The IWC, originally established to govern the management and conservation of whaling was clearly designed to preserve stocks of whales to sustainable levels to the benefit of whaling nations. Over time, partly if not substantially due to outside pressures, the tone of the decisions of the Commission has shifted more closely to a preservation regime. This shift in attitude raises the question whether the mechanisms set up by the ICRW, and utilized by the whaling commission, are adequate to deal with this emerging philosophy.

It may be (but I doubt it) too late to even discuss the issues in terms of restructuring the management system for whales if certain scholars are correct in their assessment of the directions of emerging international environmental law. The most ambitious attempt to document this changing atmosphere is probably the article by D'Amato and Chopra in the American Journal of International Law in 1991, which deals specifically with the whaling problem.

They analyze the persistent arguments by environmental advocates that whales cannot be treated in the same manner as, for example, fish, which are subjected to concepts of sustainable yield and full utilization because whales are said to have an intellect that entitles them, in moral terms, to special treatment.

They trace the evolution of whaling through several distinct stages. The first is the free resource stage lasting until World War I, wherein whales were treated as a gift of nature to whomever wished to hunt them. The second they identify as the regulation stage lasting roughly between 1918-1931. It was during this stage that whaling nations realized that they would have to accept certain restrictions if they were to be able to protect the long-term interests of their industry.

From about 1977-1982, according to the authors, management moved from the regulation stage to the protection stage. The difference is subtle but an important step in the evolutionary process. This new stage recognized and put more emphasis on non-consumptive values, thus attaching greater significance to the protection of whale stocks themselves. The stage at which, arguably, we find ourselves today is the so-called preservation stage. While under the previous stages some whaling was deemed acceptable so long as it did not interfere with viability of stocks, the preservationists, presumably in pursuit of moral values, would ban all whaling with no exceptions.

The authors argue that the growing sentiment in favor of protecting whales provides the psychological element in the development of customary international law, or, in legal parlance, opinio juris, while growing State practice in the elimination of national whaling provides the other element and, thus the principles involved have become customary international law. This of course, does little to aid the work of the IWC because customary law does not bind persistent objectors such as, for example, Japan.

The final stage, and in my judgment the most controversial, is the entitlement stage, which recognizes that the whales themselves have direct legal rights rather than being just the third-party beneficiaries of the rights and duties of States or even individuals. They construct this argument based in part on the need to protect moral values. They note, correctly, that the question of who or what is entitled to legally recognized rights has been subject to a period of steady but constant expansion. Thus, for example, the field of human rights in international law has supplemented the period in which only States were deemed to have legal rights.

It is my contention, as suggested above, that international law is not yet ready for such a quantum leap, but that articles such as the one referred to are helpful in the sense that they create an awareness that international organizations need to rethink their institutional structures in the light of changing environmental awareness.

If this thought is correct, what can be done to change the rules respecting whaling that might fall short of the entitlement or even the preservation stages but still be a step forward and provide a flexible framework for further evolution of legal principles? One recent document from which some thoughts might be gleaned is the United Nations Convention of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Stocks of Fish and Highly Migratory Fish Stocks. This Convention does not modify the terms of Articles of the Law of the Sea Convention but rather augments them by expanding upon the application of those provisions in a more coherent and effective way. One of the deficiencies of the ICRW and the work of the IWC is that in many ways the participants are engaged in a kind of psychological warfare. At the extremes in this battle are whaling nations on the one hand and nations having strong environmental dispositions or which are subject to intense environmental pressures domestically on the other. A much broader base is needed.

One of the advantages of the straddling stock agreement is that it was negotiated under the auspices of the Secretary-General of the United Nations, giving it a high level of credibility and broad participation. Broader participation should increase the number of perspectives and provide for a greater number of more neutral parties who might make useful proposals for a more equitable regime. A broader base of participation would also dilute the existing undue influence of outside pressure groups, putting things more into balance. There are other elements of the new agreement that might also be of use, although the agreement does little to address the underlying problem that will continue to exist; the perception of whales occupying a unique niche in the overall ecological scheme because of their perceived intelligence. Thus the question remains whether the regime for whales should abandon any system that permits exploitive uses and preserves only non-exploitive values. Clearly the straddling and highly migratory stocks agreement enhances the rational exploitation of fish, and seeks to conserve and effectively manage those stocks. However, the agreement represents a step forward in several respects and could form the basis for an interim regime pending resolution of the basic philosophical and moral values dispute, which might take considerable time.

The new agreement recognizes regional and subregional arrangements, and calls upon signatories to cooperate with such organizations by creating a legal duty to become a member of the appropriate such organization, or, in the alternative, to agree to comply with conservation and management measures generated by the organization. Failure to become a member, or to apply the measures adopted, results in the signatory to the agreement being excluded from the regulated fishery. There is, therefore, no absolute requirement that parties to the agreement must become members of the regulating organization, but there is strong incentive for them to do so in order to participate in adopting regulations by which they would be effectively bound in any event.

A State which is not a member of the appropriate organization or does not otherwise agree to apply the conservation and management measures adopted by that organization is not relieved of its duty, under the agreement, to cooperate in the conservation of the stocks, and such State may not authorize its vessels to engage in fishing operations for the targeted stocks. A State which is a member, or does otherwise cooperate, is required to apply stringent controls on fishing vessels flying its flag.

Another area where the agreement provides a useful model is in the field of enforcement and dispute settlement, both of which are weaknesses in the ICRW and the IWC. The primary enforcement responsibility, as is traditionally the case, lies with the flag State. But this responsibility is bolstered by the duty of other States which are members of the appropriate organization to establish boarding and inspection rules regarding fishing on the high seas. Where, following a boarding and inspection, there is reason to believe the vessel has engaged in prohibited activities, the flag State shall be notified and shall respond appropriately. As far as disputes are concerned, States have the obligation to settle them by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, or other means they might agree to. If these are not successful, the agreement refers the States to the dispute settlement procedures set forth in Part XV of the Law of the Sea Convention, and this is true where a State is a party to the agreement, but it is not also a party to the Law of the Sea Convention. Thus there is an array of fora available for States parties to the agreement to seek interpretation of the provisions of the agreement, or to sort out the facts leading to the dispute where that procedure could lead to a resolution of the disagreement.

In this brief memo, I have set forth two issues that I would like to have the view of this group on, time permitting. They are, to recapitulate: (1) to what degree, if any, is international law ready to accord "human" rights attributes to cetaceans, and (2) does the agreement on straddling stocks of fish and highly migratory stocks of fish have any concepts which could be useful in improving the regime governing those cetaceans?

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