TROUBLED WATERS - Whale and Dolphin Conservation Society

ASCOBANS came into force in 1994. Forming part of this is a conservation and management planwhich requires Parties to undertake habitat conservation and management, including by developingmodifications to fishing gear and fishing practices in order to reduce cetacean by-catch andpreventing 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 and other whales, and to establish speciallyprotected areas for feeding, breeding and 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, and to minimise incidental catches.INTRODUCTION TO CUSTOMARY INTERNATIONAL LAWThe international legal obligations of states may be created in two ways: 1) through treaty, and 2) bycustomary international law. Both treaty and 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 and obligations between them. Both forms of international law are recognised as equal instature and 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 hand, rules originatingin treaties may become so widely accepted by the international community that their provisionsbecome customary law and 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 and the Vienna Conventionon the Law of Treaties). Thus treaties and customary law are continuously defining and redefiningeach other. Customary international rules may be less obvious than convention rules; nonetheless, alarge number and 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, inand 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 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 and include:state legislation, diplomatic correspondence, policy statements, press releases, the opinions of officiallegal advisers, official manuals on legal questions, executive decisions and practices, comments bygovernments of drafts produced by the International Law Commission, internal and nationaljudicial decisions, bi-lateral agreements, treaties, or UN resolutions. The value of these sources varies