Small Cetaceans, International Law and the International Whaling Commission

Abstract

[Small cetaceans (small whales) represent something of an anomaly in international law, as it is not clear which international or regional organisations have primary competence over their management. It is my contention that the International Whaling Commission has a broad authority in relation to small cetaceans and clear primacy over all competing organisations on this question. This primacy is given further credence when considering small cetaceans which are either migratory or endangered.] [I]t is essential to protect all species of whales from further overfishing. (1) I INTRODUCTION Small cetaceans (small whales) are currently struggling for adequate protection in international law. This is despite being on the agenda of a number of international fora since the early 1970s. In 1992 the primacy of the International Whaling Commission (`IWC') with regard to cetaceans was clearly stated in the United Nations Environment Programme's Agenda 21. (2) However, in recent years a number of countries have argued that the IWC should not have jurisdiction over these creatures. The primary argument in support of this contention is that small cetaceans were not included in the original Nomenclature annexed to the International Convention for the Regulation of Whaling (`CRW'), (3) the convention which established the IWC, and that to add them subsequently to the Nomenclature would require the consent of all the signatories to the ICRW. I believe this view is mistaken for a number of reasons. The first reason relates to the actual language of the ICRW and the simplistic view that the nomenclature was somehow a pivotal dividing mechanism within it. Secondly, there is a general misunderstanding of the way in which treaties evolve and change, and the mechanisms that allow entrenched majorities to modify annexes within the broad framework of their original treaties (that is, it is not an amendment of the treaty). Closely aligned to the argument that the IWC does not have competence over small cetaceans is the assertion that coastal states have near absolute competence. This contention is typically bolstered by the United Nations Convention on the Law of the Sea (`UNCLOS'). (4) However, I contend that this view is also mistaken as UNCLOS does not accord coastal states complete sovereignty in their Exclusive Economic Zones (`EEZs'), rather it affords them limited sovereignty. It is limited in the sense that nations can waive their rights under UNCLOS and freely consent to the authority of overlapping international organisations such as the IWC. Under UNCLOS, even if a nation does not wish to join the IWC, it is still necessary to cooperate with the relevant overlapping international organisations when dealing with critically endangered species, migratory species or cetaceans in general. II DEFINING SMALL CETACEANS Whales, dolphins, and porpoises are known collectively as whales -- or to be more precise, as cetaceans. The word `cetacean' is derived from both the Latin cetus (large sea animal) and the Greek ketos (sea monster). At least 79 species of cetaceans are currently recognised. (5) Broadly, the order cetacean can be subdivided into large and small. However, trying to define exactly which species are contained within each category is a difficult task, as there are no accepted definitions that encompass both biological and political viewpoints. Small cetaceans are a focus of concern in a number of international conventions, although the reason they are listed is not usually because they are `small'. Rather, they are listed because they happen to possess certain characteristics that fall within various relevant categories: for example, they may migrate, (6) they may be endangered, (7) or they may inhabit a certain region. (8) However, such characteristics do not describe a small cetacean according to their physical characteristics. The definition of a small cetacean is usually based on the false assumption that small cetaceans are limited in size. …