October 5, 2013

Morgan the Whale

Written for SIEL by:
Joshua Fortenbery, 2016

Recently, several members of SIEL went to see Blackfish, a movie that asks how appropriate it is for highly intelligent cetaceans, such as orcas or dolphins, to be kept in captivity.  Blackfish follows the saga of Tilikum, an orca that was captured in the wild and eventually confined at Sea World. Since his capture, there have been several accidents involving trainers and even a couple deaths. However, the movie is about much more than the dangers of capturing “what you can’t control,” as stated in the film’s trailer. It is rather an inquiry into the morality of confining cetaceans at all, exposing the inhumane treatment the animals suffer when put on exhibition.
Unfortunately, Tilikum’s case is not a unique one, and though healthy young whales are no longer taken from their pods, there are still many controversies surrounding sea park operations.  A current case of great importance to the international legal community (particularly for those interested in the welfare of cetaceans) is that of the orca Morgan, discussed in Cambridge University’s Transnational Environmental Law. Arie Trouwborst, Richard Caddell and Ed Couzens (2013). To Free or Not to Free? State Obligations and the Rescue and Release of Marine Mammals: A Case Study of ‘Morgan the Orca’. Transnational Environmental Law, 2, pp 117-144. 

Morgan was discovered off the coast of the Netherlands in June, 2010, in a malnourished and fragile state.  She was rescued and nursed back to health by Dolfinarium Harderwijk, which originally stated an intention to return her to the wild, but has since transferred Morgan to Loro Parque in Spain. Loro Parque is a place very much like Sea World, and since arriving Morgan has been abused and scarred by the other whales.  The original justification for keeping her in captivity was a fear that she would perish if she wasn’t reunited with her pod. However, her pod has since been located with 77 percent certainty and the decision of Dolfinarium (and subsequently the Dutch courts) has been heavily disputed by a group of experts and activists that formed the Free Morgan Foundation. (Id. at 119-120).
The article analyzes the case by applying all relevant international conventions and laws, eventually concluding that the Dutch authorities made a legal error in their decision to allow the whale to remain in captivity.  However, this article is by no means authoritative and the case exposes the ambiguity inherent in many international treaties, as well as the discretion national governments have in applying such conventions.  One example of the problems inherent in international law was the application of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This treaty states that “stranded and captured [cetaceans] must, as soon as possible after their rehabilitation… be released in a suitable habitat as close as possible to the place where they were found.” (Id. at 126)  This sounds conclusive, but, as always in the law, there are exceptions.  If it is decided that a release is not possible then the animal may be permanently confined for the purposes of “research.” (Id. at 127).
This exception in CITES allows an enormous amount of flexibility in determining whether or not release is possible, and the case of Morgan seems to indicate that an animal can be kept in captivity even in the face of overwhelming scientific opposition. Furthermore, the court authorized the transfer to Loro Parque for the purposes of research and education, blatantly ignoring the CITES regulation which expressly states that research be the sole reason for continued confinement. (Id. at 128). In short, the Dutch authorities seem to advance the interests of Loro Parque and Dolfinarium Hardewijk above both scientific evidence and international law, as they will benefit economically while performing little, if any, research.  The case has yet to reach a decision on its merits, but until international agreements become more explicit in addressing the capture of cetaceans, we can only speculate as to what the final result of Morgan’s case will be. Fingers crossed. 

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