Marine mammals: The role of ethics and ecosystem considerations

Journal of International Wildlife Law and Policy

Volumn 6, Issue 1-2, 2003, Pages 31-51

  Molenaar, Erik Jaap ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

MAMMALIA;

EID: 33746623738     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/713778529     Document Type: Note

References (79)

1. The State of World Fisheries and Aquaculture, 2000, available at lt;www.fao.org/fi>, after Figure 8.
2. The four classes of marine mammals are the Cetacea, which include the small and large whales and dolphins, the Pinnipedia, which include seals, sea lions, walruses etc. the Sirenia (dugongs, manatees, seacows) and the Carnivoria (sea otters).
3. Atlantic Seal Hunt. 2002 Management Plan, Fisheries and Oceans Canada, 2002, available at: .
4. Established by the International Convention for the Regulation of Whaling, infra note 16.
5. See the Final Press Release of the 54th Annual Meeting and the 2002 Report of the Revised Management Scheme Working Group (IWC Doc. IWC/54/ RMS 1), both available at .
6. See also the extensive information on the IWC and its most recent meetings at .
7. See the Final Press Release of the 55th Annual Meeting at .
8. G. Orwell, Animal Farm. A Fairy Story 114 (1981).
9. See the lobby in the Indian Ocean Tuna Commission (IOTC) (e.g. IOTC Resolution 00/02 On a Survey of Predation of Longline Caught Fish, Appendix XIV to the Report of the Fifth Session of the IOTC (2000), available at )
10. and IWC Resolution 2001-9 on Interactions between Whales and Fish Stocks (available at ). The convening of the Reykjavik Conference referred to in note 62, infra, is relevant in this context as well.
11. Para. 16.3.2, p. 45 of the 2002 Report of the IWC Scientific Committee.
12. The objective of the Icelandic programme led to a heated debate, partly in relation to the objective of special permit scientific whaling under Art. VIII of the IWC Convention. See section 6.2 and Appendixes 2 and 3 to Annex O of the 2002 Report of the IWC Scientific Committee. Michael Donoghue, Whales - The New Scapegoat for Overfishing, in The Future of Cetaceans in a Changing World 383-398 (William C.G. Burns & Alexander Gillespie, eds. 2003). At 385-387 it is noted that Icelandic and Norwegian scientific whaling in the late 1980s and early 1990s was also (partly) premised on this justification. The extension of the Japanese scientific whaling programme in 2000, known as JARPN II, also falls in this category.
13. Minke Whales, Harp and Hooded Seals: Major Predators in the North Atlantic Ecosystem, G.A. Vikingsson, F.O. Kapel and D.G. Pike (eds.) (NAMMCO Scientific Publications Volume 2, Tromsø, Scientific Committee, The North Atlantic Marine Mammal Commission, 2000), at 7.
14. As told by G. Album to the author.
15. In part also because of health and moral issues relating to production processes.
16. Cf. Art. 34 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969. In force 27 Jan. 1980, 1155 United Nations Treaty Series 332, No. 18232).
17. Washington, D.C., 3 March 1973. In force 1 July 1975, 993 United Nations Treaty Series 243; .
18. International Convention for the Regulation of Whaling, Washington D.C., 2 December 1946. In force 10 November 1948, 161 United Nations Treaty Series 72, No. 2124; . In July 2002, Norway resumed exports of whale-meat to Iceland. In March 2003 thiswas extended to the Faroe Islands and in May 2003 Japan announced its intention to resume imports of whale products from Norway.
19. See the websites in supra notes 15 and 16 for information on reservations.
20. Montego Bay, 10 December 1982. In force 16 November 1994, 21 I.L.M. 1245 (1982); .
21. Nairobi, 22 May 1992. In force 29 December 1993, 31 I.L.M.822 (1992); .
22. A. D'Amato & S.K. Chopra, Whales: Their Emerging Right to Life, 85 Am. J. Int'l L. 21-62 (1991). See Arts. 65 and 120 of the LOS Convention.
23. This does not affect a State's right to prohibit the exploitation of marine mammals within its jurisdiction (within its own maritime zones and by its nationals and ships anywhere; see Arts. 65 and 120 of the LOS Convention). See also P. Birnie, II International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale-Watching 642-644 (1985), who observes that the rhetoric on whales ('a world resource' etc.) has not been translated into international law.
24. See the 1999 Workshop on Hunting Methods convened under NAMMCO (note 43 and the 2003 IWC Workshop (). It should be noted that on 21 June 2002 the Bundesrat of Germany approved an amendment to Art. 20a of the German Constitution which makes the protection of animals the responsibility of the state (see ).
25. See Art. IV of the Antarctic Treaty (Washington D.C., 1 December 1959. In force 23 June 1961, 402 United Nations Treaty Series 71, No. 5778 (1961)).
26. See the Opening Statement of Ireland at the 49th Annual Meeting of the IWC (1997) (IWC Doc. IWC/49/OS Ireland, available at ).
27. See 22 U.S.C. 1978 (Fisherman's Protective Act (Pelly Amendment)) (info and text at ); and 16 U.S.C. § 1821(e)(2)(a)(i) (Fishery Conservation and Management Act (Packwood Amendment)).
28. See also T.L. McDorman, Whales, The U.S. Pelly Amendment and International Trade Law, in Whaling in the North Atlantic - Economic & Political Perspectives (G. Petursdottir, ed. 1997), text also at .
29. General Agreement on Tariffs and Trade.
30. World Trade Organization.
31. See United States - Restrictions on Imports of Tuna, Report of the GATT Panel, 20 May 1994, 33 International Legal Materials 842 (1994)
32. McDorman, supra note 25
33. and United States - Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, 15 May 1998, text at (as well as the Report of the Appellate Body and the Reports of the subsequent procedures instituted by Malaysia).
34. Commission on the Conservation of Southern Bluefin Tuna (see ). The Japanese EFP (Experimental Fishing Program) caused Australia and New Zealand to institute proceedings under the LOS Convention (see and ). The Japanese proposal for a 6000 tons catch increase as part of experimental fishing in 1995-96, later reduced to 3000 tons, were the same amounts as proposals for regular catch increases (see pp. 21-22, par. 24 of the Award in the Southern Bluefin Tuna case (Australia and New Zealand v. Japan, Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea, Award on Jurisdiction and Admissibility of 4 August 2000, ).
35. See the Preamble to the IWC Convention.
36. According to W. Aron, W. Burke & M.M.R Freeman, The Whaling Issue, 24 Marine Pol'y 179-191 and 501-502 (2000), at p. 181 these are Australia, New Zealand, the United Kingdom and the United States.
37. See note 9 and IWC Resolution 2003-2.
38. See the allegations at . See also W.C.G. Burns, G. Wandesforde-Smith and K. Simpson, The 53rd Meeting of the International Whaling Commission and the Future of Cetaceans in a Changing World, 4 J. Int'l Wildlife L. & Pol'y 221-237 (2001), at 221-222 and 226-227 and the many IWC Resolutions on Japanese scientific whaling at .
39. Cf. Aron et al., supra note 31, at 180.
40. Available at .
41. United Nations General Assembly Resolution 2625 (XXV), of 24 October 1970.
42. See also the Japanese proposal at the 53rd Meeting to use secret ballots, which received insufficient support.
43. See info on new members at
44. See note 50 for the special case of Iceland.
45. See 2002 Final Press Release at .
46. See Final Press Release at .
47. Cf. W.T. Burke, Memorandum of Opinion on the Legality of the Southern Ocean Sanctuary by the International Whaling Commission (6 April 1995),
48. reprinted as an Editorial Comment in 27 Ocean Development & International Law 315 (1996)
49. text also at . Japan submitted this Opinion at the 47th Annual Meeting of the IWC. This made the United Kingdom submit an "Opinion on the Legality of the Designation of the Southern Ocean Sanctuary by the International Whaling Commission" (IWC Doc. IWC/47/41, text also at ), which rejects the position taken in the Memorandum.
50. In return, W.T. Burke wrote Legal Aspects of the IWC Decision on the Southern Ocean Sanctuary, 28 Ocean Dev. & Int'l L. 313-327 (1997).
51. Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic, Nuuk, 9 April 1992. In force 8 July 1992, text at . The regulatory scope of the NAMMCO Agreement is geographically confined to the North Atlantic and the regulatory powers of its bodies are limited. Whereas the press release of the 10th NAMMCO Council Meeting (2000) made reference of the imminent establishment of the Eastern Caribbean Cetacean Commission (ECCO), whether this has indeed materialized is unclear. See also the Japanese opening statement at the 9th NAMMCO Council Meeting (1999), where Japan refers to a regional organization modeled after NAMMCO for the western North Pacific (NAMMCO Annual Report 1999, at 45).
52. Cf. W.T. Burke, Whaling and International Law, in Petursdottir, supra note 25. However, the 1995 Fish Stocks Agreement (Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 December 1995.
53. In force 11 December 2001, 29 Law of the Sea Bull. 25 (1995); ), contains such a qualified obligation in Art. 8(3). As the full title of the 1995 Fish Stocks Agreement already reveals, it only applies to fish and not to marine mammals.
54. See also E.J. Molenaar, The Concept of "Real Interest" and Other Aspects of Co-operation through Regional Fisheries Management Mechanisms, 15 Int'l J. Marine & Coastal L. 475-531 (2000).
55. See Burke, supra note 44, who describes the situation of Canada, who is not a party to the LOS Convention, but still acknowledges the need to work together with the Scientific Committee of the IWC with regard to bowhead whaling. Note also that Norway's quotas for minke whales rely on stock assessments of the Scientific Committee of the IWC, even though Norway has formally objected to the moratorium on commercial whaling.
56. 7th preambular paragraph to the IWC Convention.
57. See, for instance, the Press Release of 17 June 2003 by David Kemp, the Australian Minister for Environment and Heritage at .
58. The passage is taken from the news item of 19 June 2003 at .
59. Iceland left the IWC in 1992 and became one of the founders of NAMMCO that same year. The 2001, May 2002 and October 2002 Icelandic applications for membership proved to be very controversial as Iceland intended it to be subject to a reservation to the moratorium on commercial whaling. This was followed by the following statement: Notwithstanding the aforementioned reservation, the Government of Iceland will not authorise whaling for commercial purposes by Icelandic vessels while progress is being made in negotiations within the IWC on the RMS. This does not apply, however, in case of the so-called moratorium on whaling for commercial purposes, contained in paragraph 10(e) of the Schedule not being lifted within a reasonable time after the completion of the RMS. Under no circumstances will whaling for commercial purposes be authorised without a sound scientific basis and an effective management and enforcement scheme. However, when the moratorium was adopted in 1982, Iceland had not, unlike for instance Norway, made use of its right to 'opt out' under Art. V(3) of the IWC Convention. By a close vote, the IWC decided in 2001 that it had the competence to determine the legal status of the Icelandic reservation, even though Art. X(2) of the IWC Convention is silent on the issue. Subsequently, the IWC decided not to accept Iceland's reservation by 19 votes in favor, O against and 3 abstentions. 16 Member States refused to participate in the vote, as they believed the vote to be illegal. Prior to the 54th Meeting (2002) Iceland had deposited the same instrument of adherence once more. However, the decision of 2001 was upheld in a vote. Prior to the 5th Special Meeting of the IWC on 14 October 2002, however, Iceland had deposited a revised instrument of application by inserting the words "vessels before 2006 and, thereafter, will not authorise such whaling" after "Icelandic" in the first sentence. After a complex series of (procedural) votes, the decisions taken in 2001 were reversed (19-18). This now means that a small majority of the IWC membership takes the view that the IWC has no competence to decide on requests for adherence to the IWC Convention. In light of the previous Icelandic participation in the IWC Convention, the correctness of this decision is not beyond question (see also Art. 20(3) of the 1969 Vienna Convention (supra note 14), the literature cited in supra note 42 and reflections by Burke, note 44). Hopefully, the more conciliatory and cooperative wording of the statement accompanying the October 2002 Icelandic application helps to diminishes the risk that reservations like there set a precedent for the international management and conservation of marine living resources by giving States a 'clean slate': Circumventing obligations previously agreed to. The fact that at the 55th Annual IWC Meeting (2003) Iceland presented a programme that would allow for the killing of 250 whales under a special scientific permit, does not foreshadow much good (see IWC Resolution 2003-2).
60. See the Chair's Report of the 53rd Meeting, pp. 12-15, Final Press Releases, resolutions, and other info at , and .
61. See William C.G. Burns & Geoffrey Wandesforde Smith, The International Whaling Commission and the Future of Cetaceans in a Changing World, 11(2) Rev. European Community & Int'l Envtl. L. 199-210 (2003).
62. For a more in-depth discussion see E.J. Molenaar, Ecosystem-Based Fisheries Management, Commercial Fisheries, Marine Mammals and the 2001 Reykjavik Declaration in the Context of International Law, 17 Int'l J. Marine & Coastal L. 561-595 (2002).
63. A Sea of Troubles, GESAMP Reports and Studies No. 70, 2001, available at , at pp. 2-3. GESAMP stands for: IMO/FAO/UNESCO-IOC/WMO/WHO/IAEA/UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection.
64. Id. at 12-13.
65. See Art. I of the CCAMLR Convention (Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980. In force 7 April 1982, 19 I.L.M.837 (1980); ).
66. See the successful cooperation between the Helsinki Commission (HELCOM), the International Council for Exploration of the Sea (ICES) and the International Baltic Sea Fishery Commission (IBSFC) at and .
67. See CCAMLR's Management of the Antarctic, in the Introduction section (text at
68. see also Understanding CCAMLR's Approach to Management, at same location.
69. Cf. H. Nijkamp & A. Nollkaemper, The Protection of Small Cetaceans in the Face of Uncertainty: An Analysis of the ASCOBANS Agreement, 9 Geo. Int'l Envtl. L. Rev. 281-302 (1997), at 285 & 292 in relation to small cetaceans.
70. Art. II(3) of the CCAMLR Convention (note 55) is also generally accepted as adhering to the ecosystem approach. See also E.J. Molenaar, CCAMLR and Southern Ocean Fisheries, 16 Int'l J. Marine & Coastal L. 465-499 (2001).
71. See note 44.
72. Code of Conduct for Responsible Fisheries, Rome, 31 October 1995, .
73. For the Report of the Conference, the Declaration and certain papers see: . The Declaration already led to heated debate at the Sixth Session of the IOTC, December 2001 (see the Report at ).
74. FAO, Rome: 2003, available at .
75. See e.g. para. 12.1.1 and Annex K (item 6) to the 2002 Report of the IWC Scientific Committee, which reflects agreement that modelling fisheries-cetacean interactions currently still experiences serious shortcomings.
76. T. Tamura, Competition for Food in the Ocean: Man and other Apical Predators, Reykjavik Conference, at p. 1.
77. See Donoghue, supra note 10; Whales in Competition with Commercial Fisheries: A Modern Myth Based on Pseudo-Science, P. Johnston and D. Santillo, Greenpeace International, May 1999, available at .
78. This would constitute a more superior obligation that overrides the discretion of States under Art. 65 of the LOS Convention, as reflected in the phrase "Nothing in this Part."
79. Efforts should also be directed at ensuring that marine mammals do not 'unnecessarily' suffer from hunting.