Legal Protection and Conservation
There are four oceans in the world, and they hold 96.5% of all Earth’s water. However, only 5% of all oceans have been explored. Aquatic animals are within that range, suffering from overfishing activities, catching for entertainment purposes, scientific research, or bycatch. Unfortunately, aquatic animals remain the category of animals receiving the least attention and consideration from the public compared to other animals. Whales are highly intelligent creatures - perhaps, that is one of the reasons for being demanded to be caught by humans. This article will cover one of the species of whales, a blue whale inhabiting the oceans and their protection under the law.
There is no doubt that blue whales are intelligent creatures. Currently, there are five subspecies of a blue whale inhabiting the North Atlantic, North Pacific, Southern Ocean, Indian Ocean, South Pacific Ocean, Northern Indian Ocean, and the waters off Chile. Until the end of the 19th century, blue whales inhabited almost all oceans of Earth and were even hunted to the point of extinction. After the establishment of the ban on hunting all blue whales by the International Whaling Commission, the population began to increase. The International Whaling Commission estimated that 382 595 blue whales were hunted in 1868-1978. Currently, the population of blue whales ranges from 10 000 to 25 000.
There is an individual whale in the ocean of unidentified species having a very unusual frequency of 52 Hz. This whale is considered the world’s loneliest whale due to not being heard by other species of whales who communicate through singing. The 52 Hz whale’s pitch is much higher than blue whales (10-39 Hz) or fin whales’ (20 Hz). The 52 Hz whales are usually detected in the Pacific Ocean in August-December and January-February. Although they are considered the loneliest whales, their high frequency is not detrimental to survival.
Blue whales suffer from many factors of anthropogenic activities. Those include ship strikes, especially on the west coast of the United States where it is considered to have one of the greatest densities of commercial ship traffic in the world. Other factors affecting the blue whale’s population are also ocean noise, plastics that are thrown into the ocean in huge amounts every year, oil leaks from industries, climate change, etc. They are also caught for conducting scientific research.
Threats to the blue whale’s population are also such natural factors, as predation. For instance, the main natural threat to a blue whale is a killer whale. It was documented when killer whales attacked blue whales, although the rate of cases is low.
Although IUCN Red List states that the global population of blue whales is increasing, they are still listed under the category “Endangered.”
The status of blue whales in international law
International Convention for the Regulation of Whaling
International Convention for the Regulation of Whaling (ICRW), an international agreement that is aimed at the “proper conservation of whale stocks and thus makes possible the orderly development of the whaling industry.” The objective of the convention is to protect all whale species from overhunting, to ensure proper conservation and development of whales’ population, and to preserve the important natural resources for future generations. The primary body implementing objectives indicated in the convention is the International Whaling Commission that holds annual meetings and monitors catch limits, whaling methods, protected areas, and scientific research conduct.
There are currently 89 signatories of this convention and 8 countries that were initially members of the convention expressed their withdrawal. These countries include Canada, Egypt, Greece, Jamaica, Mauritius, the Philippines, Seychelles, and Venezuela. Moreover, Belize, Brazil, Dominica, Ecuador, Iceland, Japan, New Zealand, and Panama withdrawn from the convention after ratification but later on, ratified it a second time. However, Japan expressed the objection to the convention again in 2019.
Convention on International Trade in Endangered Species (CITES) is a multilateral treaty, which protects endangered plants and animals and is intended to regulate, control, prohibit, or limit international trade of endangered or threatened species. CITES protects approximately 5800 species of animals and 30 000 species of plants against over-exploitation through international trade. CITES lists each species under one of the three Appendices dependent on the level of being threatened by international trade, thus, those Appendices provide different levels of protection for species listed under the particular Appendix.
CITES provides protection to the species of a blue whale listing them under Appendix I. Appendix I lists threatened with extinction species or species that may be affected by international trade. With that being said, blue whales cannot be used in commercial trade but permitted only in exceptional cases with the approved license. Any other trade of the blue whales requires export and import permits.
Another international law instrument that relates to blue whales, although not animal-focused, is the United Nations Convention on the Law of the Sea (UNCLOS). It sets out the provisions regarding regulation in high seas and establishes general duties to “protect and preserve the marine environment in the maritime zones and high seas areas.” The positive side of the UNCLOS is that it is binding to all countries because customary law is enshrined in the treaty. UNCLOS does not provide the conservation and management regulations with regard to animals, but it requires all countries to exercise a “‘total allowable’ catch based upon an established ‘maximum sustainable yield.’”
UNCLOS contains only broad provisions and requires countries to cooperate directly or through international organizations. The reason for this convention to be crucial for blue whales and other aquatic animals is that general rules of public international law provide that the coastal country has the greater authority over the closest maritime area, otherwise known as territorial waters.” Beyond them, there are contiguous zone, exclusive economic zone, and high seas. In the high seas, a territory not belonging to any of the countries, it is allowed to exercise fishing. And, although it is allowed to enjoy freedom in those areas, countries have a duty to take necessary steps for the conservation and management of living resources while exercising any activity.
Convention on Migratory Species
The Convention on the Conservation of Migratory Species of Wild Animals (CMS Convention), an international treaty aimed at the conservation of migratory species within their migratory ranges, where one of the fundamental principles is to acknowledge the importance of migratory species and the necessity to take actions to improve the conservation status, which would be favorable for the species of wild animals and their habitat. Similar to CITES, CMS has Appendices with different levels of protection.
Appendix I lists migratory species threatened with extinction where Parties are bound by the duty to ensure strict protection of species. Parties are also bound to prevent taking animals belonging to such species, except for the taking for scientific purposes, for accommodating the needs of traditional subsistence users of such species, for enhancing the propagation or survival of the affected species, and extraordinary circumstances. Appendix II includes migratory species that have unfavorable conservation status and that would significantly benefit from international cooperation, and these species serve as the basis for the establishment of regional or global instruments under the treaty. Therefore, Parties shall strive to conclude agreements that would be beneficial and would “give priority to the species in an unfavorable conservation status.”
With regard to blue whales, they are considered migratory animals, usually migrating seasonally between summer feeding grounds and winter breeding grounds. CMS has issued a document stating the effect of climate change on blue whales.
Legal protection of blue whales in the United States
In the United States, whales are protected on the federal level under a few legal instruments.
Marine Mammal Protection Act, for instance, prohibits killing, hunting, injuring, or harassing all species of marine mammals, independent of their population status. It is also illegal to import marine mammals or products that were made from them into the country.
Endangered Species Act (ESA) provides legal protection to endangered species that were recognized as such in danger of extinction and threatened species, species that may become endangered without proper management. The blue whale is listed as an endangered species under the ESA, thus it is prohibited to kill, hunt, collect, injure, or harass them, as well as destructing their habitat. The Act also prohibits buying and selling any species of whales.
Pelly Amendment imposes sanctions with regard to import of the fish products of those who violated any of the programs that are aimed at the international fishery conservation, e.g, International Whaling Convention.
Packwood-Magnuson Amendment that was enacted in 1979 is focused on requiring commerce to provide sanctions towards nationals who violated any international fishery conservation program.
Legal protection in Asia
The majority of countries in Asia have enacted the Wildlife Protection Act, which prohibits killing, injuring, and harming a wild animal. Some species are protected from being taken from the wild, except for certain cases, such as scientific research, and with a special permit from the government.
Recently, a new population of blue whales was discovered in the western part of the Indian Ocean. They were discovered by a team of scientists who conducted research and recognized the song blue whales were singing.
Moreover, in Sri Lanka, a group of local conservationists and international shipping companies, have launched the alliance to save blue whales from ships. Their goal is to “help avoid collisions between whales and freighters.”
Japan has been catching whales since the 12th century. Modern activities by Japan have gone beyond its territorial waters, even on the territory of sanctuaries protected by other countries. Japan was involved in commercial whaling heavily during the 20th century until the International Whaling Commission (IWC) imposed a moratorium on commercial whaling that came into force in 1986. However, Japan continued whaling under the clause on scientific research enshrined in the agreement. Although most IWC members opposed such conduct, it was allowed under the ICRW.
In 2014, the International Court of Justice (ICJ) ruled that “JARPA II,” the Japanese whaling program, did not comply with the provisions specified in the ICRW and ordered Japan to end whaling. One year later, despite the court order, Japan resumed its whaling operations under the renamed program “NEWREP-A.”
In 2017, the Australian Whale Sanctuary captured the photo where the Japanese whaling vessel, Nisshin Maru, had a freshly-killed minke whale. After the crew saw the helicopter, they immediately covered the carcass.
Later in 2018, Japan announced about resuming commercial whaling in July 2019 within its territorial waters and commercial zones.
Although blue whales are not among whale species that are usually hunted, they were still caught by Japan when possible. The International Conference on Whaling in London in 1937 was focused on preventing excessive exploitation of whales and on raising the issue of the extinction of blue whales, however, Japan did not attend the conference.
Being classified as an Endangered species under IUCN Red List, international cooperation shall be made by organizations to conserve the population of blue whales. The giant of the ocean, although is not threatened by being caught for entertainment like many other species of whales, still faces a dozen of man-made threats. Noise pollution, irresponsible whale watching, fishing nets, etc. are among them, apart from those that were described above. With climate change that also causes other consequences, it is crucial to take all necessary steps to preserve the habitat of blue whales and save their population.
“We must ask ourselves: if we can’t save the blue whale, what hope is there?”