Cetaceans, and in particular whales, are strictly protected under international law by a set of rules banning whaling—the 1946 International Convention for the Regulation of Whaling (ICRW)14—and trade and commerce of specimens of such species—the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Indeed, ICRW and CITES form the “international legal regime on whale hunting.”15
1. The Whaling Convention
Due to the potential economic value of cetaceans and, in particular, of whales, whale hunting has an ancient tradition. With the development of new technologies, whaling grew in an uncontrolled manner during the first half of the twentieth century, resulting in a drastic decline of whale populations. The demand for international regulation of whale hunting consequently increased and eventually led to the adoption of the ICRW’s successors—the 1931 and 1937 conventions on the regulation of whaling.16 Comparatively, the ICRW is a conservation treaty that does not aim to abolish whale hunting, but rather, exemplify a classical resource exploitation regime that echoes the classification of Dupuy and Viñuales,17 which was drafted with the scope of regulating whaling in order to ensure sustainable exploitation and to avoid excessive stock depletion. Due to the steady drop of the whale population, the International Whaling Commission (IWC)18 shifted towards a more conservationist-oriented approach with the decision to establish a moratorium on whaling in 1982—that is, a zero catch limit—in order to reinforce whale preservation, effective from the 1985 to 1986 season19—thus transforming de facto the ICRW into a conservation treaty.20
The moratorium represents an advance on conservation efforts through its ban on trade or any exploitation activity. Studies have shown that measures like the moratorium that ban fishing, trade, and exploitation have resulted in a significant increase in whale populations as well as in the populations of other marine mammals.21 Therefore, marine mammals have benefited from the shift from resource-utilization policy towards conservation-oriented policy.
To elaborate, some populations from the Southern Hemisphere, like the Antarctic fur seal22 and the blue whale, have reached their estimated pre-exploitation abundance levels,23 while other marine mammals, like the South American sea lion (Otaria flavescens) are recovering after hunting cessation, notwithstanding only having attained 40% of the highest levels reached prior to commercial hunting.24 Norway and the Faroe Islands, traditionally whaling States, however, made use of the opt-out clause envisaged by Article V of the Whaling Convention; therefore, regardless of the criticism voiced by public opinion and environmental groups, their commercial whaling is lawful.25
Nevertheless, there is a big caveat to the zero catch limits for commercial whaling, which allows whaling countries to perpetuate their hunting policy. Given that the quota applies only to commercial whaling, whales can still be killed so long as it is for scientific purposes. Article VIII of the ICRW allows special exceptions for “scientific whaling” and aboriginal subsistence whaling.26 As is well known, the scientific whaling loophole has fueled abuse perpetrated by Japan through its contested JARPA I and II programs that have allowed Japanese whaleboats to indiscriminately kill hundreds of whales under the guise of scientific research. As a consequence of the complaint against Japan presented by Australia with the support of New Zealand, the International Court of Justice condemned Japan and concluded 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 1946 Convention.”27 Nevertheless, despite the ICJ Judgement, Japan continues its highly controversial scientific whaling in international waters off the Southern Ocean, including in the Southern Ocean Whale Sanctuary, through the NEWREP-A program.28
Special permits issued by the Japanese government with reference to this scientific program violate IWC Resolutions 2014-5 and 2016-2, which requested governments not to issue further permits until the conclusion of an assessment study by the IWC’s Scientific Committee.29 The 2017 Report of the Standing Working Group on Special Permit Programmes underlined, in particular, that Japan failed to comply with these IWC Resolutions, noting that lethal sampling remains unjustified, because “the proponent of NEWREP-NP has not provided sufficient scientific evidence that justifies the need for lethal sampling.”30 It seems clear that in this case Japan breached its obligation to cooperate as reiterated in the Whaling Case, whereas the Court affirmed that “[the states] have a duty to co-operate with the IWC and the Scientific Committee….”31
This event clearly shows that the main weakness of the IWC lies in the long-standing struggle between parties that contravene the commercial exploitation of whales—Australia, EU Member States, New Zealand, South American States, USA—and whaling States—Japan, Iceland, Norway. Australia, in particular, has assumed the leadership of the pro-conservation group within the IWC.32 The division between pro- and anti-whaling States was clearly witnessed during the 67th IWC meeting—Florianopolis, Brazil, September 28, 2018–when a Japanese proposal aimed at putting an end to the moratorium on whaling was rejected.33 On the contrary, another approved bid—sponsored by the anti-whaling block—reaffirmed the importance of maintaining the moratorium.34 In response to the rejection of its proposal by the anti-whaling camp, Japan formally announced on January 14, 2019 its withdrawal from the ICRW pursuant to Article XI of the Convention.35
The fact that the IWC is open to accession by non-whaling countries, including land-locked States such as Switzerland, is an asset for improving whale conservation. Indeed, the decisions adopted within the IWC are now also an expression of the will of anti-whaling States representing the worldwide public opinion. In this field, corruption of new IWC Member States by Japan—often land-locked States or developing countries—is suspected by many.36 The latter would manipulate these countries in order to obtain support for its whaling agenda.37 Indeed, it is no coincidence that the above-mentioned 2018 Japanese proposal “Way Forward” was backed by several of the least developed countries—and therefore more vulnerable to bribery—within the IWC.
Every effort to reform the IWC is hindered by the strong opposition to any change of the status quo by both whaling and anti-whaling countries. Indeed, a proposal aimed at partially restoring commercial whaling under a mechanism of quotas and a strict monitoring—which could have hindered Japan’s withdrawal from the IWC and would have obtained a considerable reduction of catches—was rejected in 2010 at the IWC meeting in Agadir, Morocco.38
Furthermore, small cetaceans, such as certain species of whales, dolphins, and porpoises are not within the sphere of competence of the IWC,39 which is limited to thirteen species of great whales, such as the bowhead whale, the North Atlantic right whale, and the blue whale.40 As the Article analyzes in the following Section, treaties of regional scope have partially filled this gap within the IWC.
The two pillars of the international regime on the protection of wildlife are represented by CITES41 and the Convention on the Conservation of Migratory Species of Wild Animals (CMS), adopted in Bonn in 1979.42 Those treaties—along with the Ramsar Convention on Wetlands—form the first generation of environmental treaties with universal scope. They are an expression of the sectorial approach that characterized international environmental law in the first phase of its development: Environmental functionalism.43
Both treaties request different levels of duties upon Member States depending on where a particular species is listed in specific appendices. CITES includes three appendices. Appendix I lists the most threatened species and requires strict limitations to trading. Appendix II contains species that are not currently endangered, but that could become endangered if their trade is not properly managed. Appendix III concerns those species that Member States—which request unilateral cooperation—declare unilaterally to be in danger.44
Appendix I of CITES provides protectives measures to mitigate the potential negative impacts of illegal trade on several species of cetacean, including dolphins, porpoises, and whales.45 Indeed, exporters must fulfill restrictive conditions in order to export species listed in Appendix I. First, competent national authorities must provide a grant that verifies that the export will not be detrimental to the conservation of the species in question, that the live specimens were not obtained in violation of domestic laws, and that the risk of injury, damage to health, or cruel treatment during shipment has been guaranteed.46 Second, an exporter must present an export permit to the customs department of the recipient country. Finally, importation of species listed in Appendix I is also conditional upon a finding that the import will not be detrimental to the survival of the species, that minimum standards of house and care are satisfied, and that the specimen is not to be used for “primarily commercial purposes.”
Of particular relevance to cetaceans is paragraph five of Article III, which details the introduction of marine species from the sea. This norm addresses the capture of cetaceans in areas that technically fall outside of the property of a State, meaning beyond the 200 miles of the Exclusive Economic Zone. In such cases, the ICW requests the release of a certificate from a Management Authority of the State of introduction, which must validate that the introduction will not be detrimental to the survival of the species involved, that minimum standards of house and care will be satisfied, and that the specimen is not used for primarily commercial purposes.
To introduce sea species listed in Appendix II, CITES does not require that the specimen in question not be used for primarily commercial purposes, while nevertheless maintaining that welfare standards must be respected and that the capture of such animals not endanger their conservation.47 Illegal trade in live specimens of cetaceans, particularly that of smaller species like the bottlenose dolphin, has welfare aspects that must not be underestimated, because the welfare of individual cetaceans kept in captivity affects overall conservation. Indeed, keeping caught individual cetaceans in healthy and reproductively active conditions diminishes the demand for replacements from the wild.48
CITES is, to date, the only environmental treaty that addresses animal welfare, although only in an incidental manner—specifically, as wild animals are caught or extracted from the wild. Indeed, as animals are brought under human control, a minimum standard of welfare—which is not to be treated “in a cruel manner”49—must be guaranteed by domestic authorities from the moment the animals are confined in cages until the ultimate delivery to the recipient country. For instance, Article VIII of CITES states, “[t]he Parties shall ensure further that all living specimens, during any period of transit, holding or shipment, are properly cared for so as to minimize the risk of injury, damage to health or cruel treatment.”50 Unfortunately, Article III, which deals with introduction from the sea of any specimen of a species included in Appendix I, fails to address welfare issues that are instead relevant to the condition of captivity of marine mammals.51 Indeed, captive management for cetaceans like killer whales or common dolphins can be very difficult due to their high level of cognition and peculiar social needs. As observed by Harrop, the level of welfare that should be guaranteed to animals extracted from the wild is the same as the one that is generally applied to farm animals under the domestic law of the hosting country.52
CITES has dealt with the issue of marine mammal conservation in several resolutions, and has established close links with the IWC, which has observer status within CITES. In particular, in Resolution Conference 11.4,53 CITES recognized the key role of the IWC in the management of whales and as the main source of statistical data on whale stocks. But, it has highlighted that the international and illegal trade of meat and other products of protected species of whales cannot be effectively controlled by the IWC alone. To this aim, CITES recommended to its Parties “not to issue any import or export permit, or certificate for introduction from the sea, under this Convention for primarily commercial purposes for any specimen of a species or stock protected from commercial whaling by the International Convention for the Regulation of Whaling” (Para. 3).
CMS also holds a leading global and regional role in marine mammal conservation. Several cetaceans are included in Appendix I—Migratory species in danger—and Appendix II—Migratory species with an unfavorable conservation status requiring international cooperation for conservation and management.54 This treaty is not, however, traditionally considered as having the same normative value of CITES. Indeed, when compared to CMS, CITES has an asset that makes it particularly suitable for protecting marine mammals from overexploitation. Article VIII obliges its Parties to prohibit trade in specimens in violation of the Convention, to penalize such trade, and to allow for the confiscation of specimens illegally traded or possessed—meaning, punishing and preventing the illegal trade of listed cetacean species. Therefore, the State who lands and sells parts of those cetaceans listed in Appendices I and II of CITES in clear violation of the Convention is liable under domestic laws that implement CITES—for example, in the United States under the Shark Conservation Act or the Marine Mammals Protection Act. Japan has violated this rule in several occasions, selling the meat of dolphins or whales by disguising it as the meat of other fish species. Indeed, recent techniques to identify the source of the species have been developed and consequently used to uncover the illegal trade perpetrated by Japan.55
Furthermore, the CITES Standing Committee (SC) highlighted Japan’s violation of trade restrictions for the sei whale, which is listed in Appendix I of CITES, and therefore subject to the severe constraints under Article III, Paragraph 5. Indeed, the SC questioned the numbers of the sei whale specimen caught for “research purposes” in Japan, drawing attention to “the frequency of the taking of sei whales and the number of animals harvested.”56 Japan sells the meat and the blubber of sei whales in order to finance its scientific programs on other whales. In particular, the SC stated that “the frequency and number of introductions from the sea cast doubt on whether the trade is authorized by the Management Authority of Japan ‘only in exceptional circumstances,’ as recommended in Resolution Conf. 5.10.”57 The SC then recommended that “Japan take immediate remedial action to comply,” threatening the adoption of further actions, including trade sanctions, against Japan.58
The main reason behind the SC’s conclusion lay in the excessive introduction of sei whales into Japan’s territory—some 90 to 100 sei whales annually during the period of 2007-2016—which could not constitute, therefore, “exceptional circumstances,” 59 but would rather imply a commercial purpose. In fact, it underlined that “the sale of meat and blubber on the domestic market is an activity that can generally be described as ‘commercial’ because its purpose is to obtain economic benefit….”60
Comparatively, the Solomon Islands have a different type of problem. Despite joining CITES in 2007, the Solomon Islands faces the problem of dolphin trafficking. In fact, as reported by the non-governmental organization Dolphin Project, the phenomena of dolphin trafficking is widely diffused and strictly related to the high level of corruption of local authorities that, in exchange for money, allow the illegal capture and exportation of wild bottlenose dolphins to be sold to aquariums.61
On the other side, the main limit of CITES is that it is a wildlife treaty whose rules only apply when the marine species listed in Appendices I or II are illegally caught for commercial purposes. Consequently, there are no penalties if the turtles, dolphins, or whales listed in CITES Annexes are caught for human consumption, despite the trade of their meat being prohibited.62 Indeed, CITES does not limit domestic use of marine species. The decision to allow or forbid the fishing activity of a determined species within the limits of the territorial sea or the EEZ is a political choice by national authorities. For this reason, despite its ethically questionable brutality, the seasonal slaughter of dolphins off the coast of Taiji is lawful.
Another shortcoming of CITES lies in its nature. As highlighted by Wigginton, “it is responsive and not preventative.”63 In other words, CITES is not a treaty whose goal is to prevent the harvesting of a particular species, but instead it aims at protecting a determined species only when it is at risk of extinction and has therefore passed a determined threshold. In fact, in order to be listed in Appendices I or II, a species must reach an extinction threshold, which inherently implies that the protection is guaranteed to be ex post and not ex ante.