TROUBLED WATERS - Whale and Dolphin Conservation Society

Whales and the lawCetaceans (and whales in particular) have a special legal status, almost unique in the animalkingdom, that reflects the highly migratory status and unique life histories of the 80-plus species 2 andtheir history of over-exploitation.Consistent with the trend in civil society towards treating cetaceans and other ‘high order’ mammalsas a ‘flagship’ species for the environment, and the growing tendency of the public to identify withindividual animals 3 as well as their species as a whole, whales and dolphins are increasingly affordedeven greater treatment under the law. Many coastal states, in addition to, or included within, theirgeneral animal welfare or conservation laws, have strong specific provisions relating to marinemammal 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 theconservation of cetaceans and prohibit killing, harming or harassing them.Many countries prohibit the killing, taking or injuring of cetaceans regardless of their conservationstatus. 8 Some countries, such as the US, extend this prohibition to their nationals operating withininternational waters, while Australia extends it to other sovereign jurisdictions.112A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIESA number of countries have taken the additional step of protecting cetaceans in their territorialwaters by establishing areas of sanctuary from human activities 9 . Although many of these sanctuaryzones (including those designated by the IWC 10 ) are not ‘Marine Protected Areas’, as defined by TheWorld 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, ofcetaceans. The IWC has already designated two whale sanctuaries in the Southern Ocean and theIndian Ocean. Argentina and Brazil, and Australia and New Zealand have proposed new sanctuariesin the South Atlantic and South Pacific respectively.The concept of ‘global commons’ is clearly defined (Palmer 1998) 12 . Highly migratory species ofwhales 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 Seaand Contiguous Atlantic Area (ACCOBAMS), incorporate important provisions relating to thewelfare and humane treatment of cetaceans 13 .INTERNATIONAL AGREEMENTSUnited Nations Convention on the Law of the Sea (UNCLOS) 14UNCLOS provides the foundation on which all marine management is built. It came into force inNovember 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 theliving resources within sustainable limits in both national jurisdictions and on the high seas (IUCN1996). This is a dramatic departure from the conventional practice of unregulated exploitation ofcommon resources of the past (Prideaux 2003).