international co-operative agreements 26 . By the 7th Conference of the Parties, 11 species orpopulations of cetaceans were listed in Appendix I <strong>and</strong> 39 in Appendix II.CMS has been building its competency in the area of cetacean conservation since 1985 when itlisted five great whales, <strong>and</strong> proposed the Indus River dolphin for listing in Appendix I, whilerecognising the need to include a number of other small cetacean species in the Appendices (CMS1987). During the seventh Conference of the Parties (2002), three species of great whale wereincluded in Appendix I <strong>and</strong> three more on Appendix II <strong>and</strong> a resolution was adopted indicating thatthe 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, <strong>and</strong> CITES addressed the trade in the species, it wasthe business of CMS to address the threats of habitat degradation <strong>and</strong> by-catch” (CMS 2002b).Regional agreementsLike CITES, some regional conservation agreements, like the Bern Convention, the SPAW Protocol,<strong>and</strong> CMS agreements, protect cetacean species through appendices which offer varying levels ofprotection from human activities <strong>and</strong>, in several cases, also protect species habitat.The Bern Convention 27The Convention on the <strong>Conservation</strong> of European Wildlife <strong>and</strong> Natural Habitats came into force in1982 <strong>and</strong> currently has 45 Parties. The Convention has a threefold objective: “to conserve wild flora<strong>and</strong> fauna <strong>and</strong> their natural habitats; to promote co-operation between states <strong>and</strong> to give particularemphasis to endangered <strong>and</strong> vulnerable species, including endangered <strong>and</strong> vulnerable migratory species”.LEGAL PRECEDENTS FOR WHALE PROTECTION115Thirty cetacean species are listed in Appendix II, which requires Parties to take appropriate <strong>and</strong>necessary legislative <strong>and</strong> administrative measures to ensure their special protection, including theprohibition of all deliberate capture, keeping <strong>and</strong> killing, damage to, or destruction of, breeding orresting sites <strong>and</strong> disturbance. All other species are listed in Appendix III, which requires Parties toregulate exploitation in order to keep the populations out of danger.The Specially Protected Areas <strong>and</strong> Wildlife Protocol (SPAW) to the Cartegena ConventionSPAW is a Protocol of the Convention for the Protection <strong>and</strong> Development of the MarineEnvironment of the wider Caribbean Region (the Cartagena Convention), which is a legally bindingenvironmental treaty for the wider Caribbean that entered into force in April 2000 <strong>and</strong> currently has11 parties. The objectives of the SPAW Protocol are to significantly increase the number of, <strong>and</strong>improve the management of, national protected areas <strong>and</strong> species in the region, <strong>and</strong> to developspecific regional as well as national management plans developed for endangered, threatened orvulnerable species. All cetaceans are included in Annex II of SPAW which requires each Party toensure their “total protection <strong>and</strong> recovery” by prohibiting their taking, possession or killing, <strong>and</strong> byminimising disturbance 28 .Agreements under the Convention on Migratory Species, CMS 29Two agreements relating to cetaceans have been concluded under CMS: the Agreement on<strong>Conservation</strong> of Small Cetaceans of the Baltic <strong>and</strong> North Seas (ASCOBANS) <strong>and</strong> the Agreement onthe <strong>Conservation</strong> of Cetaceans of the Black Sea, Mediterranean Sea <strong>and</strong> Contiguous Atlantic Area(ACCOBAMS).
ASCOBANS came into force in 1994. Forming part of this is a conservation <strong>and</strong> management planwhich requires Parties to undertake habitat conservation <strong>and</strong> management, including by developingmodifications to fishing gear <strong>and</strong> fishing practices in order to reduce cetacean by-catch <strong>and</strong>preventing other significant disturbance, especially of an acoustic nature.ACCOBAMS came into force in 2001. ACCOBAMS goes even further than ASCOBANS, as itrequires signatories to ‘protect’ dolphins, porpoises <strong>and</strong> other whales, <strong>and</strong> to establish speciallyprotected areas for feeding, breeding <strong>and</strong> calving. It calls on its members to enforce legislation toprevent the deliberate taking of cetaceans in fisheries by vessels under their flag or within theirjurisdiction, <strong>and</strong> to minimise incidental catches.INTRODUCTION TO CUSTOMARY INTERNATIONAL LAWThe international legal obligations of states may be created in two ways: 1) through treaty, <strong>and</strong> 2) bycustomary international law. Both treaty <strong>and</strong> customary law are expressions of a state’s consent to thecreation of binding rules. Customary law is the result of a general consensus to create binding ruleson all states (Villiger 1985). By contrast, a treaty is a meeting of wills of individual states that createsrights <strong>and</strong> obligations between them. Both forms of international law are recognised as equal instature <strong>and</strong> effect (Kontou 1994). As a result, states may regulate their relations by employing eithermethod; in other words, states can create international law by either treaty or custom, or byreplacing an existing treaty rule by new customary law or vice versa.116A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIESIt is generally accepted that treaties may codify customary law. On the other h<strong>and</strong>, rules originatingin treaties may become so widely accepted by the international community that their provisionsbecome customary law <strong>and</strong> may bind states, which are not now, nor ever intend to become membersto the convention (for example, certain provisions of the Law of the Sea <strong>and</strong> the Vienna Conventionon the Law of Treaties). Thus treaties <strong>and</strong> customary law are continuously defining <strong>and</strong> redefiningeach other. Customary international rules may be less obvious than convention rules; nonetheless, alarge number <strong>and</strong> a wide variety of international legal requirements are generated by internationalcustom rather than by treaty.The fundamental idea behind the notion of custom as a source of international law is that states, in<strong>and</strong> by practice, may implicitly consent to the creation <strong>and</strong> 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 asare submitted to it, shall apply: (a) international conventions, whether general or particular,establishing rules expressly recognized by the contesting States; (b) international custom, asevidence of a general practice accepted as law...”Evidence of customary international lawThe sources of evidence demonstrating the application of custom are quite numerous <strong>and</strong> include:state legislation, diplomatic correspondence, policy statements, press releases, the opinions of officiallegal advisers, official manuals on legal questions, executive decisions <strong>and</strong> practices, comments bygovernments of drafts produced by the International Law Commission, internal <strong>and</strong> nationaljudicial decisions, bi-lateral agreements, treaties, or UN resolutions. The value of these sources varies
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ForewordWhales are highly evolved a
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1 Executive SummaryThis review exam
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2 A background to whalingPhilippa B
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Japan currently whales in the Antar
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Otto, K. 1997. Animal Pain Behaviou
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Protecting the welfare of animals i
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Toothed whales (Odontoceti)Toothed
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Social behaviourMother-calf pairsOn
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Communication in great whalesThe mo
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Self-awarenessOne of the most compe
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J.G.M. Thewissen), pp. 158-162. Aca
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Whitehead, H., Waters, S. and Lyrho
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humanitarian purposes the time take
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Welfare and the modern IWCFrom 1980
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1996 UK proposes guidelines for col
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Section TwoWhale killing6 Commercia
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Table 1 Commercial, special permit
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It can be argued that the figures f
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Since struck and lost whales can in
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equipment to Russian subsistence wh
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This is the time from the throwing
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Table 3 Aboriginal Subsistence Whal
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International Aid For Korean Animal
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29 In Resolution 1999-1, the IWC no
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For example, Greenland and the Faro
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the past they made an important con
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however, has been made on the exten
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hunt indicate that the whales are s
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8 Weather, sea condition and shipmo
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