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Size Matters, Although It Shouldn’t: The ICRW and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran

Published online by Cambridge University Press:  02 October 2014

Ed Couzens
Ed Couzens*
Affiliation:
School of Law, University of KwaZulu-Natal (South Africa); from 2014/15, Sydney Law School, University of Sydney (Australia). Email: couzens.ed@gmail.com.
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Abstract

Written as a response to the article ‘Does Size Matter? The ICRW and the Inclusion of Small Cetaceans’ by Sean Stephenson, Arne Mooers and Amir Attaran, this commentary considers how important global and regional biodiversity- or conservation-related conventions have deliberately avoided the issue area of cetacean management. One of the effects of this is that so-called ‘small cetaceans’ – approximately 70 species – are left largely unregulated. This article differs from that of Stephenson and his co-authors, who argue that the ‘only appropriate’ forum for dealing with the issue is the International Court of Justice. Instead, it is argued here that the ‘Future of the IWC’ compromise process may yet represent the best course for bringing small cetaceans under IWC management authority. Another alternative was recently suggested in a draft resolution put forward by Monaco in 2012 – and is likely to be put forward again in 2014 – which advocated involving the United Nations General Assembly in the issue. The issue is both complicated and important, and a solution is needed.

Keywords

Small CetaceansInternational Whaling Commission (IWC)Future of the IWCInternational Convention for the Regulation of Whaling (ICRW)BiodiversityInternational Court of Justice (ICJ)
Type
Response Commentary
Information
Transnational Environmental Law , Volume 3 , Issue 2 , October 2014 , pp. 265 - 278
Copyright
Copyright © Cambridge University Press 2014 

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References

1 Washington, DC (US), 2 Dec. 1946, in force 10 Nov. 1948, available at: http://www.iwcoffice.int/convention.

2 S. Stephenson, A. Mooers & A. Attaran, ‘Does Size Matter? The ICRW and the Inclusion of Small Cetaceans’ (2014) 3(2) Transnational Environmental Law, pp. 241–63.

3 Bonn (Germany), 23 Jun. 1979, in force 1 Nov. 1983, available at: http://www.cms.int.

4 Ibid., Art. V, ‘Guidelines for Agreements’, para. 4.

5 The CMS defers to the IWC, but also assists in filling the ‘regulatory vacuum’ in respect of certain species of ‘small cetacean’. Since 2000, the two have a Memorandum of Understanding to ‘[e]stablish a framework of information and consultation between UNEP/CMS and the IWC in the field of conserving migratory species and the world’s natural heritage, with a view to identifying synergies and ensuring effective cooperation in joint activities by the relevant international bodies established under both conventions and national institutions of their Contracting Parties’: see http://www.iwcoffice.int/_documents/commission/IWC61docs/OS-IGO.pdf. Further, two CMS Agreements concern ‘small cetaceans’. One is the Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS), New York, NY (US), 17 Mar. 1992, in force 29 Mar. 1994, extended in 2008, available at: http://www.ascobans.org. ASCOBANS has been ratified by Belgium, Denmark, Finland, France, Germany, Lithuania, the Netherlands, Poland, Sweden, and the United Kingdom (UK). The other is the Agreement on the Conservation of Cetaceans of the Black Sea Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS), Monaco, 24 Nov. 1996, in force 1 June 2001, available at: http://www.accobams.org. ACCOBAMS has been ratified by Albania, Algeria, Bulgaria, Croatia, Cyprus, Egypt, France, Georgia, Greece, Italy, Lebanon, Libya, Malta, Monaco, Montenegro, Morocco, Portugal, Romania, Slovenia, Spain, Syria, Tunisia, and the Ukraine.

6 Resolution 1994-2, ‘Resolution on Small Cetaceans’.

7 Canberra (Australia), 20 May 1980, in force 7 Apr. 1982, available at: https://www.ccamlr.org.

8 Ibid., Art. VI.

9 Madrid (Spain), 4 Oct. 1991, in force 14 Jan. 1998, Annex II: ‘Conservation of Antarctic Fauna and Flora’, Art. 7, ‘Relationship with other Agreements outside the Antarctic Treaty System’, available at: http://www.ats.aq/e/ep.htm.

10 Australia Commissioner, ‘IWC Report of the Plenary Sessions of the Thirty-Fourth Annual Meeting’, IWC Verbatim Record, 1982, 181.

11 Montego Bay (Jamaica), 10 Dec. 1982, in force 16 Nov. 1994, available at: http://www.un.org/depts/los.

12 Ibid., Art. 65, ‘Marine mammals’: ‘Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.’

13 The North Atlantic Marine Mammal Commission Agreement (NAMMCO), Nuuk (Greenland), 9 Apr. 1992, in force 8 July 1992, available at: http://www.nammco.no/webcronize/images/Nammco/659.pdf, is a regional agreement between the Faroe Islands, Greenland, Iceland, and Norway, which has been promoted as a possible alternative regional model.

14 Washington DC (US), 3 Mar. 1973, in force 1 Jul. 1975, available at: http://www.cites.org.

15 Res. Conf. 11.4 (Rev. CoP12), ‘Conservation of Cetaceans, Trade in Cetacean Specimens and the Relationship with the International Whaling Commission’.

16 ‘Resolution to the CITES’, IWC Special Meeting 1978, available at: http://www.iwcoffice.int/meetings/resolutions/IWCRES_1978_SM.pdf.

17 Whether these were genuine efforts to shift the management of certain species to a different forum, or deliberate attempts to destabilize the IWC, or both, is not considered here. For consideration of these and other issues see, e.g., Gillespie, A., ‘Forum Shopping in International Law: The IWC, CITES and the Management of Cetaceans’ (2002) 33(1) Ocean Development & International Law, pp. 17–56CrossRefGoogle Scholar; and Couzens, E., Whales and Elephants in International Conservation Law and Politics: A Comparative Study (Earthscan/Routledge, 2014), at pp. 155–66.Google Scholar

18 Rio de Janeiro (Brazil), 5 Jun. 1992, in force 29 Dec. 1993, available at: http://www.cbd.int/convention/text.

19 Ibid., Art. 5, ‘Cooperation’.

20 Ibid., Art. 22, ‘Relationship with Other International Conventions’.

21 Available at: http://www.iwcoffice.int/commission/schedule.htm.

22 As listed in the Annex to the Final Act of 1946, they are: bowhead, right whale, North Atlantic right whale, Southern right whale, pygmy right whale, humpback whale, blue whale, fin whale, sei whale, Bryde’s whale, minke whale, gray whale, sperm whale, Arctic bottlenose whale, and Antarctic bottlenose whale.

23 The gray whale, for instance, has eight names: gray whale, gray back, California gray whale, Pacific gray whale, Devil fish, hard head, mussel digger, and rip sack.

24 Consider IWC Res. 1980-App. 8, ‘Resolution concerning Extension of the Commission’s Responsibility for Small Cetaceans’, in which it is noted that ‘the Convention itself does not define the species covered by the term whale and Contracting Governments are not of one view on such a definition as regards the Convention’.

25 Mulvaney, K. & McKay, B., ‘Small Cetaceans: Status, Threats, and Management’, in Burns, W.C.G. & Gillespie, A. (eds), The Future of Cetaceans in a Changing World (Transnational, 2003), pp. 189–216CrossRefGoogle Scholar; and A. Gillespie, ‘Small Cetaceans, International Law and the International Whaling Commission’, in Burns & Gillespie, ibid., pp. 219–41. See also Stephenson, Moers & Attaran, n. 2 above, at pp. 253–4.

26 Komatsu, M. & Misaki, S., Whales and the Japanese: How We Have Come to Live in Harmony with the Bounty of the Sea (Institute of Cetacean Research, 2003), at p. 32.Google Scholar Japan was not one of the original signatories.

27 See, e.g., IWC Res. 1980-App. 8, n. 24 above; IWC Res. 1994-2, ‘Resolution on Small Cetaceans’.

28 At IWC 29, 1977, a definition of the species was included in the Schedule: ICRW, n. 1 above, Schedule, para. 1(B): ‘“killer whale” (Orcinus orca) means any whale known as killer whale or orca’.

29 Under the heading ‘baleen whales’: blue whale, bowhead whale, Bryde’s whale, fin whale, gray whale, humpback whale, minke whale, pygmy right whale, right whale, sei whale. Under the heading ‘toothed whales’: beaked whale (meaning any whale belonging to the genus Mesoplodon, or any whale known as Cuvier’s beaked whale, or Shepherd’s beaked whale), bottlenose whale (meaning any whale known as Baird’s beaked whale, Arnoux’s whale, southern bottlenose whale, or northern bottlenose whale), killer whale, pilot whale (meaning any whale known as long-finned pilot whale or short-finned pilot whale), sperm whale: see ICRW, n. 1 above, Schedule, ‘1. Interpretation’, available at: http://www.iwcoffice.int/commission/schedule.htm.

30 The Scientific Committee of the IWC currently recognizes 86 species of cetacean: see http://www.iwcoffice.org/conservation/cetacea.htm. The baiji (or Yangtze River dolphin) is probably extinct, and it has recently been suggested that there may be a new species of humpback dolphin in Australian waters: see ‘New Species of Dolphin Found in Australian Waters’, 29 Oct. 2013, Science Daily, available at: http://www.sciencedaily.com/releases/2013/10/131029143000.htm.

31 Opinions differ among its contracting governments as to whether the ICRW is an ‘environmental’ treaty.

32 See ‘Chair’s Report of the 63rd Annual Meeting, St Helier, Jersey, 2011’, available at: https://www.archive.iwc.int/pages/download_usage.php, 35. Examples include the CMS, n. 3 above; the International Council for the Exploration of the Seas (ICES), available at: http://www.ices.dk; the Inter-American Tropical Tuna Commission (IATC), available at: http://www.iattc.org; Agreement on the International Dolphin Conservation Programme (AIDCP), Washington, DC (US), 15 May 1998, in force 15 Feb. 1999, available at: https://www.iattc.org/IDCPENG.htm; the International Commission for the Conservation of Atlantic Tunas (ICCAT), available at: www.iccat.int; the CCAMLR, n. 7 above; the NAMMCO, n. 13 above; the International Union for the Conservation of Nature (IUCN), available at: http://www.iucn.org; the North Pacific Marine Science Organization (PICES), available at: https://www.pices.int; the Protocol on Specially Protected Areas and Wildlife (SPAW) of the Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Kingston (Jamaica), 18 Jan. 1990, in force 18 Jun. 2000, available at: http://www.cep.unep.org/content/about-cep/spaw; and the International Maritime Organization (IMO), available at: http://www.imo.org.

33 Stephenson, Mooers & Attaran, n. 2 above, at p. 247.

34 ‘Future of the IWC’, available at: http://iwc.int/future2.

35 The core components of the ‘Proposed Decision’ were as follows: the moratorium on commercial whaling would stay in place; whaling under unilaterally determined special permits, objections or reservations would be suspended for a decade; all whaling authorized by member governments would be brought under IWC control; whaling would be limited to those members currently taking whales; no new non-indigenous whaling would take place on whale species or populations not presently hunted; for the next decade caps lower than present catch levels would be determined, using the best available scientific advice; effective monitoring methods for non-indigenous whaling would be introduced; a South Atlantic sanctuary would be created; the non-lethal value and use of whales would be recognized as a management option; a mechanism for building capacity and encouraging enterprise for developing countries would be provided; there would be focus on recovery of depleted whale stocks and action taken on key conservation issues (such as bycatch and climate change); a decisive direction for the IWC’s future work and governance would be set; and timetables and mechanisms would be set for addressing fundamental differences of view among members.

36 Space precludes discussion here, but I do discuss this more deeply in Couzens, n. 17 above, at pp. 97–101.

37 While small-type coastal whaling does not, in principle, include small cetaceans, the issues do become difficult to separate – the fishermen in Japan’s coastal villages who want ‘small-type’ quotas to take minke whales are also those who take unregulated dolphins and porpoises.

38 ‘Chair’s Report’, IWC 64, 2012, at p. 9.

39 Stephenson, Mooers & Attaran, n. 2 above, at p. 263.

40 Such as Argentina, Australia, Germany, India, Monaco, and the Netherlands (which ‘expressed its concern at the lack of protection for many small cetaceans worldwide’ and ‘favoured a stronger role for the IWC on small cetacean conservation’).

41 ‘Chair’s Report’, IWC 64, 2012, at p. 28.

42 IWC 65/Draft Agenda, 6 June 2014, ‘7. The IWC in the Future’, available at: http://www.iwc.int/private/downloads/9k3hji94rig4wgwggww44sgk0/IWC65%20Draft%20Agenda.pdf.

43 Draft Resolution for IWC 64: ‘Highly Migratory Cetaceans in the High Seas’, submitted by Monaco, IWC/64/11 Rev2 Agenda item 20; available at: http://www.iwc.int/private/downloads/5puv0dr09mgw4w44808w0sgk8/64-11Rev2.pdf.

44 Obviously, not all small cetaceans are ‘highly migratory’, but bringing those that are under closer scrutiny would also draw attention to those that are not.

45 N. 11 above; Art. 120 simply indicates that Art. 65 ‘also applies to the conservation and management of marine mammals in the high seas’.

46 Despite this record, New Zealand was later to explain, in response to a claim by St Kitts & Nevis that the draft resolution was ‘frivolous’, that it considered the issue a very serious one and that it did support the resolution despite having had ‘initial concerns’: E. Couzens, personal notes, IWC 64, Day 5.

47 The US did, however, later indicate support for Monaco’s draft resolution.

48 N. 13 above.

49 ‘Chair’s Report’, IWC 64, 2012, at p. 59.

50 E. Couzens, personal notes, IWC 64, Day 5.

51 Monaco ultimately did not receive the support it had been expecting from the European Union (EU) bloc. Denmark apparently indicated late in the day that it would block consensus within the EU bloc, which meant that all other EU countries would have abstained.

52 ‘Chair’s Report’, IWC 64, 2012, at p. 59.

53 E. Couzens, personal notes, IWC 64, Day 5.

54 At time of writing, the Draft Agenda for IWC 65 reflected that ‘the Government of Monaco has notified the Secretariat of its intention to submit a draft Resolution on small cetaceans on the High Seas’: IWC 65/Draft Agenda, 6 June 2014, ‘6. Resolutions’, available at: http://www.iwc.int/private/downloads/9k3hji94rig4wgwggww44sgk0/IWC65%20Draft%20Agenda.pdf. The text of the intended draft Resolution was not available at the time of writing.

55 It is difficult to know how the discussion at IWC 65 will proceed, especially as the meeting is likely to be dominated by the decision of the ICJ in favour of Australia that Japan’s JARPA II scientific whaling programme does not represent legitimate research: ICJ, Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), 31 Mar. 2014, available at: http://www.icj-cij.org/docket/files/148/18136.pdf.

56 IWC 65, 15–18 Sept. 2014, Slovenia.

57 See http://www.un.org/depts/los/consultative_process/consultative_process.htm. The UNGA decided in 1999 (Res. 54/33) to establish the Consultative Process at which it would annually review developments in respect of the law of the sea, and of general ocean affairs, considering the Secretary-General’s report on these and other particular issues.

58 Which is what would be required to introduce new species to the IWC’s management ambit.

59 See http://www.iwc.int/ship-strikes.

60 See http://www.iwc.int/sm_fund.

61 ‘Chair’s Report’, IWC 64, 2012, at pp. 51–5.

62 Accusations have been made that not enough is being done. Regarding the vaquita, for instance, Austria said in 2012 that it is ‘time for diplomatic niceties and step wise strategies to take a back seat to immediate concrete action, with no compromise’ and for the ‘Commission, the Secretariat, the range state and NGOs to bundle and boost their efforts on the vaquita to an entirely new higher level of urgency and resoluteness’: ‘Chair’s Report’, IWC 64, 2012, at p. 52.

63 IWC, ‘Small Cetaceans’, available at: http://iwc.int/smallcetacean.

64 Stephenson, Mooers & Attaran, n. 2 above, at p. 263.

65 Ibid., at p. 262.

66 Ibid., at p. 242.

67 Approaching the ICJ is a radical step which is not often taken by states, and only a few matters that are environmental in nature have been adjudicated by the Court. Sands suggests that states are ‘hesitant about referring international environmental disputes to international adjudication’, and ‘[t]o the extent that states want international adjudicatory mechanisms, they do not seem to want those that apply a contentious and conflictual procedure to environmental matters’: P. Sands, ‘Litigating Environmental Disputes: Courts, Tribunals and the Progressive Development of International Environmental Law’, Proceedings of the OECD Global Forum on International Investment, 27–28 Mar. 2008, at pp. 4–5, available at: http://www.oecd.org/investment/globalforum/40311090.pdf. It is also worth noting that in 1993 the ICJ created a Chamber for Environmental Matters; over the next 13 years, however, no state requested that the Chamber deal with a case, and in 2006 the ICJ decided not to elect a Bench for the Chamber, effectively discontinuing it: ICJ, ‘Chambers and Committees’, available at : http://www.icj-cij.org/court/index.php?p1=1&p2=4.