The conservation and management of small cetaceans in Europe: an analysis of the ASCOBANS and ACCOBAMS Agreements
1. Introduction
Cetaceans (whales, dolphins and porpoises) have been exploited by humans for centuries, since primitive whaling activities began in Japan and Scandinavia many centuries ago. Commercial whaling operations are believed to have commenced in the Eleventh Century when the Basque people of northern Spain began to hunt right whales in the Bay of Biscay. Whaling activities developed rapidly and with little discernible regulation until the Twentieth Century, when technological advances enabled whales and other smaller cetaceans to be harvested on such a scale that stocks of several species were on the verge of collapse. The primary regulatory body is the International Whaling Commission (IWC), established by the International Convention for the Regulation of Whaling adopted in 1946(1).
The IWC currently operates a moratorium on commercial whaling, in force since 1986, although there are exceptions for aboriginal subsistence needs and scientific purposes and parties to the Convention may object to the the operation of the moratorium (for example, Norway has entered such an objection and sets quotas for a commercial hunt of minke whales every year). The IWC has faced a number of problems throughout its existence, not least in relation to the wide range of views on whaling represented within its membership, and these problems have been exacerbated in recent years as the Commission has found itself increasingly divided into two hostile camps arguing for and against the resumption of commercial harvesting(2).
Small cetaceans occupy a precarious position in international law. To date there has been no universal agreement on the competency of the IWC to regulate these animals, although its Scientific Committee does study threats to their survival in considerable detail, thus they are generally excluded from the protectionary provisions adopted by the IWC in relation to species of whales. Instead, the protection of small cetaceans has largely been left to domestic law, and a number of jurisdictions have enacted legislation to protect dolphins and porpoises – especially Australia, New Zealand and the UK and the US. A further tier of protection has been provided through the Bonn Convention on Migratory Species of Wild Animals, under which parties are encouraged to co-operate to protect migratory wildlife through the development of regional Agreements. To date, two such Agreements have been adopted that apply to small cetaceans which, it is hoped, will serve to reverse the decline in numbers of these species in distinct areas of European waters.
This article aims to evaluate these developments and suggest areas for future consideration. To this end, it will begin with a brief analysis of the provisions of the Bonn Convention, followed by a discussion of the operation of the regional Agreements adopted to date.
2. The Bonn Convention on Migratory Species of Wild Animals
Cetaceans, like many other animals, can be described as "migratory", meaning that they will spend a number of months travelling from one area to another, often covering vast distances, in search of a plentiful food supply, a temperate climate or a safe breeding ground. However, migratory species create particular problems in relation to conservation and management. Since they do not confine themselves to one location and periodically cross through a number of jurisdictions via land, sea and air, the level of protection afforded to them will fluctuate according to their particular geographical location. Inevitably, migrating animals will pass through jurisdictions in which nature conservation is less of a priority than in other areas.
Migratory species are especially sensitive to environmental changes. By the 1970s serious concerns had been raised by the plummeting numbers of certain species due to excessive hunting activities, habitat destruction and the pollution and degradation of their staple feeding grounds. With nature conservation measures being only as strong as their weakest link, some form of international regulation was required in order to establish minimum standards of protection and management practices to prevent further depletion of migratory species.
The impetus towards a conservatory regime came from the Stockholm Conference in 1972, in particular Recommendation 32 of the Action Plan, which highlighted the need for governments to"protect species inhabiting international waters, or those which migrate from one country to another". Following the Stockholm Conference, in 1974 the Federal Republic of Germany began drafting a convention to protect migratory animals and, after extensive negotiations, the Convention on the Conservation of Migratory Species of Wild Animals(3) (CMS or the "Bonn Convention") was signed in Bonn on 23 June 1979. It came into force on 1 November 1983 and there are currently 79 parties to the Convention.
(a) Aims and objectives
The Bonn Convention draws attention to the plight of migratory species, which are defined as "the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries"(4). At the heart of the Convention lies the concept that wild animals constitute a common natural heritage for humankind, and should therefore be protected for the benefit of future generations. The CMS recognises that "each generation of man holds the resources of the earth for future generations and has an obligation to ensure that this legacy is conserved and, where utilised, is used widely"(5). Responsibility for this is vested in the individual States party, who are under an obligation to ensure that such species should be protected as they pass through their national jurisdictions(6).
To this end, Article II sets out the fundamental principles of the CMS, which are essentially two-fold:
Under Article II(3), these aims are to be achieved by requiring the parties to promote, co-operate in and support research in relation to migratory species; endeavour to provide immediate protection for endangered migratory species; and endeavour to conclude agreements to allow for the conservation and management of migratory species classed as having an "unfavourable conservation status".
While striving to ensure that all migratory species receive protection, the CMS nevertheless prioritises remedial action to be taken in relation to those species that have been classed either as endangered or as having an unfavourable conservation status. To this end, the Convention contains two Appendices, listing those species that are classed as falling into one of these categories, and prescribes measures to be taken in order to ensure their survival.
(b) Appendix I – endangered migratory species
Article III allows for species classed as "endangered" to be placed on a list in Appendix I. An "endangered species" is defined in Article I(1)(e) as being a migratory animal which is "in danger of extinction throughout all or a significant portion of its range". For a species to be listed in Appendix I, under Article III(2) it must be shown that "reliable evidence, including the best scientific evidence available, indicates that the species is endangered".
Once a species has been listed in Appendix I, Article III(4) requires Range States(7) to "endeavour" to conserve and, where feasible and appropriate, restore those habitats of the species which are of importance in removing the species from danger of extinction; to prevent, remove, compensate for or minimise, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of the species; and to the extent feasible and appropriate, to prevent, reduce or control factors that are endangering or are likely to endanger the species, including strictly controlling the introduction of, or controlling or eliminating, already introduced exotic species.
Potentially, this is an extraordinarily far-reaching provision. Indeed, the restoration of natural habitats could prove to be a near-impossible burden on a State party. For example, in the case of the gorilla, this could involve restoring vast swathes of rainforest.
Even more wide-ranging could be the requirement to deal with impediments to an animal’s migration. Such an "impediment" is not defined within the Convention, but depending on how wide this is construed, but for cetaceans it could extend to passing extensive anti-pollution measures, placing heavy restrictions on fishing and other hunting activities on animals that constitute the prey of migratory animals, introducing draconian restrictions on fishing and trapping gear to prevent the incidental capture of Appendix I species, limiting tourist activities and even taking drastic steps to reduce global warming.
While the scope of Article III(4) is uncertain, the strength of the obligation within it is also unclear. The language of the provision requires Range States party to the Convention to "endeavour" to satisfy these requirements. Does this mean, then, that States party are under a strong positive duty to fulfil the demands of this provision, or are they merely obliged to make some attempt to do so? There is Australian authority to suggest that the term "endeavour" imposes a clear obligation upon a State to achieve the objectives alluded to in that provision. In the case of Commonwealth of Australia v State of Tasmania(8), which considered a similar provision of the Convention Concerning the Protection of the World Cultural and Natural Heritage, "endeavour" was held to mean more than "a mere statement of intention" and was instead "a command requiring each party to endeavour to bring about the matters dealt with."(9) While this decision is not binding on any of the other parties to the CMS, it nevertheless constitutes the only judicial consideration of the issue which, if widely followed, does have heavy and potentially onerous implications for parties to the Bonn Convention.
Far less ambiguous are the provisions of Article III(5), which clearly state that "Range States of a migratory species listed in Appendix I shall prohibit the taking of animals belonging to such a species"(10). This places an absolute ban on the hunting of any Appendix I species, unqualified by any need to endeavour to do so. Article III(5) is subject to exceptions, however, namely if the taking of such animals is for scientific purposes; to enhance the propagation or survival of the affected species (for example capture for breeding programmes); to accommodate the needs of traditional subsistence users of such species; or if extraordinary circumstances so require.
Migratory species may also be removed from the endangered list in Appendix I as long as the species is no longer endangered, as shown by "reliable evidence, including the best scientific evidence available" and the proof that it will not become endangered again due to its removal from the protected list(11). The distinction between reliable evidence and the best available scientific evidence is interesting, and it avoids the problems raised by the ICRW which requires "the best scientific advice" in order to function, as opposed merely to credible evidence.
Just as a species can lose the protection of Appendix I status if it is no longer necessary, so a previously stable species can be added to it should their numbers fall drastically. Under Article XI, the Appendices can be amended based on proposals from member States, as long as this is based on "the best scientific evidence available" and receives the support of two-thirds of the parties voting at the Convention’s Conference of the Parties. Amendments to the Appendices take effect ninety days after the vote and are binding on all parties, except those that have entered a formal reservation to the amendment.
There are currently six species of cetacean listed in Appendix I, namely the blue whale, humpback whale, bowhead whale, Northern right whale, Southern right whale and Franciscana.
(c) Appendix II – migratory species and international agreements
Article IV(1) provides that parties to the CMS are to enter into international agreements to protect species listed in Appendix II of the Convention. Appendix II contains an extensive list of migratory species that, despite not being endangered, have what the Convention has termed to be an "unfavourable conservation status"(12). The goal of the CMS with regard to these species is to conclude a number of multilateral agreements to ensure that their conservation status becomes "favourable" again. This is defined in Article I(1)(c) as being when:
"(i) population dynamics data indicate that the migratory species is maintaining itself on a long-term basis as a viable component of its ecosystems;
(ii) the range of the migratory species is neither currently being reduced, nor is likely to be reduced on a long-term basis;
(iii) there is, and will be in the foreseeable future, sufficient habitat to maintain the population of the migratory species on a long-term basis;
(iv) the distribution and abundance of the migratory species approach historic coverage and levels to the extent that potentially suitable ecosystems exist and the extent consistent with wise wildlife management."
A species has an unfavourable conservation status if any of these criteria have not been met. In addition to these species, Article IV(1) allows for such agreements to be concluded in respect of species that have a conservation status that is not classed as unfavourable, but would nevertheless "significantly benefit" from such an agreement.
Unlike species listed in Appendix I, there is no specific procedure in place to remove a species from the list in Appendix II. Lyster suggests that this is "presumably because the capacity of a species to benefit from international cooperation is unlikely to change even if its conservation status improves."(13) There are some thirty-three species of cetaceans currently listed in Appendix II.
Article IV creates an obligation for States party to conclude two different types of international agreements. Article IV(3) states, "parties that are Range States of migratory species listed in Appendix II shall endeavour to conclude AGREEMENTS where these would benefit the species and should give priority to those species in an unfavourable conservation status."(14) The guidelines for the conclusion of these AGREEMENTS is contained in Article V, with their purpose being "to restore the migratory species concerned to a favourable conservation status or to maintain it in such a status", with each AGREEMENT regulating "those aspects of the conservation and management of the migratory species concerned which serve to achieve that object."(15) An Article IV(3) AGREEMENT concerns the entire range of the migratory species in question and is open to accession by all Range States of that species – irrespective of whether they are even a party to the CMS(16). Under Article V(3), an AGREEMENT should, if possible, deal with more than one single species of migratory animal.
Article V(4)(f) lays down specific requirements for Article IV(3) AGREEMENTS that have been concluded in respect of cetaceans. Under this provision, such AGREEMENTS should:
"at a minimum, prohibit, in relation to a migratory species of the Order Cetacea, any taking that is not permitted for that migratory species under any multilateral agreement and provide for accession to that AGREEMENT by States that are not Range States of that migratory species".
This provision could possibly compensate for the potential deficit in the IWC’s competence to regulate small cetaceans. Any Article IV(3) AGREEMENT concerning migratory cetaceans must place a prohibition on that taking of such animals. This may have a dramatic effect on the populations of small cetaceans that are threatened by the hunting activities of IWC members who see the taking of these species as a legitimate assertion of their national sovereignty in the face of the continued moratorium on whaling.
Article V(5) lays down a number of other factors that should be incorporated "where appropriate and feasible" into an Article IV(3) AGREEMENT. These include, inter alia, the review of the species’ conservation status and co-ordinated conservation and management plans; research and the exchange of information; maintenance, restoration and protection of habitats; restriction of impediments to migration; co-operative action against illegal taking and emergency provisions to strengthen conservation measures. Although States party have concluded three Article IV(3) AGREEMENTS since the Bonn Convention came into force(17), none of these affect cetaceans.
Article IV(4) provides that States party "are encouraged to take action with a view to concluding agreements for any population or geographically separate part of the population of any species or lower taxon of wild animals, members of which periodically cross one or more national jurisdictional boundaries." Article IV(4) agreements are therefore wider and more general than Article IV(3) AGREEMENTS. Agreements formed under Article IV(4) are very different to the AGREEMENTS envisaged by Article IV(3):
To date eight Agreements have been concluded under Article IV(4) of the CMS, of which two are directly relevant to the issue of cetacean conservation. These are the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, 1991 (ASCOBANS) and the Agreement on the Conservation of Cetaceans of the Mediterranean and Black Seas, 1996 (ACCOBAMS)(18).
3. The Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas
One of the first Agreements to be concluded under Article IV(4) of the Bonn Convention was the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas(19). ASCOBANS was introduced in order to tackle the problems facing small cetaceans in this area, and to attempt to decelerate or reverse the decline in numbers of these species. The eventual conclusion of the Agreement, however, was a far from straightforward exercise. An Agreement on small cetaceans was first mooted in 1985, and an original proposal was drawn up between 1986 and 1987. The draft Agreement was concluded in September 1991, opened for signature on 17 March 1992 and eventually came into force on 29 March 1994.
ASCOBANS is an example of an Article IV(4) Agreement under the CMS. Two leading commentators (20) suggest two reasons as to why it was not concluded under Article IV(3):
A third factor would be that at the time of negotiation, very little was actually known about the populations of small cetaceans in this area. Indeed, cetaceans have proved to be notoriously difficult to study, and the lack of specific data meant that it was difficult to judge how many Appendix II species were actually located in this area.
The first major study of small cetaceans in this area took place in 1994, after ASCOBANS came into force, when scientists from the Sea Mammal Research Unit at St. Andrews University launched the SCANS project(22). Until then, population estimates had been based largely on conjecture and ad hoc research relying on reports of strandings and sightings. The study showed that there were nine species of small cetaceans resident in this area(23) (along with four species of whales), all of whom were listed in Appendix II of the Bonn Convention. As well as mapping the populations of small cetaceans in this area, the SCANS project also identified three main threats to their survival: by-catches, pollution and environmental change.
By-catches represent a major threat to the survival of small cetaceans. Fishing gear, especially gillnets catch an indiscriminate number of marine species, including dolphins and porpoises. Since these animals have to surface periodically in order to breathe, a large number drown every year as a result of becoming ensnared in these nets. Pollution has also depleted population numbers, both through the effects of toxic substances in these waters as well as the equally dangerous acoustic pollution from human maritime activities, which has been shown to damage the hearing, balance and navigation of cetaceans. Environmental change is difficult to quantify, but scientists have blamed population declines on global warming and a decrease in available food. ASCOBANS itself also recognises the role of "habitat deterioration" in the fall in numbers of small cetaceans.
(a) Scope
ASCOBANS applies to all small cetaceans located within the area of the Agreement(24). A small cetacean is defined in paragraph 1.2(a) as "any species, subspecies or population of toothed whales Odontoceti, except the sperm whale Physter macrocephalus." As Churchill notes, this definition specifically excludes the minke whale, hunted by Norway, since it is a baleen whale(25).
The Agreement is open to membership by all "Range States and Regional Economic Integration Organisations."(26) A Range State under ASCOBANS carries a wider definition to that under the CMS, in that it applies to States that do not ordinarily exercise jurisdiction over any of the species of small cetacean, but whose vessels are in the area of the Agreement and are "engaged in operations adversely affecting small cetaceans". This could have implications depending on how wide the term "adversely" is construed, and could mean placing limitations on a wide variety of maritime and submarine activities.
A Regional Economic Integration Organisation is defined in paragraph 1 as "an organisation established by sovereign States which has competence in respect of the negotiation, conclusion and application of international agreements in matters covered by this agreement." In practice, this is applicable only to the European Union, which has yet to ratify the Agreement(27). There are currently eight parties to the Agreement, namely Belgium, Denmark, Finland, Germany, the Netherlands, Poland, Sweden and the UK. In addition, there are another six geographically eligible parties who have yet to sign(28).
The main objective of ASCOBANS is specified in paragraph 2.1, namely that parties to the Agreement should "cooperate closely in order to achieve and maintain a favourable conservation status for small cetaceans". A "favourable conservation status" is not defined within the Agreement, but it is reasonable to assume that it carries the same definition as that established in Article I of the Bonn Convention. Annexed to the Agreement is a conservation and management plan, and under paragraph 2.2 a party to ASCOBANS is under an obligation to carry this out "within the limits of its jurisdiction and in accordance with its international obligations".
As with the Bonn Convention, general reservations to ASCOBANS are not permitted, but parties may enter specific reservations to the operation of the Agreement in relation to a particular species of small cetacean(29). Likewise, under paragraph 2.6, it is open to any party to introduce stricter conservation and management measures than those agreed under ASCOBANS in relation to their jurisdictional waters.
(b) The institutional framework
Paragraph 2 of the Agreement provides for the creation of a number of institutions to oversee the activities of the parties. These institutions are largely similar to those established under the Bonn Convention.
The decision-making body of ASCOBANS is the Meeting of the Parties (MoP), which is to meet at least once every three years to review the progress made and any difficulties encountered by the parties(30). Observers are permitted to attend these Meetings and they are divided into two categories: those specifically listed in paragraph 6.2.1 of the Agreement, namely representatives of the Secretariats of institutions set up under other wildlife and environmental treaties and conventions, and other observers who must be "qualified in cetacean conservation and management"(31). The first category of observers is entitled to attend as of right, while observers in second category may be excluded if one-third of the parties object to their presence. Decisions are made by a simple majority of those parties present and voting, except financial decisions and amendments to the Agreement which require a three-quarters majority.
Paragraph 6.5 establishes the amendment procedure, which operates in a similar manner to the Bonn Convention. Proposals for an amendment to the Agreement may come from any of the parties and must be communicated to the Secretariat prior to the MoP. Amendments are subject to the acceptance of the parties and will generally come into force ninety days after five parties have agreed to them.
The Secretariat was established under paragraph 4 of the Agreement and supports the MoP. It is responsible for organising and administering meetings, as well as facilitating the exchange of information and research between the parties.
As provided by paragraph 5, an Advisory Committee was established at the first MoP. It consists of one member per party (although each member may bring an unlimited number of advisors and the Committee can invite other experts to attend its meetings) and it is charged with providing expert advice on issues relating to the conservation and management of small cetaceans.
In addition, under paragraph 3 ASCOBANS has a Coordinating Authority which is responsible for maintaining and coordinating the activities of the parties, while also acting as the contact point between the Secretariat and the Advisory Committee. The costs of financing the Agreement and its institutions are shared between the parties in accordance with UN guidelines(32).
(c) Conservation and management initiatives
As noted above, annexed to the Agreement is a substantive conservation and management plan, which the ASCOBANS parties must adhere to. The conservation and management plan prescribes, in general terms, the measures that parties are to introduce. The conservation and management plan is in five parts and States must:
The conservation and management plan is currently in the process of being implemented through a series of specific Resolutions passed during the Meetings of the Parties.
At the first MoP held in Stockholm in 1994, the Resolution on the Implementation of the Conservation and Management Plan was adopted, establishing a number of initiatives to be taken by the parties and the ASCOBANS institutions. These included, inter alia, undertaking a full assessment of the pollutants likely to adversely affect small cetaceans; establishing an independent observer scheme to assess by-catches, supported by comprehensive guidelines on good practice, conducting research into feeding habits; formulating guidelines on acoustic disturbances; defining and identifying "protected areas" and setting up a sightings survey for the harbour porpoise population in the Baltic Sea.
With much of the first MoP being taken up with creating the various ASCOBANS institutions, more substantive guidelines were formulated at the second MoP, held in 1997 at Bonn. Here the parties passed a number of comprehensive Resolutions dealing with issues of cetacean conservation and management.
The Resolution on the Further Implementation of ASCOBANS reiterated the progress made at the first MoP and called for more research to identify areas that should be designated as "protected", to reduce disturbance and to monitor the various populations of small cetaceans.
More specifically, the Resolution on the Incidental Take of Small Cetaceans defined the aim of ASCOBANS as being:
"to restore and/or maintain biological or management stocks of small cetaceans at the level they would reach when there is the lowest possible anthropogenic influence."
It was decided that the immediate short-term objective of the Agreement would be to restore or maintain stocks to 80% of the carrying capacity, with a view to eventually preventing all anthropogenic removals. This is an extremely ambitious objective, and the ASCOBANS parties have set themselves a vague timetable within which to achieve this(33).
In the interim, a maximum by-catch figure was set as being 2% of the best achievable estimate of the abundance of a particular species in this area, with the possibility that this may have to be revised downwards should a particular population prove to be severely depleted. The 2% level was introduced despite a clear acknowledgement in the Resolution that the IWC believes that such a figure is untenable and would require "immediate action to reduce by-catch" to prevent population decline. In fact, the IWC tentatively recommends a figure of 1%, half the current level permitted, and even then sees this as a cause for concern which would require immediate research to gauge the effect of this level of by-catch on the species population.
At the third MoP, held in 2000 at Bristol, the 2% by-catch limit was held to be unrealistically high, and the Resolution on the Incidental Take of Small Cetaceans recommended that for the harbour porpoise this limit should be amended to 1.7%, with a view towards a further reduction. The ultimate goal of ASCOBANS was then stated as being the reduction of by-catches to less than 1% of the best population estimate, in line with the IWC guidelines.
Also at the third Meeting, the parties were invited to introduce national guidelines for conducting seismic studies, an objective that has so far only been accomplished by the UK. The parties were also encouraged to develop codes of practice for military uses of the sea, which would reduce disturbances to small cetaceans. Again this is a project that is very much in its infancy. The Resolution on the Further Implementation of ASCOBANS in 2000 further invited parties to conduct research into establishing protected areas, to monitor "residues of novel contaminants of particular concern" and to support collective research on some of the lesser-known species of cetacean within the ASCOBANS area. In addition to this, a recovery plan for the severely depleted stocks of harbour porpoise in this area was concluded in June 2002. This project, known as the Jastarnia Plan, establishes a number of guidelines to assist in the recovery of populations of this species, and is expected to be adopted by the ASCOBANS parties at the Fourth MoP to be held in August 2003.
Despite the initial progress made to date under the various ASCOBANS initiatives, it is clear that much work remains to be done, especially as the various parties have been especially slow in implementing these measures. Indeed, the rather permissive nature of the Agreement and its subsequent Resolutions need to be translated into more assertive and prescriptive initiatives in order to secure the widespread compliance of the parties – without which ASCOBANS and its various conservatory measures will be unable to function effectively.
4. The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area
The second regional Agreement to be concluded under the CMS umbrella in relation to cetaceans is the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area(34). ACCOBAMS was created in response to a crash in the populations of certain cetaceans resident in these areas. In September 1991, at the Conference of the Parties to the Bonn Convention, range States were urged to prioritise the conclusion of an Agreement for the conservation of species of small cetaceans listed in Appendix II of the CMS, located in the Mediterranean and Black Seas.
Urgent action was indeed necessary in this area, as dolphin numbers were falling at an alarming rate due to the serious pollution of the Mediterranean and Black Seas. In the Mediterranean Sea, the widespread presence of organochlorines was blamed for a serious increase in dolphin mortality, caused by land-based pollution from agriculture and industry and the dumping of waste at sea. Another serious concern was the number of animals being taken as by-catches, especially in gillnets set in and around areas of important cetacean habitat.
An even greater cause for concern was the plight of cetaceans in the Black Sea, where there was evidence to show that dolphins were being poisoned to near extinction by the wholesale pollution of this region, which is one of the most polluted marine areas in the world. As well as this, those animals that had survived the effects of the heavily polluted waters were also seriously threatened by fishing activities in this area.
The 1991 Conference of the Parties led to a number of meetings between the various range States, and a draft Agreement was drawn up between 1995 and 1996. The Agreement was signed on 26 November 1996 by eleven States, and eventually came into force on 1 June 2001(35). ACCOBAMS is another example of an Agreement concluded under Article IV(4) of the CMS, as it was felt that "despite past or ongoing scientific research, knowledge of the biology, ecology and population dynamics of cetaceans is deficient."(36)
(a) Scope
The Agreement area encompasses all the maritime waters of the Black Sea and Mediterranean sea, their gulfs and seas and any interconnecting internal waters, as well as the Atlantic area lying contiguous to the Mediterranean west of the Straits of Gibraltar(37). In relation to the Mediterranean Sea, as noted by Churchill(38), the nature of maritime claims in this region are such that there are currently enclaves of high seas which could have implications for the enforcement of ACCOBAMS initiatives.
ACCOBAMS is broader in scope than ASCOBANS since it applies to all cetaceans(39) including the larger species, "that have a range which lies entirely or partly within the Agreement area or that accidentally or occasionally frequent the Agreement area"(40). Annexed to the Agreement is an indicative list of all cetaceans covered by these provisions within the ACCOBAMS area, namely the harbour porpoise, striped dolphin, short-beaked common dolphin, false killer whale, killer whale, long-finned pilot whale, Blainville’s beaked whale, Cuvier’s beaked whale, sperm whale, dwarf sperm whale, Northern right whale, minke whale, sei whale, fin whale and humpback whale. This is by no means intended to be an exhaustive list, and the ACCOBAMS provisions also extend to "any other cetaceans not already listed in this Annex, but which may frequent the Agreement area accidentally or occasionally."(41)
Indeed, the Agreement exceeds its original remit which, like ASCOBANS, was to regulate activities affecting small cetaceans. While the larger cetaceans have proved to be equally susceptible to the effects of human activity, it has been observed that the ACCOBAMS initiatives may be weighted in favour of the smaller species(42). Whether this will in fact be the case will be revealed by the subsequent operation of the Agreement, although ACCOBAMS has used largely generic terminology in its substantive initiatives so far (speaking in terms of "cetaceans"), as well as specifically highlighting action to be taken in relation to whales.
(b) The institutional framework
The ACCOBAMS parties have established a number of institutions to oversee the operation of the Agreement. Again, these share many of the same features as those established under the Bonn Convention.
Like ASCOBANS, the decision-making body of ACCOBAMS is the Meeting of the Parties, which meets every three years, although it is possible to convene an extraordinary session if at least two-thirds of the parties request this in writing(43). Again, observers are permitted to attend these meetings and they are classed into two categories – those specifically invited under Article III(4) of the Agreement, and "any other agency or body technically qualified in the conservation of cetaceans", although observers in this second category may be excluded if one-third of the parties object. The status of certain observers may also be enhanced through the operation of a pioneering scheme developed at the first MoP, which allows certain organisations to be designated an "ACCOBAMS Partner".(44)
Only parties to the Agreement may vote and decisions are adopted by consensus, except for any amendments to the Agreement which require a two-thirds majority. If a consensus cannot be achieved, decisions may be adopted by a two-thirds majority of the parties present and voting. Article III(8) establishes the agenda for each ordinary MoP which includes, inter alia, a review of the progress made and any difficulties experienced; a review of the scientific assessments of the conservation status of cetaceans and their habitats; recommendations on the adoption of scientific measures; proposals for amendments; financial matters and a review of the other ACCOBAMS institutions.
The Secretariat was established under Article IV of the Agreement, and by Resolution 1.2 adopted at the first MoP in 2002. The Secretariat has a wide variety of functions, including responsibility for administering and organising the MoPs, facilitating co-operation between parties and non-party Range States and assisting parties in implementing the Agreement. It is also charged with preparing guidelines concerning, habitat protection and natural resource management, emergency measures, resource methods and the reduction or elimination of "adverse human-cetacean interactions".
Article V provides for the creation of subregional Co-ordination units, which are responsible for promoting the implementation of the ACCOBAMS conservation plan at a subregional level, collecting information and assisting the Scientific Committee. The Co-ordination units also have a research function, and under Article V(2) are to prepare a series of publications dealing with reports on the status of populations in this area, compiling a directory on "important areas for cetaceans" and the various national authorities and bodies engaged in cetacean research. At the first MoP, two subregional Co-ordination Units were established under Resolutions 1.4 and 1.5.
Article VII provides for the establishment of a Scientific Committee, consisting of "persons qualified as experts in cetacean conservation science". The functions of the Scientific Committee are laid down in Article VII(3) and include, inter alia, advising the various institutions and parties on scientific and technical matters; co-ordinating population assessments and facilitating the exchange of research findings; giving advice on the guidelines drawn up to facilitate the Agreement’s conservation plan; advising on the development of co-ordinated research activities and preparing a report on its activities for each MoP. The Scientific Committee was created at the first MoP under Resolution 1.3.
Under Article VI, a Bureau was established, comprising the Chairman and Vice-Chairman of the MoP. The Bureau has a largely advisory role and gives guidance on the implementation and promotion of the Agreement, carries out activities in the interim period between the various MoPs and acts as a representative of the ACCOBAMS parties.
The ACCOBAMS institutions are funded by the parties, although developed member States are encouraged to provide technical and financial support on a bilateral or multilateral basis to developing Range States in order to help them to implement the Agreement(45). In addition to this, Article IX(3) provides for the creation of a supplementary conservation fund, to finance additional conservation, training and research initiatives. This was established under Resolution 1.7 of the first MoP and encourages parties and donors to voluntarily contribute to the fund in order to "facilitate the implementation of the Agreement and the international priorities adopted by the Parties".
(c) Conservation objectives and initiatives
One clear difference between ASCOBANS and ACCOBAMS is that the latter Agreement is immediately more overtly conservatory in tone. The central tenets of ACCOBAMS are laid down in the preamble, which reiterates the notion that cetaceans represent a common heritage to humankind and therefore require conservation "for the benefit of present and future generations". The Agreement also recognises that cetacean populations have been affected by the degradation of their habitats and environment, and that further scientific research on cetaceans in these regions is necessary. The objectives of the Agreement are set out in Article II, with the main purpose of ACCOBAMS being that:
"Parties shall take co-ordinated measures to achieve and maintain a favourable conservation status for cetaceans. To this end, Parties shall prohibit and take all necessary measures to eliminate, where this is not already done, any deliberate taking of cetaceans and shall co-operate to create and maintain a network of specially protected areas to conserve cetaceans."(46)
Under Article I(3) a favourable conservation status has the same meaning as that under the Bonn Convention. An exception to this general objective is listed in Article II(2) of the Agreement, namely that the taking of a cetacean is permitted in an emergency situation or "having obtained the advice of the Scientific Committee, for the purpose of non-lethal in situ research aimed at maintaining a favourable conservation status for cetaceans."
In addition to this general purpose, annexed to the Agreement is a comprehensive conservation plan which, under Article II(3), parties are under an obligation to apply within the limits of the sovereignty and/or jurisdiction. The conservation plan is divided into six substantive areas and covers:
Some initial progress was made with towards realising the objectives of the conservation plan at the first MoP. As might be expected, much of the meeting was occupied with establishing the ACCOBAMS institutions, but in Resolution 1.9 the parties agreed the conservation and management priorities that should be enacted for the years 2002-6.
To this end, a list of eighteen specific action points was agreed including, inter alia, developing criteria and support for the harmonisation of commercial whale-watching regulations; investigating competitive interactions between dolphins and fisheries; creating a by-catch database; developing pilot conservation and management actions for areas containing critical habitats for cetaceans; developing methods for evaluating habitat degradation; developing conservation plans for cetaceans of the Black Sea and for certain species in the Mediterranean Sea; conducting a survey of sperm whale populations in the Mediterranean; identifying sites of conservation importance for whales in the Mediterranean; developing training and education schemes and creating sub-regional directories of organisations and bodies concerned with cetacean management.
In addition to this, two substantive Resolutions were adopted dealing with aspects of cetacean conservation. Resolution 1.11 specified a number of guidelines for the regulation of cetacean-watching activities in the ACCOBAMS area. In particular it established a permit scheme for expedition operators, to be administered by the national authorities, and provided comprehensive guidelines in relation to human-cetacean interaction. It also specified that parties should impose "sanctions of sufficient gravity to deter violations" which could include the suspension or revocation of permits and a fine.
Resolution 1.12 concerned species of bottlenose dolphins located in the Black Sea. Here, parties were invited to "make every effort" to enforce the prohibition on the deliberate taking and keeping of this species, given its precarious position in this locality. The Resolution also called upon CITES parties to upgrade this species to the list in Appendix I of the Convention.(47)
5. Conclusion: the regional Agreements – a preliminary evaluation
The regional Agreements relating to cetacean conservation are still very much in their infancy, meaning that any assessment of their provisions and achievements will necessarily be of a preliminary nature. To date there has been little academic commentary on the Agreements, but it is clear that ACCOBAMS is the superior instrument, both in terms of its scope and its potential for establishing strong and workable conservation measures in relation to cetaceans.
ASCOBANS is rather vague in a number of its provisions, and its obligations are couched in very permissive language, with the parties required to "work towards" and "endeavour" to fulfil the various management objectives. Nijkamp and Nollkaemper (48)have also criticised the standard of scientific proof required to implement the ASCOBANS conservation measures, and fear that in the absence of any mention of the application of the precautionary principle within the terms of the Agreement, some of the less committed parties may be able to err on the side of inactivity, rather than proactively pursuing effective conservation initiatives.
The membership of ASCOBANS is also something of a cause for concern, especially in the Baltic Sea, where a number of key Range States have so far proved resistant to signing the Agreement. In addition, France and Norway have demonstrated little inclination to join, which does not bode well for the future expansion of the Agreement.
With regard to the various ASCOBANS initiatives, to date they have proved largely ineffective, with few parties willing to adopt specific national measures to enforce these principles. Again, this may be due to the highly permissive language of the various Resolutions, which offer a vague statement of intent rather than any positive obligations on States to comply. To date, the only real progress has been the formulation by the UK of some guidelines in relation to acoustic disturbance, although these ASCOBANS initiatives are, in fairness, a very recent development.
Nijkamp and Nollkaemper also note another deficiency within the Agreement in that it is too focussed on the cetaceans themselves, as opposed to tackling the wider issues of general ecosystem management(49) to prevent a further decline in numbers due to environmental degradation.
One possible reason for these weaknesses in the ASCOBANS regime may be that it was the first Agreement of its type to deal with issues of cetacean management. As such, it does appear to be somewhat experimental, and its limitations may act as a guide for the conclusion of future Agreements of this type, as can be seen by the superior nature of ACCOBAMS. Nevertheless, imperfect as it is, ASCOBANS should be commended for introducing a new tier of protection for small cetaceans, whose status under international law is vulnerable given the controversy surrounding the IWC’s competence to regulate these animals.
ACCOBAMS is clearly a far more tightly drafted and wide-ranging instrument. The Agreement is written in far more prescriptive terms and imposes strong obligations on States to conserve all cetaceans in this area, subject to strictly limited derogations. Unlike ASCOBANS, the uncertainty surrounding the status of cetacean populations in this area does not provide an opportunity to avoid positive action, and ACCOBAMS specifically requires the use of the precautionary principle, albeit in rather vague terms. The Agreement also makes positive moves towards improving the currently limited scientific knowledge about cetaceans in these waters.
ACCOBAMS focuses on the wider issues and encompasses aspects of more general ecosystem management, particularly in relation to habitat conservation, limiting prejudicial fishing activities and pollution control. While ACCOBAMS has only very recently come into force, the future looks optimistic for cetaceans in an area where they have begun to struggle. The initial implementation of the ACCOBAMS conservation plan shows a clear determination to introduce effective conservation measures within this area. In particular it has established clear and workable guidelines for cetacean-watching activities, which represent an admirable model for other jurisdictions to follow.
However, the Agreement does have its limitations, in particular the lack of involvement of many of the Range States in this area, which may be linked to its strongly conservatory tone. To date, a number of key jurisdictions have yet to demonstrate anything more than a nominal inclination to join, especially in the Black Sea, where it is clear that comprehensive action is required to prevent a further decline in the already depleted stocks of cetaceans. ACCOBAMS will also need to develop effective sanctions to deter non-compliance, especially with regard to fishing regulations where a number of Range States have an alarming track-record of non-compliance. Also, as noted by Churchill, the existence of pockets of high seas within the ACCOBAMS area may further prove to impede the enforcement of the Agreement.(50)
As for the future of regional co-operation in relation to the conservation and management of cetaceans, there is cause for tentative optimism. There have been some initial moves towards the creation of a similar Agreement for small cetaceans in West Africa, although this is a long way from becoming a reality. While the Agreements do have the potential to prescribe far-reaching measures, much will depend upon the enthusiasm of the other Range States who have yet to join, though the current climate of indifference does not auger well for this. Likewise, the expansion of the regional Agreements into contiguous areas also looks unlikely, given the current attitudes of Iceland, Greenland and the Faroe Islands in relation to the exploitation of cetaceans.
One eventual goal for the Agreements is that they will form an interlocking series of regional initiatives to protect species of cetaceans around the planet. While there are undoubtedly localities in which the conditions for future expansion are favourable, such as Australasia and parts of South America, real questions remain over whether such Agreements may be concluded in the areas where they are most needed. There are currently moves under the auspices of the Bonn Convention to conclude an Agreement for small cetaceans and sirenians in central and west Africa(51), and also for small cetaceans and dugongs of south-east Asia(52). At present, regional action would appear to be most needed in Asia where river dolphins are critically endangered, although the Range States remain lukewarm to the idea of implementing conservatory measures for small cetaceans in particular. With populations of these animals now feared to have fallen to the low hundreds, the formation of a tessellating system of global minimum standards is arguably now more pressing than ever.
Richard Caddell
Cardiff Law School, UK.