IUCN Environmental Policy and Law Paper No 19 LEGAL MEASURES FOR THE CONSERVATION OF MARINE MAMMALS 1948 International Union for Conservation of Nat-ire and Natural Resources Gland, Switzerland 1982 Legal Measures for the Prevention of "Pirate" Whaling Dr. Patricia Birnie An IUCN publication in the context of IUCN/WWF project No 2011. ISBN 2 88032 087 9 IUCN gratefully acknowledges the financial support of the World Wildlife Fund in the elaboration of this study and the Center for Environmental Education, Inc. in its publication. © International Union for Conservation of Nature and Natural Resources, and the Center for Environmental Education, Inc. 1982 Preface This project has been commissioned because of the concern about the exploitation of whales by operations outside of the regime established by the International Con- vention for the Regulation of Whaling. The issue is serious since at the hands of the so-called "pirate" whalers even severely endangered species, totally protected under the International Whaling Convention have been taken, while less threatened species have also been ex- ploited in an indiscriminate fashion with no consideration given to quotas for species and areas. From the legal perspective the problem is also significant in that established inter- national rules as elaborated by the Whaling Commission have been Ignored and might ultimately be thwarted by these actions of a few irresponsible individuals us- ing the flags of those States which in good faith could only defend their non- membership in the IWC on the ground that they are and ensure remaining non- whaling nations. There have been several exposes on the problem. Nevertheless, until now a study of legal approaches to the problem, identifying existing mechanisms for dealing with the issue and proposing new tools and concepts has been missing. Dr. Patricia Bir- nie has thoroughly investigated these legal aspects and has arrived at a series of recommendations which, although directed to the problem of "pirate" whaling, will also be of use for controlling the exploitation of other living resources outside of an existing regime. On behalf of IUCN, I would like to express heartfelt thanks to Dr. Birnie for carrying out this extensive work and appreciation to the many experts who provided assistance to her. A further special word of thanks is due to the Philip Morris Inter- national Club (Munich) which earmarked funding to IUCN/WWF for the particular purpose of implementing this project. Wolfgang E. Burhenne Chairman IUCN/CEPLA V The Author Patricia Birnie is a lecturer in Public International Law at the University of Edin- burgh, U.K. She graduated with a B.A. in Jurisprudence from Oxford University, U.K., and as a Ph.D. at Edinburgh University. Her thesis was on The development of the International Regulation of Whaling: Its Relation to the Emerging International Law for the Conservation of Marine Mammals'. She is also a barrister-at-law (Gray's Inn). Her special interest is the Law of the Sea and she has written and lectured widely in this field, her most recent publication being 'The Maritime Dimension', R. Barston and P. Birnie (eds), Allen and Unwin (1980). She recently acted as a specialist ad- viser to a U.K. parliamentary committee investigating fisheries and prevention of vessel-source pollution and is currently completing a book on "The International Organization of North West European Waters". Acknowledgements The Reporter wishes to express her sincere thanks to the Director, Professor John Norton Moore and to the Staff of the Center for Oceans Law and Policy in the School of Law of the University of Virginia, Charlottesville, U.S.A., for their co- operation and support in the writing of this Report and for the facilities which made its production possible. She would also like to express special gratitude to the Inter- national Union for Conservation of Nature and Natural Resources (IUCN), the World Wildlife Fund and the Center for Environmental Education for their financrai sup- port of this publication and to Dr. Françoise Burhenne-Guilmin of the IUCN En- vironmental Law Centre, Bonn, Federal Republic of Germany, and Mr. Daniel B. Navid of IUCN, Gland, Switzerland, for their many helpful comments and to all who have so kindly co-operated in the making available of the materials on which this Report is based. Patricia Birnie vii Table of Contents page Introduction 1 A. "Pirate" Whaling Distinguished from Piracy 1 B. A Definition of "Pirate" Whaling 2 C. Recent Evidence of "Pirate" Whaling 3 D. Is "Pirate" Whaling Still a Serious Problem? 5 E. The Duty to Conserve Whales 6 Part 1: Measures Permitted Under International Law 8 I. International Principles 8 A. The United Nations Conference on the Human Environment 8 B. UNEP's Draft Principles for the Conduct of States in the Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States 9 II. International Conventions: Global 12 1. Measures under the ICRW 12 a) Fulfilment of the Purpose of the ICRW 12 b) Scope of the ICRW 13 i) Subject Matter of Regulations and Recommendations 13 ii) Subjects and Area of Application and Enforcement 16 2. Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES) 20 a) Purposes 20 b) Scope of Subject Matter of Regulation 21 i) Species assigned to Appendices 21 ii) Specimens of Species 21 c) Area of Application 23 d) Organs 23 i) International: The Secretariat 23 ii) National: Management Authorities 24 e) Method of Regulation: Import and Export 24 f) Exceptions 27 g) Enforcement 27 i) On Parties to CITES 27 ii) On Non-Parties to CITES 28 h) Remaining Problems 28 3. The Bonn Convention on the Conservation of Migratory Species of Wild Animals 1979 29 a) Introduction 29 b) Objects and Purposes 30 c) Definition of Terms 30 d) Scope of the Convention 31 e) Subject Matter of the Convention 31 f) Measures to be taken under the Convention 32 ix i) For Appendix I Species 32 ii) For Appendix II Species 32 iii) Guidelines for the Agreements 32 g) Organs 33 i) The Conference of the Parties 33 ii) Secretariat 33 iii) A Scientific Council 34 h) Effect of the Bonn Convention on Other International Conventions and Other Legislation 34 i) Conclusion 34 4. Convention on the Conservation of Antarctic Marine Living Resources 1980 35 a) Introduction 35 b) Objects and Purposes 35 c) Scope and Subject Matter: Relation to ICRW 36 d) Organs 37 e) Measures 38 i) General Resources 38 ii) Observation and Inspection Scheme 39 f) Dispute Settlement 40 g) Amendment and Withdrawal 40 h) Conclusion 40 III. Regional Conventions 41 A. Relating to Whales and Other Living Resources 41 1. Berne Convention on the Conservation of European Wildlife and Natural Habitats 1979 41 a) Introduction 41 b) Purposes 41 c) Scope 41 d) Measures 42 i) Appendix II 43 il) Appendix III 43 iii) Special Requirements 44 e) Organs 44 f) Amendments 44 g) Dispute Settlement Procedures 45 h) Conclusion 45 2. The African Convention on the Conservation of Nature and Natural Resources 1968 45 a) Introduction 45 b) Purposes 45 c) Scope 46 i) Parties 46 ii) Geographical Area 46 d) Measures 46 e) Organs 48 f) Revision and Amendment 48 x i) Revision of the Convention 48 ii) Revision of and Additions to the Annex 48 g) Conclusion 48 3. The Permanent Commission of the Conference on the Use and Conservation of the Maritime Resources of the South Pacific (PCSP) 1952 49 4. Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere 1940 50 B. Unrelated to Living Resources but Providing a Model for Regional or Multilateral Measures to Deter "Pirate" Whaling 51 1. European Agreement for the Prevention of Broadcasting Transmitted from Stations outside National Territories 1965 51 a) Introduction 51 b) Measures under the Convention 51 c) Conclusion 52 IV. Enforcement of Fisheries Jurisdiction 53 A. Introduction 53 B. Coastal State Jurisdiction over Whaling 54 1. Measures Now Permissible Under International Law 54 a) Under the 1958 Geneva Conventions and Customary International Law 54 i) In Internal Waters and the Territorial Sea 54 ii) Proposals in the UNCLOS III Draft Convention (Informal Text) 55 b) Beyond the Territorial Sea: Fisheries Zone (FZ) and Exlusive Economic Zone (EEZ) 55 i) Under the Geneva Convention and Customary Law 55 ii) Illustrative Enforcement Measures Permitted under Selected International Fisheries Agreements 57 iii) Proposals in the UNCLOS III Draft Convention (Informal Text) for an EEZ and Concerning the High Seas 63 c) The Doctrine of Hot Pursuit: From Internal Waters, the Territorial Sea, the Contiguous Zone, the FZ or the EEZ to the High Seas 66 i) Under the Geneva Convention on the High Seas: Pursuit from the Territorial Sea and Contiguous Zone 66 ii) Current Practice: Pursuit from Fisheries or Exclusive Economic Zones 66 ill) Provisions in the UNCLOS Text 67 2. Alternative Methods that might be Adopted to Improve Enforcement of Fisheries Jurisdiction Against "Pirate" Whaling 68 a) Introduction 68 b) Extension of Port-state Jurisdiction to Prevent "Pirate" Whaling 69 c) Proposals in the UNCLOS Draft Convention (Informal Text) 70 d) Possible Changes In the International Law Required to Enable Exercise of Port-state Jurisdiction Against "Pirate" and Other Whalers 72 xi i) Offences In Areas Subject to National Jurisdiction 72 ii) Offences on the High Seas 73 C. Responsibility for Exercise of Flag State Jurisdiction Over Whaling 79 1. Introduction 79 2. Under the Geneva Convention on the High Seas 79 3. Provisions in the UNCLOS Text 80 Part 2: The European Economic Community (EEC): Measures Taken to Prevent "Pirate" Whaling 81 I. Introduction 81 i) The Council 82 ii) The Commission 82 iii) The European Court of Justice 82 iv) European Parliament 83 II.