Living Resources

Whales and lee: Common Themes of Antarctica, Whaling, and the Law of the Sea Sidney J. Holt* International League JOT the Protection oJ Cetaceans, and Third Millennium Foundation, Umbria, Italy

Elisabeth Mann Borgese, to whose memory this special volume of the Ocean Yearbook is dedieated, would not, I think, have liked what has happened to the idea of the New International Order she and her elose collaborator, Ambassador Arvid Pardo, so cherished. The current weakening of the United Nations system, on whieh 'We the Peoples," individually and coIlec tively, placed such high hopes after 1945-especially through the failures of powerful governments to enter into new binding agreements and uphold old ones, and to support existing and new international institutions, and the blatant buying of votes in decision-making bodies by a few of the most influential and rieher states-does not bode weIl for our collective future. This is a time when those of us who worked with Elisabeth must reflect deeply on where the so-called "international community" is now going.

BACKGROUND

The late 1960s and early 1970s witnessed the beginnings ofvast changes in the regimes governing the use and protection of the resources of Antarctica and the surrounding ocean. Ambassador Arvid Pardo, acting on behalf of the Government of Malta, put forward his proposals for the fundamental revision and extension of the Law of the Sea, and the Government of the United States began to press for a pause in all commercial whaling opera tions. For many, perhaps most, people concerned about what Elisabeth and Arvid referred to as "international ocean affairs" and human activities

*EDITORS , NOTE.-The author is grateful for the support in the preparation of this paper offered by the International Fund for Animal Welfare, Yarmouth Port, Ma, U.S.A. and Bristol, U.K. The author is also appreciative of help from the Third Millennium Foundation, Paciano (PG), Italy. The author has benefited from many conversations with colleagues throughout the world, but the views expressed here are the author's.

364 Antardica, Whaling and the Law oj the Sea 365 in and around "ocean space," this conjunction of the vast scope of maritime governance and the regulation of a minor and now almost extinct extractive industry may seem to be a leap from the sublime to the more-or-Iess ridicu lous. I shaHlater seek to correct that impression. But first let me make an other conjunction-with the Antarctic. Since the International Geophysical Year in 1957, and the consequent conclusion of the Antarctic Treaty,I the Antarctic landmass, and to a limited degree the icy seas south of 60° S, have been the subject of aseparate body of internationallaw. Parties to the Treaty were originaHy the countries claiming possessions on the continent as weH as the sub-Antarctic islands and/or those conducting scientific research there. The prime purposes of the Treaty were to reserve the continent to research, to exclude military activities and the exploitation of minerals, and to put territorial claims on indefinite hold. While the Treaty mechanism was applied to seal populations, it was from the beginning agreed to exclude consideration of the whales that feed in summer near the continent, with the intent that the existing International Whaling Commission (IWC) established under the International Convention for the Regulation ofWhal ing 1946 (ICRWf-would continue to have sole competence. Later how ever, as deep-sea fishing began to expand in the Southern ücean, a new management convention was negotiated, under the sponsorship of the Ant arctic Treaty Parties, the Convention on the Conservation of Antarctic Ma rine Living Resources (CCAMLR).3 That Convention does not explicitly ex clude the whales and other cetaceans, but by general agreement it does not for the time being deal with them. At the time of the Maltese initiative it seemed to some of us that Ant arctica, as weH as the deep seabed, might be a ripe subject for application of the concept of the Common Heritage of Mankind, notwithstanding the reality that the Antarctic Treaty was de facto an exclusive club of the Consul tative Parties. Wiser counsel prevailed, however, and subsequently the Treaty activities became in any case more open and involved many more States than the original signatories. Although the Antarctic Treaty was designed to impede exploitation of, and even exploration for, mineral resources on the continent and on and under the surrounding seabed, moves began in the 1980s to open the conti nent to both these activities. However, in a sudden volte-face the Parties formulated the Protocol on Environmental Protection to the Antarctic

1. The Antarctic Treaty, signed 1 December 1959 in Washington, D.C., entered into force 23 June 1961, http://www.scar.org/Treaty/Treaty_Text.htm. 2. International Convention for the Regulation of Whaling, signed 2 Decem ber 1946 in Washington, D.C., entered into force 10 November 1948, http://www.iw coffice.org/ convention.htm. 3. Convention on the Conservation of Antarctic Marine Living Resources, signed 20 May 1980 in Canberra, http://www.ccamlr.org/.