Contestation and norm change in whale and elephant conservation: Non-use or sustainable use?

Norm change: the ban on ivory trading, 1989 and 1997/2000

African peoples have hunted elephants for subsistence for tens of thousands of years. Beyond hides and meat, ivory was used for weapons and (most commonly) ornaments reaching back at least 30,000 years (Walker, 2009: 14–16). Once intercontinental trade was established and expanded, successive generations of external traders exploited the associated indigenous skills, driven by demand in the Mediterranean world, the Middle East, South Asia, China, and Europe (see e.g. Feinberg and Johnson, 1982).

European colonizers, as they entered the African continent from the 1500s onwards, criminalized native use of land and wildlife (Beinart and Hughes, 2007: 16). The prescriptive norms of “conservation” and “preservation” emerged around the turn of the 20th century, stating that indigenous hunting—“poaching”—was a danger to elephants, yet hunting licensed by Europeans on an immense scale was not (Steinhart, 1989, 2006). The colonial origins of conservationism are therefore an important lens for historical and present-day normative conflict over nature and wildlife. After independence, many African leaders and their patronage networks used state institutions to enrich themselves from the ivory trade (Somerville, 2016: 12–14, 99–102). Ivory exports from the continent continued (Milner-Gulland and Beddington, 1997), with elephant populations more than halved between 1979 and 1989 from 1.3 to 0.6 million (Stiles, 2004: 313).

From the 1970s onwards, the international legalization of conservation matters began to take hold. Limiting the ivory trade was seen as a primary means to protect the African elephant, alongside increased funding for national parks. CITES entered into force in 1975, intended to “curb international trade in a few highly visible and highly endangered species,” following a vision of a “shared human heritage” (Thompson, 2004: 58). The prominence of elephants within CITES is immediately visible: The convention’s logo is itself a stylized elephant. The treaty targets international traffic in animals and animal products, and is restricted to trade, therefore not covering on-the-ground conservation policy. Western states, NGOs, and experts dominated CITES, and “African governments and peoples [were] deprived of much agency over the formal, internationalised system of wildlife management and the utilisation of wildlife as a national resource” (Somerville, 2016: 181–182, 199).

The key mechanisms of CITES are its three appendices. Appendix I lists wildlife threatened with extinction if trade continues and effectively acts as a “blacklist” (Reeve, 2006: 881). Appendix II bans trade unless it demonstrably does not endanger the species’ survival, requiring permits and close regulation. Appendix III regulates the trade in domestic species as requested by particular states (Gehring and Ruffing, 2008: 129).

The main fault lines of international conservationist discourse, both scientific and public, concerned elephant population estimates (and thus the severity of the problem; Thompson, 2004: 58–59), the causes of the decline (poaching or general habitat degradation), and the ethics of culling (Somerville, 2016: 182–196). While opinions differed, all sides acknowledged the precipitous decline in elephant populations, leading to the question of how it was to be countered. In 1987, a small group of NGOs and researchers spearheaded a media campaign centering around an appeal to the public against the personal purchase of ivory. Despite the fact that neither African and Western governments nor large conservation organizations had previously advocated a ban on ivory trading, Western public perception rapidly changed (Bonner, 1993: 114). A general ban was swiftly enacted by member states through relisting the African elephant in Appendix I of CITES at the 1989 CoP (Douglas-Hamilton and Douglas-Hamilton, 1992: 302; Somerville, 2016: 193–195). However, the decision included the possibility of future downlisting if stocks proved to be sustainable and controls were in place.

Zimbabwe, Zambia, Botswana, Malawi, and South Africa immediately entered reservations to the universal Appendix I listing, Namibia joined in 1990. Norm challengers kept up the pressure, at times employing creative contestation strategies: At the 1992 CoP, to counter the perceived Western meddling, Zimbabwe tabled a proposal to list the North Sea herring in Appendix I (later withdrawn; Walker, 2009: 189).

At the 1997 CITES CoP, Zimbabwe, Botswana, and Namibia were successful in gaining a majority for downlisting their elephant populations to Appendix II. The move had several conditions, such as the withdrawal of reservations, a functioning management mechanism, and an improved international monitoring system. Ivory stocks were subsequently allowed to be sold to Japan in a tightly controlled, one-off fashion. The downlisting decision was supported by major conservation NGOs such as World Wildlife Fund (WWF) and expert organizations such as International Union for Conservation of Nature (IUCN) (Mofson, 2000: 114–115; Thompson, 2004: 62). A first sale of 50 tons of ivory resulted in US$5 million of funding for elephant conservation programs in 1999 (CITES, 2008).

The downlisting of local elephant populations to Appendix II has not stopped the contentious debates (see Gaffney and Evensen, 2019). Current research shows a renewed decline of Southern African elephant populations since 2016. Moreover, at the 2019 CITES CoP, Zambia proposed the downlisting of its populations, while Botswana, Namibia, and Zimbabwe submitted a proposal for the first round of one-off sales since 2008. Both proposals failed with about 75% of voting members voting against (Down to Earth, 2019). However, this article is primarily concerned with the debates surrounding the original ban on the international ivory trade (1989) and the subsequent downlisting of local elephant populations (1997/2000).

No norm change: the moratorium on whaling

Whaling, similarly to elephant hunting, is an activity with a long history, widespread among indigenous and coastal populations around the world. It was first pursued commercially by the Basques in the Early Middle Ages. The rapid industrialization of European and North American whaling, starting in the 19th century, led to major declines in many whale stocks (Dorsey, 2016; Tønnessen and Johnsen, 1982). As early as the 1930s, the consequences of industrial whaling showed the necessity of international regulation. Agreements from the inter-war years were hardly effective, however. Accordingly, a new convention, the International Convention for the Regulation of Whaling (ICRW), was negotiated and signed in 1946. The ICRW aims to conserve and manage whale stocks for the “orderly development of the whaling industry” but also for “future generations” (preamble, ICRW). These measures were also ineffective in curbing whaling activities, and whale stocks continued to dwindle (on negotiations, see Dorsey, 2016). In 1982, the IWC decided to set all catch limits to zero for up to 5 years to ensure that endangered whale species could recover. ² At this time, the moratorium was justified as a measure to discuss and implement sustainable catch limits and more efficient monitoring. ³ The moratorium—initially proposed as a temporary measure—entered into force in 1985/86 and has been in place ever since. At its core, the moratorium rules out commercial whaling activities of any kind by member states. It leaves two exemptions for whaling: “aboriginal subsistence whaling” based on IWC-determined quotas and lethal whaling for scientific purposes based on domestically issued permits (“special permit” whaling) remain legal. ⁴

This moratorium was highly successful in stopping commercial whaling activities in the 1980s. Several former whalers switched to anti-whaling positions or at least halted commercial whaling (such as Norway, Iceland, South Korea, and the Soviet Union). The ICRW regime allows for opt-out clauses. While Norway has never accepted the moratorium, Iceland—in a legally disputed move—left the IWC in the 1990s and rejoined in 2002 with an opt-out on the moratorium. Norway and Iceland resumed commercial whaling in 1994 and 2008, respectively. Japan for many years used the exemption of domestically issued permits for scientific whaling before withdrawing from the IWC completely and resuming commercial whaling in July 2019.

Disputes over the ban have intensified since the 1990s (Deitelhoff and Zimmermann, 2020). Pro-whaling states, such as Japan, Norway, and Iceland, supported by an increasing number of African and Caribbean states, argued for a sustainable, limited reopening. A coalition of anti-whaling states (including the United States, Australia, New Zealand, and most Latin American and European states) now openly advocated for an unlimited ban. In the polarized atmosphere of the IWC, several unsuccessful attempts for compromise were made (e.g. the so-called “Irish proposal” in the 1990s, the Chair’s proposal in early 2000s, and the “Future of the IWC” process from 2008 to 2010). Up until today, the commercial whaling ban remains in place.

The similarities of the ivory trade and whaling cases have been noted by the principal actors in both cases. For example, the reopening of ivory trade was presented as a precedent for the potential resumption of commercial whaling by pro-whaling states. Moreover, Norway, Japan, and the Southern African states vocally supported each other’s causes in CITES and IWC meetings (Couzens, 2013) and launched an unsuccessful “forum shifting” attempt to reopen the trade in whale products via CITES. ⁵ Nonetheless, while we observe a limited change of the norm’s scope and content in the case of the ivory trade ban, this is not the case for the commercial whaling moratorium. While preservation (i.e. non-usage) remained the dominant underlying principle on whaling, we observe a shift in the direction of conservation (i.e. sustainable use) for the ivory trade.

Norm advocates

Pro-ban coalitions were quite similar in both cases: US environmental legislation on species protection was a major factor (Epstein, 2006), and environmentalist and animal rights NGOs have for decades been influential in shaping Western foreign policy, public perception, and media coverage. While the strong influence of the 1980s and 1990s might have decreased somewhat, NGOs remain highly engaged.

The 1989 Appendix I listing of the African elephant was crucially driven by Western animal rights and conservation NGOs. The African Wildlife Foundation (AWF) was quickly won over after a press conference on the proposed ban garnered broad media attention, donations, and a doubling of membership within 1 year. The WWF took more convincing, but its American national chapter eventually buckled under public pressure and the fear of losing its profile. That same month, the Bush White House banned all ivory imports to the United States, as did the Thatcher government in the United Kingdom and a host of other Anglophone and European countries (Mofson, 2000: 108). Moreover, before the 1989 Appendix I listing, US domestic legislation placed ivory import bans on elephant range and ivory carving states seen to be ineffectively combatting poaching and poorly managing elephant stocks, while rewarding compliant states with conservation funding (US FWS, 1988).

Slogans such as “Dressed to Kill” or “Accessories to Murder” (Bonner, 1993: 117–118; Somerville, 2016: 199) were deployed to rouse public distaste for the so-called “African Chainsaw Massacre” and the “Elephant Holocaust” (Bonner, 1993: 119; Thompson, 2004: 60). As Walker describes, “[t]he sobering policies of sustainable use that both the WWF and AWF had long backed (. . .) seemed to fly in the face of the sentiments that were being stirred up.” Therefore, more nuanced strategies were abandoned and previous support for them was kept under wraps (Walker, 2009: 178–179).

Today, the group of norm advocates primarily argues that the downlisting of elephant populations in some countries is not advisable, as it is difficult to distinguish between legally and illegally traded ivory. Moreover, elephants are migratory and state-specific downlisting may be counterproductive. Elephant populations remain highly threatened in most regions of Africa (CITES Secretariat, 2020; IUCN, 2017) and opening the market might increase the incentives for poaching. Norm advocates are also highly skeptical that the revenue from ivory trade would benefit local populations, while only increasing problems of corruption and income inequality. Some also argue that elephants should not be treated as a resource to be exploited at all, even if this were to be done in a sustainable manner (Wilson-Spath, 2019).

Similarly, in the whaling case, a transnational movement of environmental and animal rights groups, among them British and US animal welfare organizations such as the Universities Federation for Animal Welfare (UFAW), and later the WWF and Greenpeace, took up the issue of whaling in the 1970s. These groups aimed at establishing wildlife preservation and non-use (as opposed to conservation and sustainable use) as the guiding norm of the IWC. Their campaigns to “save the whales,” which were based on the scientific uncertainty around whale stocks, the dangerous influence of commercial interests in the IWC, but also on their intelligence and the cruelty of whale hunting, achieved world-wide success (Epstein, 2008), as “televised footage of activists in rubber boats confronting harpoon-wielding whalers captured the public imagination.” ⁷

Their activities led to a domestic policy change of the United States from a whaling nation to a supporter of the whaling ban in the early 1970s. Other whalers, such as Great Britain, Australia, and New Zealand, followed. As whaling was no longer of economic interest to most economies—due to dwindling stocks and technological advances which made whale oil less relevant—the ban was a rather easy issue to support politically. Later on, several South American countries also became strong ban advocates.

Once the moratorium was established, the NGO coalition used international shaming and consumer boycotts to pressure reluctant states into compliance with the ban (including against the use of loopholes such as scientific whaling). Direct action was taken by Greenpeace and Sea Shepherd, including the pursuit of whaling ships and protest activities (Bailey, 2008: 310–312; Sakaguchi, 2013). More recently, television series such as “Whale Wars,” depicting Sea Shepherd’s action against Japanese whalers, have shaped Western opinions on whaling.

As for states, the United States used direct threats of sanctions, among others against Japan, Iceland, and Norway, to enforce the regime in the 1980s (Catalinac and Chan, 2005: 202–204; Sakaguchi, 2013). Some argue, however, that the United States has mostly stuck to threats, while hardly following through due to the issue’s low political priority (see Catalinac and Chan, 2005: 150; Couzens, 2013: 45–47). The group of anti-whaling advocates argues that it is difficult to estimate whale stocks in the first place, making whaling a major risk for the preservation of many whale species. Some argue that whales should not be killed at all (Greenpeace, 2020; IFAW, 2020) or that, if at all, very high standards of monitoring and sanctioning should be in place to ensure compliance (WWF, 2020).

Overall, transnational advocacy networks framed the issues and pushed for the creation of bans in both cases. These networks, which included numerous North American and European governments, also shamed and pressured states into compliance with the bans. As the pro-ban state coalitions and the involved NGOs and their tactics were similar and these coalitions were rather powerful, we would expect similar outcomes—most likely no change—for both cases.

Norm challengers

However, we should expect norm change to occur if the group of norm challengers is particularly powerful in relation to the advocates. Accordingly, a change should to be more likely in the case of the commercial whaling ban, which shows relatively powerful challengers, than in the case of ivory trading, which shows less powerful challengers. However, and despite quite similar contestation strategies, we observe the opposite.

In the case of the ivory trade ban, the most outspoken opposition to the universal ban came from Southern African countries, among them Botswana, Malawi, Zambia, South Africa, and Zimbabwe, and later Namibia (Mofson, 2000: 109), all either developing countries or countries with considerable portions of their populations living in poverty. While ivory-importing countries such as China and Japan submitted reservations (later withdrawn by China), they were not the main protagonists of the dispute.

The Southern African states argued that, while other African elephant stocks might be in danger, their elephant populations were actually growing (Mofson, 2000: 110), offering that they needed income from the ivory trade to finance domestic conservation. Moreover, local populations needed to see that they actually benefited from elephant conservation—as growing herds regularly lead to human–elephant conflict and damaged local farmers’ livelihoods (see also Hoare, 2012; Thompson, 2004: 59). Therefore, the ban put poor local populations at a disadvantage, challengers argued.

Moreover, the challengers argued that CITES had imperialist features, with Western states and NGOs dictating rules for elephant range states. Animal rights groups involved in bringing about the Appendix I listing—such as International Foundation for Animal Welfare (IFAW) and the Environmental Investigation Agency (EIA)—ultimately saw their heavy-handed advocacy tactics backfire, being accused of holding colonialist views. This helped create support among other African states for the demands of the Southern African norm challengers (Thompson, 2004: 60–65).

While not great powers, the major pro-whaling states in the IWC are industrialized, hold considerable economic power, are well known for their law-abiding politics in other areas, and are commonly acclaimed for their domestic “green politics” (Norway in particular, see Teigen, 2018). Since the 1990s, the norm challengers in the IWC have become more outspoken and more numerous, with many African and Caribbean states joining the contestation, in part as a reaction to the norm advocates’ sanctioning and shaming strategies.

Pro-whaling states argue for the resumption of commercial whaling under the sustainable use principle, ⁸ submitting that certain stocks of some whale species (e.g. minke whales) have recovered or are less endangered than assumed. Setting sustainable commercial whaling quotas is therefore possible, so the argument goes. For the pro-whaling side, indigenous whaling, which remains allowed, and “traditional” coastal whaling of states such as Japan, Iceland, and Norway have many commonalities (e.g. Kalland, 1998), and a Western critique of whale cuisine and a whaling culture has racist overtones (see also Epstein, 2012; Kalland, 1993). They argue that US and UK “green” policies on whaling are hypocritical, given these states’ otherwise rather low priority of animal rights and environmental protection (Epstein, 2006: 49). African and Caribbean IWC members as well as pro-whaling NGOs argue that the use of whale resources would help food security and reject a “Western universalism” and colonial attitudes regarding animal rights more generally (e.g. IWC, 2012: 60).

One could argue that norm challengers in the case of whaling had less incentives to push for normative change, as the opt-outs and exemptions provided leeway for whaling activities in the first place. However, the pro-whaling states proactively fought for change. At the same time, similar opportunities to opt out of decisions existed in the case of ivory trade and CITES (see Gehring and Ruffing, 2008) and have not been actively used by the Southern African states.

In sum, contestation strategies for both bans are surprisingly similar. Both combined arguments for sustainable use (healthy species populations, local need) with a criticism of colonial and racist overtones in the campaigns of norm advocates. Both groups of states intensified their positions in response to NGO campaigns by animal rights groups. The relative economic and coercive power of norm challengers was higher in the case of whaling than in the case of ivory trading. However, norm modification and change only occurred in the latter case.

Degree of legalization

Moreover, we would expect that the degree of legalization matters—assuming that soft regulations are easier to adapt than hard law is. However, the international regulation of the two issues is similar. The norm against commercial whaling rests within the IWC, the international organization responsible for whaling issues. Signed in 1946, the underlying ICRW explicitly prioritizes sustainable use for the benefit of the whaling industry. The member states have not changed this underlying convention but have set the ICRW schedule (which limits catches) to zero. The moratorium on commercial whaling can therefore not be described as particularly “hard,” but rather as “soft” law (Abbott and Snidal, 2000). Moreover, there are no elaborate monitoring or institutionalized enforcement mechanisms.

The situation is similar for the ban on ivory trading and the African elephant’s Appendix I listing. Species’ Appendix I and II listings are the decision of the states parties to CITES, not hard law immediately contained in the convention itself. Enforcement mechanisms are also not particularly strong for CITES, though monitoring is well established. The similar lack of legal “teeth” should once again lead us to expect similar outcomes for the commercial whaling and ivory trade bans. ⁹

Demonstrating legitimacy by emphasizing local affectedness

We argue that the two cases differ, however, in the extent to which norm challengers could successfully make the case for their own local affectedness, entailing indirect discursive power and legitimacy rather than direct coercive power. The primary norm challengers in both cases—government delegations in international negotiations—pursued legitimacy for their claims through a discourse of affectedness. Ultimately, the Southern African governments created more resonance by arguing for their local populations’ affectedness by the ivory trade ban than the pro-whaling states did. ¹⁰

The terrestrial nature of elephants places them on sovereign territory, giving states and local populations a convincing claim to being involved in policy-making. The Southern African states strongly argued for the need to ease the negative effects of the ban on their local populations and thereby support poverty reduction and development. The crucial arguments were developmental, advocating for the indigenization of “biodiversity conservation and its associated tourist economies” and avoiding to “protect universal species at the expense of local people” (Thompson, 2004: 56). In the 1980s and early 1990s, “[s]omehow the idea that national sovereignty gives Africans the right to be in charge of their own wildlife [. . .] got lost in all the grand talk of saving the continent’s wildlife heritage (especially elephants) for future generations” (Walker, 2009: 188). However, by the mid-1990s, “there was a growing appreciation that management techniques for elephant populations needed to involve some element of sustainable use” (Somerville, 2016: 209). The profits of the one-off ivory sales approved alongside the 1997 downlisting were to be directed to conservation and community management programs (CITES, 2008; Thompson, 2004: 62). According to Thompson (2004), this campaign’s success

reflected intense efforts by African conservationists and other stakeholders not just to intensify, but also to indigenize biodiversity conservation and its associated tourist economies in line with African regional and local perceptions about development, land use, wildlife, and local people. (p. 56)

Local populations would benefit from ivory profits, the argument went, avoiding human–elephant conflict, supporting conservation programs, increasing tourism income, and making the fight against poaching more successful. Today, these arguments remain prominent through community-based natural resource management approaches (Abensperg-Traun et al., 2011). In sum, stressing affectedness and framing the complete ban as an impediment to development was a more successful argument than those of cultural heritage or colonialism.

As aquatic mammals, whales dwell in the oceans—often in international waters—with little contact to humans. Economically advanced countries such as Norway, Iceland, and Japan were hard-pressed to make convincing arguments that their citizens depended upon whaling activities. Still, in the 1990s and 2000s, efforts were made to organize “affected” voices and to channel them into the IWC. For example, Japanese fishery organizations started to participate not only as NGO observers but also as members of the Japanese delegations. Attempts at stressing the similarities of indigenous and other whalers were made by organizing a joint World Council of Whalers.

Cultural, social, and economic arguments were offered regularly to defend the traditions of coastal whaling in Japan and Norway. Culturally, the countries pointed out similarities between themselves and indigenous whaling operations which remained legal under the IWC. While these traditions were acknowledged (IWC, 1992), they never resonated enough to bring about a limited reopening. Japan and Norway attempted to demonstrate that some whale species competed with humans for scarce fish resources. Minke whales in particular were depicted as “rats of the sea,” “taking fish from fishermen” and from endangered whale species (comments made by Norway’s fisheries and foreign ministers; see MacKenzie, 1993). Economically, Norway, Iceland, and Japan could not convince other IWC members that their local populations were in fact negatively affected by the commercial whaling ban—beyond the immediate economic effects on their small whaling industries—and their arguments of “affectedness” were regularly questioned.

In contrast, arguments of affectedness achieved a limited exemption from the moratorium for indigenous groups from the 1980s onwards. In some cases, “aboriginal subsistence whaling” was approved by the IWC to meet the socio-economic and cultural needs of indigenous populations, and anti-whalers have generally not questioned this exemption (Bailey, 2008: 302–303). ¹¹

Southern African countries’ claims, linked to a discourse of development, gained higher legitimacy internationally. Pro-whaling states attempted a similar strategy of affectedness, but were more hard-pressed to demonstrate any large-scale affectedness of their broader populations, also considering the relative economic strength of most whaling countries.

Breadth of issues in the international institutional context

A second major difference between the two cases lies in the range of issues covered by the IWC and CITES. This shapes concrete decision-making processes in the international organizations, although formal decision-making rules are quite similar. ¹² We argue that, due to its broader mandate, CITES allows for greater compromise, issue linkage, and shifting coalitions than the narrower IWC does. While the IWC—an old organization by IO standards (1946)—exclusively deals with the issue of whaling, CITES (1973/1975) is a far broader treaty covering conservation by regulating the international trade in endangered species.

The IWC remains a highly politicized one-issue body, making IWC deliberations a zero-sum game: Coalitions are clearly cut into the anti- and pro-whaling blocs. Side payments, issue linkage (Haas, 1980), and other package deals based on multiple issues cannot be used to create compromise, as whales are “the only game in town.” Anti-whaling states therefore have no incentive to consider sustainable use arguments, and pro-whaling states do not consider strict preservation reasoning in this institutional setting. Accordingly, all attempts at compromise solutions in the 1990s and 2000s failed.

Meanwhile, decisions on numerous species are up for debate at CITES CoPs. While elephants and other charismatic megafauna are routinely at the top of the agenda (Challender et al., 2019), deliberations cover many different species’ listings. This all-encompassing design, which is also reflected in the convention’s high membership, could imply that convention defection is less likely, as defectors risk becoming pariahs on the issue of species protection, and cannot voice their opinions on future decisions that might concern other flora and fauna relevant to themselves. Particular interest coalitions differ depending on species, making it more difficult to keep up a strict pro-preservation (i.e. non-use) argument for one species but not for another. The diversity of issues up for debate and decision makes CITES members more likely to follow a sustainable use (conservation) paradigm if the necessary scientific backing exists (see also Gehring and Ruffing, 2008).

Coverage of CITES debates in the 1990s indeed shows that the broader scope of the convention and debates on numerous species allowed for some issue linkage. Given CITES’ broad mandate, states may find themselves on different ends of the conservation–preservation debate for different species of flora and fauna. Past CoPs have not only seen debates on elephants, but also on bluefin tuna, rhinoceroses, tropical timber, and most recently on giraffes and sharks, to name only a few examples (Collins, 2019). Therefore, weighing arguments on numerous species ultimately made an uncompromising preservation position on elephants less tenable for norm advocates.