TROUBLED WATERS - Whale and Dolphin Conservation Society

Of specific importance to cetacean conservation is Article 65 of UNCLOS, which limits theexploitation of marine mammals and safeguards the “right of coastal states or the competence of aninternational organisation to prohibit, limit or regulate the exploitation of marine mammals more strictlythan 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 resourcesand extends the provisions of Article 65 to the high seas. 15 Both articles clearly distinguish themanagement of marine mammals, and more specifically cetaceans, as absolutely distinct fromfisheries, 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 coastalstates under Article 65, according to the conservation and utilisation obligations of Articles 61 and62, except where conservation measures are less than those stipulated in Article 65. Marinemammals are also considered to be highly migratory species and are, therefore, governed by thecooperation aspects of Article 64 (Brown 1994). Some commentators have argued that Article 65reflects a trend in the protection of cetaceans beyond economic value, to include considerations of amoral and ethical nature (Maffei 1992).As can be seen in the presentations of Articles 61-65, “freedom of exploitation is no longer theprevailing principle in international law in this context” 16 Both Articles 61 and 62 provide a stricterstandard of conservation for marine mammals than is applied to other species, and Articles 65 and120 set a higher standard again for marine mammals and, in particular, cetaceans (Prideaux 2003).The International Whaling Commission (IWC) 17The International Whaling Commission (IWC), established by the 1946 International Conventionfor the Regulation of Whaling (ICRW), (see chapters 2 and 5) is the recognised internationalorganization with primacy over the management and conservation of whales and currently has 51members. The ICRW was established after World War II in an effort to both regulate the whalingindustry and to conserve whale populations for future generations.LEGAL PRECEDENTS FOR WHALE PROTECTION113Article V of the ICRW enables the IWC to adopt protective regulations “such as are necessary to carryout the objectives and purposes of this Convention and to provide for the conservation, development, andoptimum utilization of the whale resources”. These include the setting of quotas; prohibitions onkilling certain species; the designation of protected seasons and areas; limitations on the sizes ofwhale 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 greateremphasis on the conservation of whales rather than on regulating their exploitation. For example, ithas designated established ‘sanctuaries’ in the Southern and Indian Oceans. Today, a majority of theIWC members are more concerned with protecting and conserving whales (and small cetaceans)than promoting and defending an industry that previously decimated whale stocks and provedimpossible to regulate.Although not all members recognise the IWC’s legal competence to address welfare issues in itsregulation 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 effectivelyresolved 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