Brief Summary of Laws Affecting Whales
Angela Lang (2002)
I. United States Laws
A. Marine Mammal Protection Act
In 1972, the United States Congress passed the Marine Mammal Protection Act (MMPA). The Act makes it illegal for any person residing in the United States to kill, hunt, injure or harass all species of marine mammals, regardless of their population status. In addition, the MMPA also makes it illegal for anyone to import marine mammals or products made from them into the United States.
B. Endangered Species Act
The Endangered Species Act (ESA) is a federal law passed by the United States Congress in 1973. The Act protects both endangered species, defined as those in danger of extinction and threatened species, those likely to become endangered within the foreseeable future. All of the great whales are listed as endangered species under the ESA. As a result, it is illegal to kill, hunt, collect, injure or harass them, or to destruct their habitat in any way. It is also illegal to buy or sell any whales.
C. Pelly Amendment
Congress enacted this statute in 1971. The statute directs commerce to impose import sanctions on the fish products of nations that have violated any international fishery conservation program, such as the International Whaling Convention.
D. Packwood-Magnuson Amendment
Congress enacted this statute in 1979. This amendment directs requires commerce to sanction nations who have violated any international fishery conservation program. The sanction is a reduction in their fishing rights in United States waters.
II. International Laws
A. International Whaling Convention
In 1946, the International Whaling Convention (IWC) was established to oversee the management of the whaling industry worldwide. It was established in response to the rapid decline in the population of whales from whaling. In 1986, the IWC instituted an indefinite ban on commercial whale. This ban is still in effect, with certain exceptions. Countries such as Japan and Norway have not honored the ban.
B. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
CITES is an international treaty that provides protection for wild animal and plant species in international trade. It is designed to promote the conservation of endangered species while allowing trade in certain wildlife. There are three categories of protection under the treaty. Species listed in Appendix I are threatened with extinction and are or may be affected by trade, therefore commercial trade is strictly prohibited. All of the great whales are listed on Appendix I.
C. United Nations Convention on the Law of the Sea (UNCLOS)
UNCLOS imposes a duty on nations that have signed this treaty. First, they have a duty to conserve marine mammals. Second, they have a duty to follow the International Whaling Convention’s guidelines. The duty imposed by UNCLOS is thought to be stronger than the obligations imposed under the International Whaling Convention.
III. Additional Regulations Protecting Whales
A. Net Regulations
Driftnets and gillnets kill thousands of whales each year. In 1991, the United Nations passed a resolution establishing an international ban on driftnet fishing. As for gillnet regulations, in 1993, regulations went into effect in Hawaii, where the nets are predominantly used, that make it unlawful for any person fishing with a gill net to leave it unattended for more than two hours.
Whale populations are dying as a result of PCB’s in the ocean and ozone depletion. The International Whaling Convention has recently placed pollution on their annual meeting schedule. Regulations should follow.
C. Whale Watching
Local laws may make it unlawful to approach a whale within a certain number of feet. The MMPA also regulates whale watching because watching can cause a harassment to the whales.
D. Ocean Noise Pollution
Underwater noise has been attributed to whale beachings. This noise primarily results from military testing using sonar in the ocean. Noise pollution is regulated by the MMPA. Before tests may be conducted by the military, requests must be made under the MMPA.
E. Ship Collisions with Whales
Collisions with ships are a major source of injury and death for many whales. The United States Coast Guard has implemented mandatory ship reporting systems. When ships enter specific whale habitats, they must report to a shore-based station. The ships then receive a message about ship striking of whales, measures they can take to avoid ship strikes, and locations of recent sightings.
Overview of Whales and the International Whaling Commission
Angela Lang (2002)
In the early twentieth century, the development of the modern whaling industry, through steam engines and exploding harpoon guns, led whale populations almost to the brink of extinction. In 1946, the International Convention for the Regulation of Whaling (ICRW) was created to oversee management of the whaling industry worldwide and to provide for the conservation of whales. The ICRW imposed regulations for hunting species of whales determined to need protection and set open and closed seasons and waters for hunting. The Convention established the IWC to carry out its mission. Its explicit objectives were, and remain, to provide for the proper conservation of whale stocks and the orderly development of the whaling industry.
In its first twenty years the IWC focused on managing the business aspects of whaling. In the late 1960’s, this focus shifted to include a strong conservation ethic, following the depletion of several major whale populations.
In the 1970’s a number of non-whaling and anti-whaling nations joined the IWC and eventually gained a majority over the number of pro-whaling nations. Specifically, the United States, which was previously considered a major whaling force, became a strong anti-whaling component of the IWC. These nations pushed for a moratorium, or halt, which was put into effect in 1986. This indefinite moratorium on commercial whaling was implemented as an effort to properly determine the status of whale populations and give depleted populations an opportunity to recover. The whaling nations were granted a three-year phase-out period to gradually bring their practices to an end.
Under the moratorium, only two types of whaling are legally permitted, subsistence and scientific whaling. Subsistence whaling is the taking of a limited number of whales by certain indigenous peoples for their own use. Scientific whaling is the regulated taking of whales that are not considered to be threatened or endangered for the purpose of furthering our knowledge about whales.
The IWC has also designated specific areas of the ocean as ocean sanctuaries, where whales may not be hunted even if the moratorium should be lifted. The Indian Ocean, parts of the Pacific Ocean off the Mexican coast, and most of the ocean waters of the Southern Hemisphere have been designated as whale sanctuaries. As a result of the moratorium and sanctuaries, some species have begun to return to acceptable numbers but others are still rare and endangered. Only the small minke whale exists in populations great enough for sustainable whaling to be considered.
The IWC can only regulate whaling with the consent of each party to the Convention. When the IWC makes an amendment, any state can object to the amendment within ninety days, and it will not be bound by the amendment. Since the ban went into effect, several pro-whaling nations including Iceland, Norway and Japan have expressed their desire to continue hunting some species of whales. Some of these nations have withdrawn from the IWC; others are no longer honoring the moratorium. These nations continue to engage in whaling. As a result, the future of the IWC is shaky. It is likely that the IWC will have to reform its policies in order to ensure further protection of the whales.