all marine living resources, the UNCLOS promotes the conservation and ‘optimum
utilisation’ of these based on scientific findings. In principle, therefore, it appears
that also marine mammals are considered under this clause. But life would not be
life if it was that simple. Article 64 establishes special rules for highly migratory
species. These species are listed in Annex I of the UNCLOS and include, next to
several fish species, all cetaceans, including dolphins and monodontidae (beluga and
narwhal). Interestingly, the Annex separately lists “Dolphin: Coryphaena hippurus;
Coryphaena equiselis.” This, however, does not refer to the marine mammal, but to
the dolphin fish. Notwithstanding, the article requires states to cooperate in ‘appropriate international organisations’ to ensure the conservation and optimum utilisation
of these species. If there are regions in which no such organisation exists, but which
is subject to active harvest of these species, the states engaged in this harvest are
required to establish such organisation. The Inter-American Tropical Tuna Commission, for example, is such an organisation (see Sect. 5.5.1).
But the requirements of coastal states to work together for the conservation (and
arguably optimum utilisation) go further and are further stipulated in articles 65 and
120. Article 65 elaborates on marine mammals and the clause of optimum utilisation
in article 64. Here, the role of optimum utilisation is diminished and the conservation
of marine mammals required by the states as the goal of cooperation. After all, the
article notes that the role of an ‘appropriate international organisation’ may also be to
“prohibit, limit or regulate the exploitation of marine mammals.” In relation to
whales, states are required to work through these organisations for the “conservation,
management and study” of whales. In other words, states are not required to
cooperate to ensure that whales are not endangered, which would arguably also
entail their sustainable use. The insertion of this article is, however, not surprising.
We must remember that the UNCLOS was negotiated during the 1970s when the call
for a whaling moratorium grew louder. Indeed, the UNCLOS was adopted in the
same year the IWC adopted the moratorium on commercial whaling. To put the
marine mammal provisions of the UNCLOS in easier words: when an international
organisation, which is a requirement for marine mammal conservation, decides to
prohibit whaling, parties to the UNCLOS have to obey this prohibition in spite of the
UNCLOS’ optimum utilisation clause. Article 120 even goes further: although the
freedom of the seas applies in the high seas, this does not apply to the utilisation and
conservation of marine mammals. After all, the article establishes that the provisions
in article 65 are also applicable on the high seas.
15
From the above we can see that although the UNCLOS has established certain
rights concerning resource use within specific maritime zones, these do not apply to
marine mammals and particularly not to whales. Although scientific findings are
supposedly the fundament of management and utilisation, the UNCLOS requires
states to cooperate on marine mammal issues to ensure their conservation. One might
argue that Japan’s withdrawal from the IWC in December 2018 breaks with the
requirement to cooperate, if ‘cooperation’ means membership in an organisation.
15 Churchill and Lowe (1999), pp. 317–320.
66
4 The Global Framework for the Environment and Marine Mammals
utilisation’ of these based on scientific findings. In principle, therefore, it appears
that also marine mammals are considered under this clause. But life would not be
life if it was that simple. Article 64 establishes special rules for highly migratory
species. These species are listed in Annex I of the UNCLOS and include, next to
several fish species, all cetaceans, including dolphins and monodontidae (beluga and
narwhal). Interestingly, the Annex separately lists “Dolphin: Coryphaena hippurus;
Coryphaena equiselis.” This, however, does not refer to the marine mammal, but to
the dolphin fish. Notwithstanding, the article requires states to cooperate in ‘appropriate international organisations’ to ensure the conservation and optimum utilisation
of these species. If there are regions in which no such organisation exists, but which
is subject to active harvest of these species, the states engaged in this harvest are
required to establish such organisation. The Inter-American Tropical Tuna Commission, for example, is such an organisation (see Sect. 5.5.1).
But the requirements of coastal states to work together for the conservation (and
arguably optimum utilisation) go further and are further stipulated in articles 65 and
120. Article 65 elaborates on marine mammals and the clause of optimum utilisation
in article 64. Here, the role of optimum utilisation is diminished and the conservation
of marine mammals required by the states as the goal of cooperation. After all, the
article notes that the role of an ‘appropriate international organisation’ may also be to
“prohibit, limit or regulate the exploitation of marine mammals.” In relation to
whales, states are required to work through these organisations for the “conservation,
management and study” of whales. In other words, states are not required to
cooperate to ensure that whales are not endangered, which would arguably also
entail their sustainable use. The insertion of this article is, however, not surprising.
We must remember that the UNCLOS was negotiated during the 1970s when the call
for a whaling moratorium grew louder. Indeed, the UNCLOS was adopted in the
same year the IWC adopted the moratorium on commercial whaling. To put the
marine mammal provisions of the UNCLOS in easier words: when an international
organisation, which is a requirement for marine mammal conservation, decides to
prohibit whaling, parties to the UNCLOS have to obey this prohibition in spite of the
UNCLOS’ optimum utilisation clause. Article 120 even goes further: although the
freedom of the seas applies in the high seas, this does not apply to the utilisation and
conservation of marine mammals. After all, the article establishes that the provisions
in article 65 are also applicable on the high seas.
15
From the above we can see that although the UNCLOS has established certain
rights concerning resource use within specific maritime zones, these do not apply to
marine mammals and particularly not to whales. Although scientific findings are
supposedly the fundament of management and utilisation, the UNCLOS requires
states to cooperate on marine mammal issues to ensure their conservation. One might
argue that Japan’s withdrawal from the IWC in December 2018 breaks with the
requirement to cooperate, if ‘cooperation’ means membership in an organisation.
15 Churchill and Lowe (1999), pp. 317–320.
66
4 The Global Framework for the Environment and Marine Mammals