TROUBLED WATERS - Whale and Dolphin Conservation Society

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Of specific importance to cetacean conservation is Article 65 of UNCLOS, which limits the exploitation of marine mammals and safeguards the “right of coastal states or the competence of an international organisation to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for under the rules applicable to fisheries in the Exclusive Economic Zone”(Vicuna 1999). Article 120 makes a clear distinction between marine mammals and other living marine resources and extends the provisions of Article 65 to the high seas. 15 Both articles clearly distinguish the management of marine mammals, and more specifically cetaceans, as absolutely distinct from fisheries, and exempts them from Article 64 which calls for “optimum utilisation” (Birnie 1985). Marine mammals in coastal Exclusive Economic Zones (EEZs) remain the responsibility of coastal states under Article 65, according to the conservation and utilisation obligations of Articles 61 and 62, except where conservation measures are less than those stipulated in Article 65. Marine mammals are also considered to be highly migratory species and are, therefore, governed by the cooperation aspects of Article 64 (Brown 1994). Some commentators have argued that Article 65 reflects a trend in the protection of cetaceans beyond economic value, to include considerations of a moral and ethical nature (Maffei 1992). As can be seen in the presentations of Articles 61-65, “freedom of exploitation is no longer the prevailing principle in international law in this context” 16 Both Articles 61 and 62 provide a stricter standard of conservation for marine mammals than is applied to other species, and Articles 65 and 120 set a higher standard again for marine mammals and, in particular, cetaceans (Prideaux 2003). The International Whaling Commission (IWC) 17 The International Whaling Commission (IWC), established by the 1946 International Convention for the Regulation of Whaling (ICRW), (see chapters 2 and 5) is the recognised international organization with primacy over the management and conservation of whales and currently has 51 members. The ICRW was established after World War II in an effort to both regulate the whaling industry and to conserve whale populations for future generations. Article V of the ICRW enables the IWC to adopt protective regulations “such as are necessary to carry out the objectives and purposes of this Convention and to provide for the conservation, development, and optimum utilization of the whale resources”. These include the setting of quotas; prohibitions on killing certain species; the designation of protected seasons and areas; limitations on the sizes of whale that may be killed and the methods and equipment that may be used. Since the IWC implemented a commercial whaling moratorium in 1986, it has placed greater emphasis on the conservation of whales rather than on regulating their exploitation. For example, it has designated established ‘sanctuaries’ in the Southern and Indian Oceans. Today, a majority of the IWC members are more concerned with protecting and conserving whales (and small cetaceans) than promoting and defending an industry that previously decimated whale stocks and proved impossible to regulate. Although not all members recognise the IWC’s legal competence to address welfare issues in its regulation of whaling, the Commission has a long, and well-established, practice of advancing ‘humane killing’ 18 (see chapter 5). Any controversy about the IWC’s welfare mandate was effectively resolved in 1980/1 when it banned the use of non-exploding harpoons, except in aboriginal hunts, on welfare grounds. Every year since then, welfare issues have been discussed by the Commission, its LEGAL PRECEDENTS FOR WHALE PROTECTION 113
114 A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIES scientific and technical committees, and its specialist Working Group and Workshop on Whale Killing Methods and Associated Welfare Issues. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 19 Complementary to the IWC, which regulates whaling, CITES regulates trade in cetaceans. CITES came into force in 1975 and currently has 163 Parties. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. CITES has three appendices in which species are listed according to their level of endangerment and the threat of trade to them. CITES lists all ‘great whale’ 20 species and some freshwater and marine cetaceans in Appendix I, which affords the highest level of protection by prohibiting their international trade for commercial purposes. All other cetaceans are listed in Appendix II and may be traded internationally if the trade would not cause detriment to the survival of the species. Although much of CITES (including its resolutions) speaks in terms of conservation and sustainable trade, the preamble to the treaty recognises “that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come”. Language in both the text of the Convention and several resolutions directly pertains to the welfare and humane treatment of live animals covered by the agreement. 21 In particular, animals must be transported humanely and CITES has adopted standards set by the International Air Transport Authority (IATA) for the transport by air of cetaceans. As a result, shipment by air of a live cetacean that does not comply with IATA’s Live Animal Regulations violates the treaty and renders the export illegal. CITES has adopted several resolutions that relate to whales which were consolidated in 2000 in Resolution 11.4 on Conservation of Cetaceans, Trade in Cetacean Specimens and the Relationship with the International Whaling Commission. This recognises the primacy of the IWC and seeks cooperation between the two organisations. The IWC has reciprocated with a series of Resolutions welcoming the continuing cooperation between CITES and the IWC on issues related to trade in whale products, and urging all governments to continue to support IWC and CITES obligations with respect to this issue 22 . The Convention on Migratory Species (CMS) 23 The Convention on Migratory Species (CMS) (also known as the Bonn Convention) aims to conserve terrestrial, marine and avian migratory species throughout their range on a global scale. The treaty entered into force in 1983 and currently has 84 Parties. CMS lists species in appendices according to their biological status and need for protection, and directs special attention to endangered species, and to populations or species whose habitat is threatened. Importantly, migration is defined by CMS as: “the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries” 24 . By 1985, CMS had agreed that migration included international waters (outside of national sovereignty) and that conservation and management plans should extend into international waters (CMS 1985). For Appendix I species, CMS urges states into whose waters cetaceans range to remove obstacles to migration, prohibit takes, restore habitats, and control factors that threaten the species’ survival 25 . Uniquely, its Appendix II lists migratory species that require, or would benefit significantly from,
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Page 145 and 146: Appendix II Colour plates ©Mark Vo
Page 149 and 150: Figure 13. Processing minke whales
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TROUBLED WATERS - Whale and Dolphin Conservation Society

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