TROUBLED WATERS - Whale and Dolphin Conservation Society

The Treaty of the Panama Canal, enacted in 1903, is one such example of customary law modifyingan existing treaty. Panama argued that the treaty was incompatible with new principles of customaryinternational law and should be amended. Panama argued:”The 1903 treaty was concluded at a time when colonies and the occupation of small countriesby powerful ones was a common practice in the world, that is to say, by a treaty that doesn’tconform to the principles, precepts and rules of law, justice and international morality which areuniversally accepted today...and should therefore be revised.” 32During the UN meetings there was general agreement that the revision of the 1903 Treaty wasnecessary in order to “write off and cancel one of those historical mortgages and to do so by bringing tobear the entire body of ideas, principles and norms that the international community has evolved over thelast decades.” 33118A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIESThe implications of customary international law for whalesState practice and other soft law 34 has shown that notions of pure conservation without regard forthe welfare of whales and other wildlife is becoming outmoded. Thus, the two most recentinternational wildlife agreements focus on protection to the same degree as conservation: The Inter-American Convention For The Protection and Conservation of Sea Turtles (IAC) and Agreement onthe International Dolphin Conservation Program (AIDCP) both recognise the welfare of the speciesin question: The IAC focuses on the reduction, to the greatest extent practicable, of the incidentalcapture, retention, harm or mortality of sea turtles in the course of fishing activities. Likewise, theAIDCP requires certain protective measures in an effort to keep dolphins from being injured orkilled during tuna fishing operations in the eastern Pacific Ocean.The legal outlook for animal welfare appears to be on increasingly strong ground. Management ofcetacean species has evolved from unrestrained consumption, to regulation for industry’s sake,through an emerging conservation ethic, to the current protection that the great whales enjoy underthe international moratorium on commercial whaling. Commentators argue that the next stage willbe the entitlement of all cetaceans to a basic right to life, which could be realised when themoratorium imposed by the IWC in 1986 becomes permanent 35 , is enforced and is extended toinclude small cetaceans.While there is still debate around issues of species rights vs. individual rights and also moral vs. legalrights, 36 the energy directed towards the protection of animals in general, and cetaceans in particular,over the last 30 years has forced the beginnings of a legislative evolution both nationally, regionallyand internationally. Far from being radical and extremist, this ‘protection’ sentiment is now reflectedin numerous national policies and is regularly seen in statements by Parties to internationalmeetings, as well as resolutions adopted by conservation agreements. For example, the IWC hasadopted at least fifteen resolutions whose purpose is to improve the welfare of whales, and the mostrecent meeting of the World Parks Congress agreed that marine species require ‘protection’ and thattheir habitat needs ‘conservation’ through domestic and high seas protected area systems 37 .ConclusionIt is the contention of the authors of this chapter that the emerging international customary law ofanimal protection is well illustrated in the case of cetaceans. Future international agreements directly