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4. THE INTERNATIONAL DOLPHIN DEALERS

4.3   International Law

With the advent of the US Marine Mammal Act in 1973, Flipper Inc., having enjoyed years of lucrative trading entirely unhindered by any legal restrictions, was to face a formidable crisis. American citizens were prohibited from catching dolphins anywhere in the world without US government permission, the capture of dolphins in US waters would be subject to review by the Marine Mammal Commission of the National Marine Fisheries Service (NMFS), computerised records, updated annually, would be kept of all illnesses, deaths, births, and transactions, and even foreign facilities wishing to import American cetaceans would first have to comply with minimum standards governing pool size and veterinary care. Although these standards were at best rudimentary - a pool with a surface area of 89.2m2 and a depth of 1.83m is considered adequate for six Tursiops truncatus - the tightening legal noose led to the demise of many of the world's most notorious 'dolphin cowboys' by the late 1970's. More tenacious enterprises however banked on a systematic exploitation of loopholes and bureaucratic confusion in international law, particularly CITES. Some found shelter in the lax and bribery-prone bureaucracies of the Third World, others in business arrangements with Russian and East European dolphinaria. Still others have managed to carve out a comfortable niche in Western Europe, no longer the operators of primitive travelling shows, but the proud managers of marine zoos-cum-circuses, sparkling dolphinaria enjoying a facade of respectability while their cupboards, so to speak, are crammed with dolphin skeletons. Even some of the most infamous dolphin dealers of the 1970's are still able to find shelter in complacent bureaucracies which have turned a Nelsonian eye to the abuse and exploitation of dolphins.

Although intended to curb the most conspicuous abuses of the trade, stricter enforcement of the law has also encouraged illegal trafficking in dolphins: since 1973, when the Marine Mammal Act came into force, the US authorities have broken-up a number of smuggling rings conspiring to catch hundreds of dolphins in the Caribbean and sell them all over the world for several million dollars. The controversy which shook Montreal's municipal dolphinarium in 1980 served to spotlight other inadequacies in the law. When workers went on strike, preventing anyone from entering the dolphinarium for 21 days, all four dolphins starved to death. The resulting public outcry prompted stricter regulations governing dolphins caught in US waters, and by 1984 even dolphin trainers in European establishments applying for new US animals were obliged to sign affidavits promising they would never strike.

Dealers have also been implicated in insurance fraud, attempting to recoup investments which died with a dolphin's fragile health. There are vast profits at stake. A show-trained dolphin might be worth up to 80,000 dollars, and an Orca whale half a million. Although several large brokerages now refuse to insure dolphins and whales, policies in the USA are apparently easier to arrange, including cover for Europe. Says Doug Cartlidge: "It seems certain that some owners have been swindling the insurance companies. When one dolphin dies for instance, they collect the insurance from the company which has no way of knowing whether or not the dolphin that died was actually the one that was insured." An insurance analyst at Lloyds in Zürich admitted that "this could be a method of defrauding insurance companies, particularly since "a health certificate could be supplied by any qualified veterinary surgeon, and not necessarily an independent one."

Like the itinerant menagerie's elephants or chimpanzees, under CITES, dolphins too can officially be regarded as circus animals, their owners provided with temporary import/export permits to facilitate frequent travel and display. Partly because of this, the bureaucratic confusion surrounding the export - import - re-export cycle of dolphins has frequently been used as a smoke-screen to conceal mortalities. There is a great reluctance, even on the part of the authorities, to reveal the exact statistics on the numbers of dolphins dying in captivity often they don't care enough to know themselves and revert to formal protocol to conceal their own professional inadequacies. Furthermore, it is the testimony of numerous former dolphin trainers that to avoid adverse publicity, dolphins that die are often replaced by newly-acquired ones which bear the same names. Hence the 'Flipper' or 'Lady' which the public may see performing tricks in a dolphinarium may in reality be 'Flipper No.2' or 'Lady No.3'. In practice, the regulations seem to serve the interests of the dolphin-owners rather than the dolphins themselves. This is because dolphins are generally regarded as "private property" - and in fact almost as inanimate commodity items. Attempts to trace the fate of individual dolphins are routinely frustrated by the refusal of the authorities to release import-export documents and autopsy reports without permission of the owners. Legislation has also not succeeded in halting the cynical re-sale of dolphins to amusement parks outside of Europe and the USA, sometimes to Third World establishments whose facilities are so primitive that the export certificate actually represents little more than a death warrant.

In theory at least, domestic animal welfare laws should prevent the abuse of dolphins in captivity, yet in most countries that boils down to archaic anti-cruelty regulations which are either virtually impossible to enforce, or simply have no relevance. In Germany, for example, where there are no minimum requirements as regards pool size, state veterinary officers are responsible for ensuring the welfare of the animals. But as journalist Udo Tschimmel points out, these government vets are experts on cattle and poultry, not marine mammals. Trainers, he reports, joke that the vets don't even know where to take a blood sample from the dolphin and therefore prefer to leave the diagnosis to specialists like David Taylor and Andrew Greenwood, who count among their clients most of the dolphinaria in Europe. While this can hardly be an objective way of applying the law, at least Taylor and Greenwood possess expert knowledge of the fungus infections, parasites of the lungs, stomach ulcers and other common ailments that afflict dolphins in captivity.

Under Britain's Zoo Licensing Act 1981, dolphinaria must have permits to operate that are provided by local councils. The Act stipulates that a license may be refused if animals are not being properly cared for but as we shall see in the following chapter, its dilatory application has done little to improve the welfare of Britain's captive dolphins.

Perhaps it is inevitable that such legislation - steeped as it is in species arrogance - should institutionalise the idea of the dolphin as an exploitable resource. Laws of this kind, dealing with controversial and emotive issues, are typically children of an unhappy marriage, or at least a marriage of convenience. It is thus that at the government alter, the groom - economic interests - and the bride - establishment science - will be joined in wedlock, the bride bringing with her a priceless dowry of credibility, despite her dubious morals, her overindulgent obsession for her man, homo sapiens, and her incessant charade of objectivity. Taking the analogy a little further, it might also be said that on the sidelines stand the nagging and unwanted mothers-in-law, the animal welfare organisations, rarely appeased and barely tolerated. Only later begins the embarrassing and awkward nuptial spectacle with Science practising the strangest contortions to satisfy the voracious fantasies of Economy.

The (Educational) Freak Show

The law, so conveniently blind to the dolphin's sophisticated social structure, reduces individuals to mere digits and statistics, their former lives, their experiences, dreams and relationships, obliterated. It is ironic perhaps that the same systematic stripping of identity has been a characteristic of almost every human prison, army or death camp. As human consciousness - and its conscience - slowly begins to awaken to such injustices, then the law, so often the skivvy of economic expedience, is merely reformed, given a face-lift or some minor cosmetic attention. As it is with every endangered species destined for the circus, this phenomenon, revealing as it does, the uniqueness of human hypocrisy, is nowhere more evident than the legal requirement that shows should endeavour to be 'educational'. Dolphins wearing oversized spectacles, dolphins having their teeth cleaned with a toilet brush, dolphins singing a squeaky rendition of "Happy Birthday" - this, the most ubiquitous style of dolphin dressage probably reveals more about the ailing human spirit and its self-imposed divorce from Mother Nature, than anything about the true nature of cetaceans. But is this surprising when the very parameters of the law and its terms of reference are morally bankrupt? By endowing the dolphin business with implied legitimacy, those who are responsible for drafting the law and its cosmetic amendments are - however inadvertently - actually encouraging the abuse to continue. Like the legalised exploitation of circus animals in general, the inherent flaws of such legislation betray a kind of institutionalised sophistry. Apart from the discomfort of added expense - a larger pool, more comprehensive veterinary care, 'educational aids' - the international dolphin trade, can, for the time being at least, look forward to a reasonably secure and happy future. Like those who draft the law, they can continue to bank on illusion, so much in demand in today's world.

It was on 1 January 1984 that a new EEC directive - known as Council Regulation 3626/82 - came into force which had the effect of strengthening the Washington Convention. Those dolphins and whales that had once languished in Appendix II of CITES were promoted aloft to inhabit Annex C1, the EEC equivalent of CITES Appendix I. This meant that import licenses for both bottlenose dolphins and killer whales would now only be granted for the purposes of scientific research, education or captive breeding. Although a major stride towards the eventual abolition of marine circuses, it was not long before the industry had exposed enough loopholes for their replacement show animals to leap through. Asked in 1985 how the new EEC ordinance was affecting dolphinaria in member states, Dr Willem Wijnstekers, EEC officer responsible for monitoring Europe's wildlife trade, declared that "there is evidence that dolphinariums are rapidly putting together education packages just to be able to stay in business."

Trained to waltz, play 'flipperball', wear giant sunglasses and straw hats, have their teeth brushed, and tow a child around the pool in a rubber dinghy - with only slight variations, the tricks are the same the world over, despite the much-touted 'inherent educational value' of the show. Instead of a child, at Holiday Park in Hassloch, Germany, the dolphins used to tug a baby chimpanzee around the pool in a rubber boat, clad in life-jacket. In warmer climes - at Adriatic Sea World in Riccione, Italy, for example, or Pleasurama's Marineland of Mallorca - the show may also feature a bikini-clad woman 'water-skiing' on a pair of dolphins. Nor is there any great difference in show style between the richer establishments who prefer to portray themselves as 'marine zoos', such as Mike Riddell's Antibes Marineland in the south of France, and those which make little effort to disguise the fact that they are no more than marine circuses, like Franco Carrini's Florida Dolphin Show at Gardaland in Italy. At Marineland, head trainer Jon Kershaw's speciality is to be launched out of the water on the beaks of two dolphins "at 18 Mph". Carrini's trick is almost identical except that it involves only one dolphin. All shows follow the same pattern. First, as the audience files through the turnstile and finds their seats, the rousing rock or pop music begins, with the dolphins becoming visibly nervous and excited, leaping out of the water and making fast underwater circuits around the pool. But the music is not really for the benefit of the public at all, but used as a form of Pavlovian conditioning which the hungry dolphin associates with food-reward, alerting the animal that the show is about to begin.

At Windsor Safari Park, the female orca, Winnie, is expected to "kiss" the trainer, blow a trumpet, and glide around the confines of the pool with an oversized pair of plastic sunglasses on her head. "Of course there's a commercial side to it," conceded Andrew Haworth-Booth, then Managing Director of Windsor, quoted in the Observer in 1984. "But if there wasn't no one would ever see a dolphin or a whale. Winnie's sunglasses are nothing more or less than a prop. I don't see anything wrong in getting dolphins and killer whales to perform tricks. It all adds to their appeal." If all this seems somewhat reminiscent of the pseudo-intellectual debate over the alleged educational value of chimpanzees riding motorbikes, bears driving cars and elephants walking the tightrope, then that just goes to show how much time, money and effort has been invested by the industry in the field of 'public relations'. While one might well marvel at the extraordinary ingenuity of human affectation and hypocrisy, the 'educational' dolphin show has nevertheless obviously found its legitimacy, being recognised not only by some respected cetacean scientists but also by international statutes and national legislation.

As long ago as 1973, John Burton, later to become Secretary of the Fauna and Flora Preservation Society, wrote in the British magazine Animals: "One of the major problems confronting the dolphinaria is that they are all run for profit, and in many cases this shows. Many of the performances are pure 'circus' and have absolutely no relationship to dolphins as wild animals. For instance, this Christmas sees the first dolphin 'pantomime'." Nothing much has changed since then, least of all the refrain that there should be more 'education' in the dolphinaria, as though this could somehow justify the rabid exploitation of the animals. Wrote Burton: "Already, by making the public aware of the animals - by showing them how they behave and what they look like - the dolphinaria may be helping whale conservation. But a lot more could be done. In the commentary which accompanies the performances I would like to hear mentioned the 250,000 bottle-nosed dolphins which drown each year in the nets of tuna fishermen or how the blue whale is nearing extinction through over-hunting; or the methods used to kill larger whales. 'The public wouldn't like it' is the main reason given for not stating such facts. . . but people ought to be told nevertheless." Thirteen years after this was written, UK government consultant Dr Margaret Klinowska was parroting virtually the same sentiments, the final effect being that under new legislation in Britain, the slave trade in dolphins would not be outlawed but merely reformed and given a public relations face lift. Systematically ridiculed and demeaned in the process would not only be the pool-bound dolphins and whales wearing hats and sunglasses, but ironically, also science, education and conservation, the three alibis of continued exploitation.

Kiss Of Death

Yet without doubt, few of the children or other eager sightseers filing through the turnstile of the dolphinarium will actually be aware of the fact that they are paying to gawk at animals condemned to an early death. But perhaps this notion is just too naive for those who believe in 'the law of the jungle' - or at least what they interpret that law to be where money-making is concerned. Even leaving aside the endemic commercial vulgarity of such establishments, the discrepancies in the educational argument are just too blatant to dismiss. While dolphins in the wild eat live fish, in the dolphinarium they must either eat them dead or starve. In the wild, dolphins live in schools with several generations playing vital social roles; in the pool, reduced to a male and his harem, dolphin society becomes crippled and perverted. In the wild, the dolphin will play and jump with spontaneous exuberance and the sheer joy of being alive; in captivity that is replaced by dressage that is artificial and conditioned, part of an enforced clockwork routine. The industry emphasises the alleged potential benefits of scientific research as part of the learning process while guarding facts about miscarriages, deaths, sicknesses, and accidents like state secrets. The dolphinaria routinely portray dressage as natural behaviour, though with the ritual hyperbole of the circus many a stunt is billed as some kind of record-breaking spectacular as evidenced by the all too familiar show spiel 'the-one-and-only' or 'unique-in-the-entire-world'. Even stranger, while criticism of the industry is greeted by the mechanical rejoinder that the public shouldn't humanise the dolphin or become overly sentimental, the typical show continues to be crammed with such educational and scientific natural behaviour as dancing the twist and 'shaking flippers'. Leaping onto the conservation bandwagon, the industry has even begun to suggest - like Wolfgang Gewalt in Germany - that dolphinaria are playing a vital role in species protection; and yet when that very same industry is at the brunt of criticism over the capture of wild dolphins, the clockwork catch phrase is that "these animals are not endangered".

Similar contradictions are legion. Indeed, perhaps that rotting, fishy smell so evident in the dolphinarium is not necessarily the unhygienic fish kitchen or even a dead dolphin on the well-worn autopsy slab, but just the industry's chronic and inexorable hypocrisy. But there is also cynicism, pure and simple. Every trainer and every dolphin owner is well aware that dolphins in captivity are highly prone to contagious diseases carried by humans. They also know very well that some of these fatal infections are passed on to the dolphin in such seemingly innocuous ways that no one would even think of objecting. And yet it will remain a never-ending mystery how many dolphins have died because they have contracted some childhood illness, or even 'flu or the common cold. Certainly, those at the receiving end of the 'educational' lesson won't be told. Nor will the shy yet delighted child who is encouraged to come down onto the stage, and whose loving kiss for the dolphin turns into a kiss of death.

To expect an industry with so much to hide to provide the kind of lucid, objective, and all-encompassing lessons which most parents expect from education, borders on criminal naivety. It is one thing for such 'educational programmes' to include facts and figures on cetacean biology, behaviour and even - as Burton proposed so long ago now - the threats that they experience in the wild, but do we really expect the dolphinariums to openly discuss the abuse, deaths and misery of cetaceans in captivity? To do so would be tantamount to committing harikari, and however entertaining that might be for those still clamouring for Bread and Circuses, we must assume that it is unlikely. In any event, judging by a professional survey conducted on behalf of the Zoological Society of London, which revealed that less than 1% of respondents were visiting the zoo and dolphinarium for educational reasons, everyone except the law-makers it seems is well aware of the fact that dolphinaria are exclusively places of entertainment. Therefore it might well be valid to say that discussing earnestly all the ins and outs of the 'education issue' simply plays into the industry's hands as it implies a legitimacy where there is actually none at all.

Science - its ethical standards often leaving much to be desired - has long focused a jaundiced and clinical eye on captive cetaceans. The vast majority of research programmes - generally bland, feeble offerings with a strong alibi function - are self-serving forays into animal husbandry which can sometimes marginally serve to improve the animal's welfare and therefore the industry's high-risk investment. More esoteric research, long on nomenclature but short on tangible results, is occasionally conducted in liaison with local universities, an arrangement which can afford the dolphinarium a good measure of respectability and even an acceptable pretext for further dolphin imports. Then there is that brand of research detested by the industry because over the years it has served to highlight the physical and psychological deprivation of the animals in captivity. The potential legislative impact of such compelling scientific revelations continues to be muffled however, not only because economy habitually speaks louder than ethics but because the most influential cetacean scientists actually owe their entire careers to studying the deformed caricature of the dolphin in captivity. That brings us to the ghoulish experiments perpetrated against immobilised, helpless dolphins in research laboratories across the world - a dolphin with its brain exposed in a laboratory in Paris, for instance, a plastic bucket under the canvas-sling 'operating table' to catch the blood; or dolphins embalmed alive by a process known as 'vital profusion'. Notoriously difficult to anaesthetise because they breathe consciously, many a captive dolphin has had electrodes hammered into its skull while fully aware, fully conscious.

Yet dolphin vivisection is not only confined to those anonymous steel and concrete urban buildings where many a scientist, with such desolate futility, strives to find the heart of nature. By the late 1970's in the USA, research appendages to the larger dolphinaria were also becoming common, since the establishment would prove eligible not only for greater prestige in the zoological world, but also for substantial tax relief. Trainers such as Scott Rutherford, then working at Hawaii Sea Life Park, voiced concern that dolphins were ending up "as dead meat" in those shed-like laboratories, electrode wires trailing from pus-filled cannulas driven into the animals' brains - an experiment pioneered by Dr John Lilly, later to become the darling of the New Age movement in the USA. Unfortunately, those bleak, medieval days are far from over, as Willem Wijnstekers of the EEC confirms: "There are a number of scientific projects using dolphins in member countries. Yes, these include vivisection experiments."

Born Captive

As for the last of the law's three great alibis, the "art of cetacean husbandry" - the absence of which John L. Adams lamented way back in 1972 - it is scarcely nearer to realisation than ever before. Indeed, it has never been a feasible proposition for most oceanaria simply because of cost. As long ago as 1977, a report by specialists concluded that producing second generation captive dolphins would cost over $1 million with a starting colony of one male and twelve females. Even the majority of the wealthier oceanaria in the USA and Japan have paid little more than lip service to captive breeding, partly because of their overeagerness to exchange the circus image for the more respectable scientific and educational credibility of the marine zoo. With typically uninspired leadership, instead of creating viable breeding colonies of a single species, and optimising their facilities to go some way towards meeting the animals' social needs, they set about mimicking the long outmoded menagerie collections of early 20th century, emphasising the size and range of the animal collection, and fleshing-out the cetacean exhibits with seals, sea-lions and penguins. Japan has experimented with Gill's bottlenose and Risso's dolphin, while South Africa has kept the Indian Ocean bottlenose and the Dusky dolphin. With pioneering spirit, the USA has displayed the Amazon river dolphin, the Commerson dolphin, the Pacific white-sided dolphin as well as beluga whales, pilot whales, and the common dolphin.

While Pilleri cites a 90% death rate of young at pregnancy, proponents of the industry claim that as standards have improved so have the survival figures for newborn dolphins. That may be true in the USA but elsewhere around the world, the statistics continue to be bleak. The first known captive birth - to a harbour porpoise "rescued" from a fishing net - took place in 1914 at Brighton Aquarium. The calf - conceived in the wild as so many captive births continue to be to this very day - died immediately. That inauspicious event was to herald a veritable epidemic of miscarriages, stillbirths and infant deaths in the world's dolphinaria, plagued both by the behavioural problems of the animals themselves, and the incompetence or inexperience of staff. Thus, according to the International Zoo Yearbook, from 1965 to 1986, 134 dolphins of various species were born in captivity around the world, of which 106 died.

Sometimes, the temptation to deceive the public with a 'phantom' pregnancy is irresistible, a fact attested to by Dr Margaret Klinowska in her government-commissioned report, A Review of Dolphinaria: "....'pregnancy' sometimes covered other reasons for failure to perform," she notes sardonically, "for example: required elsewhere, incompatibility, illness or death." But Professor Paul Schauenberger remains unimpressed by such criticisms. Up to the present day, he claims, approximately 180 dolphins have been born in captivity, and survival rates have improved so dramatically that the foremost dolphinaria in the USA are gradually reaching self-sufficiency. That may be good news for the wild dolphin as a species, but again, it does little for the long-term welfare of the individual animal. Indeed, one of the inherent dangers of captive breeding success is that commercial dealing in the animals would no longer be subject to international conventions governing the trade in endangered species. These have at least shown some appreciable results in curtailing the more obvious abuses of the dolphin dealing industry. With inexplicable logic, the captive-bred individual is deprived of what few rights were afforded to its wild-caught mother as soon as it is born. With second generation animals now growing up into adulthood - neither they nor their parents ever having known the sea or ocean - it seems as though these animals, if the industry has its way, will not only be stripped of their true identity, but eventually will have no more rights than a battery chicken or a pig on an industrial farm. Major advances in husbandry and breeding success, concludes Schauenberger - albeit with an embarrassing dearth of evidence - heralds a promising future for the industry. In much the same way that the cat, dog, pig, sheep and goat were domesticated thousands of years ago, so today, the wild dolphin is being tamed and domesticated by homo sapiens. Declares the visionary professor: "There is no convincing and justifiable reason at all to stop experiments to tame new species. . . At some time in the future there will be farms in the sea where man will increasingly breed fish for his own consumption. Then the dolphins will play a major role. They will, if we wish it to be so, be the sheepdogs of the seas!"

Even discounting such lurid fantasies, appearances that the industry is in a state of decline at present may well be deceptive. It would probably be truer to say that after several years of being under intense siege, it is now quietly plotting its future course of action, confident that it has been able to contend with EEC Council Regulation 3626/82, with a mixture of bluff, feigned respectability, and political connections. No doubt the industry expects to be able to weather the storm of more rigorous animal welfare legislation in the same way. Some dolphinaria might go to the wall, but that is just one of the decrees of fate in a cut-throat business; the industry as a whole will survive, though not without ruthless strategy.

Part of that strategy has been aimed at dismantling Regulation 3626/82. Behind the scenes, the European dolphin industry remonstrated, lobbied, and cajoled every influential person they could think of to convince the authorities that the regulation was suffocating them, preventing "reputable" dolphinaria from mounting breeding and scientific research programmes, and discouraging even the less reputable ones from investing in new installations. Pressure to de-list the dolphins from Annex C1 to Annex C2 was first detected from the Netherlands - which was then also home to the dolphin industry's lobbying organisation, the EAAM - and Britain, home of EAAM President, David Taylor. It was thus that on 7 April 1987, Dr B. M. Lensink, vice-chair of the Netherlands CITES/EEC Scientific Authority, wrote to Claus Stuffmann of the European Commission, declaring that because fifteen species of cetacean - with the bottlenose dolphin and orca whale inexplicably heading his list - "cannot be considered as threatened with extinction" the Netherlands Scientific Authority proposed to relegate them to Annex C2. A similar confidential proposal, "adapted from a text by Dr Margaret Klinowska" was submitted in August 1988 by the UK CITES Scientific Authority. Later that year, the influential EEC-CITES Scientific Working Group decided to recommend to the Council of Ministers the relegation of the cetacean species along the lines proposed by Lensink. Given the current wave of public sympathy for the plight of captive dolphins, particularly in the UK, it is not surprising that such behind-the-scenes manoeuvring has been conducted with the utmost subterfuge. The move would again render the dolphins virtually unprotected from the brutality and ruthlessness of the trade. As Appendix II animals, not even the feeble legal requirement of 'education' would stand in the way. Says Pier Lorenzo Florio, director of the Italian branch of TRAFFIC: "We have our hands full even now checking-up on the legitimacy of the industry and its respect or otherwise for animal welfare. Should this measure go through, it will open the flood-gates, and we won't have any legal means to stop it."

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