TROUBLED WATERS - Whale and Dolphin Conservation Society

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or indirectly impacting animals are likely, therefore, to include measures protecting their welfare. Additionally, it is possible that existing conservation treaties that address cetaceans, such as the IWC and CITES, will be modified over time by this emerging customary law and amended to adopt greater protection measures. References Birnie, P. 1985. International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and the Regulation of Whale Watching. Vol I & II. Oceana Publications, London. Brown, E. 1994. The International Law of the Sea, Vol 1, Dartmouth Publishing, Aldershot. CMS 1985. Working Group on Marine Mammals: Special points to be considered for Agreements for cetaceans, seals, turtles and sirenians. Proceedings of the First Meeting of the Parties Vol. II. CMS 1987. Proceedings of the First Meeting of the Parties 2, 23. CMS 2002a. Proceedings of the Seventh Meeting of the Parties; CMS, Future Action on the Antarctic minke, Bryde’s and Pygmy Right Whales Under the Convention on Migratory Species. Res 7.15. CMS 2002b. Proceedings of the Seventh Meeting of the Parties, 222. IUCN 1996. UNCLOS, Part XII, Section I; Kimball, L., Annex: International Legal Instruments and Program. In press. Janis, M.W. 1999. An Introduction to International Law. Aspen 3d Edition. Kontou, N. 1994. The Termination and Revision of Treaties in Light of New Customary International Law. Oxford University Press. Maffei, M.C. 1992. The Protection of Endangered Species of Animals in the Mediterranean Sea. In: The Law of the Sea: New Worlds, New Discoveries, Proceedings of the 26th Annual Conference of the Law of the Sea Institute. Edited by Miles E & Treves T. Law of the Sea Institute, Honolulu. Palmer, A.R. 1998. What do we mean by the Global Commons. Institute for Cambrian Studies, Boulder, Co.. Geological Society of America, Part I. Prideaux, M. 2003. Small Cetaceans and World Politics, Developing Regimes for Species Survival. Centre for International Studies, University of south Australia. Ritvo, H. 1987. The Animal Estate: The English and Other Creatures in the Victorian Age. Harvard University Press. The Animal Welfare Institute, 1990. Animals and Their Legal Rights, 4th edition. US Congress 1971. U.S Congress Merchant Marine and Fisheries Committee Report 1971b: 11-12. Vicuna, F.O, 1999. The Changing International Law of High Seas Fisheries. Cambridge University Press. Villiger, M.E. 1985. Customary International Law and Treaties. Dordrecht, Martinus Nijhoff. Wise, S.M. 2003. In: The State of the Animals II, Chapter 7: The Evolution of Animal Law since 1950. Edited by D. J. Salem and A. N. Rowan. Footnotes 1 This call was endorsed by the United Nations General Assembly later that year. LEGAL PRECEDENTS FOR WHALE PROTECTION 119
120 A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIES 2 As a result, their need for protection extends beyond national waters and requires cooperation between states, including on the high seas. 3 For example Keiko, the orca who, in response to public pressure, was released from a life in captivity in 2001. 4 Wildlife Interest Group, Journal of Internal Wildlife Law & Policy. 5 New Zealand adopted The Marine Mammals Protection Act in 1978 which prohibits any killing, harming, injuring or harassment of cetaceans. 6 Legislation in Australia attributed a base level of rights to cetaceans in its Whale Protection Act 1980, followed by the Environment Protection and Biodiversity Conservation Act 1999. In Australia, permits to interact with cetaceans and other listed species are given only when there is assurance that the specified action will contribute significantly towards the conservation of the species, the interference is incidental to the action, and will not adversely impact on the animals. Under Australian legislation it is a punishable offence to recklessly kill, injure or to take a cetacean. 7 The Marine Mammal Protection Act was adopted by the US in 1972 to ameliorate the consequences of human impact on marine mammals. Its goal is to “protect and promote the growth of marine mammal populations commensurate with sound policies of resource management and to maintain the health and stability of the marine ecosystem.” 7 . Subject to certain exceptions, the MMPA prohibits the importation of marine mammals, and their products, into the US, and forbids the taking of marine mammals in US waters and by US citizens on the high seas. ‘Take’ is defined as any act “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal”. 8 See, Australia, Environment Protection And Biodiversity Conservation Act 1999 – SECT 229A-232. See Also US, Marine Mammal Protection Act and Brazil’s Act No.7.643 Prohibiting the Catching of Cetaceans (1987). 9 For instance, whale sanctuaries have been established in Mexico, the United States, and Ireland, while the governments of Fiji, the Cook Islands, Australia, New Zealand, French Polynesia, New Caledonia, Niue, Papua New Guinea, Tonga, Samoa and Vanuatu have established a network of nationally declared, legislated and implemented whale sanctuaries in their EEZs for the effective conservation of whales in the South Pacific Ocean. 10 Article V of the ICRW permits the IWC, by a three-fourth’s majority, to designated ‘closed areas’ in which whaling is not permitted. The IWC has declared ‘sanctuaries’ in the Southern Ocean and Indian Ocean. The ‘Indian Ocean Sanctuary’ was adopted by the IWC at its 31st meeting in 1979, initially for a period of ten years. It was renewed in 1989 for another ten years and indefinitely in 1992. It covers waters of the Northern Hemisphere from the coast of Africa – including the Red and Arabian seas and the Gulf of Oman – to 100ºE; and the waters of the Southern Hemisphere from 20ºE to 130ºE. ‘The Southern Ocean Sanctuary’ was adopted by the IWC at its 46th Annual Meeting in 1994. This sanctuary will be reviewed at succeeding ten-year intervals. The IWC has recently considered proposals to establish two new sanctuaries in the South Atlantic and South Pacific. 11 The definition of a protected area adopted by IUCN is “An area of land and/or sea especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and managed through legal or other effective means”. IUCN has further developed a system of categorisation for protected areas. See: IUCN, Guidelines for Protected Area Management Categories (CNPPA with the assistance of WCMC, IUCN, Gland, Switzerland and Cambridge, 1994). Summary at http://www.wcmc.org.uk/protected_areas/categories/eng/index.html 12 In old English law, the commons or common was a tract of ground shared by residents of a village, but belonging to no one. It was property held in common for the good of all its citizens. Likewise, whales belong to no one country, the idea of absolute sovereignty over migratory species is an idea whose time has passed. It is the obligation of all countries and its citizens to share in the protection and conservation of whales through international agreements and cooperation. 13 In addition to agreements specifically addressing whales there are numerous laws that indirectly benefit these
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TROUBLED WATERS - Whale and Dolphin Conservation Society

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