With respect to the management of fishing and whaling the 1982(1994) UNCLOS was three steps forward and one or two steps back. Looking at the evolution of the fisheries conservation and management provisions in basic texts through the period since the end of WWII it is striking how little innovation and critical thought was given to these rules, perhaps because as the years went by the action was more and more in the hands of diplomats and lawyers and less and less in those of scientists, although much lip-service was paid to the need for regulations to be based on the best scientific advice. The word ‘Conservation’ is in the titles and some text of the sections on fishing in coastal waters and on the high seas, but it is not defined. An optimist can see this omission as positive – at least the word is not now tied to exploitation and a very specific management objective, but a positive and modern clarifying definition might have been useful. Maximum Sustainable Yield (MSY) remains the prime objective of management (“to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield”), but that is now “as qualified by relevant environmental and economic factors…”. This qualification was written to allow states and international organizations to escape from the strict MSY criterion in such a way as to avoid the need for sustainability, at least temporarily, and to take more than the ‘optimum’ catch. Theoretically that qualification could alternatively be interpreted as taking less than the physical maximum in order to improve profitability, but as far as I know no state has yet dared to broach that, though the EU Commission might be tentatively thinking about it. But a report published two years ago by FAO and the World Bank – “Sunken Billions” - did point out the huge financial advantages of going for a net economic maximum by catching a bit less than the maximum but with much less effort and hence cost. A second, but secondary reason for the qualification was to allow some flexibility in managing multi-species fishing operations, especially when the target species interact with each other ecologically, as competitors or as predator-prey pairs.
Unfortunately the UNCLOS introduces two distinctly unhelpful ideas, ideas that originated in the US-inspired approach to management, which for decades excluded the possibility of limiting exploitation effort in terms of numbers and sizes of vessels and their operational modes, on the grounds that this would inhibit the ‘freedom of fishing’. These are a specific focus on “allowable catch” and on “levels” (i.e. sizes) of exploited populations, ignoring their equally important structure and composition. Both of these derive from the embrace by the US authorities in the 1950s of a simplistic and seriously flawed mathematical model of the dynamics of exploited fish populations published by Dr Milner Schaefer in 1954 and first applied to the tropical Pacific fishery for yellowfin tuna. Neither of those apparently restrictive terms is to be found in the earlier conventions and documents and between them they have led to very undesirable outcomes for major fisheries, including the enforcement of huge quantities of dead fish being discarded at sea. Similar flawed management resulted in the large numbers of blue and fin whales being left dead in the Antarctic by the Japanese expeditions – and not recorded in the official catch statistics.
A positive new theme in UNCLOS 1982(94) – though not yet implemented anywhere - is the requirement that in exploiting small fish species management should ensure that sufficient is left to feed the larger predatory fishes and, presumably, fish-eating toothed cetaceans and seals. (UNCLOS doesn’t say it exactly like this, but that is what is meant)
Three new features in UNCLOS provisions for managing the exploitation and conservation of marine living resources are of particular interest regarding the whales and dolphins. One is that with just a few exceptions (such as the harbour porpoise and its relatives) they are all formally categorized as ‘highly migratory species’ and therefore their conservation is to be ensured by appropriate inter-governmental organizations. Although it has been widely assumed that as far as the large whales were concerned this meant the IWC, that body’s name is conspicuously absent from the text. This happened mainly because a few of the negotiators (Guess who!) wanted to leave open the possibility that whaling in the North Atlantic might one day be managed by a new rump organization of whaling countries, the North Atlantic Marine Mammal Commission (NAMMCO), but it does also leave open other possibilities, including the UN Itself or one of its Specialised Agencies, or even a new organization that might one day supplant the IWC. Attempts were subsequently made to award the IWC a unique conservation and management status in a document entitled Agenda 21, an ‘Action Plan’ that was adopted by the UN Conference on Environment and Development (UNCED) held in Rio de Janeiro in 1992, which also gave birth to Mrs Brundtland’s Oxymoronis Monster, ‘Sustainable Development’. The difference between UNCLOS and UNCED is, however, the difference between Hard Law and Soft Law.
The second new feature is that all marine mammals are given a special status. Articles 65 (EEZ) and 120 (High Seas) say that the general provisions in UNCLOS for fisheries conservation, management and study, such as the MSY formula, “do not restrict the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly” than provided for in the general rules. This tells us that an indefinite pause/suspension (‘moratorium’) or even an outright ban on commercial whaling are within international law, but leave open the question of whether the IWC or, indeed, any other existing international organization has the competence, under their statutes, to enact the latter. I think they do not, and nor does any existing body – except perhaps the UN iself - have the authority to stop the award of Special Permits unilaterally by states for the unlimited killing of cetaceans for declared scientific purposes.
I hope readers will now forgive me for getting into UN-lingo for a bit. I think it’s necessary for understanding the pond into which the Monaco authorities have plunged. I’m hoping that, like the laghetto (little lake) in my garden it has friendly frogs in it but no alligators.
Since the UNCLOS came into force the UN established, in 2000, an Open-ended Informal Consultative Process on Oceans and the Law of the Sea (referred to as The Consultative Process), and in December 2001, an Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish. It is not obvious whether this agreement applies to whales, and the obfuscation about that was, I think, deliberate. It applies to ‘marine living resources’ – so that includes whales. But about ‘fish’ it says “this includes crustaceans and mollusks” except the – legally – sedentary species. No mention of marine mammals.
In 2006 an Ad hoc Open-ended Informal Working Group on the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction , under the Consultative process, held its first meeting. A UN-Oceans Task Force on marine biodiversity beyond national jurisdiction, established in January 2005, coordinates, at Secretariat level, the work on these issues of all the Agencies and bodies within the UN-System. On this matter the work of UN-Oceans now marches together with activities arising from the Convention on Biological Diversity through its Marine and Coastal Diversity Programme.
It was to the 12th meeting of the Informal Consultative Process (ICP), held in New York on 20 June 2011, that the Monaco proposal for the permanent protection of highly migratory cetaceans on the high seas was unveiled.
In this series of blogs I have been looking back in 20th and 21st century history, then forward to the present to try to clarify what the next steps in ‘Saving the Whales’ might be. I’ll return to that next and so perhaps end the series.