TROUBLED WATERS - Whale and Dolphin Conservation Society

2 As a result, their need for protection extends beyond national waters and requires cooperation between states,including on the high seas.3 For example Keiko, the orca who, in response to public pressure, was released from a life in captivity in 2001.4 Wildlife Interest Group, Journal of Internal Wildlife Law & Policy.5 New Zealand adopted The Marine Mammals Protection Act in 1978 which prohibits any killing, harming,injuring or harassment of cetaceans.6 Legislation in Australia attributed a base level of rights to cetaceans in its Whale Protection Act 1980, followedby the Environment Protection and Biodiversity Conservation Act 1999. In Australia, permits to interact withcetaceans and other listed species are given only when there is assurance that the specified action willcontribute significantly towards the conservation of the species, the interference is incidental to the action, andwill not adversely impact on the animals. Under Australian legislation it is a punishable offence to recklesslykill, injure or to take a cetacean.7 The Marine Mammal Protection Act was adopted by the US in 1972 to ameliorate the consequences of humanimpact on marine mammals. Its goal is to “protect and promote the growth of marine mammal populationscommensurate with sound policies of resource management and to maintain the health and stability of the marineecosystem.” 7 . Subject to certain exceptions, the MMPA prohibits the importation of marine mammals, and theirproducts, into the US, and forbids the taking of marine mammals in US waters and by US citizens on thehigh seas. ‘Take’ is defined as any act “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or killany marine mammal”.8 See, Australia, Environment Protection And Biodiversity Conservation Act 1999 – SECT 229A-232. See Also US,Marine Mammal Protection Act and Brazil’s Act No.7.643 Prohibiting the Catching of Cetaceans (1987).120A REVIEW OF THE WELFARE IMPLICATIONS OF MODERN WHALING ACTIVITIES9 For instance, whale sanctuaries have been established in Mexico, the United States, and Ireland, while thegovernments of Fiji, the Cook Islands, Australia, New Zealand, French Polynesia, New Caledonia, Niue,Papua New Guinea, Tonga, Samoa and Vanuatu have established a network of nationally declared, legislatedand implemented whale sanctuaries in their EEZs for the effective conservation of whales in the South PacificOcean.10 Article V of the ICRW permits the IWC, by a three-fourth’s majority, to designated ‘closed areas’ in whichwhaling is not permitted. The IWC has declared ‘sanctuaries’ in the Southern Ocean and Indian Ocean. The‘Indian Ocean Sanctuary’ was adopted by the IWC at its 31st meeting in 1979, initially for a period of tenyears. It was renewed in 1989 for another ten years and indefinitely in 1992. It covers waters of the NorthernHemisphere from the coast of Africa – including the Red and Arabian seas and the Gulf of Oman – to100ºE; and the waters of the Southern Hemisphere from 20ºE to 130ºE.‘The Southern Ocean Sanctuary’ was adopted by the IWC at its 46th Annual Meeting in 1994. Thissanctuary will be reviewed at succeeding ten-year intervals. The IWC has recently considered proposals toestablish two new sanctuaries in the South Atlantic and South Pacific.11 The definition of a protected area adopted by IUCN is “An area of land and/or sea especially dedicated to theprotection and maintenance of biological diversity, and of natural and associated cultural resources, and managedthrough legal or other effective means”. IUCN has further developed a system of categorisation for protectedareas. See: IUCN, Guidelines for Protected Area Management Categories (CNPPA with the assistance ofWCMC, IUCN, Gland, Switzerland and Cambridge, 1994). Summary athttp://www.wcmc.org.uk/protected_areas/categories/eng/index.html12 In old English law, the commons or common was a tract of ground shared by residents of a village, butbelonging to no one. It was property held in common for the good of all its citizens. Likewise, whales belongto no one country, the idea of absolute sovereignty over migratory species is an idea whose time has passed. Itis the obligation of all countries and its citizens to share in the protection and conservation of whales throughinternational agreements and cooperation.13 In addition to agreements specifically addressing whales there are numerous laws that indirectly benefit these