TROUBLED WATERS - Whale and Dolphin Conservation Society

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international co-operative agreements 26 . By the 7th Conference of the Parties, 11 species or populations of cetaceans were listed in Appendix I and 39 in Appendix II. CMS has been building its competency in the area of cetacean conservation since 1985 when it listed five great whales, and proposed the Indus River dolphin for listing in Appendix I, while recognising the need to include a number of other small cetacean species in the Appendices (CMS 1987). During the seventh Conference of the Parties (2002), three species of great whale were included in Appendix I and three more on Appendix II and a resolution was adopted indicating that the three in Appendix II should be revisited at the next Conference of the Parties (CMS 2002a). There was further discussion of complimentary competency with other agreements, noting that “while IWC was striving to address limited hunting, and CITES addressed the trade in the species, it was the business of CMS to address the threats of habitat degradation and by-catch” (CMS 2002b). Regional agreements Like CITES, some regional conservation agreements, like the Bern Convention, the SPAW Protocol, and CMS agreements, protect cetacean species through appendices which offer varying levels of protection from human activities and, in several cases, also protect species habitat. The Bern Convention 27 The Convention on the Conservation of European Wildlife and Natural Habitats came into force in 1982 and currently has 45 Parties. The Convention has a threefold objective: “to conserve wild flora and fauna and their natural habitats; to promote co-operation between states and to give particular emphasis to endangered and vulnerable species, including endangered and vulnerable migratory species”. Thirty cetacean species are listed in Appendix II, which requires Parties to take appropriate and necessary legislative and administrative measures to ensure their special protection, including the prohibition of all deliberate capture, keeping and killing, damage to, or destruction of, breeding or resting sites and disturbance. All other species are listed in Appendix III, which requires Parties to regulate exploitation in order to keep the populations out of danger. The Specially Protected Areas and Wildlife Protocol (SPAW) to the Cartegena Convention SPAW is a Protocol of the Convention for the Protection and Development of the Marine Environment of the wider Caribbean Region (the Cartagena Convention), which is a legally binding environmental treaty for the wider Caribbean that entered into force in April 2000 and currently has 11 parties. The objectives of the SPAW Protocol are to significantly increase the number of, and improve the management of, national protected areas and species in the region, and to develop specific regional as well as national management plans developed for endangered, threatened or vulnerable species. All cetaceans are included in Annex II of SPAW which requires each Party to ensure their “total protection and recovery” by prohibiting their taking, possession or killing, and by minimising disturbance 28 . Agreements under the Convention on Migratory Species, CMS 29 Two agreements relating to cetaceans have been concluded under CMS: the Agreement on Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS) and the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS). LEGAL PRECEDENTS FOR WHALE PROTECTION 115
116 A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIES ASCOBANS came into force in 1994. Forming part of this is a conservation and management plan which requires Parties to undertake habitat conservation and management, including by developing modifications to fishing gear and fishing practices in order to reduce cetacean by-catch and preventing other significant disturbance, especially of an acoustic nature. ACCOBAMS came into force in 2001. ACCOBAMS goes even further than ASCOBANS, as it requires signatories to ‘protect’ dolphins, porpoises and other whales, and to establish specially protected areas for feeding, breeding and calving. It calls on its members to enforce legislation to prevent the deliberate taking of cetaceans in fisheries by vessels under their flag or within their jurisdiction, and to minimise incidental catches. INTRODUCTION TO CUSTOMARY INTERNATIONAL LAW The international legal obligations of states may be created in two ways: 1) through treaty, and 2) by customary international law. Both treaty and customary law are expressions of a state’s consent to the creation of binding rules. Customary law is the result of a general consensus to create binding rules on all states (Villiger 1985). By contrast, a treaty is a meeting of wills of individual states that creates rights and obligations between them. Both forms of international law are recognised as equal in stature and effect (Kontou 1994). As a result, states may regulate their relations by employing either method; in other words, states can create international law by either treaty or custom, or by replacing an existing treaty rule by new customary law or vice versa. It is generally accepted that treaties may codify customary law. On the other hand, rules originating in treaties may become so widely accepted by the international community that their provisions become customary law and may bind states, which are not now, nor ever intend to become members to the convention (for example, certain provisions of the Law of the Sea and the Vienna Convention on the Law of Treaties). Thus treaties and customary law are continuously defining and redefining each other. Customary international rules may be less obvious than convention rules; nonetheless, a large number and a wide variety of international legal requirements are generated by international custom rather than by treaty. The fundamental idea behind the notion of custom as a source of international law is that states, in and by practice, may implicitly consent to the creation and application of international legal rules. Article 38 of the Statute of the International Court of Justice (ICJ) provisions states in part: ”The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law...” Evidence of customary international law The sources of evidence demonstrating the application of custom are quite numerous and include: state legislation, diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, executive decisions and practices, comments by governments of drafts produced by the International Law Commission, internal and national judicial decisions, bi-lateral agreements, treaties, or UN resolutions. The value of these sources varies
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Page 145 and 146: Appendix II Colour plates ©Mark Vo
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TROUBLED WATERS - Whale and Dolphin Conservation Society

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