Defining Issues in International Environmental Law
New Horizons in Environmental and Energy Law series
Chapter 10: Small Cetaceans
1 INTRODUCTION Small cetaceans (small whales – porpoises or dolphins) are currently struggling for adequate protection in international law. This is despite being on the agenda of a number of international forums since the early 1970s. This argument has become increasingly strong in recent years as a number of countries argue that the most obvious body to supervise such species – the IWC – should not have jurisdiction over these creatures. The primary argument in support of this contention is that small cetaceans were not included in the original nomenclature of the ICRW, and to subsequently add them would require the consent of all the signatories to the convention. I believe that this view is mistaken for a number of reasons. These relate to the actual language of the convention, a simplistic view that the nomenclature was somehow a pivotal dividing mechanism within the convention, and a general misunderstanding of the way that treaties evolve and change through the mechanisms within them which allow entrenched majorities to modify treaties within the realms of what was broadly agreed originally (that is, it is not an amendment of the treaty), if necessary. Closely aligned to the argument that the IWC does not have competence over small cetaceans, is the assertion that coastal states have near absolute competence over them. This contention is typically bolstered by the United Nations Convention on the Law of the Sea. However, I contend that this view is also mistaken as the UNCLOS does not accord to coastal states a complete...
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