WHALING AND INTERNATIONAL LAW
MALGOSIA FITZMAURICE
University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107021099 © Cambridge University Press 2015 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2015 A catalogue record for this publication is available from the British Library Library of Congress Cataloging-in-Publication Data Fitzmaurice, M., author. Whaling and international law / Malgosia Fitzmaurice. pages cm ISBN 978-1-107-02109-9 (Hardback) 1. Whaling–Law and legislation. 2. Wildlife conservation (International law) 3. International Convention for the Regulation of Whaling (1946 December 2) I. Title. K3900.W57.F58 2015 343.07’6928–dc23 2015022168 ISBN 978-1-107-02109-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
CONTENTS
List of abbreviations vi Acknowledgements x Table of cases xi Table of treaties, declarations and general comments
xiv
1
Introduction
3
1
The history of whaling
2
The International Convention for the Regulation of Whaling 29
3
The International Whaling Commission
4
Cultural diversity
5
Environmental ethics, animal rights and the law
6
The IWC and its interaction with other organisations and conventions 184
7
Indigenous whaling
8
A case study of the protection of the narwhal whale Conclusion
57
123 153
234
307
Appendix A. Taxonomy of whales: a brief introduction on selected species 314 Appendix B. 1946 International Convention for the Regulation of Whaling 324 Bibliography 362 Index 384
v
276
u Introduction
Whaling is a source of issues of great interest not only for lawyers (both national and international) but also for philosophers and anthropologists. It is a topic that has been covered by numerous publications, undoubtedly excellent; however, some, while covering whaling holistically, were published before the latest important developments took place (such as the Whaling in the Antarctic case), while others have mainly focused on discrete legal aspects of whaling. More than a few questions of international law have been looked at from very diverse viewpoints, and, on occasion, have been the cause of highly emotional reactions. The history of whaling is certainly not short of examples where whaling emerges as a complex, conflict-ridden and divisive field. The complexity of whaling became patently clear in the 2014 Whaling in the Antarctic case before the International Court of Justice (ICJ), analysis of which is contained in a subsequent chapter of the present publication. Whaling engages a plethora of legal issues, ranging from biodiversity considerations to those relating to trade and the environment, to questions of, among other things, interpretation within the context of the law of treaties. Furthermore, whaling is an example of the close link between, and the dynamic interplay of, science and law. From a philosophical and, more specifically, ethical point of view, one could query whether animals in general (and whales in particular) have rights, and, if so, what might be the interplay of such rights with those of other rights holders. To be more precise, how might animal rights engage with the right to cultural identity not only of, say, indigenous peoples, but also of other peoples who, although not indigenous in the traditional sense, are peoples whose history is not unrelated to whaling: for instance, the Japanese, the Icelanders, the Faroese and the Norwegians. Therefore, the matters that whaling engages are certainly not limited to the field of environmental law (or the notion of biodiversity). This collection of thematically self-standing chapters does not aim to present whaling in an all-encompassing and exhaustive manner; rather it 1
2
introduction
seeks to highlight particular issues that, for the most part, are complex and contentious in legal and ethical senses. It also provides some historical background that points towards the presence of contentious issues from the early stages of interstate whaling regulation and that are still very much present. The historical background demonstrates not only that the complexity of the issues connected to whaling is not new (but has had a rather continuous character), but also that these issues are not exclusively confined to the International Whaling Commission phenomenon.1 From a historical perspective, the conflict between utilisation and conservation was already present during the negotiations of the first whaling conventions, and some of the main actors that were engaged in a (contentious) dialogue still play a prominent role in the whaling conflict. The book covers contemporary issues of whaling, and includes an analysis of the 1946 Whaling Convention and its Commission. It also explores issues of whaling for commercial, aboriginal and scientific purposes. The book provides analyses of the ethical questions relating to whaling, and introduces the doctrine of intergenerational equity as it may apply to whaling. It includes observations on the relationship between the International Whaling Convention and other multilateral environmental agreements – both global (such as the Bonn Convention on Migratory Species) and regional (such as the Agreement on Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas and the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area). It analyses the relationship of the Whaling Convention with trade (regarding the Convention on International Trade in Endangered Species of Wild Fauna and Flora). Furthermore, the book also deals with whaling outside the framework of the Whaling Convention. Finally, it contains certain suggestions for the future, particularly in relation to methods of conflict resolution within the International Whaling Commission with regard to whaling for commercial, aboriginal and scientific purposes.
1
This is well evidenced in the excellent book of Kurkpatrick Dorsey, Whales and Nations: Environmental Diplomacy on the High Seas (University of Washington Press, 2014).