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Size Still Matters, Although It Shouldn’t: The Debate on Small Cetaceans, IWC 65, and Monaco’s Resolution on Highly Migratory Cetaceans

  • Ed Couzens (a1)
Abstract

This commentary is an update to an article in an earlier issue of Transnational Environmental Law (E. Couzens, ‘Size Matters, Although It Shouldn’t: The IWC and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran’ (2014) 3(2) Transnational Environmental Law, pp. 265–78) on the treatment of small cetaceans by the International Whaling Commission (IWC). That article discussed an unsuccessful proposal submitted by Monaco, at the 64th meeting of the IWC in 2012, for a resolution on highly migratory cetaceans. Monaco renewed its proposal in 2014 and, on that occasion, did generate sufficient support for a resolution to give contracting parties to the International Convention for the Regulation of Whaling a mandate to initiate debate over small cetaceans in other fora. Following this IWC Resolution, in December 2015, the United Nations General Assembly included a clause proposed by Monaco in its Resolution on Oceans and the Law of the Sea. The nature of international law is such that it is difficult to force change without upsetting a delicate equilibrium. Monaco’s initiative, however, may provide significant momentum towards a solution for what remains the real and under-acknowledged problem that there is virtually no international law applicable to small and/or highly migratory cetaceans.

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The author has attended various meetings of the IWC as a member of the South African delegation; however, the views expressed in this article remain entirely personal and should not be ascribed to the South African government. My thanks to the anonymous reviewers of this article for their helpful comments.

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1 Couzens, E., ‘Size Matters, Although It Shouldn’t: The ICRW and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran’ (2014) 3(2) Transnational Environmental Law, pp. 265278 .

2 The IWC was created under the International Convention for the Regulation of Whaling (ICRW), Washington, DC (US), 2 Dec. 1946, in force 10 Nov. 1948, available at: http://www.iwc.int/convention.

3 Ibid.

4 For a more detailed account of this situation, see Couzens, n. 1 above, pp. 266–71.

5 Ibid., pp. 269–70.

6 Ibid., pp. 271–3.

7 IWC/65/11, Agenda item 6, ‘Draft Resolution for IWC 65: Highly Migratory Cetaceans’, submitted by Monaco, available at: http://iwc.int/iwc65docs.

8 Couzens, E., personal notes, IWC 65, Day 2. See also the record in the Chair’s Report of IWC 65, pp. 13–5, available at: https://iwc.int/chairs-reports .

9 Italy is recorded as having said that it considered the IWC the appropriate forum for discussion on all cetaceans and that ‘strengthening the co-operation with other global and regional organisations will improve the governance of the IWC and help streamline international policy development’: Chair’s Report, IWC 65, ibid., p. 14, para. 107.

10 The US is recorded as having noted that ‘many species range between the EEZs [Exclusive Economic Zones] of non-Contracting Governments and therefore require extra protection which can be established through IWC co-operation with other organisations’: Chair’s Report, IWC 65, n. 8 above, p. 14.

11 Couzens, personal notes, n. 8 above.

12 Bonn (Germany), 23 Jun. 1979, in force 1 Nov. 1983, available at: http://www.cms.int/en/convention-text; Couzens, ibid.

13 Norway is recorded as having said also that ‘many populations of small whales are already covered by national or regional regimes such as NAMMCO and ASCOBANS in the northern Atlantic and ACCOBAMS in the Mediterranean and the Black Sea’: Chair’s Report, IWC 65, n. 8 above, p. 14. (NAMMCO – North Atlantic Marine Mammal Commission Agreement, Nuuk (Greenland), 9 Apr. 1992, in force 8 July 1992, available at: http://www.nammco.no/about-nammco/nammco-agreement; ASCOBANS – Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas, New York, NY (US), 17 Mar. 1992, in force 29 Mar. 1994, available at: http://www.ascobans.org; ACCOBAMS – Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area, Monaco (Monaco), 24 Nov. 1996, in force 1 June 2001, available at: http://www.accobams.org).

14 Montego Bay (Jamaica), 10 Dec. 1982, in force 16 Nov. 1994, available at: http://www.un.org/depts/los. Art. 64 UNCLOS, concerning highly migratory species, provides: ‘1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work’.

15 Couzens, personal notes, n. 8 above.

16 Ibid.

17 Art. 65 UNCLOS, on marine mammals, provides: ‘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’.

18 Monaco is recorded as having said also that ‘[t]he point was not whether IWC should deal with all cetaceans but rather that IWC should not be excluded from discussion of these issues at other fora’: Chair’s Report, IWC 65, n. 8 above, p. 14.

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

20 Argentina, Australia, Austria, Belgium, Brazil, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, the Dominican Republic, Ecuador, Estonia, Finland, France, Gabon, Germany, Hungary, Ireland, Israel, Italy, Luxemburg, Mexico, Monaco, the Netherlands, New Zealand, Panama, Peru, Poland, Slovakia, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, the US, and Uruguay. Explaining its vote, Switzerland said that it ‘supports any initiative for small cetaceans’ and ‘believes the IWC has a responsibility for all species’, but added that ‘most critically endangered species aren’t migratory’ and that it ‘hoped countries will continue to take measures’: Couzens, personal notes, n. 8 above.

21 Antigua & Barbuda, Cambodia, Cameroon, Ghana, Grenada, Guinea, Iceland, Japan, Korea, Laos, Mongolia, Norway, Russia, St Kitts & Nevis, and St Lucia: Couzens, personal notes, ibid.

22 Colombia, Côte d’Ivoire, Kiribati, Morocco, Oman, Tanzania, and Tuvalu. Spain was present at the meeting, but was absent from the room when the vote took place. Explaining its abstention, Colombia said that it ‘agreed with the guiding principles in the resolution; but a clause refers to the Law of the Sea which Colombia is not a party to’: Couzens, personal notes, ibid.

23 Available at: https://iwc.int/resolutions.

24 A footnote in Resolution 2014-2 notes that the ‘most recent list … used by the IWC Scientific Committee includes 88 species of cetaceans of which 81 are marine or mainly marine’ and that ‘of the marine species, all but 7 belong to the families listed as Highly Migratory in Annex I to [UNCLOS]’; (2013) 13(1) Journal of Cetacean Research and Management, pp. x–xi, is cited as authority.

25 Monaco referred in plenary to ‘14 species of baleen whale and 3 toothed whales’, but did not explain further: Couzens, personal notes, n. 8 above.

26 Couzens, n. 1 above, pp. 270 (n. 32), 276.

27 It was specifically included in the failed 2012 draft.

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

29 At present, the target of Monaco’s efforts appears to be the UNGA, but the potential is there for expansion to other fora, as indicated by Monaco in its introduction of the resolution at IWC 65 (see discussion in Section 2 above).

30 UNGA Resolution 69/245, ‘Oceans and the Law of the Sea’, UN Doc. A/RES/69/245, 24 Feb. 2015 (adopted by 153 votes to 1 (with 3 abstentions) on 29 Dec. 2014), available at: http://www.un.org/depts/los/general_assembly/general_assembly_resolutions.htm.

31 UNGA Resolution 70/235, ‘Oceans and the Law of the Sea’, provisionally available as UN Doc. A/70/L.22, 30 Nov. 2015 (adopted by 143 votes to 1 (with 4 abstentions) on 23 Dec. 2015), ibid.

32 Ibid., Pt XI: 246.

33 Stephenson, S., Mooers, A. & Attaran, A., ‘A Rejoinder to “Size Matters, Although It Shouldn’t: The ICRW and Small Cetaceans”’ (2014) 3(2) Transnational Environmental Law, pp. 279283 , at 280.

34 In Oct. 2015, Japan lodged with the International Court of Justice (ICJ) a new Declaration accepting the compulsory jurisdiction of that Court, but excluding from such jurisdiction ‘(3) any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea’: ICJ, ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory: Japan’, 6 Oct. 2015, available at: http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&code=JP.

35 Meaning, here, species of cetacean that have not been listed in the Schedule to the ICRW as falling under the IWC’s management auspices.

36 ‘Editorial from Vol. 1, Issue 1: “Small Cetaceans”’, Journal of Cetacean Research and Management, available at: https://iwc.int/editorial01. The Editorial notes also that ‘[d]espite this, it has been agreed that the Scientific Committee can study and provide advice on small cetaceans. As part of this programme, the Committee has reviewed the biology and status of a number of species and carried out major reviews of significant directed and incidental catches of small cetaceans’.

37 Gillespie, A., ‘Small Cetaceans, International Law and the IWC’, in W.C.G. Burns & A. Gillespie (eds), The Future of Cetaceans in a Changing World (Transnational, 2003), pp. 217282 , at 245–9, 281.

38 Ibid., p. 245.

39 Vienna (Austria), 22 May 1969, in force 27 Jan. 1980, available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf. The argument based on the Vienna Convention was made at IWC 35 in 1983 and carried over to IWC 36.

40 Gillespie, n. 37 above, p. 245.

41 Chair’s Reports on IWC 34, discussion at para. 13.3.6, p. 28; IWC 35, discussion at para. 12, pp. 16–7; IWC 36, discussion at para. 11, p. 13; all available at: https://iwc.int/chairs-reports.

42 Chair’s Report on IWC 35, discussion at para. 12, ibid., p. 16.

43 Gillespie, n. 37 above, p. 282.

44 Ibid., pp. 246–9, 282.

45 If a 75% majority were to be obtained for such a vote, the reality is that there would probably be a succession of objections, reservations, refusals to accept and threats to withdraw.

46 There has been little written on the issue more recently than this.

47 Burns, W.C., ‘The International Whaling Commission and the Regulation of the Consumptive and Non-Consumptive Uses of Small Cetaceans: The Critical Agenda for the 1990s’ (1994–95) 13 Wisconsin International Law Journal, pp. 105144 , at 128–9.

48 Ibid., p. 129. The ‘Parties’ to which Burns refers are Brazil, Chile, China, Denmark, Japan, Mexico, Norway, South Korea and Spain (ibid., n. 168). A number of these states (such as Brazil, Chile and Mexico) would probably not maintain such objections today.

49 Couzens, n. 1 above, pp. 271–3.

50 IWC Doc. 62/7rev, ‘Proposed Consensus Decision to Improve the Conservation of Whales from the Chair and Vice-Chair of the Commission’, p. 5, available at: https://iwc.int/future2.

51 Ibid., p. 9.

52 ICJ, Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), Judgment, 31 Mar. 2014, available at: http://www.icj-cij.org/docket/files/148/18136.pdf. For a discussion of the case, see Payne, C.R., ‘ICJ Halts Antarctic Whaling – Japan Starts Again’ (2015) 4(1) Transnational Environmental Law, pp. 181194 .

53 ICJ, Whaling in the Antarctic, ibid., para. 34.

54 Ibid., para. 64.

55 Ibid., para. 27.

56 NEWREP-A is available at: https://iwc.int/spw-programmes. The motivation for and parameters of the programme were submitted to the IWC on 18 Nov. 2014. At the time of writing it appeared that the research programme had commenced, and the whaling fleet sailing from Japan in Dec. 2015 had the intention of taking a reduced quota of 333 minke whales: see, e.g., T. Kasai, ‘Japan Whaling Fleet Sets to Sea for Hunt, Despite International Anger’, Reuters, 1 Dec. 2015, available at: http://www.reuters.com/article/us-japan-whaling-departure-idUSKBN0TK38R20151201.

57 A further reason why recourse to the ICJ remains highly unlikely is the high cost of such litigation, especially over an issue which does not seem to be at the forefront of many states’ concerns. It is uncertain how much the litigation cost; claims have been made that it cost Australia more than AUD 20 million: see, e.g., Darby, A., ‘Japan Plans Determined Defence of Whaling Case’, Sydney Morning Herald, 23 June 2013, available at: http://www.smh.com.au/federal-politics/political-news/japan-plans-determined-defence-of-whaling-case-20130623-2oqc0.html (in which it is claimed that the case had to that point cost AUD 20.4 million, with this apparently being ‘revealed in budget estimates’).

58 In any event, even had it been a realistic possibility, the door to litigation in the ICJ against Japan on whaling issues has now largely been closed by Japan’s Declaration of 6 Oct. 2015 (n. 34 above). Proceedings in the UNCLOS International Tribunal for the Law of the Sea (ITLOS) would now be more viable than in the ICJ, although a breach of UNCLOS itself would need to be demonstrated. While failure to ‘work through appropriate organizations’, as required by Art. 65 UNCLOS (n. 17 above) could be alleged on the basis that Japan is not working through the IWC, this seems too vague a charge and too convoluted a route to be effective.

59 Bodansky, D., The Art and Craft of International Environmental Law (Harvard University Press, 2010), p. 271 .

60 By 1 Jan. of any year, to leave by 30 June of that year: Art. XI ICRW.

61 Another option would be for a contracting government to withdraw, and then to re-adhere with a reservation to Para. 10(e) of the Schedule. While both the bona fides and the legality of this may be disputed, there is precedent in that Iceland did this in 2002: see ICRW, Schedule, Para. 10(e), footnotes.

62 See, e.g., Japan’s statement in 2007 that it might consider withdrawing and establishing ‘an alternative new intergovernmental organisation to manage cetacean resources’: Chair’s Report on IWC 59, p. 37, available at: https://iwc.int/chairs-reports.

63 If Japan were to withdraw, it would still arguably be bound to work through ‘appropriate organizations’ for the conservation, management and study of marine mammals in terms of Art. 65 UNCLOS, n. 17 above. However, Japan could probably satisfy this requirement by working through a regional organization. Iceland worked through NAMMCO, n. 13 above, after withdrawing from the IWC in 1992.

The author has attended various meetings of the IWC as a member of the South African delegation; however, the views expressed in this article remain entirely personal and should not be ascribed to the South African government. My thanks to the anonymous reviewers of this article for their helpful comments.

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