Protection of Migrating Whales in International Law

Do whales that migrate to the Southern Ocean receive adequate protection in international law?

Introduction

Southern Ocean geography

Southern Ocean roughly occupies about 15% of the earth’s ocean area and surrounds Antarctica, extending from its coast northwards to the Antarctic Polar Front, a physically and biologically distinct frontal zone where the cold water of the Southern Ocean meets and flows under the warmer, more saline sub-Antarctic water. The position of polar front is generally near 50°S in the Atlantic and Indian sector and 60°S in the pacific sector of the Southern Ocean but it varies seasonally and geographically (CCAMLR a)

Southern Ocean whales

Southern Ocean is home to ten species of whales- four species of toothed whales (Odontoceti) and six species of baleen whales. Most of them are migratory, spending the summer feeding in the Southern Ocean and travelling to warmer waters in winter. (AAD, 2012).

Threats to whales

According to WWF, major threats to whales include whaling, climate change, accidental fishing-gear entanglement, ship strikes, habitat degradation, toxic contamination and oil/gas exploration and development.

Whaling

History

To understand the current whaling regulation, it is crucial to be familiar with the long history of whaling and overexploitation which led to the current scenario of governance. Whale hunting can be traced back to the beginning of history according to records. (Gambell, 1993). A wall drawing in the neolithic Bangu-dae site in South Korea dating back to 6000 BC depicts a whale being harpooned by men in boats (Roman, 2006). Primitive hunting methods included using barbed darts, setting traps in bays and the harpoon. Whale meat provided sustenance to many coastal communities. The Inuits of Alaska primarily caught bowhead whales and utilized all the body parts, including the baleen, which was treated to make baskets (Lauffenberger,1993). The first instance of industrial scale whaling was the hunting of black right whales in the North Atlantic in 12^th century (Ellis, 1991).

The right whales with a maximum speed of about 7 knots are relatively slow swimmers which enabled hunting from land-based rowing boats or long boats launched from sailing boats. Apart from having a high yield of oil and large quantities of baleen, right whales float when killed unlike the rorquals which sink, making them the ‘right’ whales to hunt, hence the name. Whale oil was generally used for lubrication, lighting and making soaps. With the invention of a method to hydrogenate oils, it was an important raw material in the production of margarine as well (Tønnessen & Johnsen 1982). As the stocks depleted, the search for whales began on a larger scale and reached North American coast by 16^th century. The target species broadened to bowhead whales in the 17^th century (Jackson,1978).

Modern Whaling

The advent of modern whaling began in the latter half of 19^th century with the invention of steam-powered whale catcher and exploding harpoons by Norwegian whaler Svend Foyn.  (Rocha et al., 2014). As stocks depleted, the industry expanded and search began south of equator (Gambell, 1993).However, industrial scale whaling began in the Southern Ocean only in 1904-1905.

Whaling expansion in the southern hemisphere

In 1904, the first shore factory in Grytviken (Cauldron Bay) on South Georgia island was built by Norwegian Carl Anton Larsen from the Compañía Argentina de Pesca.  Predominantly, Humpback whales were targeted until world war 1 (Rocha et al., 2014). In 1908, the British formally laid claim to 4 islands- South Georgia and the South Orkney, South Sandwich and South Shetland islands (Hofman 2017). By 1909, whaling in the southern hemisphere had surpassed the north (Rocha et al.,2014). The waste created by the land-based factories and factory ships initiated establishment of limits by the British on catcher boats and complete utilization of killed whales (Hofman,2017).

Previously unexploited stock of rorquals were the target of whaling nations; South Africa, England, Chile, Norway, and Argentina hunted whales in the Southern Hemisphere post World war 1. At around the same time, many floating factories operated in the ocean. C.A Larsen introduced factory ships and catcher boats in the Ross Sea 1923. This was the beginning of technical and geographical expansion of Antarctic whaling. The invention of the ‘stern hauling slip-up’ lead to massive expansion of pelagic whaling in the Southern Ocean and it hunted for whales in the Southern Ocean and followed the retreating ice through the austral summer (Tønnessen & Johnsen 1982)

The sub Antarctic shore stations productivity gradually declined and many were shut down during the economic crisis in the 1930s. Three factories Scottish, Argentinian and Norwegian on South Georgia continued operations into the 1960s (Basberg,2012). The catches in both hemispheres were comparable until 1993. Minke whales, Balaeonptera acutorostrata and Antarctic Minke- Balaenoptera bonaerensis became the focus species after depletion of larger whale stocks. (Rocha et al.,2014).

Development and roles of organisations in regulating whaling

Events and issues leading to the formation of IWC

The industrial whaling industry expanded readily and went through periods of crisis. Many issues like mineral oil production in the late 1800s which affected the market for whale oil, excess supply of whale oil during 1930-31 which caused the prices to fall, severe population depletion (Rocha et al.,2014), hunting operations in high seas after local stock depletion (Gambell, 1993) initiated international efforts to regulate the usage of whales as a resource but it was generally unsuccessful (Rocha et al., 2014). Inefficient national regulation and the need for international regulation (Hofman, 2017) led to a committee of experts being established by the League of Nations post world war 1. Their primary role was to assess possible ways of regulating the whaling industry. The discussions of this committee led to the 1931 Geneva Convention for Regulation of Whaling. It was majorly influenced by the Norwegian Whaling Act of 1929. It came into force in January 1935. It prohibited catching right whales, calves and female with calves of all species. All whaling vessels were to be licensed and the wages/payments of gunners and crew were to be based on the size and value of each catch instead of numbers to protect smaller immature individuals.

The major issue with the convention was the fact that there were no provisions for enforcement and since most of the countries which had signed the convention were whaling in the Antarctic, the convention had little or no effect on the whaling. However, the principle of international regulation of a common resource in the high seas was established and provided a legal framework for the whaling companies which had entered voluntary agreements after the over-production of whale oil in the 1930-31 Antarctic whaling season (Gambell, 1993).

The 1931 Convention failed its purpose and hence, a new agreement- Agreement for the Regulation of Whaling was signed in London in 1937 by nine countries including Germany and Norway. This agreement was applied to all areas where factory ships and whale catchers operated. It restricted Antarctic pelagic whaling to 3 months and huge portions of the world’s ocean beyond 40° N were closed to operation of factory ships with an exception being made to Japan even though it decided to opt out of the agreement. Japan believed its newly developed whaling industry was restricted. Depleted stocks of right and grey whales were fully protected and minimum size limits were set for blue, fin, humpback and sperm whales. Government inspectors appointed by the flag nations would ensure enforcement of the regulations. The governments were also required to document details like catches, biological information of whales, quantities of products obtained and vessel statistics. Another conference was held in 1938 to adopt additional protocols to the 1937 agreement, and it included a ban on catching humpback whales in the Antarctic due to population depletion and designating a whale sanctuary in the pacific sector of the Antarctic (Gambell, 1993).

According to Rocha et al., 2014, many aspects of the 1937 treaty were ignored. During world war 2, most pelagic whaling ceased and many ships were used in the war and were lost to it. In 1944, while the war continued, representatives from the allied nations met to fortify the 1937 London agreement and the 1938 protocol. This resulted in the 1944 Protocol which established catch limits below the pre-war catch level. Blue whale unit (BWU) was established to set catch levels instead of setting quotas on different species. A blue whale unit is the amount of oil that can be obtained from an average blue whale.

1 BWU= 2 fin whales or 2 and a half humpback whales or 6 sei whales.

International Whaling Commission: 1946- present

In late 1945, post world war II 19 countries were hosted by the United states of America at the International Whaling Conference (Tønnessen & Johnsen 1982). This led to the creation of International Commission for Regulation of Whaling (ICRW) and its governing body- International Whaling Commission (IWC) and was signed in Washington D. C. (Rocha et al.,2014 and Hofman, 2017). Similar to the previous agreements, the focus was the whaling industry sustainability and not the whales. The objective was ‘to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry’ (Rocha et al.,2014). The convention consists of 11 articles and a legally-binding schedule agreed upon by the IWC members which lays out specific measures (like designating whale sanctuaries, restriction on hunting methods, protecting calves and female with calves) to regulate whaling and conserve whale stocks. The schedule can be amended by a three-fourths majority agreement, due to constant availability of new information from research. (IWC a). Members who object to the amendments of the schedule within 90 days of its adoption would not be bound by it (Hofman, 2017).  This escape clause allowed governments not to consider regulations which would be detrimental to their national interests. This provision dampened the effects of conservation measures, but, it is uncertain if the convention would have seen the light of the day without such provisions (Gambell, 1993).

Industrial whaling resumed on a massive scale in the 1950s. Brazil, France, South Africa, Australia, Chile, New Zealand, Peru, Netherlands and Argentina hunted in the southern hemisphere while Norway, Great Britain, Japan and the USSR hunted in both the hemispheres. The industry had a final growth boom between 1955 and 1961 (Tønnessen & Johnsen 1982).

From its inception till 1972, the quotas were based on Blue whale units and not on species abundance. Increasing pressure from the industry led to establishing higher catch limits and the fleets rushed to catch the largest share of the allowed quotas. The assumption that populations of blue whale and other heavily exploited species of whales would have recovered during the WW2 was found to be wrong. Most fleets searched and hunted the larger species of whales since their main aim was whale oil production unlike Japan which predominantly hunted sei whales for food. Thus, populations of blue and humpback whales depleted further and this was closely followed by overexploitation of fin and sei whales (McHugh, 1974; Gambell,1993). The Netherlands and Norway withdrew from the commission in 1959 since no agreements on national quotas on catches could be reached. The following two seasons had no catch limits (Gambell,1993).

In 1961, a three-person Scientific Committee specializing in population dynamics from countries not engaged in Antarctic pelagic whaling was appointed to make an independent stock assessment of baleen whales and recommendations to restore and maintain them at sustainable take levels.  With inputs and help from the International Whaling Commission’s Scientific Committee, the catch data and biological information available were analysed in detail to determine stock size and sustainable catch levels (Chapman et al.,1964). The committee reported on the uncertainty of the blue and humpback whale population estimates and recommended a ban on hunting these species. The committee also pointed out the need for more reliable information on the biology, demography and dynamics of the depleted stocks. Adoption of the concept of maximum sustainable yield (MSY) for individual species and stock was suggested. The commission set a moratorium on taking humpback and blue whales in 1963 and 1964 respectively. However, the commission failed to reach an agreement on setting catch limits for individual species (Hofman, 2017).

In the 1950s -1970s the size and number of whales caught by nations continued to decline and smaller whale species were targeted. However, allotted quotas were met by Japan and USSR, party due to their superior and more numerous catchers. It is also suggested that they did not comply with the regulations of the IWRC (Rocha et al., 2014).

The failure of IWC to prevent overexploitation of depleted stocks led to adapting a resolution calling for a ten-year moratorium on commercial whaling at the United Nations’ Stockholm conference on Human Environment in 1972. Similar resolutions were initiated in the IWC IN 1972, 1973 and 1974 but they did not receive the three-fourths majority. In 1972, International Observer Scheme, where an observer appointed by the commission would report to it directly about a whaling operation’s compliance with the agreed whaling regulation (IWC,1974).

At around the same time, more protective attitude by the US government had influenced the government to pass the Marine Mammal Protection act and Endangered species act within 14 months. During the voting in 1982, ten countries still practiced industrial whaling. Japan operated fleets in both the hemispheres while Brazil, Chili, Peru and USSR operated in the South, but the moratorium on commercial whaling was passed with a comprehensive assessment of whale stock and development of an effective conservative regulatory regime pending. It came into force in the 1985-86 Antarctic whaling season, all nations except Japan, USSR and Norway had suspended industrial commercial whaling. The three nations lodged objections to the ban and hence weren’t bound to it.

Meanwhile, the IWC’s Scientific committee finished a review on the status of the stocks and proposed a Revised Management Procedure (RMP) and was adopted in 1994 (Gambell,1999). The moratorium remains in effect since it has been impossible to agree on an observation and inspection system to ensure compliance with the take levels authorised under RMP (Hofman, 2017).

The commission currently has 6 sub-groups to manage different aspects of the work involved (IWC b).

There is a risk of friction between The United Nations Convention on the law of the Seas (UNCLOS) and ICRW treaties since UNCLOS does not recognise the right of an international organisation to infringe on the sovereignty of a coastal state in its exclusive economic zone which contradicts the application of article I, paragraph 2 of IRCW to its member states (Gambell, 1993).

Japan and scientific whaling

According to the Japan Whaling Association, whaling in Japan began in the 12^th century (Japan Whaling Association). Industrial scale commercial whaling began with the advent of modern whaling. Japan began pelagic whaling in the Antarctic in 1930s and grew tremendously with low operating costs which could potentially disrupt the whale oil market again. Norway and Britain also possessed evidence that they hunted lactating blue whales among other non-compliant hunting. This led to multiple meetings with the Japanese Foreign Ministry and Japan gave the impression that they wanted to monopolise Southern Ocean fishing. Japanese whaling companies ended up opposing the IWC’s regulations under this pretext (Tønnessen & Johnsen 1982).

Japan did join the IWC in 1951 and its interests were similar to a majority of the members,’ conserving whale stocks for orderly development of the whaling industry’. The focus of the organisation shifted to conservation and promoting welfare of whales as a species. The non-government organisations, governments and environmentalists’ power grew and by 1982, a moratorium on commercial whaling was placed (Stoett, 1995). Japan lodged a formal objection to it but withdrew when the US threatened to withdraw fisheries sanctions in its Exclusive Economic zone. (Catalinac and Chan,2005; Clapham, 2014).

Japan currently takes whales in the Southern Ocean with ‘scientific whaling’ permit obtained from Article VIII of the Convention (Clapham, 2014; Hofman, 2017).

List of Japanese scientific whaling programs

They are conducted by the Institute for Cetacean Research, partly funded by Ministry of Agriculture, Forestry and Fisheries (Wong, 2001).

JARPA (The Japanese Whale Research Program under Special Permit in the Antarctic)

It commenced in 1987/88 and ended in2004/05. Objectives of this program were:

1. Estimating biological parameters, especially natural mortality rates to improve management.
2.  Estimating stock structure of Southern Ocean minke whales to improve stock management.
3. Examination of role of whales in the Antarctic ecosystem.
4. Examination of the effect of environmental changes on cetaceans.

Research methodologies involved random lethal catches of 400 +/- 10% minke whales was combined with concurrent line-transect sighting surveys.

IWC’s role: The IWC’s scientific committee reviewed JARPA’s reports annually. Two major reviews, a mid-term review in 1997 and a final review in 2006/07 were carried out. A meeting was held in Tokyo in December 2006 to review the results of the JARPA program. While there was an agreement on the fact that considerable data was collected during the program by both lethal and non-lethal methods, the analyses and interpretation of the data was disputed. Considerable advancement was made in study of abundance of Antarctic minke whales and humpback whales. The committee concluded that while the data is not essential for regulation of whaling under Revised Management Procedures, it has the potential to improve minke whale management in the southern hemisphere.

JARPA II (The Japanese Whale Research Program under Special Permit in the Antarctic II)

This program commenced in the summer of 2005/06 and ended in 2013-14. The objectives for JARPA II were:

1. Monitoring of Antarctic ecosystem.
2. Modelling competition among whale species and developing future management objectives.
3. Elucidation of spatial and temporal changes in stock structure.
4. Improving management procedure for Antarctic minke whales.

This program focused on cetaceans primarily feeding on Antarctic krills along with minke, humpback and fin whales. The research methods were similar to JARPA, lethal sampling quota of 50 humpback whales from D and E stocks (migratory population on the westand east coast respectively) , 850 (10 % allowance) antarctic minke whales and 50 fin whales from Indian Ocean and the western south pacific stocks was allotted. Non-lethal sampling methods like sighting surveys, biopsy sampling, acoustic surveys and oceanography data collection were also used.

The relevance of the proposed research to management practices was questioned. Issues regarding appropriate sample sizes and using non-lethal sampling alternative sampling methods were raised. It also passed many resolutions to cease taking whales in the Antarctic.

(IWC c)

The controversial Article VIII

Article VIII of the ICRW permits killing of whales for scientific research. The responsibility of setting catches and regulating lie with the government which issues the permit but they are required to report to the IWC if a new permit is issued and the scientific information gathered should be presented to the commission atleast annually. Annex P of the convention is used by the IWC’s Scientific Committee to review all the permit proposals and scientific findings.

1. Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.
2. Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.
3. Each Contracting Government shall transmit to such body as may be designated by the Commission, in so far as practicable, and at intervals of not more than one year, scientific information available to that Government with respect to whales and whaling, including the results of research conducted pursuant to paragraph 1 of this Article and to Article IV.
4. Recognizing that continuous collection and analysis of biological data in connection with the operations of factory ships and land stations are indispensable to sound and constructive management of the whale fisheries, the Contracting Governments will take all practicable measures to obtain such data (IWC d).

According to article V.1 of IRCW, Schedule is the means for adopting legally binding regulations with respect to the conservation and utilization of whale resources. The moratorium on commercial whaling was passed by addition of a paragraph 10e to the schedule;

Paragraph 10e: Notwithstanding other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific evidence, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits.

This paragraph emphasises on the fact that the ban placed is not permanent and can be changed. (Morishita, 2016).

A CASE FOR WHALES

Australia vs Japan with New Zealand intervening

Australia’s case against Japan, article VIII and the judgement of ICJ:

On 31^st May, 2010, Australia filed an application to institute proceedings against Japan’s JARPA II. According to the document, Japan was breaching obligations assumed under ICRW as well as other international obligations for preservation of marine mammals and the marine environment. New Zealand’s intervention as a non-party in the proceedings brought by Australia against Japan was accepted by the court on 6^th February,2013. (ICJ a)

In its counter-memorial, Japan argued that JARPA II are fully consisted with the object and purpose of the ICRW. It also that that Australia is opposed to any form of whaling and hopes for a rational discussion to end unreasonable rows and restore whale conservation and management based on science (ICJ b; Gogarty, 2015).

ICJ verdict: The court’s findings showed that Japan was non-compliant with multiple obligations under Schedules 10e, 10d, paragraphs 1, 7b, 30 of the ICRW.

The court by twelve votes to four decided that Japan shall revoke any extant authorization, permit or license granted in relation to JARPA II and refrain from granting any further permits in pursuance of that programme.

The court’s decision does not cover other existing or future research programs and it only the parties involved in the case, Australia, New Zealand and Japan are bound by it.

The concluding paragraphs, especially 223-227 summarise their reasoning for the judgement (Morishita,2016)

‘Taken as a whole, the Court considers that JARPA II involves activities that can broadly be characterized as scientific research, but that the evidence does not establish that the programme’s design and implementation are reasonable in relation to achieving its stated objectives. The Court therefore concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the Convention.’ (ICJ a).

The court also sheds light on several issues surrounding its judgement. Some of its observations are contrary to the views of anti-whaling side and positive towards Japan’s perspective.

Paragraph 55 of the judgement expressed that whaling conducted under a special permit which meets the conditions of Article VIII is not subject to the obligations under the schedule concerning the moratorium on the catching of whales for commercial purposes, the prohibition of commercial whaling in the Southern Ocean Sanctuary and the moratorium relating to factory ships.

Australia’s argument in its memorial that the ICRW has evolved to change its objective from ‘preservation of whale stocks’ to conservation of whales was explicitly denied.

According to paragraph 56 of the judgement, that the final paragraph of the preamble to the objectives of ICRW states that the contracting parties decided to conclude a convention to provide for proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.

Amendments to the schedule and recommendations by the IWC may put an emphasis on objective(s) pursued by the convention but it cannot alter its object and purpose.

This judgement is highly significant and counteracts the main argument posed by the anti-whaling nations.

The court expressed that Australia and New Zealand overstate the legal significance of the recommendatory resolutions and Guidelines they rely on.

It also notes that many IWC resolutions were adopted without support from all the parties involved, especially Japan. Thus, it can’t be regarded as a subsequent agreement to the interpretation of article VIII.

Regarding lethal research methods, in paragraph 83, the court believed that the relevant resolutions and Guidelines that have been approved by consensus call upon state parties to take into account whether research objectives can practically and scientifically be achieved by using non-lethal methods but they do not establish a requirement that lethal methods be used only when other methods are not available.

Since meat and other products from whales caught in the scientific program are sold commercially, anti-whaling nations argue that the program is a ‘commercial whaling in disguise’. The court viewed this as not out of line with Article VIII which permits the processing and sale of whale meat incidental to the killing of whales pursuant to the grant of a special permit.

This legal stand is particularly helpful for Japan.

The court also stated that it did not find lethal sampling unreasonable.

EFFECTS AND IMPLICATIONS OF THE ICJ JUDGEMENT:

IWC: As described in detail earlier, IWC has a long history of conflicts. After passing the moratorium on commercial whaling, adoption of legally-binding decisions was not possible because sustainable use and anti-whaling sides didn’t secure enough votes to form the three-quarter majority. Attempts to build consensus among the two were unsuccessful and hence, IWC remains dysfunctional as an organisation. Repeated unproductive conflicts arise every year and no significant decision regarding whale conservation and management are taken except for aboriginal/subsistence whaling.

The judgement might promote dialogue on the legal views of ICJ on some aspects of disputes among the members.

Science:

It is to be noted that ICJ made its own scientific judgement that is inconsistent with the views of the IWC’s scientific committee. A legal institution ICJ’s judgement that research whaling under JARPA II is illegal also formed the basis of arguments in the written arguments of the dissenting judges.

This could potentially damage IWC’s purpose of existence which already carries the tag of being dysfunctional as an organisation for conservation and management of resources (Morishita, 2016).

NEWREP-A (New Scientific Research Programme in the Antarctic Ocean)

In November, 2014, the Japanese government proposed a new special permit scientific program in Antarctica scheduled to begin in the 2016-17 season.

The objectives of the program are:

Main Objective I: Improvements in the precision of biological and ecological information for the application of the RMP to the Antarctic minke whales.

Main Objective II: The other main research objective is investigation of the structure and dynamics of the Antarctic marine ecosystem through building ecosystem models.

CONTROVERSY: Sea shepherd, a non- profit conservation organisation tried to intercept the whaling operations. This was covered widely by the media (Sea Shepherd a).

IWC’S regulations on other threats to whales

Habitat degradation: IWC passed a resolution to establish Southern Ocean whale sanctuary covering the summer feeding grounds of 80-90% of the world’s whales. The key reason for creating the sanctuary was long term protection of whales but it is interesting to note that the proposal for the sanctuary included the term ‘ecosystem restoration’ which is a strong contrast to the objective of the 1982 moratorium (ASOC).

The Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol)

This protocol was signed on October 4,1991 in Madrid, Spain and entered force in 1998. Committee for Environmental Protection (CEP), an expert advisory body was established by the Protocol to provide advice and recommendations regarding implementation of the protocol to the Antarctic Treaty Consultative Meetings (ATCM). The CEP meets annually in conjunction with ATCM. The protocol has 6 annexes and annex II article 3 on ‘protection of native flora and fauna’ details regulatory measures for species taken under permit (Environmental protocol).

The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)

It is an international treaty adopted in 1980 at the Conference on Conservation of Antarctic Marine Resources. This was in response to concerns over unregulated krill fishing in the Southern Ocean which could lead to destruction of the Antarctic marine ecosystem. It has a commission which meets annually to adopt conservation measures, make decision on other pending matters and manage the finances of the organisation. The convention also has a scientific committee which provides scientific advice to the commission (CCAMLR b)

The convention consists of 33 articles which outline regulatory and protective measures taken to conserve flora and fauna in the convention area, including whales. (CCALMR c).

The protection offered by CCAMLR is limited due to its jurisdictional governance while ICRW regulations offer protection in all waters (Maffie,1996).  But CCALMR becomes operative when either the ICRW does not cover certain species or the IWC fails to reach an agreement on an issue (Fitzmaurice, 2015).

Convention on International Trade in Endangered Species of Flora and Fauna (CITES)

This was drafted as a result of a resolution passed during the IUCN’s meeting in 1963. It came into force on 1 July 1975 with 80 member nations. Currently, it has 183 members (CITES a). The species covered by CITES are listed in 3 appendices based on the protection level needed with appendix 1 containing species which require high degree of protection (CITES b).

The interpretation of article 14, para 4 of CITES is that, for states which are parties of ICRW, whales are considered to be included in appendix 2 and not 1.

Lastly, CITES, which regulates international trade, can’t interfere in the Japanese operation and domestic consumption of whale (Maffie,1996).

Conclusion

Population status

Some whale species which were severely hunted down in the last century are showing signs of slow recovery. In areas with good data availability, like off the coasts of Australia, South Africa and South America, humpback whales are showing a strong recovery with annual increase rate of about 10%, but there are no evidences for recovery of oceanic populations.

Similar patterns of recovery are seen in Southern right whales which were hunted pre-20^th century. Breeding populations of South America, South Africa and Australia show signs of recovery with an annual increase rate of about 7-8%. However, the status of blue and fin whale populations is uncertain (IWC e).

Cetaceans exhibit slow growth, maturity and low fecundity rates (Soulé, 2005). This might be one of the likely causes for low population growths.

Whaling and other threats to cetaceans

Japanese whaling is a highly controversial, complex and politicized issue. It considers the moratorium and anti-whaling parties as a threat to the principle of sustainable use of natural resources, food safety, principle of management of natural resources based on science and their traditional cultural values (Catalinac and Chan, 2005). The pro-whaling anti-whaling debate has lasted for decades as described in detail earlier. It is difficult to find a common ground in the argument.

Public awareness and role of NGOs

Better understanding of whales through science, increased public awareness on matters of environmental protection have led to whales being used in the forefront for matters pertaining to environmental conservation (Gambell,1993).

Numerous NGOs work for promoting awareness and conservation of the Antarctic and Southern Ocean flora and fauna.

Case of sea shepherd in Antarctica

Sea Shepherd has a worldwide presence. It believes in innovative direct-approach tactics to investigate, document and take action wherever necessary to expose and confront illegal activity in the high seas. It conducts yearly campaigns where it follows Japanese whaling fleets during their lethal sampling in the Antarctic summer to prevent taking of minke whales. This NGO is widely followed and supported by the public (Sea Shepherd b).

Other factors like climate change, acoustic pollution, marine pollution, fish-net entanglement, habitat degradation, ship strikes also pose a threat to whales migrating to the Southern Ocean. IWC has partnered up with numerous organisations and governments to conduct assessments of the effects of the above threats to initiate appropriate regulations and conservation efforts

(IWC f).

Southern Ocean and Antarctica are included in numerous treaties in international organisations as described in detail earlier. Considering the fact that whaling was done on a massive scale for whale oil which is hardly in use at present, there is a potential for similar or greater economic growth and benefit from live whale watching with appropriate regulations from the country’s government (Cisneros-Montemayor et al., 2010). The only significant whaling occurring in the Southern Ocean is the Japanese scientific whaling which takes the more abundant minke whales which will be closely watched by numerous NGOs, media and the Scientific Committee. Considerable progress has been done with respect to influencing member nations to follow the ICW regulations although the basic principle of international law is that it isn’t legally binding.

It is therefore, safe to assume that the whales migrating to the Southern Ocean receive adequate protection from international law while they are still under threat from factors described earlier if the moratorium stays in effect. However, there is a need to obtain more reliable scientific data on biology, distribution and population status of cetaceans to make a more accurate decision.

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