- Email: [email protected]
Small cetaceans
Inadequacies of the straits’ passage regime~Smal1cetaceans
American diplomats construe another party’s silence as agreement. ‘One trouble with the diplomatic device of non-contradiction’, writes Strobe Talbott, ‘is that an understanding arrived at by the silence of one party is easily undone; all the other party has to do is break silence’.4 That has happened often enough in recent diplomatic history for Western delegations to know better. In interpreting a text, the decisive factor will be the provisions in the text. Nor is there reassurance in the allegation that there are more explicit implicit ‘understandings’. Gentlemens’ agreements are valid only when one is dealing with gentlemen, a presumption always perilous in law and politics where specialized roles often require honourable men to do things professionally from which they would recoil privately. The presumption is downright foolish when one is negotiating a written agreement. Bitter experience in the past few years teaches that international ‘understandings’ are very short-lived. If they even exist! Unfortunately, most of the allegations of key understandings come from members of the US delegation. I know of no instance in which another delegation at the Conference has confirmed their existence. If anything, parties that are friendly, quite honourable and are supposed to be living according to these agreements are apparently ignorant of them. The question of the value of an agreement between a limited number of states which does not conform to a text duly concluded by 160 states and duly registered with the Secretary General under the United Nations Charter is even thornier. The better negotiating rule is to get what you know to be vital into the text of the treaty. When it comes to making treaties, it is, alas, the letter that giveth life. A useful contrast to the murky passage regime that emerges from the informal negotiating text may be found in the Camp David Agreement of 1978. The Straits of Tiran and the Gulf of Aqaba are at least as important to Israel’s security as straits in general are to the USA. Therefore, the Israelis, evidently uninstructed by the Law of the Sea Delegation, inserted the MARINE POLICY July 1981
following provision in the Camp David Agreement: ‘The Strait of Tiran and the Gulf of Aqaba are international waterways to be open to all nations for unimpeded and nonsuspendable freedom of navigation and overflight.‘5 Certainly this sort of express formula, redundant in the essentials, is preferable to ghostly agreements, ‘noncontradicted’ unilateral statements and legal arguments whose complexity would make even a pandectist reel. If the other parties to the treaty really agree to unimpeded passage demands (as members of the US delegation do and, indeed, must contend), then let NATO members insist that the text express that agreement with as much clarity as it does matters of interest to them.6 If the other parties do not agree, let us not delude ourselves and further jeopardize security by neglecting other modalities of international lawmaking that are still available. For there are still opportunities at both the international and national level to dispel misunderstandings about the maritime regime of straits and to gain a treaty text that will serve world security interests. W. Michael Reisrnan We Law School New Haven, CT, USA ‘Richardson, ‘Power, mobility and the law of the sea’, Foreign Affairs, Spring 1980.
*For analysis of these provisions, see Reisman, ‘The regime of straits and national security: an appraisal of international lawmaking’, Vol 74, 1990, p 48. Critiques of my view with alternative interpretations of the draft treaty as it pertains to passage by leading members of the US delegation may be found in Oxman, ‘The Third United Nations Conference on the Law of the Sea: the Eighth Session
(1979)‘, American Journal of international Law, Vol 74, 1990, p 1 and Moore, ‘The regime of straits and the Third United Nations Conference on the Law of the Sea’,
ibid, p 77. See also Robertson, ‘Passage through international straits: a rfgM preserved in the Third UN Conference on the Law of the Sea’, Virginia Journal of InternationalLaw, Vol20,1980, p 801. -‘In the nature of things, positions expressed in speeches are usually characterized as vital matters on which the speaker’s state will never compromise. Though speakers will never concede it, these positions are often no more than gambits to test another party’s intensity of commitment, ‘bargaining chips’, or, in pluralistic democracies, sops to interest groups at home whose single issue has not been massaged into the text. Even assuming that the position is indeed a vital matter, the notion that a speech can override or add to a contract which has just been concluded and does not incoroorate the item in the soeech is quite fantastic. %Ibott. ‘Scramblina and sovina in SALT II’, lnte~ationalSe&ty, Voi 4, Nlo3.1979, p 18. WS Department of State Publication No 8954, The Camp David Summit, Near East and South Asian Series 88. 1978. “The notion that these other states cannot agree to an express provision because of adverse public opinion in their bodies politic is so patently preposterous that it does not merit response.
Small cetaceans Article 65 of the Draft Convention (lnional Text.) is concerned specifically with marine mammals. It imposes on states the obligation to work through international bodies for the ‘conservation, management, and study’ of cetaceans. Most small cetaceans are found within 200-mile zones - without international supervision, their outlook is bleak.
As already reported in Marine Policy,’ the International Whaling Commission (IWC) has made considerable progress in many respects in recent years. Not only has its membership expanded (from 14 to 24 states) but in 1975 it adopted New Management Procedures (NMP) which require it, acting on the advice of its Scientific Committee (SC), to categorize all whale stocks regulated by it into three classes for purposes of
conservation and exploitation, according to whether the stock concerned is at a level at which it can support a maximum substainable yield, modified by a fixed percentage to allow for various unknown factors in the calculation of the whale population. As a result many stocks are now classed as Protection Stocks (PS), on which no catching whatsoever is permitted. Others are classed as Initial Manage-
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Small cetaceans
ment or Sustained Management Stocks, on which limited quotas are allowed. These flexible procedures replaced more rigid ones less conducive to effective conservation, but they have led to a paradoxical situation: the more that is known about whale biology and behaviour and population dynamics, the less the SC has felt that it can confidently offer definitive advice on the status of discrete stocks. In some cases it has been able to put forward no firm opinion, or only alternatives. Nonetheless many species and stocks of great whales for which the evidence of depletion is overwhelming are now classified as PS and completely protected from capture by members of the IWC. This ban on the harvesting of so many of the large whales coupled with greatly reduced quotas for others, all of which were formerly the backbone of the whaling industry, has led states still exploiting whales (in particular Japan and the USSR) increasingly to direct their attention to some of the smaller species of whales - Japan taking minke and the USSR taking orca (killer) whales, both of which have consequently now been included in the regulatory schedule to the Intemational Convention for the Regulation of Whaling (ICRW) which forms an integral part of the Convention. The minke is now subject to quota under the NMP and the orca has been added to the species which factory ships are now banned from taking. Bottlenose whales in the North Atlantic are also subject to a zero quota.
from further over-fishing’. Many conservation groups are now concerned to see that this is not repeated in the case of small cetaceans.* There is also apprehension in many conservation-minded states and organizations that the unilateral adoption by so many states (about 100 of the 135 coastal states) of jurisdiction over fisheries in zones of up to 200 miles from their baselines will, in the absence of a new law of the sea treaty, encourage some states to include many species of small cetaceans as yet unregulated by the IWC - because not yet exploited or not yet exploited to the extent of serious depletion - and to claim that such species should be subject to coastal state jurisdiction and should not come within the species regulated by the IWC. These fears were given substance by the Canadian proposal at the 32nd meeting of the IWC that the ICRW should be revised to take account of the new coastal state jurisdiction. The essence of the Canadian proposal, as reported in Marine Policy,3 was that a new International Cetacean Convention should be negotiated to cover all cetaceans, but that addition to the regulatory Schedule of any cetaceans found in coastal waters, other than those currently regulated, would require the consent of the coastal state concerned, which would otherwise merely seek advice, at its discretion, from the international body. The ICRW currently applies, under Article I(2), to ‘factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Govemments and to all waters in which whaling is prosecuted’ by them. The Familiar pattern Commission can, moreover, under The pattern of moving from stocks of Article V, amend from time to time the overexploited whales to hitherto Schedule of regulations with respect to and utilization of unexploited stocks until they in turn the conservation became overtaxed was one familiar in whale resources ‘as necessary to carry the early history of whaling and led to out the objectives and purposes of this and to provide for conthe establishment of the IWC in order Convention to prevent the syndrome. The ICRW’s servation, development and optimum utilization of the whale resources’, Preamble states that the Contracting Governments are taking into consider- basing the amendments on scientific ation ‘that the history of whaling has findings. In the light of these provisions seen over-fishing of one area after there would seem to be no doubt that another and of one species of whale the IWC could, and should if scientific after another to such a degree that it is findings require it, regulate the taking essential to protect all species of whales of specific stocks of small cetaceans at
least if and when they become overexploited or are in danger of being so, as was done gradually in the case of the great whales, and more recently the minke, orca and bottlenose whales.
Incidental catch Other than the few species mentioned above, small cetaceans have until recently been of concern to the IWC only to the extent that some species were being taken incidentally in catches directed to other fisheries, such as tuna. To keep a watching brief on any developments and to amass the necessary information to assess the position, the IWC began to require4 that Contracting Governments’ ‘smalltype whaling’ operations conducted from shore or by pelagic fleets maintain records giving specific details of the individuals caught, and that other vessels engaged in such activities also keep records, in a less detailed form. For this purpose, the Schedule defined ‘small-type whaling’ as ‘catching operations using powered vessels with mounted harpoon guns hunting exclusively for minke, bottlenose, beaked pilot or killer whales’.’ It should be noted that this is not, and does not purport to be, a definition or listing of small cetaceans as such: it is merely a limited definition of the term ‘small-type whaling’ as used in the ICRW, for purposes of collecting information. The information is made available to the Scientific Committee for comment, but no action can be taken upon it unless the IWC subsequently decides that this is necessary, and such a decision is subject to the voting procedures laid down in Articles III(2) and V(3); ie it requires for approval a three-fourths majority of members voting and is also open to use of the objections procedure. The collection of information on small cetaceans is at a very early stage, both inside and outside the commission. In most cases little is known about the numbers and distribution of stocks; the identity of discrete stocks; migratory routes; intermingling of stocks across national boundaries; their places in their respective ecosystems; and general biological information is scanty except for certain species. The
MARINE
POLICY July1981
Small cetaceans
prime need at the moment is to gather data; even the extent of current exploitation is unknown in most cases. Problems will arise, however, if ‘small cetacean’ is immediately given a wide interpretation, and if the IWC does not limit itself to the approach it is now adopting of gradually gathering data: the IWC, as at present constituted, has neither the members nor the expertise to begin to manage all small cetaceans, nor is there evidence at this stage that it is necessary for it to do so for many species other than those currently regulated. Small cetaceans, however, though different from the large ones in many respects, are nonetheless marine mammals and thus share some of the special characteristics, such as long reproductive cycles, that make recovery of marine mammals from overexploitation less swift or certain than that of fin fisheries. Most of them, however, are found within the 200-mile zones. The history of overfishing in general does not encourage a belief that national management, without international supervision and standards based on pooled scientific information, is necessarily the best solution for conservation of these species when present knowledge of them is generally so patchy. In the light of these developments, the swift conclusion of a global treaty based on the Draft Convention (Informal Text) now produced by the Third United Nations Conference on the Law of the Sea6 (UNCLOS III) would be greatly advantageous to conservation of all species of cetaceans since it includes an article (Article 65) specifically related to marine mammals which recognizes the right of a coastal state as well as the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of these species more strictly than otherwise provided for in that part of the Text, ie Part V, which, though requiring in the case of other living resources that coastal states shall ensure through proper conservation and management measures that they are not overexploited, also requires that the measures taken must keep the resources at their maximum sustainable yield (qualified by various MARINE POLICY July 1981
factors),’ and that the objective of optimum utilization be promoted.8 This part of Article 65, therefore, takes cognizance of the differences between marine mammals and fin fish and allows the former to be exempted from these obligations and protected by stricter regulations. In the case of cetaceans an even clearer distinction is made: Article 65 goes on to insist that all states, ie not just coastal states, ‘shall cooperate with a view to the conservation of marine mammals and in the case of cetacems shall in particular work through the appropriate international organizations for their conservation, management and study.” Article 65 thus imposes an obligation to work through international institutions for cetacean conservation purposes. Although the reference is to ‘organizations’ in the plural and the appropriate one or ones are not named, the intention and understanding of most negotiators involved in the drafting of this article, which was meant to offer better protection to whales than to other species, was that states would cooperate through the only organization specifically and exclusively concerned with whales - the IWC. The reference to other organizations was inserted to provide for the cases in which some cetaceans are taken accidentally or incidentally in other fisheries, a problem which might therefore be better dealt with by the fisheries commission concerned.
Conventions, also adds that it ‘shall not alter the rights and obligations of States Parties which arise from other agreements compatible
with thk Convention
and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.“” The ICRW is an agreement fully compatible with the new Convention; indeed it is the only existing agreement which enables states properly to fulfil their obligations under Article 65, and its Contracting Governments already accept through Article l(2) that it applies to all waters where whaling takes place. In the absence of dispute procedures under the ICRW, and any definition in it of ‘whaling’, there is no legal bar to the IWC if necessary, and if justified by scientific advice, from time to time adding to its Schedule further species of cetaceans, however small, for purposes of conservation and management. In these circumstances, it is submitted that the suggestion that the ICRW should be revised to take account of cognizance of the alleged precedence of its coastal state members’ rights to conserve and small cetaceans not yet manage regulated by the IWC over the existing ICRW provisions for IWC regulation, if necessary to carry out its purposes and provide inter alia for conservation, is unfortunate and untimely. It would be a retrograde step, the error of which would be compounded if other states also follow the interpretation of Article 65 proposed in Canada’s written stateQualification ment at the Ninth Session of It cannot be denied that the ambiguity UNCLOS” which proposes (a) to of the wording permits the interpreregard the obligation of a state to ‘work tation that an organization or organi- through’ an appropriate international zations other than the IWC can be organization as discharged if any one used but the qualification that the organization is so used - ie it would be organization concerned should be enough in the case of small cetaceans to ‘appropriate’ strongly suggests that the work through NAFO (the Northwest IWC is the most relevant body for wnAtlantic Fisheries Organization), the servation of cetaceans. Article 65 regulatory area of which falls mainly relates not only to conservation of under Canadian jurisdiction, without cetaceans and other marine mammals any reference whatsoever to the IWC; in the EEZs established by Part V of (b) that the obligation to work through the Text but also, under Article 120, to an organization arises only when the those in the high seas. Moreover stock’s status is such (presumably so Article 311, which provides that depleted) that the organization’s attenbetween the parties, the new Convention is necessary - ie even if the IWC tion shall prevail over the Geneva were used it could not consider a stock
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Small cetaceans
until it became at or near overexploitation; (c) the obligation to ‘work through’ an organization can be discharged by consultation with its scientific bodies, during development of measures by coastal states within their 200-mile zones - the precise measures will be decided ultimately exclusively by the coastal state concerned without any international determination or overview. This interpretative statement has no legal significance - the UNCLOS text is not yet a formal treaty text. In any event, even if a treaty is finally adopted and Canada files a similar ‘interpretation’, it would not affect the general interpretation of the article for, and between, other states. Its effect. however accorded. will be manifested only in any disputes between Canada and other states conceming Article 6.5. The famous aphorism of George Santanyana that if we do not learn from history we are condemned to repeat it is surely the most apposite conclusion at this point in the history of exploitation of cetaceans. The IWC was established to act as a focal point for whale management precisely because ‘the history of whaling (had) seen overfishing of one area after another and one species of whale after another’. Moreover, the IWC soon found that establishment of a system of intemational observation of enforcement of regulations was essential to successful conservation. Much of the Dad overfishing was due to ignorance about the biology and reproductive cycles of whales, their migratory routes, separation of stocks, interdependence with other species, and their relations to their ecosystems and habitats. Over the vears the Scientific Committee of the IWC has built up a greatly improved body of knowledge on these and other former mysteries, thoughmanyremain. Small cetaceans are, it must be conceded. different in manv ~, resoects from the large whales, but ignorance conceming similar aspects of their behaviour, distribution, and other problems is generallv profound. It would seem to be the-wrong moment for the international community to be taking far-reaching decisions concerning the focal point of their future management especially policies, 1
‘--~-
~~~
whether they are best conserved by coastal states, international organizations or some combination of the two. States concerned should proceed very cautiously in committing themselves in this respect: the ICRW as currently drafted and accepted provides the means for just the cautious approach now necessary. It can extend gradually, at its discretion, the number of species to which its definition of ‘small-type whaling applies’ and thus incrementally improve the international store of knowledge on small cetaceans. Further advances would accrue if more states involved in harvesting or protecting these species could be encouraged to join the IWC and take uart in this constructive nrocess. If . evidence of the vulnerability of these species to overexploitation accumulates to the extent that it has for the larger marine mammals, states may be more willing than some now are to accept the need for international regulation and supervision. States should not at this stage adopt rigid Positions if they care for preservation of small cetaceans but should cooperate fully in supplying the maximum information to the IWc’s Scientific Committee. which has established a subcommittee on small cetaceans to consider and comment upon whatever data are made available. This subcommittee, it should be noted, has already expressed the view that there ti a need for an international bodv, to manage effectively stocks of small cetaceans not covered at present by the ICRW Schedule. Since 1977 it has been permitted to consider species of small cetaceans taken for their own value which has led it to make various recommendations on the need for management of some species, for urgent research by IWC members, whether on mandatory or voluntary basis, and for various immediate actions. ‘* These nroblems reauire continued consideration at the international level. At the time of writing, IWC member StateS are t0 assemble in Iceland (in May 1981) to consider the Canadian proposal for revision of the ICRW, and the new US administration has suspended negotiations by its delegation to UNCLOS pending a major review of the Draft Convention which it has said 1
1
presents serious problems for it. Renegotiation of some items, which it is likely to seek, relating to the deep seabed regime, might provide the opportunity to renegotiate, or failing this, redraft Article 65 to clarify some of its ambiguities which have led to the developments described in this article. Patricia Bimie Department of Public International Law UniveMty of Edinburgh Edinburgh, UK
IFI. Gambell, ‘Whale conservation-role of the lntemational Whaling Commission, Marine Policy, Vol 1, NO 4, 1977, PP 301310; P. Bimie, ‘IWC- survival and growth’, Marine Policy, Vol4, No 1, 1980, pp 72-75; p. Bimie , ‘IWC - bargaining and compromise’, Marine Policy, Vol 5, No 1, 1981, pp 79-84. “For as good an account of small cetaceans as can be given at present, see E. Mitchell, ‘Review of biology and fisheries for smaller cetaceanst Journal of the Fisheries Research kloard of Canada, Vol32, No 7,
1975, p 875. There is no agreement on numbers or forms of even the common widespread genera; when there are geographical variations there may be sharp Iocal differentiations. Of the species mvsticeti onlv the minke and pvamv rlaht whale are included, but all’ aork&eti (except large sperm whales) are included, ie dolphins, porpoises and other ‘small whales’. For further details, see also FAC’s Advisory Committee on Marine Resources Research (ACMRR) Working Party on Marine Mammals Draft Report for La Jolla meetina. Januarv 1977. at S4. small cetaceans. It concludes that a number of species do, or might, already present
conserva~on problen-is,
3P. Bimie, ‘IWC bargaining and compromise’, Marine Policy, Vol 5, No 1, 198 1, pp 79-84, at pp 82-83. ‘Sac, for example, ss 24 and 25 of the
Schedule to the lntemational cor,ven~on
for the Reoulation of Whalina. 1946 fas amended b; the Commission-at the 3&t Annual Meeting, London, July 1979) . ~saued February 1980. Vbid, I. Interpretation, pp 2-3, at p 3. YJN, Third Conference on the Law of the Sea, Draft Convention on the Law of the Sea (Informal Text), A/CONF.62/WPlO/ Rev.S/Add 1,28 August 1980. ‘/bid, Article 61(2) and (3).
B/bid.Anlcle@tl),
9Emphasis a-d&d. cetaceans are separately identified, in a list of Highly Migratory Species attached to the Draft Convention as Annex I, as including the families Physterldae; Balaenopteridae;
B&enidae;
Ziphiidae;
Escmi&tli~~;
and Delphinidae.
s
Confusingly,
MARINE POLICY July1981
Small cetaceans/The the Annex is referred to in Article 64, which refers exclusively to Highly Migratory Species, but not in Article 65, which refers to cetaceans in particular. Its significance in relation to both articles is, therefore, unclear, as is the accuracy of the inclusion.
Vbid. 18A/CONF. 62ME/4, Annex, Statement of Interpretation, Comments, Reservations and Proposals; proposed by Canada. Y’iee Rep IWC 27 (1977) p 466; Rep IWC 29 (1979) pp 67-69.
The ‘land-locked’ viewpoint While the Draft Convention still leaves the land-locked states with very considerable disadvantages, it can be said to represent a success for such states in so far as the notion of land-locked states forms a definite part of the proposed law of the sea and therefore provided them with the power to influence further develqoments.
For many years the international law of the sea has been characterized by the tendency of coastal states to extend their jurisdiction over the maritime areas off their coasts to, for example, apply a national conservation and management regime for the living resources in that area. This movement was said to be prompted by the nutritional needs of their populations and provoked by the inadequacy of internationally agreed regimes. Other pressures to extend jurisdiction have come from increasing energy needs and coastal states’ desires to protect their security and marine scientific knowledge, perceived as their national wealth, by claiming a consent regime for such research. This tendency has resulted in the establishment of the continental shelf regime, in the creation of the archipelagic-waters concept, in the extension of the territorial sea, and in the claim for the exclusive economic zone (EEZ). Thus the international law of the sea has undergone a transition, as Dupuy sees it, ’ from a law of movement to a law of territory and appropriation. A new element was introduced by the declaration that the deep seabed is the common heritage of mankind which should be used for the benefit of all mankind. Faced with such evolution, the landlocked states had three options: the
MARINE POLICY July1981
first was to relinquish particular maritime rights, thus confirming the traditional opinion of coastal states that land-locked states are not and, obviously, will not be interested in maritime activities. However, it cannot be denied that the land-locked states too have nutritional needs and require mineral resources. Since the oceans are the major source able to satisfy such needs, land-locked states must expand their national interests beyond the land area. If coastal states were extending the area of their exclusive exploitation rights, the land-locked states too would wish to enlarge the areas accessible to them for exploitation or, at least, to maintain the size of those areas according to traditional law. Two further options were then available. Land-locked states could try to restrict the coastal states’ area in favour of a larger area open to all states or endorse the coastal states’ extensive claims in exchange for exploitation rights within the national maritime areas of their neighbouring coastal states. Both strategies had drawbacks. The large international area concept would make accessible only those maritime areas where there are few living and non-living resources (except manganese nodules). The large national area concept would intensify the dependence of the land-locked states on their
land-locked
viewpoint
neighbouring coastal states. The situation of the land-locked states is still aggravated by the fact that they need transit rights in order to reach the sea and to develop maritime interests on their own, so that, by denying such rights, a transit state could virtually exclude a land-locked state from the oceans and their uses. Whereas regulations in Europe are on the whole sufficient, they are to a great extent lacking in the developing countries so that it was in particular the concern of the developing land-locked state to achieve multilaterally guaranteed transit rights.
The counter arguments The arguments of the coastal states against the claims of the land-locked states were focused mainly on the demonstration of lack of interest on the part of those states in maritime uses, evidenced by the factual non-existence of maritime activities. However, those arguments could be refuted by stating that the land-locked states had, due to the lack of self-executing, non-reciprocal transit rights, to bear additional transit costs as a prerequisite to developing maritime activities so that especially the poorer countries among them were debarred from performing maritime activities. Thus, by referring to the lack of maritime activities and interests, the coastal states made reference to a situation generated to some extent by their own refusal to grant such transit rights. And even where the land-locked states have already succeeded in proving their maritime interests, in navigational matters, experience teaches that the enjoyment of transit rights determines the capacity to perform such maritime activities. On the other side, according to the transit states, such large transit rights amounted to an infringement of their territorial sovereignty and the incorporation of such rights in a general convention seemed to run counter to the tendency of international law which was said to focus on the protection of all facets of territorial integrity and sovereignty, particularly of developing states. Hence, such rights could be accorded only on a bilateral, subregional or regional level where the particularities of the relations between the states
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American diplomats construe another party’s silence as agreement. ‘One trouble with the diplomatic device of non-contradiction’, writes Strobe Talbott, ‘is that an understanding arrived at by the silence of one party is easily undone; all the other party has to do is break silence’.4 That has happened often enough in recent diplomatic history for Western delegations to know better. In interpreting a text, the decisive factor will be the provisions in the text. Nor is there reassurance in the allegation that there are more explicit implicit ‘understandings’. Gentlemens’ agreements are valid only when one is dealing with gentlemen, a presumption always perilous in law and politics where specialized roles often require honourable men to do things professionally from which they would recoil privately. The presumption is downright foolish when one is negotiating a written agreement. Bitter experience in the past few years teaches that international ‘understandings’ are very short-lived. If they even exist! Unfortunately, most of the allegations of key understandings come from members of the US delegation. I know of no instance in which another delegation at the Conference has confirmed their existence. If anything, parties that are friendly, quite honourable and are supposed to be living according to these agreements are apparently ignorant of them. The question of the value of an agreement between a limited number of states which does not conform to a text duly concluded by 160 states and duly registered with the Secretary General under the United Nations Charter is even thornier. The better negotiating rule is to get what you know to be vital into the text of the treaty. When it comes to making treaties, it is, alas, the letter that giveth life. A useful contrast to the murky passage regime that emerges from the informal negotiating text may be found in the Camp David Agreement of 1978. The Straits of Tiran and the Gulf of Aqaba are at least as important to Israel’s security as straits in general are to the USA. Therefore, the Israelis, evidently uninstructed by the Law of the Sea Delegation, inserted the MARINE POLICY July 1981
following provision in the Camp David Agreement: ‘The Strait of Tiran and the Gulf of Aqaba are international waterways to be open to all nations for unimpeded and nonsuspendable freedom of navigation and overflight.‘5 Certainly this sort of express formula, redundant in the essentials, is preferable to ghostly agreements, ‘noncontradicted’ unilateral statements and legal arguments whose complexity would make even a pandectist reel. If the other parties to the treaty really agree to unimpeded passage demands (as members of the US delegation do and, indeed, must contend), then let NATO members insist that the text express that agreement with as much clarity as it does matters of interest to them.6 If the other parties do not agree, let us not delude ourselves and further jeopardize security by neglecting other modalities of international lawmaking that are still available. For there are still opportunities at both the international and national level to dispel misunderstandings about the maritime regime of straits and to gain a treaty text that will serve world security interests. W. Michael Reisrnan We Law School New Haven, CT, USA ‘Richardson, ‘Power, mobility and the law of the sea’, Foreign Affairs, Spring 1980.
*For analysis of these provisions, see Reisman, ‘The regime of straits and national security: an appraisal of international lawmaking’, Vol 74, 1990, p 48. Critiques of my view with alternative interpretations of the draft treaty as it pertains to passage by leading members of the US delegation may be found in Oxman, ‘The Third United Nations Conference on the Law of the Sea: the Eighth Session
(1979)‘, American Journal of international Law, Vol 74, 1990, p 1 and Moore, ‘The regime of straits and the Third United Nations Conference on the Law of the Sea’,
ibid, p 77. See also Robertson, ‘Passage through international straits: a rfgM preserved in the Third UN Conference on the Law of the Sea’, Virginia Journal of InternationalLaw, Vol20,1980, p 801. -‘In the nature of things, positions expressed in speeches are usually characterized as vital matters on which the speaker’s state will never compromise. Though speakers will never concede it, these positions are often no more than gambits to test another party’s intensity of commitment, ‘bargaining chips’, or, in pluralistic democracies, sops to interest groups at home whose single issue has not been massaged into the text. Even assuming that the position is indeed a vital matter, the notion that a speech can override or add to a contract which has just been concluded and does not incoroorate the item in the soeech is quite fantastic. %Ibott. ‘Scramblina and sovina in SALT II’, lnte~ationalSe&ty, Voi 4, Nlo3.1979, p 18. WS Department of State Publication No 8954, The Camp David Summit, Near East and South Asian Series 88. 1978. “The notion that these other states cannot agree to an express provision because of adverse public opinion in their bodies politic is so patently preposterous that it does not merit response.
Small cetaceans Article 65 of the Draft Convention (lnional Text.) is concerned specifically with marine mammals. It imposes on states the obligation to work through international bodies for the ‘conservation, management, and study’ of cetaceans. Most small cetaceans are found within 200-mile zones - without international supervision, their outlook is bleak.
As already reported in Marine Policy,’ the International Whaling Commission (IWC) has made considerable progress in many respects in recent years. Not only has its membership expanded (from 14 to 24 states) but in 1975 it adopted New Management Procedures (NMP) which require it, acting on the advice of its Scientific Committee (SC), to categorize all whale stocks regulated by it into three classes for purposes of
conservation and exploitation, according to whether the stock concerned is at a level at which it can support a maximum substainable yield, modified by a fixed percentage to allow for various unknown factors in the calculation of the whale population. As a result many stocks are now classed as Protection Stocks (PS), on which no catching whatsoever is permitted. Others are classed as Initial Manage-
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Small cetaceans
ment or Sustained Management Stocks, on which limited quotas are allowed. These flexible procedures replaced more rigid ones less conducive to effective conservation, but they have led to a paradoxical situation: the more that is known about whale biology and behaviour and population dynamics, the less the SC has felt that it can confidently offer definitive advice on the status of discrete stocks. In some cases it has been able to put forward no firm opinion, or only alternatives. Nonetheless many species and stocks of great whales for which the evidence of depletion is overwhelming are now classified as PS and completely protected from capture by members of the IWC. This ban on the harvesting of so many of the large whales coupled with greatly reduced quotas for others, all of which were formerly the backbone of the whaling industry, has led states still exploiting whales (in particular Japan and the USSR) increasingly to direct their attention to some of the smaller species of whales - Japan taking minke and the USSR taking orca (killer) whales, both of which have consequently now been included in the regulatory schedule to the Intemational Convention for the Regulation of Whaling (ICRW) which forms an integral part of the Convention. The minke is now subject to quota under the NMP and the orca has been added to the species which factory ships are now banned from taking. Bottlenose whales in the North Atlantic are also subject to a zero quota.
from further over-fishing’. Many conservation groups are now concerned to see that this is not repeated in the case of small cetaceans.* There is also apprehension in many conservation-minded states and organizations that the unilateral adoption by so many states (about 100 of the 135 coastal states) of jurisdiction over fisheries in zones of up to 200 miles from their baselines will, in the absence of a new law of the sea treaty, encourage some states to include many species of small cetaceans as yet unregulated by the IWC - because not yet exploited or not yet exploited to the extent of serious depletion - and to claim that such species should be subject to coastal state jurisdiction and should not come within the species regulated by the IWC. These fears were given substance by the Canadian proposal at the 32nd meeting of the IWC that the ICRW should be revised to take account of the new coastal state jurisdiction. The essence of the Canadian proposal, as reported in Marine Policy,3 was that a new International Cetacean Convention should be negotiated to cover all cetaceans, but that addition to the regulatory Schedule of any cetaceans found in coastal waters, other than those currently regulated, would require the consent of the coastal state concerned, which would otherwise merely seek advice, at its discretion, from the international body. The ICRW currently applies, under Article I(2), to ‘factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Govemments and to all waters in which whaling is prosecuted’ by them. The Familiar pattern Commission can, moreover, under The pattern of moving from stocks of Article V, amend from time to time the overexploited whales to hitherto Schedule of regulations with respect to and utilization of unexploited stocks until they in turn the conservation became overtaxed was one familiar in whale resources ‘as necessary to carry the early history of whaling and led to out the objectives and purposes of this and to provide for conthe establishment of the IWC in order Convention to prevent the syndrome. The ICRW’s servation, development and optimum utilization of the whale resources’, Preamble states that the Contracting Governments are taking into consider- basing the amendments on scientific ation ‘that the history of whaling has findings. In the light of these provisions seen over-fishing of one area after there would seem to be no doubt that another and of one species of whale the IWC could, and should if scientific after another to such a degree that it is findings require it, regulate the taking essential to protect all species of whales of specific stocks of small cetaceans at
least if and when they become overexploited or are in danger of being so, as was done gradually in the case of the great whales, and more recently the minke, orca and bottlenose whales.
Incidental catch Other than the few species mentioned above, small cetaceans have until recently been of concern to the IWC only to the extent that some species were being taken incidentally in catches directed to other fisheries, such as tuna. To keep a watching brief on any developments and to amass the necessary information to assess the position, the IWC began to require4 that Contracting Governments’ ‘smalltype whaling’ operations conducted from shore or by pelagic fleets maintain records giving specific details of the individuals caught, and that other vessels engaged in such activities also keep records, in a less detailed form. For this purpose, the Schedule defined ‘small-type whaling’ as ‘catching operations using powered vessels with mounted harpoon guns hunting exclusively for minke, bottlenose, beaked pilot or killer whales’.’ It should be noted that this is not, and does not purport to be, a definition or listing of small cetaceans as such: it is merely a limited definition of the term ‘small-type whaling’ as used in the ICRW, for purposes of collecting information. The information is made available to the Scientific Committee for comment, but no action can be taken upon it unless the IWC subsequently decides that this is necessary, and such a decision is subject to the voting procedures laid down in Articles III(2) and V(3); ie it requires for approval a three-fourths majority of members voting and is also open to use of the objections procedure. The collection of information on small cetaceans is at a very early stage, both inside and outside the commission. In most cases little is known about the numbers and distribution of stocks; the identity of discrete stocks; migratory routes; intermingling of stocks across national boundaries; their places in their respective ecosystems; and general biological information is scanty except for certain species. The
MARINE
POLICY July1981
Small cetaceans
prime need at the moment is to gather data; even the extent of current exploitation is unknown in most cases. Problems will arise, however, if ‘small cetacean’ is immediately given a wide interpretation, and if the IWC does not limit itself to the approach it is now adopting of gradually gathering data: the IWC, as at present constituted, has neither the members nor the expertise to begin to manage all small cetaceans, nor is there evidence at this stage that it is necessary for it to do so for many species other than those currently regulated. Small cetaceans, however, though different from the large ones in many respects, are nonetheless marine mammals and thus share some of the special characteristics, such as long reproductive cycles, that make recovery of marine mammals from overexploitation less swift or certain than that of fin fisheries. Most of them, however, are found within the 200-mile zones. The history of overfishing in general does not encourage a belief that national management, without international supervision and standards based on pooled scientific information, is necessarily the best solution for conservation of these species when present knowledge of them is generally so patchy. In the light of these developments, the swift conclusion of a global treaty based on the Draft Convention (Informal Text) now produced by the Third United Nations Conference on the Law of the Sea6 (UNCLOS III) would be greatly advantageous to conservation of all species of cetaceans since it includes an article (Article 65) specifically related to marine mammals which recognizes the right of a coastal state as well as the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of these species more strictly than otherwise provided for in that part of the Text, ie Part V, which, though requiring in the case of other living resources that coastal states shall ensure through proper conservation and management measures that they are not overexploited, also requires that the measures taken must keep the resources at their maximum sustainable yield (qualified by various MARINE POLICY July 1981
factors),’ and that the objective of optimum utilization be promoted.8 This part of Article 65, therefore, takes cognizance of the differences between marine mammals and fin fish and allows the former to be exempted from these obligations and protected by stricter regulations. In the case of cetaceans an even clearer distinction is made: Article 65 goes on to insist that all states, ie not just coastal states, ‘shall cooperate with a view to the conservation of marine mammals and in the case of cetacems shall in particular work through the appropriate international organizations for their conservation, management and study.” Article 65 thus imposes an obligation to work through international institutions for cetacean conservation purposes. Although the reference is to ‘organizations’ in the plural and the appropriate one or ones are not named, the intention and understanding of most negotiators involved in the drafting of this article, which was meant to offer better protection to whales than to other species, was that states would cooperate through the only organization specifically and exclusively concerned with whales - the IWC. The reference to other organizations was inserted to provide for the cases in which some cetaceans are taken accidentally or incidentally in other fisheries, a problem which might therefore be better dealt with by the fisheries commission concerned.
Conventions, also adds that it ‘shall not alter the rights and obligations of States Parties which arise from other agreements compatible
with thk Convention
and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.“” The ICRW is an agreement fully compatible with the new Convention; indeed it is the only existing agreement which enables states properly to fulfil their obligations under Article 65, and its Contracting Governments already accept through Article l(2) that it applies to all waters where whaling takes place. In the absence of dispute procedures under the ICRW, and any definition in it of ‘whaling’, there is no legal bar to the IWC if necessary, and if justified by scientific advice, from time to time adding to its Schedule further species of cetaceans, however small, for purposes of conservation and management. In these circumstances, it is submitted that the suggestion that the ICRW should be revised to take account of cognizance of the alleged precedence of its coastal state members’ rights to conserve and small cetaceans not yet manage regulated by the IWC over the existing ICRW provisions for IWC regulation, if necessary to carry out its purposes and provide inter alia for conservation, is unfortunate and untimely. It would be a retrograde step, the error of which would be compounded if other states also follow the interpretation of Article 65 proposed in Canada’s written stateQualification ment at the Ninth Session of It cannot be denied that the ambiguity UNCLOS” which proposes (a) to of the wording permits the interpreregard the obligation of a state to ‘work tation that an organization or organi- through’ an appropriate international zations other than the IWC can be organization as discharged if any one used but the qualification that the organization is so used - ie it would be organization concerned should be enough in the case of small cetaceans to ‘appropriate’ strongly suggests that the work through NAFO (the Northwest IWC is the most relevant body for wnAtlantic Fisheries Organization), the servation of cetaceans. Article 65 regulatory area of which falls mainly relates not only to conservation of under Canadian jurisdiction, without cetaceans and other marine mammals any reference whatsoever to the IWC; in the EEZs established by Part V of (b) that the obligation to work through the Text but also, under Article 120, to an organization arises only when the those in the high seas. Moreover stock’s status is such (presumably so Article 311, which provides that depleted) that the organization’s attenbetween the parties, the new Convention is necessary - ie even if the IWC tion shall prevail over the Geneva were used it could not consider a stock
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Small cetaceans
until it became at or near overexploitation; (c) the obligation to ‘work through’ an organization can be discharged by consultation with its scientific bodies, during development of measures by coastal states within their 200-mile zones - the precise measures will be decided ultimately exclusively by the coastal state concerned without any international determination or overview. This interpretative statement has no legal significance - the UNCLOS text is not yet a formal treaty text. In any event, even if a treaty is finally adopted and Canada files a similar ‘interpretation’, it would not affect the general interpretation of the article for, and between, other states. Its effect. however accorded. will be manifested only in any disputes between Canada and other states conceming Article 6.5. The famous aphorism of George Santanyana that if we do not learn from history we are condemned to repeat it is surely the most apposite conclusion at this point in the history of exploitation of cetaceans. The IWC was established to act as a focal point for whale management precisely because ‘the history of whaling (had) seen overfishing of one area after another and one species of whale after another’. Moreover, the IWC soon found that establishment of a system of intemational observation of enforcement of regulations was essential to successful conservation. Much of the Dad overfishing was due to ignorance about the biology and reproductive cycles of whales, their migratory routes, separation of stocks, interdependence with other species, and their relations to their ecosystems and habitats. Over the vears the Scientific Committee of the IWC has built up a greatly improved body of knowledge on these and other former mysteries, thoughmanyremain. Small cetaceans are, it must be conceded. different in manv ~, resoects from the large whales, but ignorance conceming similar aspects of their behaviour, distribution, and other problems is generallv profound. It would seem to be the-wrong moment for the international community to be taking far-reaching decisions concerning the focal point of their future management especially policies, 1
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~~~
whether they are best conserved by coastal states, international organizations or some combination of the two. States concerned should proceed very cautiously in committing themselves in this respect: the ICRW as currently drafted and accepted provides the means for just the cautious approach now necessary. It can extend gradually, at its discretion, the number of species to which its definition of ‘small-type whaling applies’ and thus incrementally improve the international store of knowledge on small cetaceans. Further advances would accrue if more states involved in harvesting or protecting these species could be encouraged to join the IWC and take uart in this constructive nrocess. If . evidence of the vulnerability of these species to overexploitation accumulates to the extent that it has for the larger marine mammals, states may be more willing than some now are to accept the need for international regulation and supervision. States should not at this stage adopt rigid Positions if they care for preservation of small cetaceans but should cooperate fully in supplying the maximum information to the IWc’s Scientific Committee. which has established a subcommittee on small cetaceans to consider and comment upon whatever data are made available. This subcommittee, it should be noted, has already expressed the view that there ti a need for an international bodv, to manage effectively stocks of small cetaceans not covered at present by the ICRW Schedule. Since 1977 it has been permitted to consider species of small cetaceans taken for their own value which has led it to make various recommendations on the need for management of some species, for urgent research by IWC members, whether on mandatory or voluntary basis, and for various immediate actions. ‘* These nroblems reauire continued consideration at the international level. At the time of writing, IWC member StateS are t0 assemble in Iceland (in May 1981) to consider the Canadian proposal for revision of the ICRW, and the new US administration has suspended negotiations by its delegation to UNCLOS pending a major review of the Draft Convention which it has said 1
1
presents serious problems for it. Renegotiation of some items, which it is likely to seek, relating to the deep seabed regime, might provide the opportunity to renegotiate, or failing this, redraft Article 65 to clarify some of its ambiguities which have led to the developments described in this article. Patricia Bimie Department of Public International Law UniveMty of Edinburgh Edinburgh, UK
IFI. Gambell, ‘Whale conservation-role of the lntemational Whaling Commission, Marine Policy, Vol 1, NO 4, 1977, PP 301310; P. Bimie, ‘IWC- survival and growth’, Marine Policy, Vol4, No 1, 1980, pp 72-75; p. Bimie , ‘IWC - bargaining and compromise’, Marine Policy, Vol 5, No 1, 1981, pp 79-84. “For as good an account of small cetaceans as can be given at present, see E. Mitchell, ‘Review of biology and fisheries for smaller cetaceanst Journal of the Fisheries Research kloard of Canada, Vol32, No 7,
1975, p 875. There is no agreement on numbers or forms of even the common widespread genera; when there are geographical variations there may be sharp Iocal differentiations. Of the species mvsticeti onlv the minke and pvamv rlaht whale are included, but all’ aork&eti (except large sperm whales) are included, ie dolphins, porpoises and other ‘small whales’. For further details, see also FAC’s Advisory Committee on Marine Resources Research (ACMRR) Working Party on Marine Mammals Draft Report for La Jolla meetina. Januarv 1977. at S4. small cetaceans. It concludes that a number of species do, or might, already present
conserva~on problen-is,
3P. Bimie, ‘IWC bargaining and compromise’, Marine Policy, Vol 5, No 1, 198 1, pp 79-84, at pp 82-83. ‘Sac, for example, ss 24 and 25 of the
Schedule to the lntemational cor,ven~on
for the Reoulation of Whalina. 1946 fas amended b; the Commission-at the 3&t Annual Meeting, London, July 1979) . ~saued February 1980. Vbid, I. Interpretation, pp 2-3, at p 3. YJN, Third Conference on the Law of the Sea, Draft Convention on the Law of the Sea (Informal Text), A/CONF.62/WPlO/ Rev.S/Add 1,28 August 1980. ‘/bid, Article 61(2) and (3).
B/bid.Anlcle@tl),
9Emphasis a-d&d. cetaceans are separately identified, in a list of Highly Migratory Species attached to the Draft Convention as Annex I, as including the families Physterldae; Balaenopteridae;
B&enidae;
Ziphiidae;
Escmi&tli~~;
and Delphinidae.
s
Confusingly,
MARINE POLICY July1981
Small cetaceans/The the Annex is referred to in Article 64, which refers exclusively to Highly Migratory Species, but not in Article 65, which refers to cetaceans in particular. Its significance in relation to both articles is, therefore, unclear, as is the accuracy of the inclusion.
Vbid. 18A/CONF. 62ME/4, Annex, Statement of Interpretation, Comments, Reservations and Proposals; proposed by Canada. Y’iee Rep IWC 27 (1977) p 466; Rep IWC 29 (1979) pp 67-69.
The ‘land-locked’ viewpoint While the Draft Convention still leaves the land-locked states with very considerable disadvantages, it can be said to represent a success for such states in so far as the notion of land-locked states forms a definite part of the proposed law of the sea and therefore provided them with the power to influence further develqoments.
For many years the international law of the sea has been characterized by the tendency of coastal states to extend their jurisdiction over the maritime areas off their coasts to, for example, apply a national conservation and management regime for the living resources in that area. This movement was said to be prompted by the nutritional needs of their populations and provoked by the inadequacy of internationally agreed regimes. Other pressures to extend jurisdiction have come from increasing energy needs and coastal states’ desires to protect their security and marine scientific knowledge, perceived as their national wealth, by claiming a consent regime for such research. This tendency has resulted in the establishment of the continental shelf regime, in the creation of the archipelagic-waters concept, in the extension of the territorial sea, and in the claim for the exclusive economic zone (EEZ). Thus the international law of the sea has undergone a transition, as Dupuy sees it, ’ from a law of movement to a law of territory and appropriation. A new element was introduced by the declaration that the deep seabed is the common heritage of mankind which should be used for the benefit of all mankind. Faced with such evolution, the landlocked states had three options: the
MARINE POLICY July1981
first was to relinquish particular maritime rights, thus confirming the traditional opinion of coastal states that land-locked states are not and, obviously, will not be interested in maritime activities. However, it cannot be denied that the land-locked states too have nutritional needs and require mineral resources. Since the oceans are the major source able to satisfy such needs, land-locked states must expand their national interests beyond the land area. If coastal states were extending the area of their exclusive exploitation rights, the land-locked states too would wish to enlarge the areas accessible to them for exploitation or, at least, to maintain the size of those areas according to traditional law. Two further options were then available. Land-locked states could try to restrict the coastal states’ area in favour of a larger area open to all states or endorse the coastal states’ extensive claims in exchange for exploitation rights within the national maritime areas of their neighbouring coastal states. Both strategies had drawbacks. The large international area concept would make accessible only those maritime areas where there are few living and non-living resources (except manganese nodules). The large national area concept would intensify the dependence of the land-locked states on their
land-locked
viewpoint
neighbouring coastal states. The situation of the land-locked states is still aggravated by the fact that they need transit rights in order to reach the sea and to develop maritime interests on their own, so that, by denying such rights, a transit state could virtually exclude a land-locked state from the oceans and their uses. Whereas regulations in Europe are on the whole sufficient, they are to a great extent lacking in the developing countries so that it was in particular the concern of the developing land-locked state to achieve multilaterally guaranteed transit rights.
The counter arguments The arguments of the coastal states against the claims of the land-locked states were focused mainly on the demonstration of lack of interest on the part of those states in maritime uses, evidenced by the factual non-existence of maritime activities. However, those arguments could be refuted by stating that the land-locked states had, due to the lack of self-executing, non-reciprocal transit rights, to bear additional transit costs as a prerequisite to developing maritime activities so that especially the poorer countries among them were debarred from performing maritime activities. Thus, by referring to the lack of maritime activities and interests, the coastal states made reference to a situation generated to some extent by their own refusal to grant such transit rights. And even where the land-locked states have already succeeded in proving their maritime interests, in navigational matters, experience teaches that the enjoyment of transit rights determines the capacity to perform such maritime activities. On the other side, according to the transit states, such large transit rights amounted to an infringement of their territorial sovereignty and the incorporation of such rights in a general convention seemed to run counter to the tendency of international law which was said to focus on the protection of all facets of territorial integrity and sovereignty, particularly of developing states. Hence, such rights could be accorded only on a bilateral, subregional or regional level where the particularities of the relations between the states
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