. The development of international custom, the authors argue, is a dynamic process, and to anticipate a customary trend is to argue that, in a sense, it already exists. In the case of cetaceans, the practice of states has moved through phases that are best characterized as increases in international breadth of awareness, pushing forward even  structurally reluctant institutions such as the IWC; and this combination of practice and awareness is just what formally constitutes the material and psychological elements of general custom. Since what states do becomes what they legally ought to do, by virtue of a growing sense that what they do is right, proper and natural, the dawning sense of duty to cetaceans discloses a sense of obligation that constitutes the opinio juris component of binding customary international law. It is in this sense that it can be asserted that the attainment of the entitlement stage in its inevitability has already been anticipated in the law.

As D’Amato and Chopra stress, the idea of having an entitlement includes a notion of a moral right that can inform existing law or push it in a certain direction. In a legal context, when a court accepts the moral claim of right and recognizes it as somehow subsisting in the law all along, though legal precedent was to the contrary, it is said that the court “articulates” the pre-existing right. Along these lines, an international court could articulate a right to life of whales and dolphins arising from the customary law practice of their preservation. This because cetaceans’ entitlement is already implicit in international law as resulting from progression through the previous stages, and from a sense that further development is morally legitimate.

Concerning the aspect of perceived moral legitimacy, D’Amato and Chopra observe that, factually, the “extensionist” feature of this course is consonant with a global historical process which has seen the continuous widening of the circle of rights holders, with a progression in ascribing fundamental protection to formerly defenceless beings. To this, one may add that, evaluatively, this substitution of hierarchical visions with presumptions in favour of equality is just what we see as moral progress. And lastly, it should not be forgotten that, while international legal theory has long emphasized its theoretical autonomy, recently many scholars have challenged this conventional model, regarding instead international law as at least partially founded on ethics.22 Against this background, it may be in order here to briefly consider the strictly ethical side of the case for cetaceans’ rights.

WHO ARE THE OTHERS?

In short, ethics has as its object two sorts of theory of conduct. Morality in the broad sense is an all-inclusive theory of conduct, including precepts about the general values to be pursued. Morality in the narrow sense consists instead of a system of constraints on conduct, usually expressed in terms of negative duties, whose task is to prevent harm to others – first and foremost, in the two main forms of the infliction of suffering and the taking of life.23 Traditionally, in our philosophical landscape, it was the notion of “person” which played a major role with reference to the identification of who is to be included among “others,” in the particular sense of those beings who have full moral standing.24

Are cetaceans persons? Though “person” is defined so that it is a descriptive term, the assignment of descriptive content is guided by moral considerations. Is the concept of person coextensive with the concept of “human being”? Arguably not. First, its theological use in connection with God prevented it from becoming another term for human being. Second, a central strand in analytic philosophy, arguing that the facts which are morally relevant in themselves are not biological facts, but rather psychological facts, recently claimed that the concept of a person is the concept, not of a being belonging to a certain species, but of a being endowed with certain mental traits.25 More particularly, elaborating on the basic idea that a person is a being that can consider itself as itself in different times and places,26 many authors contended that the mental trait which is central to personhood is the property of being aware of oneself as a distinct entity – in other words, self-consciousness.27 This approach has the clear advantage of bringing to light a possible ground for the conventional connection between personhood and the right to life. For a being which is aware of itself can conceive of death as the termination of its existence, and can accordingly dread it, and has therefore a direct interest in its continued life; and if the function of rights is to protect interests,28 the interest of such being ought to be protected by a right to life. Due to this moral entailment, if the status of bare life is the paragon of powerlessness, the status of person is the locus of ethical privilege.

Are cetaceans self-conscious? We have now sufficient information about these nonhuman beings’ cognitive capacities to answer this question affirmatively. An ever-growing scientific literature tells us that, in whales and dolphins — beings who are endowed with great and complex brains29 — we can find complex and stable cultures which had previously only been suggested for our species;30 a capacity for mirror self-recognition – the classical test for self-awareness – as well as for verbal language apprehension;31 and the presence of the backward, present, and forward looking attitudes forming the foundation upon which self-consciousness is mounted.32 Accordingly, a consistent application of the personhood account would confirm that cetaceans are in the number of the “others” toward whom we should systematically restrict our conduct.

While the notion of a person is philosophically deep-rooted, however, what is central to international law is rather the more recent notion of universal human rights. Human rights are a special category of moral rights that are also proposed as legal rights, and that are distinguished by some structural attributes. First, they are, fundamentally, negative rights, guaranteed by the prohibitions of taking life, depriving of freedom, and jeopardizing welfare; second, they are institutional in character, that is, the model of both their implementation and their violation is based on the organization and the action of the state;33 and finally, they have the property of being unacquired, i.e. they do not arise from any special circumstances, but are possessed simply through being the sort of creature one is.

Insofar as its focus on non-interference and its institutional character make its implications direct and explicit, human rights doctrine appears better suited than the personhood account to actualize moral reform,. But what sorts of creatures are included in its scope?  The most common answer is obviously “humanbeings”  – after all, the phrase itself directly incorporates a reference to humankind. This answer is, however, problematic. For on the one hand, “human” cannot be construed here in the philosophical sense of possessing high cognitive skills, as this would exclude human children, the senile, or the intellectually disabled — something which means that the rights-ascribing criterion must lie at a mental level accessible to many non-human beings. And, on the other, “human” cannot refer to the biological sense of possessing a genotype Homo sapiens, as this would imply a contradiction with the theory’s postulate of the moral irrelevance of biological characteristics, as embodied in the condemnation of racism and sexism34 – something which means that mere species membership cannot be a ground for inclusion/exclusion.35

Is there a reply to the question of what sort of being one must be in order to possess “human rights” which can overcome these difficulties? Among the solutions advanced, the most theoretically sound is the philosophical one according to which the criterion for the access to the enjoyment of human rights lies only in being an agent, that is, an intentional being that cares about its goals and wants to achieve them. All the beings that fulfil the requisite of intentionality are characterized by the capacity to enjoy freedom and welfare, as well as life as a prerequisite for action; and, for all these beings, the intrinsic value of their enjoyment is the same. To choose as a criterion, instead of intentionality, any other characteristic would be arbitrary, since it would exclude from moral consideration interests which are relevantly similar in that they are equally vital for their bearers.36 But if, according to an approach which has the merit of not divesting of rights just those human beings who most sorely need them, and which fully confirms the rejection of any form of biological discrimination, the criterion for inclusion in the privileged class of  “Others” is intentionality, it is clear that whales and dolphins once more do qualify. For there is no doubt that cetaceans are intentional (nonhuman) agents. Indeed, the already considered stricter criterion for personhood directly subsumes the looser one for intentionality.

CETACEANS AND THE RIGHT TO LIFE

It thus seems that, ethically, the project of extending fundamental moral protection to whales and dolphins at which developments in international law point is entailed by either of the most universally accepted approaches to eligibility for basic rights. Included among such rights is, as we have seen, just that “hard” right to life which has traditionally been restricted to human beings.37 According to an authoritative source, the human right to life – primarily articulated in the International Covenant on Civil and Political Rights38 – is such a general principle as to transcend any particular statements in specific international conventions.39 However, if one temporarily sets aside the vague appeal to the “universal conscience of the world’s peoples,” no justification in autonomous moral terms is offered for such a claim. Indeed, it is a feature of international declarations that they pay little attention to reasons or justifications,40 so that both the general foundation of the right to life and the view of such a right as a prerogative of human beings are taken for granted. On the other hand, the widespread stress on the idea that without the right to life all of the other rights are useless, as life is the prerequisite for the enjoyment of any other goods,41 clearly points to that indirect interest approach to the value of life that, as we have seen above, departs from the higher standards of  the personhood account. In view of this, it can be concluded that a right to life for cetaceans — for the mothers who are pursued into the open sea, for the babies who are slaughtered near the coasts, for the gangs of teenagers whose blood instantly reddens entire bays – should be presently incorporated in international law and  implemented by global governance practices. 42

What to say, then, of the claims advanced by those who oppose this step forward? On close inspection, there is only one notion around which, explicitly or implicitly, all such claims revolve. It is the notion of cultural tradition. Quite often, the debate over global governance is contrived as a clash between a body of international laws and what is depicted as “national culture.”43 Actually, when national governments want to supersede international norms, they tend to claim cultural exceptions — that is, they make reference to their “cultural heritage.”  This applies in our context too. All the practices whose official vindication stands in the way of cetacean legal protection — from continued whaling by Iceland, Japan and Norway and authorized  “subsistence whaling” by aboriginal groups to the systematic massacres of the dolphin drive hunts – are defended by appeals to traditional cultural practices or perspectives.

But there is nothing sacred in cultural traditions. Though they are favored by the current prevalence of multicultural discourses — so much so that they are often reinvented to fuel processes of collective identity construction in a specifically “anti-colonialist” perspective44 – cultural traditions are not a trump card. They may be important, but only prima facie, that is, absent any further considerations. If the appeal to cultural traditions can play some role when what is at issue are peripheral matters like, e.g., specific exceptions to free trade, it cannot but yield when what is involved is what we have defined as the core of moral progress – the gradual progression in ascribing fundamental protection to formerly defenceless beings.

The word “tradition”, coming from a Latin term meaning “delivery”, refers to what is handed down as belief or practice; and, paraphrasing from John Stuart Mill’s comment on intuitions,45 one might say that traditions, dispensing with the obligation of justifying themselves by reason, and erected into their own all-sufficient justification, can consecrate deep-seated prejudices and give support to bad institutions. In fact, they are more than often appealed to by those in power to maintain hierarchical and exploitative systems within their societies. Human slavery has been seen, and defended, as a traditional cultural practice for centuries.46 And, at present, many Third World nations do object to the universalism of women rights by invoking traditional views of women in their communities; it even occurs that states agree to ratify conventions including women rights with the explicit reservation that they must be subject to cultural beliefs and practices,47 while women’s NGOs continue to work internationally to achieve effective equality.

The case of the current dispute about cetaceans’ right to life is not different, and in this instance too cultural objections must be openly rejected. For what the appeal to cultural traditions tries here to forestall, contra both the opinio juris of customary international law and a consistent application of undisputed moral doctrines — and, by the way,  also contra the new consciousness of the world’s peoples – is a decisive step in moral and legal progress whose immediate result would be the extension of basic equality to some nonhuman beings – whales and dolphins – and whose logic and propulsive force could pave the way for further future extension.

Given this situation, it is plausible to claim that an important change is in order. When the U.N. demand for a ten-year moratorium of commercial whaling was first rejected by the IWC’s Scientific Committee, questions were raised about the IWC role, and proposals were made calling for the U.N. to assume jurisdiction. This idea has become more relevant today. Arguably, an institution which was initially created with the goal of regulating the exploitation of whales can no longer be seen as the best organization to deal with cetaceans’ protection. As we are on the verge of taking a further step along the path of progress, the time is ripe to remove human/cetacean relations from the hands of the former hunting nations. It would be in line with the present trend towards greater global governance in a variety of areas to create a new, ad hoc U.N. institution which might be up to the task of internationally declaring, and then elaborating in a series of covenants, cetaceans’ right to life.

*This paper was presented at the Meeting “Cetacean Rights: Fostering Moral and Legal Change”, Helsinki Collegium for Advanced Studies, University of Helsinki, Finland, 21-22 May 2010, where a Declaration was issued (https://cetaceanconservation.com.au/cetaceanrights/). I thank Franco Salanga and Harlan B. Miller for their constructive comments.