areas for marine mammals both within national jurisdiction and in the high seas.
Contrary to the concept of whale sanctuaries, this would include close cooperation
with the local population and would not exclude the sustainable use of marine
mammals.
As we have seen in Sect. 4.2.3, under the UNCLOS marine mammals take a
special place. Some species are listed in Annex I as highly migratory species
warranting special protection. Jefferies proposes the removal of these species from
the Annex and to place them directly under the competence of the IMMC. With the
experiences of the IWC in mind, it appears almost inevitable that within the IMMC
disputes on conservation and sustainable use would arise. In order to prevent a stall
such as in the IWC, the UN Marine Mammal Agreement would have clearly set out
dispute resolution mechanisms that draw from the UNCLOS as well as the UN Fish
Stocks Agreement and would include “negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to [the IMMC or] regional agencies or
arrangements, or other peaceful means of their choice.”
3
While these steps appear reasonable and Jefferies further lays out in great detail
the benefits of such new agreement, he also concedes the fact that this new agreement would face significant political obstacles. I would certainly agree with this
assessment. After all, all members of the IWC have sufficient experience with the
lack of cooperative will from the respective other side. Japan, Norway and Iceland
might fear that despite dispute resolution measures there will be an eventual stall on
cooperation. Therefore, it would be preferable for them to either continue trying to
lift the moratorium, to leave the IWC or to start a new organisation. After all,
Norway and Iceland both have lodged objections to the moratorium and are therefore
entitled to conduct whaling. Also, an amendment to the UNCLOS appears highly
unlikely. The decade-long negotiation phase demonstrate how difficult achieving
consensus on this agreement was. In order to avoid amendments, parties to
UNCLOS consequently rely on implementing agreements rather than having to go
through an amendment procedure.
Those states that have put the moratorium in place and have maintained it to this
day may be deterred by the fact that a new organisation would take precedent over
the whaling convention. This would also de facto mean that commercial whaling
would be possible again, not only by Japan, Norway and Iceland, but also by other
states. Moreover, the IMMC would not only include whales, but all marine
mammals. I do not see a reason for a country like Canada to potentially subdue
some of its decision-making authority to the Scientific Committee of the IMMC and
have its seal hunting and marine mammal policies further scrutinised by the international community. Also regarding polar bears, a new agreement would rather
undermine the user-to-user approach of polar bear management than strengthen
cooperative behaviour. After all, it would be nation states from other regions of
the world that would exert influence on the way polar bears are managed—at least
within the EEZ. Although Jefferies envisions an Indigenous and Cultural/Artisanal
3 Jefferies (2016), p. 243.
9.5 Scenario 4: The Formation of an International Marine Mammal Commission
195
Contrary to the concept of whale sanctuaries, this would include close cooperation
with the local population and would not exclude the sustainable use of marine
mammals.
As we have seen in Sect. 4.2.3, under the UNCLOS marine mammals take a
special place. Some species are listed in Annex I as highly migratory species
warranting special protection. Jefferies proposes the removal of these species from
the Annex and to place them directly under the competence of the IMMC. With the
experiences of the IWC in mind, it appears almost inevitable that within the IMMC
disputes on conservation and sustainable use would arise. In order to prevent a stall
such as in the IWC, the UN Marine Mammal Agreement would have clearly set out
dispute resolution mechanisms that draw from the UNCLOS as well as the UN Fish
Stocks Agreement and would include “negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to [the IMMC or] regional agencies or
arrangements, or other peaceful means of their choice.”
3
While these steps appear reasonable and Jefferies further lays out in great detail
the benefits of such new agreement, he also concedes the fact that this new agreement would face significant political obstacles. I would certainly agree with this
assessment. After all, all members of the IWC have sufficient experience with the
lack of cooperative will from the respective other side. Japan, Norway and Iceland
might fear that despite dispute resolution measures there will be an eventual stall on
cooperation. Therefore, it would be preferable for them to either continue trying to
lift the moratorium, to leave the IWC or to start a new organisation. After all,
Norway and Iceland both have lodged objections to the moratorium and are therefore
entitled to conduct whaling. Also, an amendment to the UNCLOS appears highly
unlikely. The decade-long negotiation phase demonstrate how difficult achieving
consensus on this agreement was. In order to avoid amendments, parties to
UNCLOS consequently rely on implementing agreements rather than having to go
through an amendment procedure.
Those states that have put the moratorium in place and have maintained it to this
day may be deterred by the fact that a new organisation would take precedent over
the whaling convention. This would also de facto mean that commercial whaling
would be possible again, not only by Japan, Norway and Iceland, but also by other
states. Moreover, the IMMC would not only include whales, but all marine
mammals. I do not see a reason for a country like Canada to potentially subdue
some of its decision-making authority to the Scientific Committee of the IMMC and
have its seal hunting and marine mammal policies further scrutinised by the international community. Also regarding polar bears, a new agreement would rather
undermine the user-to-user approach of polar bear management than strengthen
cooperative behaviour. After all, it would be nation states from other regions of
the world that would exert influence on the way polar bears are managed—at least
within the EEZ. Although Jefferies envisions an Indigenous and Cultural/Artisanal
3 Jefferies (2016), p. 243.
9.5 Scenario 4: The Formation of an International Marine Mammal Commission
195