TROUBLED WATERS - Whale and Dolphin Conservation Society

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14 Legal precedents for whale protection Kitty Block, Special Counsel to the UN & Treaties Dept., The Humane Society of the United States (HSUS), Washington D.C., US. Sue Fisher, US Director, WDCS US, P.O. Box 820064, Portland 97282 – 1064, Oregon, US. “Recent history indicates that man’s impact upon marine mammals has ranged from what might be termed malign neglect to virtual genocide. These animals including whales, porpoises, seals, sea otters, polar bears, manatees and others, have not only rarely benefited from our interest; they have been shot, blown up, clubbed to death, run down by boats, poisoned and exposed to a multitude of other indignities, all in the interest of profit or recreation, with little or no consideration of the potential impact of these activities on the animal populations involved” (US Congress 1971). Introduction This powerful testimony presaged both the birth of the ‘save the whale’ movement and a call by the United Nations Conference on the Human Environment for the International Whaling Commission (IWC) to consider adopting a ten-year moratorium on all commercial whaling 1 . Although the IWC took fifteen more years to agree a moratorium on the commercial slaughter of whales, the number of national, regional and international agreements concerning whales has increased significantly since the early 1970s, and continues to grow. The laws that were first enacted in the 1970s and 1980s tended to focus primarily on cetacean conservation, not welfare, and were mainly directed at trying to regulate the exploitation of whales. However, in the last 30 years, civil society has shown a growing concern for the protection of animals in general, and for cetaceans in particular. As a result of this movement, which has gained even greater momentum in the last 15 years, the science of animal welfare has developed into a major discipline, and national, regional and international animal protection legislation has been enacted. Space does not permit a review of the evolution of animal protection legislation in general, although such reviews exist (Ritvo 1987, The Animal Welfare Institute 1990, Wise 2003). This chapter briefly considers some national, regional and international developments relating to cetaceans that are consistent and concurrent with this trend, and summarises the various regional and international agreements that specifically address the treatment of cetaceans. It argues that emerging customary law may modify these agreements over time to incorporate even greater protection measures for cetaceans in the future. LEGAL PRECEDENTS FOR WHALE PROTECTION 111
112 A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIES Whales and the law Cetaceans (and whales in particular) have a special legal status, almost unique in the animal kingdom, that reflects the highly migratory status and unique life histories of the 80-plus species 2 and their history of over-exploitation. Consistent with the trend in civil society towards treating cetaceans and other ‘high order’ mammals as a ‘flagship’ species for the environment, and the growing tendency of the public to identify with individual animals 3 as well as their species as a whole, whales and dolphins are increasingly afforded even greater treatment under the law. Many coastal states, in addition to, or included within, their general animal welfare or conservation laws, have strong specific provisions relating to marine mammal protection. 4 For example, New Zealand 5 , Australia 6 and the US 7 (all former whaling nations) have adopted whale or marine mammal protection acts that address the welfare as well as the conservation of cetaceans and prohibit killing, harming or harassing them. Many countries prohibit the killing, taking or injuring of cetaceans regardless of their conservation status. 8 Some countries, such as the US, extend this prohibition to their nationals operating within international waters, while Australia extends it to other sovereign jurisdictions. A number of countries have taken the additional step of protecting cetaceans in their territorial waters by establishing areas of sanctuary from human activities 9 . Although many of these sanctuary zones (including those designated by the IWC 10 ) are not ‘Marine Protected Areas’, as defined by The World Conservation Union (IUCN) 11 , and so lack management plans or enforcement provisions, they reflect the international groundswell of support for the special status, and need for protection, of cetaceans. The IWC has already designated two whale sanctuaries in the Southern Ocean and the Indian Ocean. Argentina and Brazil, and Australia and New Zealand have proposed new sanctuaries in the South Atlantic and South Pacific respectively. The concept of ‘global commons’ is clearly defined (Palmer 1998) 12 . Highly migratory species of whales are treated as the property of no nation, but the responsibility of all – i.e. a ‘global commons’. As a result, several international and regional agreements address their conservation and management. Some of these agreements, including the International Convention for the Regulation of Whaling (ICRW), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS), incorporate important provisions relating to the welfare and humane treatment of cetaceans 13 . INTERNATIONAL AGREEMENTS United Nations Convention on the Law of the Sea (UNCLOS) 14 UNCLOS provides the foundation on which all marine management is built. It came into force in November 1994 and currently has 143 member parties. It declares the ‘preservation and protection’ of the marine environment and ‘conservation’ of marine living resources as fundamental obligations. All States must take measures to control pollution from all sources and are obliged to manage the living resources within sustainable limits in both national jurisdictions and on the high seas (IUCN 1996). This is a dramatic departure from the conventional practice of unregulated exploitation of common resources of the past (Prideaux 2003).
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Page 149 and 150: Figure 13. Processing minke whales
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