Fisheries and Marine Mammals

(1) Biodiversity beyond National Jurisdiction

The most significant international legal development concerning the protection of the marine environment was the adoption on 19 June of the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement) after decades of preparatory work. The BBNJ Agreement is an international treaty that, like the 1991 Implementation Agreement and the 1996 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, was created within the greater framework of the United Nations Convention on the Law of the Sea (UNCLOS).

The purpose of the BBNJ Agreement is ‘to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the [United Nations] Convention [on the Law of the Sea] and further international cooperation and coordination’ (BBNJ Agreement art 2). While a complete analysis of the BBNJ Agreement would exceed the scope of this text, a few conclusions can be drawn in regard to the international regulation of fisheries and the protection of marine mammals. The latter are not mentioned at all in the new international treaty, while fishing is mentioned only briefly on two occasions: in part II of the BBNJ Agreement, it is clarified that the agreement’s rules concerning marine genetic resources do not apply to fishing or fishing-related activities (BBNJ Agreement art 10(2)) and Annex II (d)(ix) includes cooperation among regional fisheries management organizations (RFMOs) as one example of the kind of cooperative capacity building that is envisaged under the BBNJ Agreement. The BBNJ Agreement allows RFMO regional rules to take precedence insofar as the BBNJ Agreement ‘shall be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies’ (BBNJ Agreement, Article 5(2)). The approach codified in the BBNJ Agreement aims to facilitate cooperation and builds on existing cooperative mechanisms that, in turn, can be built on UNCLOS and other—in particular, regional—international agreements. The BBNJ Agreement, in turn, safeguards minimum standards below which regional cooperative mechanisms may not fall. Article 7 of the BBNJ Agreement enumerates ‘[g]eneral provisions and approaches’ (the title of Article 7 of the BBNJ Agreement) that are to guide the parties to the agreement. These standards include: the polluter pays principle; the legal concept of the common heritage of humankind (while UNCLOS still refers to the principle as ‘common heritage of mankind,’ the BBNJ Agreement now employs the more appropriate term ‘common heritage of humankind,’ which has the same legal meaning as the term used in UNCLOS); the freedoms of the high seas (as defined in UNCLOS and customary international law), including the freedom of scientific research; and the concept of equity as well as fair and equitable benefit sharing. Other guiding ideas include the precautionary approach/the precautionary principle, the ecosystem approach, the integrated approach to ocean management, and the idea of ecosystem resilience and the use of the best available science. Notably, the drafters of the BBNJ Agreement included the human element and concerns of human safety, as well as social and developmental concerns in the guiding principles under Article 7 of the BBNJ Agreement, referencing: the use of traditional (local and/or Indigenous) knowledge; the rights of Indigenous peoples; the prohibition of the transfer of hazards from one area (a term not to be confused with the term Area as used in Part XI of UNCLOS) to another; the prohibition of the transformation of pollution from one form to another; and special circumstances of small island developing states and of least developed countries as well as of landlocked states. While not phrased in very strict terms, Article 7 of the BBNJ Agreement provides a summary of the key concepts and concerns that guide the contemporary protection of marine biodiversity beyond the limits of national jurisdictions.

The practical implementation of the BBNJ Agreement, of course, depends on the active role of the states and regional economic integration organizations (in practice, so far, the European Union) that are parties to this international treaty. In order to increase the likelihood of successful implementation, the drafters of the BBNJ Agreement took up the cooperative spirit that already permeates UNCLOS. Article 8 of the BBNJ Agreement calls for international cooperation to protect the biodiversity of the world’s oceans beyond the limits of national jurisdiction. International cooperation is called for in order to facilitate ‘the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (BBNJ Agreement, Article 8(1)).

The BBNJ Agreement will enter into force 120 days after it has been ratified by more than sixty states. More than this number of states had already signed the agreement in September, and shortly afterwards, with additional states signing later. At the time of writing in February 2024, the signature by Zambia on 13 February 2024 has brought this number to eighty-seven, including the European Union. However, as of late February 2024, only two states (Palau on 22 January and Chile on 20 February) have actually ratified this landmark treaty. Even when allowing for some time for ratification processes, such a low number of ratifications almost one-half a year after the treaty has been adopted might reasonably be seen as concerning. It is to be hoped that the BBNJ Agreement will actually enter into force soon and that it won’t be condemned to existing only on paper. In theory, Article 69 of the BBNJ Agreement allows for the provisional application of the agreement by states or regional economic integration organizations, but it remains to be seen to which degree, if any, this option will be used.

(2) Whale Hunting

This year also saw several developments in domestic law—in particular, in regard to the hunt for marine mammals, especially whales. In practice, this concerns mainly Iceland and Norway. In June, Iceland’s Ministry of Fisheries put a temporary stop to whaling activities by the company Hvalur hf over failures to comply with the Icelandic Animal Welfare Act. Whaling resumed only a few months later, meaning that the halt had only been a pause during the hunting season rather than an actual permanent ban. Whaling operations are now subjected to more oversight than has been the case in the past, but the hunt for sentient marine mammals continues. Among the stricter rules are increased supervision from Iceland’s Food and Veterinary Authority (Icelandic FVA) and requirements to limit the suffering of the targeted animals. Whales have to be killed immediately in order to comply with the requirement of swift and painless killing under Article 2 of the Iceland Animal Welfare Act. During the hunt, video recordings of the hunt must be taken for later review by the Icelandic FVA. The Icelandic FVA also must be notified by whaling crews prior to their departure for a hunt. Hunting is limited to daylight hours and the Icelandic FVA imposed new rules concerning whale guns. Whales must not be shot at from a distance of more than twenty-five meters. This is to increase the likelihood of the whale being killed quickly. If a whale is injured but is not killed immediately, whalers must pursue, and actually kill, the injured animal. These rules indicate that there is a clear awareness among decision makers of the capacity of whales to feel pain and to suffer, although whale hunting is not yet outlawed. Of special importance is that Iceland has now made it illegal to hunt whales when they are accompanied by one or more calves.

It is estimated that approximately 120 persons worked in Iceland’s whaling industry in the last season, and while there is an obvious social dimension to the possible end of whaling in Iceland, the economic impact would be limited mainly to the whaling company Hvalur hf and related businesses. While there have been pauses to whaling, a complete end to Icelandic whaling operations does not appear to be as near, as had been assumed by some outside observers in 2023. Today, domestic demand for whale meat is low, prompting a search for alternative commercial uses for whale meat and exports of whale meat to Japan. In Iceland itself, similar to the situation in Norway, whale meat is, in fact, often marketed to tourists as a curiosity rather than eaten by the local population. The reduction in demand for whale meat is not an exclusively Icelandic phenomenon but can also be observed in Norway and Japan. In the countries that continue to engage in whale hunting, actual demand for whale meat is marginal and declining. Like the 2020–22 pause in Icelandic whaling, the imposition of stricter rules after the 2023 pause in whaling does not mark a significant change in policy or law as whales continue to be killed.

While hunting rules became stricter in Iceland this year, Norway actually relaxed some rules related to the whale hunt and increased the whale hunting quota. Between late March and late September, the hunt of a total of 1,000 minke whales was permitted in Norway’s Exclusive Economic Zone (EEZ) in the Fisheries Protection Zones surrounding Jan Mayen and Svalbard, as well as International Whaling Commission areas ESB, EW, EN, and CM—that is, in selected parts of international waters.

Despite near-global opposition, whaling continues in Japan as well. Early this year, the Japanese whaling company Kyodo Senpaku Kaisha made public new plans to build a whaling mother ship—that is, a refrigerator/factory ship that is supported by several hunting vessels and that would be intended to operate for sixty days as far away from Japan as in the Southern Ocean surrounding Antarctica. If realized, these plans would not be compatible with Japan’s guarantees, given that when the country withdrew from the International Whaling Commission, whaling was to be limited to Japan’s EEZ. In light of the developments in regard to the protection of biodiversity on the high seas, attempts to actually expand whale hunting operations beyond the EEZ appear to be at odds with the views of the international community in general. Unlike Iceland and Norway, though, Japan is not yet a signatory of the BBNJ Agreement.

In the United States, a bill was introduced in the House of Representatives to amend the Marine Mammal Protection Act (MMPA). Entitled the Marine Mammal Climate Change Protection Act (MMCCPA), if adopted, it would require the National Oceanographic and Atmospheric Administration (NOAA) to develop climate impact management plans for marine mammals. The aim of the MMCCPA’s changes to the MMPA is to better protect marine mammals against the effects of climate change. At the time of writing, it is far from certain if and when the MMCCPA will actually become law.

Under the MMPA, on 17 November the NOAA issued a final rule to revise exemptions concerning the import provisions of the MMPA, extending the exemption period by two years, until 31 December 2025. The rules in question cover fish and products from fish that were caught using commercial fishing technology (such as gillnets, purse seine nets, trawls, traps, or longlines), the use of which results in also killing or injuring marine mammals in ways that would not be permissible under US law. By extending this exemption deadline, the United States has omitted using its economic power to contribute to better protection of marine mammals in states with weaker protection standards, although the legal rules that would be necessary to do exactly that already exist in the books.

In the United Kingdom on 28 June, the sixth Special Report of Session 2022–23 found that the government of the United Kingdom fails to adequately protect marine mammals. London claims to be cognizant of the need to reduce by-catch, but there appears to be no interest on the part of the current occupant of Downing Street to establish a United Kingdom-wide legal framework for the adequate protection of marine mammals. This reluctance may be seen in light of trends such as devolution and centrifugal forces in domestic UK politics post-Brexit, but it raises questions concerning the environmental commitments of the United Kingdom.