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Marine Mammal Conservation and the Law of the Sea$

Cameron S. G. Jefferies

Print publication date: 2016

Print ISBN-13: 9780190493141

Published to Oxford Scholarship Online: August 2016

DOI: 10.1093/acprof:oso/9780190493141.001.0001

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Modern Threats to Marine Mammals

Modern Threats to Marine Mammals

Chapter:
(p.119) 4 Modern Threats to Marine Mammals
Source:
Marine Mammal Conservation and the Law of the Sea
Author(s):

Cameron S. G. Jefferies

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190493141.003.0004

Abstract and Keywords

This chapter acknowledges that although the direct take of marine mammals remains a concern that must be addressed by any multilateral international convention and commission interested in marine mammal conservation, both the existence of multiple other threats and the evolving ethical relationship with marine mammals justify the creation of a new, comprehensive approach to marine mammal conservation and management. The current threats include climate change, by-catch, environmental pollution, ship-strikes, and ecotourism. The impact of these threats is exacerbated by persistent overarching concerns such as the alteration and loss of marine mammal habitat and the general degradation of the marine environment. This chapter studies the interaction among science, law, and the rational conservation and management of living marine resources. It also adds to the list of challenges by addressing the scientific basis of our interaction with marine mammals.

Keywords:   science, law, rational conservation, by-catch, climate change, pollution, ecotourism

“[T]‌he world is not yet ready for comprehensive, ecological management of marine mammals.”1

The United Nations Regional Seas Programme acknowledges that “[t]‌he marine mammals, among them whales, seals and dolphins, are threatened in many ways—by direct killing, accidental capture, and by our inadvertent destruction of their food and habitats. They are threatened all over the globe, with few places to hide.”2 Chapters 1 and 2 evince that international and national efforts to conserve marine mammals have, generally speaking, focused on regulating the direct lethal utilization of commercially important species. This chapter acknowledges that although the direct take of marine mammals remains a concern that must be addressed by any multilateral international convention and commission interested in marine mammal conservation, both the existence of multiple other threats and the evolving ethical relationship with marine mammals justify the creation of a new, comprehensive approach to marine mammal conservation and management. Specifically, the consequences of what I will refer to as the current threats, including climate change, by-catch, environmental pollution (be it chemical pollution, physical pollution, noise pollution, or other), ship-strikes, and ecotourism (be it whale watching, seal watching, or other forms of marine mammal tourism) are not adequately addressed by existing international marine mammal conservation efforts. The impact of these threats is exacerbated by persistent overarching concerns such as the alteration and loss of marine mammal habitat and the general degradation of the marine environment.

This chapter exemplifies the interaction among science, law, and the rational conservation and management of living marine resources. Specifically, the “[s]‌cientific challenges of great contemporary significance [that have emerged] as we grapple with oceans issues include understanding the linkages [between and within zonal management areas] to provide genuine ecosystem management and sustainable development, understanding discrete environmental problems such as the threat to coral reefs and declining fish stocks, and enhanced understanding for more effective utilization of ocean resources such as methane hydrates or new genetic (p.120) resources.”3 It also adds to the list of challenges by addressing the scientific basis of our interaction with marine mammals. The analysis proceeds by describing the current understanding of modern threats to marine mammals and assessing how these issues inform the new multilateral regime I propose in this work.

I. Current Threats to Marine Mammals

When the International Convention for the Regulation of Whaling (ICRW) was negotiated, and the International Whaling Commission (IWC) subsequently created as the international organization responsible for the management of large cetaceans, the primary concern addressed by contracting nations was the systematic over-exploitation of whales that had characterized the history of whaling. This task was undertaken to “make possible the orderly development of the whaling industry.”4 Now, some 70 years removed from the negotiation of the ICRW/IWC regime, it should come as no surprise that the threats facing cetaceans, and marine mammals more generally, have changed.5 As noted by Alexander Gillespie, cetaceans currently face “different threats, but just as deadly as the traditional forms of whaling that have commonly led to their over-exploitation.”6 Alison Reiser recognizes that the debate over whether to lift the moratorium on the commercial take of cetaceans that has occurred since it came into force in 1986, and has at times threatened to collapse the entire institution, has happened against a backdrop of considerable advancement in our “understanding of marine ecosystems and how human activities affect them.”7

A literature review indicates that in addition to the overarching concerns of habitat loss and marine environment degradation, the most pressing specific threats to marine mammals include: (1) global climate change, (2) by-catch, (3) ship-strikes, (4) environmental pollution, and (5) ecotourism (marine mammal tourism).8 Professor Gillespie acknowledges that these emerging threats affect more marine mammal species than just cetaceans.9 This observation is particularly salient as the analysis contained in this chapter demonstrates that current threats are applicable to the majority of—if not all—marine mammal species, and that this commonality justifies a uniform legal response. The following section explores each specific threat identified above and the current international response, and concludes by noting the characteristics of a new international regime needed to effectively account for these current threats.

1. Global Climate Change

(i) The Problem

The Intergovernmental Panel on Climate Change (IPCC)10 defines climate change as “any change in climate over time, whether due to natural variability or as a result of human activity.”11 Climate change is the subject of both domestic and international law and policy and, to date, the legal response to climate change (especially with respect to efforts aimed at mitigation through the reduction of carbon dioxide emissions) is notable for both its innovation and its failure. It is not within the scope of this work to provide a detailed discussion of mechanisms of climate change or a nuanced account of either the domestic or international response. Still, (p.121) the following discussion is premised on the position that climate change is, at least partially, a consequence of anthropogenic action, most notably the addition of greenhouse gases to the Earth’s atmosphere, and that climate change is presently occurring. Further, this work adopts the IPCC’s position from the recently released Fifth Assessment Report, which predicts that surface warming, relative to 1986–2005 temperatures, will likely increase by 0.3–0.7 degrees Celsius by 2016–2035 and by 0.3–4.8 degrees Celsius by 2081–2100,12 and that such warming will have measurable consequences (including sea level rise, ice melt, changes to air and ocean circulatory patterns, the water cycle, and the cryocycle).13 These changes will have a perceptible impact on marine ecosystems.

The oceans are affected by climate change because “[o]‌cean climate is largely defined by its temperature, salinity, ocean circulation and the exchange of heat, water and gases (including carbon dioxide) with the atmosphere.”14 In short, changes to Earth’s atmosphere and climate result in changes to the oceans’ chemistry and life-sustaining properties, and these ocean-specific consequences are relevant to this assessment. First, it is estimated that alterations to global atmospheric circulation patterns will “inevitably affect the world ocean surface layers in the same directions, both due to simple heat exchange [between the atmosphere and the ocean] and different storm activity.”15 The consequences of warming may be most pronounced in the polar regions where alterations to physical processes “may upset the specific gravity balance of Arctic and Antarctic waters and reduce the flow of cold bottom water into deep ocean basins,” disrupting ocean circulation.16 Second, scientific predictions summarized by the IPCC indicate that oceans will likely experience increased incidence of acidification, reduced sea ice cover, higher sea levels, reduced ecosystem functioning, reduced productivity, and reduced biodiversity.17

In 2001, the IPCC identified marine mammals as “sensitive indicators of changes in ocean environments.”18 This classification is based on scientific observations that marine mammals will be significantly affected by changes to prey distribution, prey abundance, and sea ice reduction.19 Our understanding of how marine mammals will be impacted and how they might respond to climate change is an area of current investigation and conjecture. One factor to be mindful of throughout this discussion is that although it is tempting to speak in generalities, there is considerable variation among marine mammal species. The impact that climate change will have on marine mammal species depends on the ecological scale of each species. Ecological scale is “determined by intrinsic life history characteristics and, for marine mammals, can extend from years to centuries in time and from tens to thousands of kilometers in space.”20

One useful way to conceptualize how climate change impacts marine mammals is to consider its effects at different latitudinal regions.21 This assessment approach makes it possible to differentiate between polar-regions, temperate-regions, and tropical-regions. At the poles, the disappearance of multi-year sea ice and glacial coverage impacts those species that utilize sea ice for hunting, breeding, rest, or reproduction (namely the polar bear, walrus species, and seal species).22 Further, it is predicted that the loss of Arctic sea ice, which is occurring at a rate of 9 percent per year, “will precipitate complex and cascading interactions among physical and biological components of the Arctic ecosystem.”23 Still, reduced sea ice might not be detrimental for all marine mammals that utilize the Arctic, as migratory cetaceans (p.122) that forage during periods of low sea ice will be able to arrive earlier and depart later.24

While Arctic sea ice is experiencing record levels of melt and retreat, reports suggest that sea ice coverage in Antarctica may actually be increasing.25 Antarctic sea ice serves an important role in the development and survival of krill in the waters surrounding continental Antarctica. Krill, the small crustacean that forms the base of the Southern Ocean food web as prey for penguins, seals, and many migratory baleen whales, utilize sea ice for cover and feed on algae that form under the sea ice during the winter.26 An increased abundance of krill will impact the population structure for many marine mammal species. By way of example, it has already been demonstrated that increased krill abundance is positively correlated with increased survivorship of seal pups.27

Marine mammals in temperate and tropical regions are likely to experience climate change quite differently than polar marine mammal species. The primary concern associated with climate change in these regions is ocean acidification28 and coral bleaching,29 although the ultimate consequences of both are still being investigated.30 In addition to these alterations to the ocean environment, sea level rise and increased storm activity might reduce available habitat for marine mammal species that need to haul out of the ocean, and it might also increase mortality of young marine mammals.31

Other impacts of climate change are less latitude specific. For example, it is hypothesized that migratory marine mammals will have to alter the timing of migration patterns, which are “broad-scale annual migrations … between feeding and breeding areas [that have] evolved to maximize foraging, reproductive success, and off-spring survival.”32 Feeding is generally recognized as a concern because many marine mammal species rely on periods of excessive feeding followed by prolonged periods of minimal or no feeding.33 Long-term data assessing the polar bear populations of Western Hudson Bay and Baffin Island (both in Canada) indicate that both body size and body condition of polar bears in this region are gradually diminishing.34 A second general consequence of climate change is the impact of both disease and toxins because “[r]‌ates of pathogen development, disease transmission, and host susceptibility are all influenced by climate, with a greater incidence of disease anticipated with warming.”35 Finally, it is important to be cognizant of the indirect consequences of climate change. The major concern in this regard is the increased accessibility to the polar-regions as reduced seasonal ice cover and a general reduction in the integrity of multi-year ice enables increased commercial and recreational vessel traffic and new prospects for oil and gas development as well as commercial fishery operations.36 Such developments expose a whole host of threats, including by-catch, ship-strikes, environmental pollution, and negative consequences of ecotourism.37

Some scientists suggest that marine mammal species may be well positioned to respond to the consequences of climate change given that they are warm-blooded and generally exhibit complex behavior and decision-making capability;38 however, this does not change the reality that “available evidence suggests that many populations are highly vulnerable to the impacts of climate change.”39 It must also be acknowledged that our scientific understanding of many marine mammal species and their use of different habitat is still “at a fairly basic level,”40 and that science has only recently moved from the realm of theoretical discussion to actual (p.123) assessment and modeling of marine mammal redistribution in response to changing conditions. One such study from 2011 authored by Kristin Kaschner et al., titled Current and Future Patterns of Global Marine Mammal Biodiversity, assesses global hotspots of marine mammal biodiversity and concludes that there will be “some climate-change-driven range expansion or contraction,” further predicting that “over the course of the next 40 years, negative effects such as net range contractions may be modest for most species, while a number of species might benefit from substantial increases in optimal habitat.”41 This article warns that the models employed fail to predict beyond the end of the first half of the twenty-first century, and that the more dramatic or severe climate change consequences are predicted to occur in the latter half of this century.42

In sum, existing scientific literature clearly demonstrates that climate change is a live issue for marine mammal conservation, and that “[i]‌t is increasingly clear that future conservation and management regimes for marine mammals need to take climate change into account.”43 What then is the current international response and, more important, what is the appropriate response?

(ii) The Current Response

Global climate change is being addressed by law and policy in two main ways. The first response is characterized by international and domestic regulation seeking to reduce the severity of anthropogenic global climate change by mitigating greenhouse gas emissions. The international framework for reducing greenhouse gas emissions is embodied by the United Nations Framework Convention on Climate Change (UNFCCC).44 The UNFCCC is a framework convention that relies on implementing protocols, such as the Kyoto Protocol, to set emission reduction targets and create innovative mechanisms for achieving reductions. Having concluded the Kyoto Protocol’s first compliance period, UNFCCC parties agreed to extend the second compliance period to 2020 and in December, 2015, concluded negotiations on the Paris Agreement Under the United Nations Framework Convention on Climate Change at the 21st Conference of the Parties, which will open for signature in April, 2016 and bind the international community post-2020.45 International efforts to curb greenhouse gas emissions have had limited success, but it is not within the scope of this work to assess the shortcomings of this international response.46 Rather, this work is concerned with the second type of climate change response, namely adaptation.47 Here, the international community must grapple with the consequences of climate change as they occur, and international organizations must consider and account for them as legal and policy decisions are made.

The IWC has publicly acknowledged the impact of climate change on cetaceans for some time. Specifically, in 1993 the IWC requested that the Scientific Committee establish a “special workshop” on climate change and the consequences for cetaceans.48 This workshop occurred in 1996 and resulted in a report that acknowledged the difficulty of gathering reliable data about the consequences of climate change for cetaceans, but concluded that “the available evidence is sufficient to warrant some general concern for cetaceans.”49 The IWC Scientific Committee also created the Standing Working Group on Environmental Concerns (SWGEC) in 1997, which regularly considers climate change.50 Another workshop on climate change occurred in 2008, which resulted in a report detailing the current understanding (p.124) of how climate change is impacting cetaceans.51 It is not evident that the IWC can contribute much more to the climate change discussion at this point.

Professor Gillespie suggests that the only option available to the IWC to address climate change is to “urge its member governments to join international efforts to reduce greenhouse gas emissions,” and that “it is reflective of the unfortunate situation of the international community not adequately confronting the problem of climate change.”52 William Burns is similarly skeptical regarding the ability of the IWC to address climate change now that they acknowledge that it is happening. Specifically, he posits that the IWC likely lacks the resources necessary to conduct and report on climate change studies given the expense of both cetacean research (owing to the migratory and pelagic aspects of cetacean behavior) and climate change research (which utilizes predictive modeling).53 Further, Burns questions whether the IWC is in a position to meaningfully address the results of any studies it produces.54 Burns also questions whether the IWC can account for the consequences of climate change if the current moratorium on commercial whaling is lifted; specifically, he questions whether the proposed RMP, as the “mechanism for estimating the abundance of discrete species and sustainable catch limits,” accounts for climate change impacts as even the most depleted species that are not being hunted will be detrimentally impacted by climate change.55 In conclusion, Burns offers a perspective similar to that of Gillespie, suggesting that the IWC should focus on lobbying efforts, especially in relation to international treaty regimes operating in regions that are identified as being particularly susceptible to climate change.56 He concludes that if the IWC fails to act in the face of climate change, its “ultimate legacy may be that it saved whales from extinction by commercial harvesting but failed them in their time of greatest need.”57

Author Alison Reiser provides a slightly different perspective on how the consequences of climate change should be addressed by an international organization responsible for cetaceans. Specifically, she asserts that this novel problem “requires that we use our [ocean] governance institutions to reduce human-caused mortality from pollution, ship strikes, fishing-gear entanglement, and ocean noise, and the reduced health of individuals and populations that these conditions lead to.”58 In essence, this suggestion requires governance and regulatory bodies to incorporate international environmental law norms such as the precautionary principle59 and ecosystem-based management60 directly into their mandate.61 These principles must be implemented in a substantive manner by being incorporated directly into the obligation-forming sections of the convention. Reiser suggests that the appropriate example that demonstrates how this can be accomplished is the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), which was created in 1982 pursuant to the Convention on the Conservation of Antarctic Marine Living Resources62 in response to increasing commercial pressure in the Antarctic krill industry and which directly implemented these governing principles.63 Alternatively, the World Wildlife Fund suggests that the IWC can implement ecosystem-based management by focusing on “strengthen[ing] the resilience of species and ecosystems” by: (1) protecting “adequate and appropriate space,” (2) acting to “[l]‌imit all non-climate related stresses,” and (3) applying “[a]daptive management” (being the institutional flexibility and capability to respond to our changing understanding of climate change and its consequences).64 Implementing these principles may very well require a paradigm shift in the way in which the IWC (p.125) has historically operated, a shift that may be crucial for the long-term conservation and management of cetaceans and all marine mammals.

Existing literature makes a strong case that one of the most serious consequences of climate change is its interaction with other current threats, because the consequences of climate change are compounded by “bycatch, habitat degradation, overfishing of prey species and pollution.”65 With this interaction in mind, this discussion now turns to a description of these other threats.

2. By-Catch

(i) The Problem

The second threat to be considered is by-catch and incidental catch. Technically, by-catch encompasses two different situations. First, it refers to the unintended capture of species that are not the target of the fishing operation (which “are generally unwanted and discarded,” also referred to as “incidental catches”).66 Second, it refers to instances where the captured species is not the target of the fishery but the unintended catch has commercial value and is kept rather than discarded.67 Still, by-catch is commonly “used to describe any sort of unintended capture”68 and is employed in its broader sense in this discussion. Semantics aside, a study on marine mammal by-catch published in 2006 offered the following assessment about its consequences: “[a]‌s we look to the future, fisheries bycatch poses the single greatest threat to many populations of marine mammals in the United States and elsewhere.”69 More recent studies have confirmed the significance of the by-catch threat.70

Although by-catch was once regarded as a benefit for fishermen who were able to capitalize on catching species that had some value in addition to that of their targeted catch, the rapid development of fishing technology and practices over the last few decades has escalated by-catch to a “critical issue for some marine mammal populations.”71 Further, our understanding of by-catch continues to progress, as evidenced by emerging scientific literature that recognizes by-catch as a multifaceted and complex issue. For example, in addition to the mortality associated with marine mammals dying from being entangled in fishing gear or being kept by fishermen, there is also concern surrounding “depredation,” the situation whereby “marine mammals remove captured fish from nets or lines,” which reduces targeted catches and fosters animosity toward marine mammals.72 Although it is difficult to obtain accurate by-catch statistics because by-catch is not consistently reported, a study from 2006 utilized data from the United States in an attempt to extrapolate to a global by-catch estimate for marine mammals.73 This study concluded that the total global annual by-catch mortality for marine mammals is in the hundreds of thousands,74 and may be as high as 653,364 marine mammals (307,753 cetaceans and 345,611 pinnipeds).75 This study cites gill-net fishing as the leading cause of mortality.76

This discussion of the consequences of by-catch is not merely academic, as evidenced by the recent extinction of the baiji (Yangtze River dolphin).77 It is hypothesized that “the primary factor [resulting in the extinction of the baiji] was probably unsustainable by-catch in local fisheries,” which utilize electric fishing, gill nets and other indiscriminate fishing practices.78 Another marine mammal species seriously (p.126) threatened by by-catch is the vaquita (a porpoise species inhabiting a portion of the Gulf of California).79 Estimates suggest that fewer than 600 individuals remain and that annual mortality from gill-net by-catch may be as high as 40–80 individuals, with local efforts to reduce by-catch proving ineffective.80 If by-catch mortality continues at this rate, the vaquita may well become the next marine mammal species to go extinct. Another pertinent example is net entanglement, which is one of the two main causes of North Atlantic right whale mortality and has played a considerable role in preventing the recovery of this species since the end of its commercial take.81

The other pertinent example is the curious interaction between dolphin and tuna that has been capitalized upon by fishermen. As described previously in Chapter 2, fishermen in the eastern tropical Pacific Ocean recognized that tuna schools follow dolphin schools and “that they could catch large tuna by herding dolphin schools with speedboats and then surrounding them with long, deep, purse seine nets,” which were then closed at the top, catching both dolphin and tuna.82 This fishing technique continued through the 1960s uncontested, with dolphin mortality estimated between 200,000 and 500,000 individuals.83 This issue prompted considerable public concern, and the introduction of domestically labeled “dolphin safe”84 tuna products and a fishing practice called the “backdown procedure” that allows a dolphin to escape once encircled by the seine net by submerging a portion of it.85 Still, this “dolphin safe” response has been the subject of dispute between Mexico and the United States since 1991, and has been challenged twice through the General Agreement on Tariffs and Trade and most recently through the World Trade Organization.86 Putting aside the issue of domestic labeling and trade restrictions, how is the by-catch problem being addressed at the international level of governance in relation to marine mammals?

(ii) The Current Response

By-catch has been considered by the IWC since 2002; indeed, by-catch is one of the issues investigated on a regular basis by the Working Group on Estimation of Bycatch and Other Human-induced Mortality.87 This group considers available evidence pertaining to ship-strike data and whale entanglement, among other concerns.88 The reason for such considerations is that the IWC’s RMP, as mentioned in the above discussion of climate change, indicates that if commercial whaling is to start again, “recommended catch limits must take into account estimates of mortality due to inter alia bycatch, ship strikes and other human factors… .”89 In addition to being an incomplete response to the by-catch problem as it relates to marine mammals generally (recall that the IWC only applies to certain large whale species), the IWC notes that this is not a complete response to by-catch even as it relates to species covered by the ICRW, as “such mortality can be of conservation and management importance to populations of large whales other than those to which the RMP might be applied.”90 If we consider the examples of the baiji and vaquita, it is apparent that by-catch will most profoundly impact species that are already depleted, and with respect to the IWC, it is those species that would not likely be hunted even if the RMP enters into force if the commercial moratorium is lifted. In terms of a response coordinated by the IWC, the Scientific Committee supports the establishment of a group that helps enable local responses to entanglement concerns and a database that centralizes entanglement data from around the world.91

(p.127) Scientists echo the need for improved by-catch data.92 They also point to the concern that marine mammal interaction with fishing gear is not a well understood phenomenon, and that the studies necessary to fully understand this interaction will take some time to complete.93 In addition to a need for more complete data, they also point to a need to reduce by-catch in gill-net fisheries, noting that “[a]‌n ideal mitigation measure would reduce the effort or cost of dealing with bycatches, or increase the catch of target species, and thus improve the livelihood of a fisherman.”94 Just as the backdown procedure has proved useful in reducing dolphin by-catch, an option is to focus on technological advances that reduce marine mammal interaction with fishing gear. One such invention is the use of “pingers” that are attached to nets and emit “an intermittent, short, high-pitched noise that most fish cannot hear but that appears to repel or warn off marine mammals,” which can reduce harbor porpoise and sea lion by-catch by up to 90 percent.95 New Zealand, France, and the United Kingdom are also experimenting with “marine mammal escape devices” that route marine mammals through an escape hatch but do not otherwise impact fish catches.96 Other ideas include international technology transfers to help implement mitigation techniques in developing countries, utilizing the United Nations Food and Agriculture Organization to test and evaluate mitigation measures, and perhaps even the creation of a “global marine mammal bycatch fund” to support innovation and enhanced mitigation.97

Some successful action has occurred at the regional level of governance through the Inter-American Tropical Tuna Commission (IATTC).98 The IATTC, which is a Regional Fisheries Management Organization (RFMO), has a multilateral sister agreement titled the Agreement on the International Dolphin Conservation Program (AIDCP), which established an International Dolphin Conservation Program (IDCP) and exists as a functional international mechanism that seeks to “progressively reduce incidental dolphin mortalities in the tuna purse-seine fishery in the Agreement Area to levels approaching zero, through the setting of annual limits.”99 The AIDCP sets a maximum annual limit of dolphin mortality at 5,000,100 and works to achieve its ultimate objective through a variety of mechanisms, including: (1) on-board observers (Article XIII), (2) compliance mechanisms (Article XVI), and the use of an International Review Panel (Article XII), which addresses dolphin-mortality certificate distribution and gear recommendations. There are a variety of other techniques utilized pursuant to the AIDCP that will be discussed in greater detail by way of a regionalism case study in Chapter 7.

All told, there is considerable work that has to be completed before we fully understand the by-catch problem. Similarly, there is definitely room for an improved response to this threat. What is certain is that the by-catch dilemma demonstrates the complexity of addressing current threats to marine mammals, an observation that is also apparent when considering the problem of other negative interactions between marine mammals and human uses of the ocean.

3. Ship-Strikes

(i) The Problem

The importance of ocean transport for the movement of goods and people cannot be understated. As noted by authors James Corbett and James Winebrake, (p.128) “[w]‌ith respect to maritime shipping, the international movement of goods relies on a global freight transportation system that includes trans-oceanic, coastal, and inland waterway routes.”101 These authors characterize ocean transportation as a “cornerstone” of globalization.102 In terms of capacity, as of the end of 2011, “today’s world fleet of propelled sea-going merchant ships of no less than 100 GT [gross tonnage] comprises 104,304 ships of 1,043,081,509 million GT with an average age of 22 years; they are registered in over 150 nations and manned by 1.5 million seafarers of virtually every nationality. The world’s cargo carrying fleet as of 2011 is 55,138 ships of 991,173,697 GT and 1,483,121,493 dwt [deadweight tonnage] and the average age is 19 years.”103 In addition to the movement of goods, the cruise ship industry is “the fastest growing travel sector in the world,”104 with the Cruise Lines International Association (CLIA) indicating that annual average passenger growth has increased since 1980 at a rate of 7.5 percent per annum105 with 25 new ships scheduled for introduction between 2012 and 2015.106 In addition to the traditional pollution concerns associated with seafaring traffic, negative vessel-marine mammal interaction represents an emerging threat.

The impact of vessel collisions with marine mammals is difficult to accurately quantify because such collisions often go unreported, and scientists examining deceased marine mammals often have to speculate about a cause of death.107 Still, the incidence of negative marine mammal-vessel interactions has increased in recent decades because of increasing vessel mass and vessel speed.108 Although ship-strikes are a potential issue for all marine mammal species, this phenomenon has been best documented for the North Atlantic right whale and the Florida manatee. For example, it is hypothesized that North Atlantic right whale populations that were initially depleted by over-exploitation have failed to recover because of vessel strikes and fishing gear entanglement.109 This critically endangered species might be particularly at risk of vessel strikes due to distinct foraging habits in certain waters that see individuals spend more time on the surface.110 Similarly, the slow-moving manatee that spends considerable time in shallow waters and near the surface is particularly vulnerable to vessel collisions, and an estimated 90 percent of human-related mortality in Florida’s waters is the result of vessel strikes.111 Ship-strikes are now being recognized as a problem for other large and small cetacean species,112 and are becoming of particular concern in the Arctic where vessel traffic is increasing (for both commercial and recreational purposes).113

In addition to enhancing ship-strike reporting, current scientific literature considers marine mammal migratory patterns and habitat use to suggest that what is required to effectively reduce marine mammal mortality is the development of vessel operating guidelines that establish speed restrictions and route alterations.114 Scientists also consider as a mitigation strategy the use of sonic alarms to warn marine mammals of approaching vessels.115 With this description of the problem and understanding of current science in mind, it is necessary to consider the current response.

(ii) The Current Response

The scientific observations highlighted above have not gone unnoticed by law and policymakers and academics. For example, Jeremy Firestone asserts that the “successful management of vessel strikes depends on the ability to understand the risk (p.129) of an interaction between a vessel and a whale at a given point and time as well as the effects of that interaction.”116

Existing management efforts at the domestic level targeting the ship-strike problem have utilized vessel speed and route restrictions, and have also recognized the important role that the International Maritime Organization (IMO) plays in addressing this issue. For example, because of its endangered status, the manatee is protected in the United States by both the Endangered Species Act117 and the Marine Mammal Protection Act.118 The U.S. Fish & Wildlife Service has assisted the State of Florida in creating manatee refuges and sanctuaries, and Florida has produced speed-zone boating restrictions for 13 counties critical for the manatee.119 Working to educate about these restrictions and to enforce them remains an ongoing effort.120 The manatee is not the only marine mammal that the United States has endeavored to protect from ship-strikes.

The North Atlantic right whale is also particularly vulnerable to ship-strikes, and similar mechanisms have been utilized for its protection. The National Marine Fisheries Service (NMFS) has produced, and revised, a Recovery Plan for the North Atlantic Right Whale (Eubalaena glacialis)121 that seeks to respond to the current threats facing this species. NMFS has taken a variety of regulatory and non-regulatory steps to attempt to reduce ship-strikes. Although this discussion is focused primarily on the regulatory efforts, it is worth noting that NMFS has promoted education and outreach, produced ship speed advisories, recommended shipping routes, produced aerial surveys and reports on right whale movement, and promoted voluntary vessel speed reduction in certain designated management areas.122 With respect to the regulatory response, NMFS promulgated the Right Whale Ship Strike Reduction Rule123 requiring “[a]‌ll vessels greater than or equal to 65 ft (19.8 m) in overall length and subject to the jurisdiction of the United States and all vessels greater than or equal to 65 ft in overall length entering or departing a port or place subject to the jurisdiction of the United States”124 to slow to 10 nautical miles per hour or less in designated Seasonal Management Areas (which cover feeding areas in the Northeast, migratory and calving grounds in the Mid-Atlantic, and calving and nursery grounds in the Southeast).125 NOAA and the U.S. Coast Guard have implemented a Mandatory Ship Reporting System, endorsed by the IMO, that requires ships greater than 300 gross tons to report their presence in designated right whale habitat to a land-station, and in response they are informed about recent right whale sightings and precautionary measures they can employ.126 Finally, NOAA has promulgated a rule that prohibits vessels from approaching within 500 yards of right whales,127 and the State of Massachusetts has enacted a similar rule.128 The United States’ proposal to amend traffic and separation schemes to IMO to address similar concerns along America’s West Coast has been approved.129

The IMO has helped to develop appropriate shipping routes and lanes to assist in the protection of the North Atlantic right whale, demonstrating how ship-strikes can effectively be addressed by the international community. The IMO, as the “United Nations specialized agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships,”130 is responsible for establishing international ship routes pursuant to Chapter V of the International Convention for the Safety of Life at Sea.131 For example, the IMO adopted the Bay of Fundy Traffic Separation Scheme (“Scheme”) in 1982, which was implemented by (p.130) Transport Canada in 1983.132 This Scheme was designed to help facilitate the movement of vessel traffic through a region used heavily for fishing, but failed to account for the feeding activities of North Atlantic right whales that occurred in the same area, resulting in a number of whale casualties.133 Subsequently, stakeholder collaboration was initiated and “the collaborative effort between government agencies, the shipping and fishing industries, and the scientific community was rewarded by the adoption by the International Maritime Organization (IMO) of the amended traffic separation scheme.”134 This amended scheme has greatly reduced instances of whales being spotted within the designated shipping lanes, thereby averting possible negative vessel-whale interactions, and clearly demonstrates the role that the IMO can play in marine mammal conservation.135

A review of the effectiveness of IMO efforts to reduce large whale strikes published in 2012 indicates that three nations (Canada, Spain, and the United States) have approached the IMO a collective 10 times with submissions to reduce whale strikes.136 This study concluded that well-constructed and documented national proposals submitted to the IMO were likely to be approved, and that nations should consider the domestic actions (i.e., regulatory requirements, monitoring, and enforcement) needed to create an effective traffic separation scheme.137 Further, this assessment suggests that properly implemented schemes are generally successful at reducing whale strikes and that “[t]‌he relative success of IMO-adopted navigational measures speak to the influence and international reach of the IMO, and make it a powerful forum for coastal States to implement whale conservation measures and for addressing a range of marine environmental issues, especially where shipping has been identified as a threat to the ocean environment.”138 By way of update, since this review was completed, Panama139 has presented a submission to the IMO (with the assistance of the IWC) to institute traffic separation schemes in the heavily used Panama Canal to effect whale conservation,140 and the United States submitted a proposal to revise the Santa Barbara Channel traffic separation scheme to reduce whale collisions.141

As indicated above, the IWC has also taken an interest in ship-strikes as they impact cetaceans. Specifically, both the Scientific Committee and the Conservation Committee have been tasked with addressing the ship-strike concern.142 Ship-strikes are relevant to the Scientific Committee because the RMP is to account for other mortality sources when assessing catch limits.143 The IWC proffers that the Conservation Committee affords member states the opportunity to report on their national efforts to reduce ship-strikes and to coordinate support for national initiatives, such as the proposed Panama Canal traffic separation scheme.144 These recent advances suggest that both the IMO and other international organizations dedicated to marine mammal conservation have an important role to play in assessing ship-strike mortality and facilitating an effective response, both nationally and internationally. This discussion will now turn to what is likely the most diffuse and difficult current threat to address—environmental pollution.

4. Environmental Pollution

(i) The Problem

Our understanding of environmental pollution is continually expanding. For example, even the very definition of pollution continues to evolve. A working definition of pollution is “the release of a potentially harmful chemical, physical, or biological (p.131) agent to the environment as a result of human activity.”145 Article 1(4) of UNCLOS offers further guidance and defines “pollution of the marine environment” as “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality of sea water and reduction of amenities.”146 A recent study that reviews the marine mammal listing on the IUCN Red List and compares the listing to the various threats facing marine mammals concludes that pollution represents the “most pervasive” threat.147 The following summary of the impact of pollution on marine mammal species reflects our changing understanding of pollution and encompasses both traditional pollutants and emerging areas of concern, such as underwater noise pollution.

(a) Traditional Pollution Problems

The pollutants of primary concern are persistent organic pollutants (POPs). According to the United States Environmental Protection Agency, POPs are “toxic chemicals that adversely affect human health and the environment around the world.”148 POPs are robust pollutants, meaning they do not rapidly decay, and their impacts are not localized at their point of production because they can be transported considerable distances through atmospheric air and/or water.149 The international community has identified 12 POPs, appropriately referred to as the “Dirty Dozen,” as being notoriously harmful.150 These chemicals traditionally enter the environment through their agricultural and industrial applications, or as a byproduct of industrial combustion.151

Marine mammals generally occupy top trophic positions in ocean food webs and have life-history characteristics that render them particularly susceptible to contamination by environmental pollutants.152 As noted by G.J. Pierce et al., “[l]‌ong-lived apex predators are particularly at risk … due to bio-accumulation (increasing concentration with age in individuals) and biomagnifications (higher levels higher up the food chain, especially when moving from gill-breathing animals like fish and cephalopods to air-breathing animals like marine mammals).”153 Mammals are also particularly susceptible because pollutants accumulate in fatty tissue, such as blubber,154 and are passed through mother’s milk (“lactational transfer”),155 meaning toxins magnify in concentration from one generation to the next.156 This food web analysis also has implications for human health, as those around the world who rely on marine mammals as a staple protein source may be exposed to unhealthy contaminate levels.157 A striking example, and one that is still being investigated, is the so-called “stinky whale” phenomena.158 Since 2007, Indigenous hunters off of Siberia have reported catching gray whales “that smell so foul even the dogs won’t eat them,” and that sicken anyone who eats them.159 This phenomenon is not limited to gray whales as reports of foul smelling walruses, bearded seals, and ringed seals have also been made.160 The cause has yet to be positively identified.

The consequences of marine mammal exposure to POPs are well documented, and include: (1) a reduction in the effectiveness of immune system functionality,161 (2) increases in the instances of infection,162 (3) reproductive failure,163 and (4) liver, intestinal, and endocrine problems.164 Taken together, these effects have the potential to negatively impact the overall health of marine mammal populations.165

(p.132) Although POPs seemingly receive the most attention in existing literature, it is important to note that other types and sources of traditional pollution also pose a risk to marine mammals. Other pollutants of note include: (1) heavy metals,166 (2) plastics,167 (3) industrial runoff and sewage waste from coastal development,168 (4) oil spills and vessel leaks,169 and (5) harmful algal blooms.170 In addition to these traditional forms of pollution, the scientific community is increasingly demonstrating concern about the consequences of increased acoustic pollution in the marine environment.

(b) Emerging Concerns

In March 2012, at the 16th meeting of the parties of the Convention on Biological Diversity, the Subsidiary Body on Scientific, Technical and Technological Advice released a document titled Scientific Synthesis on the Impacts of Underwater Noise on Marine Biodiversity and Habitats. 171 This document summarizes our current understanding of the impact that anthropogenic noise has on ocean ecosystems, finding that: (1) “[a]‌nthropogenic noise in the marine environment has increased markedly over the last 100 or so years as the human use of the oceans has grown and diversified,”172 and (2) that “[e]ffective management of anthropogenic noise in the marine environment should be regarded as a high priority for action at the national and regional level.”173 The major sources of anthropogenic underwater noise are: (1) sea traffic vessel noise, (2) marine dredging activities, (3) oil and gas recovery, (4) seismic exploration and marine surveys, and (5) naval sonar (in particular “active sonar systems” such as “Low-Frequency Active (LFA) Sonar”).174 Further, these sources add to an already noisy underwater environment where undersea volcanoes, earthquakes, and surface lightning strikes create noise.175

Water is an excellent conductor of sound,176 and marine mammals rely on sound for every major aspect of their lives, including “navigation, prey location and capture, predator avoidance, and communication (including during migration and reproduction).”177 The first study hypothesizing the linkage between anthropogenic noise pollution and an impact on marine mammal populations was published in 1971.178 Since then, the scientific community has confirmed both the important role of sound for marine mammals and that anthropogenic disruption can have significant consequences. For example, a review of the impact of anthropogenic noise pollution on marine mammals, published in 2007, categorizes impacts as either: (1) fatal, or (2) chronic.179 The most acute form of direct mortality is cetacean-stranding events whereby whales beach themselves and die, whereas chronic impacts include “[i]‌ncreased stress levels, abandonment of important habitat, and ‘masking’ or the obscuring or interference of natural sounds.”180 Other authors describe the same impacts but categorize the consequences as behavioral or physical.181 Regardless of how these impacts are categorized, it is apparent that they represent a conservation concern that needs to be addressed.

(ii) The Current Response

In 2002, author Alexander Gillespie opined, regarding cetacean conservation, that environmental threats are “ … different threats, less visible, but just as deadly as the traditional forms of whaling that have commonly lead to their over-exploitation.”182 Consideration of the international response to these concerns needs to be both general and specific. Broad general obligations will be considered first.

(p.133) UNCLOS sets forth a number of obligations relevant to this discussion.183 Specifically, Article 192 provides that “States have the obligation to protect and preserve the marine environment,” while Article 193 confirms that the sovereign right to develop natural resources is to be conducted “in accordance with their duty to protect and preserve the marine environment.”184 Article 194 is also of import, and reads as follows:

  1. 1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.

  2. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

  3. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent:

    1. (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;

    2. (b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

    3. (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

    4. (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

  4. 4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

  5. 5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.

(p.134) Other relevant obligations detailed in UNCLOS include: (1) Article 207 (“Pollution from land-based sources”), which provides that states shall address this issue at the national level, and “harmonize” responses at the appropriate regional level; (2) Article 208 (“Pollution from seabed activities subject to national jurisdiction”), which provides that states shall address the pollution associated with the use of the seabed within national jurisdiction, and “harmonize” responses at the appropriate regional level; (3) Article 209 (“Pollution from activities in the Area”), which provides that pollution created from the use of the seabed in areas beyond national control shall be regulated by international rules and regulations; (4) Article 210 (“Pollution by dumping”), which requires states to regulate national dumping and cooperate toward creating international regulation; (5) Article 211 (“Pollution from vessels”), which provides that states shall address vessel pollution through appropriate international organizations; and (6) Article 212 (“Pollution from or through the atmosphere”), which provides that states will take action to address atmosphere-based pollution.

Taken together, these Articles seem to address many of the concerns identified previously, and Gillespie notes that these general obligations have been used to form regional agreements to address pollution185 in conjunction with the UNEP Regional Seas Programme.186 Beyond the general obligations contemplated in UNCLOS, it is also necessary to consider the response from the IWC and specific international regimes.

The IWC has been aware of the risk to cetaceans posed by environmental threats since the Scientific Committee noted as much in 1973.187 The IWC subsequently created Appendix 10 (the Resolution on Preservation of the Habitat of Whales and the Marine Environment) in 1981, which indicated that “responsible member governments of the IWC should take every possible measure to ensure that degradation of the marine environment …” that harms cetaceans, or those consuming cetaceans, is avoided.188 The IWC continued to work on this issue through the 1980s and 1990s,189 and then in 1998 the IWC formalized “Environmental Concerns” as a regular agenda item that the Scientific Committee addressed in a Working Group and reported on annually:

… the Scientific Committee would report annually on its progress in non-lethal research on environmental concerns, and Contracting Governments could report annually on national and regional efforts to monitor and address the impacts of environmental change on cetaceans and other marine animals.190

The Scientific Committee, in furtherance of this goal and in accordance with Resolution 2000-7,191 promulgates State of the Cetacean Environment Reports (SOCERs).192 SOCERs are produced annually for a predetermined region (i.e., Indian Ocean, Arctic Ocean, Black Sea and Mediterranean, etc.) as a “non-technical periodic summary of the positive and negative events, developments and conditions in the marine environment that are relevant to cetaceans.”193 These regional reports are combined every four to six years to create a global SOCER.194 Despite the general obligations found in UNCLOS and IWC’s initiatives, the following observation by Gillespie, made in 2002, holds true today:

[d]‌espite these general international and regional approaches, the protection of the ocean in an international sense cannot be found in any single codified (p.135) document which addresses all problems. Rather, the protection of the marine environment, and the species therein, from pollution is found in a number of diverse areas and particular threats, which together, appear to represent an overall umbrella; however, this umbrella has many holes in it.195

There are various explanations for why no single, comprehensive, international response to marine pollution exists. First, our understanding of pollution is a dynamic issue that is evolving over time. Second, unless pollution impacts human use of the marine environment (e.g., marine animals become too toxic to consume or too scarce to observe) pollution is an externality that does not justify regulatory intervention. Third, restricting pollution impacts many important industrial pursuits (e.g., oil and gas development), recreational pursuits (e.g., cruise lines), and critical national interests (e.g., security). Fourth, the international community has responded on an ad hoc basis to many of the critical threats. The remainder of this section will briefly highlight the existing issue-specific international efforts relevant to marine mammal management.

The first international response of note is the Stockholm Convention on Persistent Organic Pollutants (“Stockholm Convention”).196 The Stockholm Convention was adopted on May 22, 2001, and opened for signature on May 23 of the same year;197 it is administered by the UNEP.198 The Stockholm Convention came into force on May 17, 2004, 19 days after the fiftieth state ratification was deposited (in accordance with Article 26(1)).199 There are currently 152 signatories to the Stockholm Convention and 146 states parties.200 The Stockholm Convention represents the international response to persistent organic pollutants, as described previously. This regime initially applied to the “dirty dozen” POPs, but has since been expanded through agreement at Conferences of the Parties to cover 22 chemicals.201 The Stockholm Convention addresses POPs and other listed chemicals in a number of ways, including: (1) phasing out production, (2) restricting import and/or export of certain products, (3) banning or limiting use of certain products, and (4) requiring the production of national implementation plans.202 This regime is coordinated with two other UNEP-implemented treaties, namely the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.203 This regime has proved fairly effective204 and represents one of many international responses to pollution.

The second international regime of note addresses the voluntary disposal of waste at sea, which is otherwise known as dumping. The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (the “London Convention”) addressed this issue by seeking regulatory control of dumping.205 Dumping represents one mechanism through which radioactive waste and heavy metals that impact marine mammals enter the marine environment.206 The IMO, which implements this regime, indicates that because of it:

The unregulated dumping and incineration activities that developed in the late 1960s and early 1970s have been halted. Parties to the Convention agreed to control dumping by implementing regulatory programmes to assess the need for, and the potential impact of, dumping. They eliminated dumping of certain (p.136) types of waste and, gradually, made this regime more restrictive by promoting sound waste management and pollution prevention. Prohibitions are in force for dumping of industrial and radioactive wastes, as well as for incineration at sea of industrial waste and sewage sludge.207

The London Convention, regarded as being quite successful at regulating dumping,208 currently has 87 states parties,209 and is recognized as customary international law.210 The efficacy of this regime was boosted in 2006 when the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (“London Convention Protocol”) came into force.211 The London Convention Protocol emphasizes both the precautionary principle and the polluter-pays principle, and strengthens the regime by restricting all dumping, save permitted dumping of those substances listed in Annex I of the Agreement.212 This regime is also regarded as being generally successful,213 but improvements are needed in the areas of technical cooperation, scientific evaluation, and improved compliance.214

The IMO is also responsible for implementation of the International Convention for the Prevention of Pollution from Ships (MARPOL),215 which is the “main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes.”216 MARPOL and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (which responded to oil tanker spills) entered into force on October 2, 1983, and amended the previous agreement.217 The MARPOL regime currently has a number of annexes that detail regulatory control, including: (1) Annex I (“Regulations for the Prevention of Pollution by Oil”), which addresses oil from operational vessel sources and accidental sources; (2) Annex II (“Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk”), which controls pollution associated with the mass transport of hazardous liquids; (3) Annex III (“Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form”), which standardizes packing and documentation for transporting hazardous goods; (4) Annex IV (“Prevention of Pollution by Sewage from Ships”), which limits sewage discharge in accordance with sewage treatment specifications and prescribed distances from land; (5) Annex V (“Prevention of Pollution by Garbage from Ships”), which limits garbage discharge and bans the addition of plastics to the ocean; and (6) Annex VI (“Prevention of Air Pollution from Ships”), which limits the emission of nitrogen oxide, sulfur oxide, particulate matter, and ozone- depleting substances from ship exhaust.218 The MARPOL regime is also regarded as having been quite successful at achieving its goals.219

The final source of regulation that will be considered in this section is the prevailing approach to the regulation of noise pollution. Unlike the other regulatory approaches to pollution discussed above, there is “no multilateral convention on undersea noise which seeks to operationalize the obligations incurred under UNCLOS 1982.”220 Noise pollution has proved difficult to regulate internationally as it is different than other sources of pollution (i.e., “[u]‌nlike most other forms of pollution, noise does not damage the marine environment per se. Rather, its harm lies in the injury caused to marine life, particularly marine mammals, and the consequent damage caused to a marine ecosystem through the loss or displacement of a species”221). Further, noise pollution comes from a variety of sources (i.e., oil and (p.137) gas, military, shipping, and recreational),222 and its regulation is likely to engage issues of national security.223 Still, the paucity of international regulation should not be construed as a lack of concern or absence of emerging efforts to regulate.

In 2007, author Karen Scott emphasized the emerging regional response to undersea noise regulation in Sound and Cetaceans: A Regional Response to Regulating Acoustic Marine Pollution.224 Scott asserts that the noise pollution associated with offshore oil and gas, whale watching/tourism, coastal development, and renewable energy development are all well-suited for regional regulation, like any other pollution source, but that the issue of pollution associated with vessel construction standards must be addressed by the IMO.225 Noise pollution can also be managed at the regional level through enhanced “general regulation of activities within the maritime environment,” through the “designation of specially protected areas,” and by affording “special protection of endemic vulnerable species.”226 The recent synthesis on undersea noise pollution commissioned by the Secretariat of the Convention on Biological Diversity also recognizes the work that has been completed at the regional level of governance and emphasizes the need for further national and regional regulation as well as mitigation efforts,227 whereas an investigation into a mass stranding event of melon-headed whales in Madagascar facilitated by the IWC demonstrates the sort of collaborative effort required to understand and address this threat.228

It is clear that both the impacts of pollution on marine mammals and existing management approaches to pollution are varied and complex. As Gillespie asserts regarding the IWC’s insufficient response to environmental issues, “[t]‌here is little more that the IWC can do in solving these problems, as the solutions which are intimately connected to a clean and healthy ocean can only be resolved in other international, regional and national forums which directly address the specific threats.”229 The proposal I advance in Chapters 6 and 7 supports this assertion and presents an option that institutionalizes the role that the competent international organization responsible for the conservation of marine mammals could occupy.

5. Ecotourism (Marine Mammal Tourism)

(i) The Problem

Marine mammal watching—what I refer to more broadly as marine mammal tourism—is defined in the UNEP Report of the Regional Workshop on Marine Mammal Watching in the Wider Caribbean Region as “tours by boat, air or from land, with some commercial aspect, to see and/or listen to [marine mammals].”230 The dominant form of marine mammal tourism is whale watching/tourism, which has been credited with “the building of a constituency out of the general public that is interested in and sympathetic to marine mammals, the sea, and marine conservation.”231 It is important to keep in mind that, generally speaking, all marine mammal species are of interest to humans, who will pay to view them. For example, within the United States there are commercial operations that facilitate viewing of polar bears, whales, dolphins, porpoises, seals, sea lions, walruses, sea otters, and manatees; however, existing research predominately addresses whale watching/tourism, as this is the most developed marine mammal tourism industry.232 The following assessment focuses on whale watching/tourism, with reference to other forms of marine mammal watching as applicable.

(p.138) Whale watching, the organized “human activity of encountering cetaceans in their natural habitat,” can be traced back to the 1940s and gray whale observation at the Scripps Institution of Oceanography.233 Whale watching gradually developed into a commercial endeavor and also a vehicle for scientific observation and research.234 An assessment of the global economics of whale watching published in 2009 (completed by Economists at Large as commissioned by the International Fund for Animal Welfare) indicates that in the 2008 calendar year, 13 million people from 119 countries went whale watching, producing US$2.1 billion in expenditures.235 Further, this report suggests that over 13,200 individuals are employed worldwide by the 3,300 whale watching operators that offer commercial services.236 Finally, whale watching is increasing at a rate of approximately 3.7 percent annually, with the highest instances of growth occurring in Asia, Europe, Central America, South America, Pacific Island nations, and the Caribbean.237 Interestingly, whale watching/tourism has even emerged as an important economic activity in nations that continue to pursue commercial whaling, such as Japan and Norway.238

Recent studies assert that whale watching (and all marine mammal tourism by implication) has yet to reach its full potential. For example, a 2010 estimate indicates that an additional US$413 million, and 5,700 jobs, could be generated by starting whale watching operations in coastal countries where whale watching is not currently occurring.239 Moreover, this study found that “[t]‌he number of total tourist arrivals, as well as the number of marine mammal species and their relative abundance within a country’s EEZ were significantly … and positively correlated with the number of whale watchers,”240 and that approximately 20 percent of total economic benefit associated with whale watching is generated in the developing world.241 Marine mammal tourism also has the potential to educate participants on different conservation and management concerns; however, maximizing educational benefits requires a level of structure and organization that is not always present.242

It should come as no surprise that marine mammal tourism is not completely benign with respect to its potential impacts on targeted species. For example, author Erich Hoyt suggests that whale watching results in behavioral changes as whales respond to attention from boats by diving longer and/or actively avoiding certain areas, which in turn can disrupt reproduction, shift natural distribution patterns, and potentially even reduce survival rates.243 A recent study assessing the impact of marine mammal tourism on the Indo-Pacific bottlenose dolphin in Port Stephens, New South Wales, Australia, provides evidence corroborating Hoyt’s hypothesis as it concludes that “in the presence of dolphin-watching boats dolphins spent less time on critical activities, such as feeding, resting, and socialising.”244 A second potential problem is the interaction between whaling and whale watching. For example, Hoyt proffers that whaling potentially reduces the number of whales available for whale watching, negatively alters whale behavior, reduces the ability for whale watching to promote conservation, and impacts the broader tourism industry.245 With this background in mind it is now appropriate to turn to a description of the prevailing marine mammal tourism management framework.

(ii) The Current Response

The current management response to marine mammal tourism, in the context of whales, is plagued with inconsistency and enforcement issues.246 Hoyt suggests that there are “too many boats on the water in a limited area, too many close approaches (p.139) and sometimes collisions with cetaceans, strain on the infrastructure of local communities from too many visitors, and a lack of guidelines and regulations and/or enforcement of them.”247 This statement should not be taken to mean that there is a dearth of guidance or whale watching standards. Author Carole Carlson maintains an “ongoing compendium of whalewatch guidelines and regulations [from] around the world.”248 This analysis represents a summary of “22 regulations, 15 codes of conduct, 9 guidelines for operators and 4 decrees,” and recognizes that “19 non-governmental and one inter-governmental organization(s) have developed guidelines.”249 Still, this assessment does not purport to represent a statement of best practice, and it also does not discuss which guides have utilized scientific considerations in their creation or implementation.250 As it can logically be assumed that most marine mammal tourism occurs within nation’s EEZs (and indeed, likely within territorial seas), guidelines and practices will inevitably vary based on national capacity and priority. Nonetheless, there are a number of ways in which international organizations and treaty regimes can contribute to improved whale tourism practices, as the remainder of this section illustrates.

It is particularly relevant to highlight the contribution that the IWC has made to the regulation of whale watching. Since 1996, the IWC has taken it upon itself to monitor and advise on global whale watching/tourism.251 Academic commentary is alive to the fact that there is a degree of tension associated with the coexistence of commercial whaling regulation and whale watching,252 but also acknowledges that a pro-whaling position and use of whale watching do not necessarily have to be mutually exclusive.253 Regardless of this unresolved tension, the IWC has taken the following action:

  1. (1) Produced IWC whale watching guidelines,254 which are structured around three main principles: (a) to manage the development of whale watching to minimize adverse impacts, (b) to design and implement whale watching delivery systems that minimize adverse impacts, and (c) to enable cetaceans to control the whale watching experience (i.e., duration and proximity).255

  2. (2) Compiled and published existing regulations from around the world, which presents guidelines, regulations, and best practice standards from national jurisdictions around the world, including the standards recommended by ACCOBAMS.256

  3. (3) Prepared a Five Year Strategic Plan for Whalewatching: 2011–2016, which also has the goal of sustainable whale watching and indicates various objectives and mechanisms that can be used to help promote coordination between the IWC and the local implementation of whale watching.257

  4. (4) Is working to create a “Handbook for Whale Watching” to serve as a “web-based living and evolving tool. It will support whalewatching operators, national and regional regulators, and others involved in the sector.”258

As this summary of IWC whale watching initiatives demonstrates, optimal whale watching/tourism can also be assessed through the sustainability lens. This sustainability goal has been addressed in the literature, and a succinct articulation (p.140) has been provided by Emily Lambert et al. in a paper titled Sustainable Whale-Watching Tourism and Climate Change: Towards a Framework of Resilience, which notes the following two components of sustainable whale watching: (1) “reducing and managing negative interactions between whale-watching boats, cetaceans and their natural habitat,” and (2) “achieving economic stability.”259 Although the IWC has taken the critical first steps toward promoting and advancing sustainable development, there is still work to be done. Moving forward, there is hope that some of the reforms I suggest below might actually be possible given that the Latin American and Caribbean State contingent at the IWC (the so-called “Buenos Aires Group”) has prioritized whale watching in exercising their voting power.260

First, the IWC’s guiding principles for whale watching could be much more detailed and explanatory, and a new international organization that covers all marine mammal species could promote guidelines with greater species coverage. These standards should also be accompanied by an educational component assisting implementation. Second, and more important, the international community could work to promote ecotourism and the conservation benefits of properly designed whale watching and marine mammal tourism generally. For example, A.M. Cisneros-Montemayor et al. posit that “[i]‌nsufficient guidance on adequate implementation, as well as a lack of foresight as to the potential benefits from it, seem to be the main reasons for these [developing coastal] countries not entering the whale watching market.”261 With this in mind, it is interesting to consider whether emerging principles such as common but differentiated responsibility, technology transfer, or foreign investment could play a role in enhancing the future of marine mammal tourism, and whether developed nations interested in promoting whale watching/tourism could assist via formalized knowledge and/or technology transfers to help developing nations establish the infrastructure required for viable marine mammal tourism.262

II. Features of a New Response

In light of this assessment, it is necessary to consider how current threats to marine mammals can be addressed in a new multilateral treaty for the conservation of marine mammals that establishes an International Marine Mammal Commission.

First, it is apparent that the focus of any multilateral treaty negotiated to effectuate marine mammal conservation and sustainable management, and the commission created pursuant to this treaty that is mandated with the responsibility of implementing the treaty, must expressly incorporate the precautionary principle, ecosystem-based management, and sustainability as guiding principles. Second, it is evident that this regime must complement rather than replace or disrupt the existing international and regional initiatives that are entrenched, functional, and successful at addressing current threats. The new regime should institutionalize and formalize cooperation and coordination between the new International Marine Mammal Commission and other institutions (save those which it replaces). It would not be practical, feasible, or necessary for this new commission to become the leading authority on climate change or navigation and shipping, especially as these issues may be outside the regulatory jurisdiction of the commission. Rather, the new commission should seek to maximize its lobbying and enhance its cooperation with other, more-appropriately situated international organizations. Third, (p.141) the new international regime must build upon the foundation that the IWC has created as it has turned its attention toward current threats since the introduction of the commercial moratorium in 1986. Fourth, the convention and its associated institutions must be crafted broadly enough and with sufficient flexibility to accommodate and respond to our evolving scientific and technical understanding of these emerging threats. These observations inform the detailed proposal and draft Articles for a new multilateral convention, as provided in Chapters 6 and 7.

III. Conclusion

This chapter has investigated and assessed the scientific justification for a new international regime for the conservation of marine mammals. The present regime has been measured against a host of current threats to marine mammals, and the basis of our understanding of the ethical objectives that should guide our interaction with marine mammals, and has been found wanting.

Before proposing the contents of a new regime and describing how the new regime can rectify the shortcomings identified in this chapter and the fragmented regulatory approach to marine mammal conservation previously identified, it is necessary to establish the legal basis and jurisdictional and practical limits that inform the proposed response.

Notes:

(1.) James A R. Nafziger, Global Conservation and Management of Marine Mammals, 17 SAN DIEGO L. REV. 591, 614 (1979–1980).

(2.) UNEP Regional Seas, Marine Mammal Action Plan, http://www.unep.ch/regionalseas/main/hmarmams.html (last visited June 12, 2015).

(3.) John Norton Moore, Setting the Scene: Introductory Remarks, in LAW, SCIENCE & OCEAN MANAGEMENT 95, 96 (Myron H. Nordquist et al. eds., 2007).

(4.) 2 Dec. 1946, 62 Stat. 1716, 161 U.N.T.S. 74, at preamble.

(5.) For a recent scientific summary of the anthropogenic threats to marine mammals, see Marthán Bester, Marine Mammals—Natural and Anthropogenic Influences, in GLOBAL ENVIRONMENTAL CHANGE 167 (Bill Freeman ed., 2014).

(6.) Alexander Gillespie, Environmental Threats to Cetaceans and the Limits of Existing Management Structures, 6 N.Z. J. ENVTL. L. 97, 97 (2002) [Gillespie, Environmental Threats]; see generally Alexander Gillespie, WHALING DIPLOMACY 45–105 (2005) (offering a similar review of modern threats to cetaceans) [“WHALING DIPLOMACY”].

(7.) Alison Reiser, Whales, Whaling, and the Warming Oceans, 36 ENVTL. AFF. 401, 402 (2009) [“Reiser”].

(8.) See Henry R. Huntington, A Preliminary Assessment of Threats to Arctic Marine Mammals and Their Conservation in the Coming Decades, 33 MAR. POL. 77, 77 (2009) (expanding the list of global threats to marine mammals identified as “disease, sound, contaminants, harmful algal blooms, direct fisheries, indirect fisheries impacts, habitat change, and environmental change” from Reynolds ET AL., MARINE MAMMAL RESEARCH: CONSERVATION BEYOND CRISIS (2005), by adding direct mortality associated with hunting and/or ship-strikes); see also Nigel Bankes, The Conservation and Utilization of Marine Mammals in the (p.142) Arctic Region, in THE LAW OF THE SEA AND THE POLAR REGIONS: INTERACTIONS BETWEEN GLOBAL AND REGIONAL REGIMES 293, 293–94 (Erik J. Molenaar, Alex H. Oude Elferink & Donald R. Rothwell eds., 2013) (noting that existing threats include: “human harvest, food availability, predation, entanglement and bycatch, climate change, ship strikes, pollution, habitat and feeding ground degradation, and marine noise”).

(9.) Gillespie, Environmental Threats, supra note 6, at 97–98.

(10.) See International Panel on Climate Change, Organization http://www.ipcc.ch/organization/organization.shtml#.UHh7529kyW4 (last visited June 12, 2015) (noting that the IPCC was created in 1988 by the United Nations Environment Programme and the World Meteorological Organization (with the endorsement of the United Nations General Assembly) to synthesize the world’s understanding of climate change, and to provide information on both the socioeconomic and environmental consequences of climate change. The IPCC is both a scientific organization (responsible for assessing the current state of knowledge through the efforts of thousands of voluntary scientists) and an intergovernmental organization that encourages government participation (and currently has 195 government members). The IPCC produces a variety of documents that are reviewed and endorsed by member governments).

(11.) International Panel on Climate Change, 2007: Summary for Policymakers, in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 1, 2 (S. Solomon et al. eds., 2007) [“2007 Summary for Policy Makers”].

(12.) International Panel on Climate Change, Summary for Policymakers, in CLIMATE CHANGE 2013: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP I TO THE FIFTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 15 (Thomas F. Stocker et al. eds., 2013).

(13.) See id. at 16–20; see also 2007 Summary for Policymakers, supra note 11, at 7–22 (for a detailed discussion of the potential consequences of climate change).

(14.) Peter G.H. Evans et al., Climate Change and Marine Mammals, 90(8) J. MAR. BIOL. ASSOC. U.K. 1483, 1483 (2010) [“Evans et al.”].

(15.) Hjalmar Vilhjalmsson, Impact of Changes in Natural Conditions on Ocean Resources, in LAW, SCIENCE & OCEAN MANAGEMENT 225, 225 (Myron H. Nordquist et al. eds., 2007) [“Vilhjalmsson”].

(16.) Id. at 230–31.

(17.) A. Fishclin et al., Ecosystems, Their Properties, Goods and Services, in CLIMATE CHANGE 2007: IMPACT, ADAPTATION AND VULNERABILITY. CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 212, 234–36 (M.L. Parry et al. eds., 2007); Sue E. Moore, Climate Change, in ENCYCLOPEDIA OF MARINE MAMMALS 238, 238 (William F. Perrin et al. eds., 2d ed. 2009) [“S. Moore”].

(19.) Id.

(20.) S. Moore, supra note 17, at 238–39 (which distinguishes impacts based on polar regions compared to temperate and/or tropical regions); see also. e.g., Colin D. Macleod, (p.143) Global Climate Change, Range Changes and Potential Implications for the Conservation of Marine Cetaceans: A Review and Synthesis, 7 ENDANG. SPECIES RES. 125, 125–31 (2009) [“MacLeod”] (noting that cetacean distribution is mainly determined by water temperature, water depth, and prey abundance/distribution, and also predator avoidance and conditions required for reproduction. Further, he indicates that climate change will alter the ability for cetacean species to find their preferred habitat and may even result in species becoming isolated in particular geographical locations).

(21.) S. Moore, supra note 17, at 238–39.

(22.) Id.; see also W. Elliot & M. Simmonds, Whales in Hot Water? The Impact of a Changing Climate on Whales, Dolphins and Porpoises: A Call for Action 6–7 (2007), http://awsassets.wwf.org.au/downloads/sp141_g_whales_in_hot_water_1may07.pdf [“Whales in Hot Water?”] (noting that sea ice edge is a very important foraging spot for northern cetaceans, such as the beluga (who feed on Arctic cod congregated in this area of heightened biological productivity) and narwhal (who might use the sea ice to take refuge from predatory orca)).

(23.) S. Moore, supra note 17, at 239.

(24.) Id.

(25.) Daniel Stone, Antarctic Sea Ice Hits Record High? Does That Mean Earth Isn’t Warming Up?, NAT’L GEOGRAPHIC NEWS (Oct. 13, 2012), http://news.nationalgeographic.com/news/2012/10/121013-antarctica-sea-ice-record-high-science-global-warming/.

(26.) See V. Loeb et al., Effects of Sea-Ice Extent and Krill or Salp Dominance on the Antarctic Food Web, 387 NATURE 897, 897–98 (1997); see also Whales in Hot Water?, supra note 22, at 9 (noting that “krill overwinter under the ice, and feed on algae found under the ice surface. Thus, the sea ice edge is the area of highest productivity in the Southern Ocean ecosystem and the main foraging site for many whale species”).

(27.) S. Moore, supra note 17, at 239.

(28.) See Scott Doney, The Dangers of Ocean Acidification, 294(3) SCI. AM. 58, 59 (2006) (noting that CO2 from fossil fuel emissions enters the ocean and reduces the pH of the ocean, which is naturally alkaline (basic), thereby reducing the capability of corals to grow. At 62, this article also notes that marine organisms that create calcium carbonate (for shells and other structural features) will also be limited in growth capability, and many of these tiny organisms form a critical component of the diet of certain marine mammals).

(29.) See Ove Hoegh-Guldberg, Climate Change, Coral Bleaching and the Future of the World’s Coral Reefs, 50 MAR. FRESHWATER RES. 839, 843 (1999) (discussing increasing average water temperatures as one explanation for mass coral die-off, which results in coral bleaching (essentially the death of a portion, or entirety, of a reef). At 860 the article notes that the impact of coral bleaching events is predicted to be significant for marine mammals that utilize coral reefs as important habitat).

(30.) S. Moore, supra note 17, at 239.

(31.) Id. at 239–40.

(32.) Id. at 240 (also noting that more data are needed to determine the extent to which migratory pattern changes are already occurring).

(33.) See M.A. Castellini & L.D. Rea, The Biochemistry of Natural Fasting at Its Limits, 48(6) EXPERIENTIA 575, 580 (1992) (indicating periods of fasting for pinnipeds (p.144) and other marine mammals); see also S. Jonathan Stern, Migration and Movement Patterns, in MARINE MAMMAL ENCYCLOPEDIA 726, 728 (discussing how migratory marine mammals generally do not eat during extended migrations, living instead off of stored fat reserves).

(34.) S. Moore, supra note 17, at 240–41.

(35.) Id. at 241.

(36.) Whales in Hot Water?, supra note 22, at 7–8; see also Pete Evans, Arctic Thaw Heats Up Northwest Passage Dreams, CBC NEWS (Sept. 13, 2012, 8:27 AM), http://www.cbc.ca/news/business/story/2012/09/11/f-franklin-northwest-passage-arctic.html (these issues are a common area of discussion and debate in Canada). Although the Northwest Passage has yet to fully open, the Northern Sea Route (“across the top of Russia”) is now functioning (see Margaret Blunden, Geopolitics and the Northern Sea Route, 88 INTL. AFF. 115, 115 (2012); see also Northern Sea Route Information Office, “Northern Sea Route”, http://www.arctic-lio.com/ (last visited June 15, 2015)).

(37.) Whales in Hot Water?, supra note 22, at 7.

(38.) Evans et al., supra note 14, at 1483.

(39.) Mark P. Simmonds & Stephen J. Isacc, The Impacts of Climate Change on Marine Mammals: Early Signs of Significant Problems, 41(1) ORXY 19, 25 (2007) [“Simmonds & Isacc”].

(40.) Evans et al., supra note 14, at 1485.

(41.) Kristin Kaschner et al., Current and Future Patterns of Global Marine Mammal Biodiversity, 6(5) PLOS ONE 1, 9 (2011).

(42.) Id.

(43.) Simmonds & Isacc, supra note 39, at 25.

(44.) 31 Dec. 1992, 1771 U.N.T.S. 107, 31 I.L.M. 849.

(45.) Doha Outcome: Kyoto Protocol Lives, Global Climate Deal by 2015, ENVTL. NEWS SERVS. (Dec. 8, 2012), http://ens-newswire.com/2012/12/08/doha-outcome-kyoto-protocol-lives-global-climate-deal-by-2015/; UNFCCC, “COP21”, http://www.cop21.gouv.fr/en (last visited Feb. 17, 2016); United Nations Framework Convention on Climate Change Twenty-first Conference of the Parties, Nov. 30–Dec. 11, 2015, Adoption of the Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9 (Dec. 12, 2015).

(46.) See Peter Lawrence, JUSTICE FOR FUTURE GENERATIONS: CLIMATE CHANGE AND INTERNATIONAL LAW (2014); Sumudu Atuputta, Climate Change: Disappearing States, Migration, and Challenges for International Law, 4 WASH. J. ENVTL. L. & POL’Y 1 (2014–2015); Jason Obold, Matthew Burns & Caroline Baker, Impressions from Durban: COP-17 and Current Climate Change Policies (2012) 23 COLO. J. INT’L ENVTL L. & POLY 389.

(47.) Whales in Hot Water?, supra note 22, at 12.

(48.) International Whaling Commission, Report of the Workshop on Climate Change and Cetaceans, SC/61/Rep4, 2 (2009) [“Climate Change and Cetaceans”].

(49.) Id. at 1.

(50.) Id. at 2.

(51.) Id.

(52.) WHALING DIPLOMACY, supra note 6, at 69.

(53.) William G.C. Burns, From the Harpoon to the Heat: Climate Change and the International Whaling Commission in the 21st Century, 13(2) GEO. INT. ENVTL. REV. 335, 351 (2006).

(55.) Id. 352–53.

(56.) Id. at 354.

(57.) Id. at 359.

(58.) Reiser, supra note 7, at 409.

(59.) See United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3–14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. 1), Annex I (Aug. 12, 1992) (the starting point for a discussion of the precautionary principle is Principle 15, which provides that: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation).”

(60.) Duncan E.J. Currie, Ecosystem-Based Management in Multilateral Environmental Agreements: Progress towards Adopting the Ecosystem Approach in the International Management of Living Marine Resources, WWF International, 1–2 (2007) (which defines ecosystem-based management as a method that “emphasises a holistic, participatory and integrated approach and is contrasted with a more narrowly focused biological and usually single species-oriented approach. It aims to manage human interactions with ecosystems and all associated organisms, rather than only individual species. As the term ecosystem-based management shows, it is management based on the properties of the relevant ecosystem(s), rather than a single species. The focus of management is maintaining the natural structure and function of ecosystems, including the biodiversity and productivity of natural systems and identified important species”); see Deep Sea Conservation Coalition, The Ecosystem Approach: Its Mandate and Implementation, SOUTH PACIFIC RFMO (Aug. 28, 2007), http://www.southpacificrfmo.org/assets/4th-Meeting-September-2007-Noumea/SP-04-Inf-3%20DSCC%20ecosystem%20approach%20brief.pdf; see also Reiser, supra note 7 (noting that ecosystem-based management is not foreign to the IWC as it was recognized in the St. Kitts and Nevis Declaration, IWC Resolution 2006-1, which proclaims that “the issue of management of whale stocks must be considered in a broader context of ecosystem management since eco-system management has now become an international standard”).

(61.) Reiser, supra note 7, at 409.

(62.) 20 May 1980, 33 U.S.T. 3476, 1329 U.N.T.S. 48.

(63.) Commission for the Conservation of Antarctic Marine Living Resources, About CCAMLR (Apr. 23, 2015), http://www.ccamlr.org/en/organisation/about-ccamlr.

(64.) Whales in Hot Water?, supra note 22, at 12.

(65.) MacLeod, supra note 20, at 132.

(66.) Simon Northridge, Bycatch, in ENCYCLOPEDIA OF MARINE MAMMALS 167, 167 (William F. Perrin et al. eds., 2d ed. 2009) [“Northridge”].

(67.) Id.; see also Andrew Read, Phebe Drinker & Simon Northridge, Bycatch of Marine Mammals in the U.S. and Global Fisheries, 20(1) CON. BIOL. 163, 164 (2006) (noting that this circumstance is also called “nontarget catch”) [“Read, Drinker & Northridge”].

(68.) Northridge, supra note 66.

(69.) Read, Drinker & Northridge, supra note 67, at 164.

(p.146) (70.) Rebecca L. Lewison et al., Global Patterns of Marine Mammal, Seabird, and Sea Turtle Bycatch Reveal Taxa Specific and Cumulative Megafauna Hotspots, 1111 PNAS 5271; Randall R. Reeves, Kate McClellan & Timothy B. Werner, Marine Mammal Bycatch in Gillnet and Entangling Net Fisheries, 1990–2011, 20 ENDANG. SPECIES RES. 71 (2013).

(71.) Northridge, supra note 66, at 167.

(72.) Andrew J. Read, The Looming Crisis: Interactions between Marine Mammals and Fisheries, 89(3) J. MAMM. 541, 541 (2008) [“Read”].

(73.) Read, Drinker & Northridge, supra note 67, at 165.

(74.) Id. at 163.

(75.) Id. at 166 (also, at 168 the authors “acknowledge that the estimates we present here are crude and likely to be biased, but it is clear that the global bycatch of marine mammals is very large”).

(76.) Id.

(77.) See Samuel T. Turvey et al., First Human-Caused Extinction of a Cetacean Species?, 3 BIOL. LETT. 537 (2007).

(78.) Id. at 537.

(79.) Northridge, supra note 66, at 168.

(80.) Id. at 168; see also Rojas-Bracho et al., Conservation of the Vaquita Phoceona sinus, 36 MAM. REV. 179 (2006).

(81.) Jeremy Firestone, Policy Considerations and Measures to Reduce the Likelihood of Vessel Collisions with Great Whales, 36 B.C. ENVTL. AFF. L. REV. 389, 389–90 (2009) [“Firestone”].

(82.) Northridge, supra note 66, at 167.

(83.) Id.

(84.) Id.

(85.) Id. at 169.

(86.) The most recent dispute is between Mexico and the United States in US–Tuna II (Mexico) (see United States–Measures concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/D5381/R (World Trade Organization, Report of the Panel, Sept. 15, 2011); see also United States–Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/D5381/AB1R (World Trade Organization, Report of the Appellate Body, May 16, 2012)). See World Trade Organization, Dispute Settlement: D5381 (Aug. 8, 2013), http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds381_e.htm (which provides a useful summary of the issues and outcomes. Specifically, Mexico challenged America’s domestic regulations (Dolphin Protection Consumer Information Act, 16 U.S.C. § 1385, Dolphin-safe labeling standards, 50 C.F.R. § 216.91, and Dolphin-safe requirements for tuna harvested in the ETP by large purse-seine vessels, 50 C.F.R. §216.92), which together establish the “dolphin-safe” tuna product label system. Mexico contended “that the measures at issue, which establish the conditions for use of a ‘dolphin-safe’ label on tuna products and condition the access to the US Department of Commerce official dolphin-safe label upon bringing certain documentary evidence that varies depending on the area where tuna contained in the tuna product is harvested and the fishing method by which it is harvested are inconsistent, inter alia, with Articles I:1 and III:4 of the GATT 1994 [General Agreement on Tariffs and Trade 1994, 1867 U.N.T.S. 187, 33 I.L.M. 1153] and Article 2.1, 2.2 and 2.4 of the TBT Agreement [Agreement on Technical Barriers to Trade, 1868 U.N.T.S. 120].” The Panel concluded that the (p.147) American process did not discriminate against Mexico, that the restrictions were stricter than necessary to achieve their objective, and that the relevant international standard would not be sufficient for the United States to achieve its goals. The Appellate Body reversed the Panel’s determination that the restrictions did not discriminate against Mexico, reversed the finding that the “dolphin safe” restrictions imposed by the United States were more restrictive than necessary, and did not agree that a relevant international standard was clearly identifiable); see also 50 C.F.R. § 216 (2013), which has been amended in accordance with the findings of the Appellate Body of the WTO in an attempt to both strengthen dolphin protection and conform with international trade law.

(87.) Scientific Committee of the International Whaling Commission, Report of the Scientific Committee, J. CETACEAN RES. MANAGE. 14 1, 13 (Suppl.) (2013) [“Report of the Scientific Committee”].

(88.) Id.

(89.) Id.

(90.) Id.

(91.) Id. at 14.

(92.) Read, supra note 72, at 545.

(93.) Northridge, supra note 66, at 169.

(94.) Read, supra note 72, at 546.

(95.) Northridge, supra note 66, at 169 (this summary notes that the use of pingers may not be benign as they may actually force marine mammals to avoid certain feeding areas, and can also be expensive and time-consuming to attach and maintain for fishermen, limiting their attractiveness).

(96.) Northridge, supra note 66, at 169.

(97.) Read, supra note 72, at 546.

(98.) The IATCC was initially established by the Convention for the Establishment of an Inter-American Tropical Tuna Commission, U.S.-C.R., May 31, 1949, 80 U.N.T.S. 3, 1 U.S.T. 230 [“Inter-American Tropical Tuna Commission”] which was amended and strengthened in 2003 by the Convention for the Strengthening of the Inter-American Tropical Tuna Commission, [2005] EUTSer 2, OJ L 15 [“Antigua Convention].

(99.) Agreement on the International Dolphin Conservation Program, art. II(1), [1998] PITSE 4 [“AIDCP”].

(100.) Id. at art. V.

(101.) James J. Corbett & James J. Winebrake, The Role of International Policy in Mitigating Global Shipping Emissions, 16 BROWN J. WORLD AFF. 143, 144 (2009–2010).

(103.) International Maritime Organization, International Shipping Facts and Figures—Information Resources on Trade, Safety, Security, Environment, MARITIME KNOWLEDGE CENTER 9 (Mar. 6, 2010), http://www.imo.org/KnowledgeCentre/ShipsAndShippingFactsAndFigures/TheRoleandImportanceofInternationalShipping/Documents/International%20Shipping%20-%20Facts%20and%20Figures.pdf.

(104.) Karin Harris et al., Spatial Pattern Analysis of Cruise Ship-Humpback Whale Interactions in and near Glacier Bay National Park, Alaska, 49(1) ENVTL. MAN. 44, 44 (2012) [“Harris et al.”].

(106.) Id. at 11.

(107.) Firestone, supra note 81, at 391.

(108.) Angelia S.M. Vanderlaan et al., Probability and Mitigation of Vessel Encounters with North Atlantic Right Whales, 6 ENDANG. SPECIES RES. 273, 274 (2009) [“Vanderlaan et al.”].

(109.) Scott D. Kraus et al., North Atlantic Right Whales in Crisis, 309 SCI. 561, 561 (2005) [“Kraus et al.”].

(110.) See Susan E. Parks et al., Dangerous Dining: Surface Foraging of North Atlantic Right Whales Increases Risk of Vessel Collisions, 8 BIOL. LETT. 57 [“Parks et al.”].

(111.) Press Release, Center for Biological Diversity, Population Estimate Finds Too Many Manatees Suffer Death-by-Boat-Strike (June 15, 2009), (http://www.biologicaldiversity.org/news/press_releases/2009/manatee-06-15-2009.html).

(112.) International Whaling Commission, Whales and Ship Strikes: A Problem for Both Whales and Vessels, IWC (2013), https://iwc.int/ship-strikes [“IWC Ship Strikes”]; see Angelina S.M. Vanderlaan & Christopher T. Taggart, Vessel Collisions with Whales: The Probability of Lethal Injury Based on Vessel Speed, 23 MARINE MAMMAL SCI. 144, 145 (2004).

(113.) See Harris et al., supra note 104, at 44–45; see also Henry P. Huntington, A Preliminary Assessment of Threats to Arctic Marine Mammals and Their Conservation in the Coming Decades, 33(1) MAR. POL. 77, 79–80 (2009).

(114.) See generally Parks et al., supra note 110; Harris et al., supra note 104; Kraus et al., supra note 109; Vanderlaan et al., supra note 108.

(115.) Phil McKenna, Sonic Alarm Save Marine Mammals from Ship Strike, NEW SCIENTIST (May 20, 2009), http://www.newscientist.com/article/dn17163-sonic-alarm-saves-marine-mammals-from-ship-strike.html.

(116.) Firestone, supra note 81, at 392.

(117.) Endangered Species Act of 1973 as amended, 16 U.S.C. §§ 1531–1544 (2000).

(118.) 16 U.S.C. § 1632(2) (2007).

(119.) David W. Laist & Cameron Shaw, Preliminary Evidence That Boat Speed Restrictions Reduce Deaths of Florida Manatees, 22(2) MAR. MAMM. SCI. 472, 472 (2006).

(120.) U.S. Fish & Wildlife Services: North Florida Ecological Services Office, Florida Manatee Recovery Plan: Third Revision 34 (Oct. 2001), http://www.fws.gov/northflorida/Manatee/Recovery%20Plan/2001_FWS_Florida_Manatee_Recovery_Plan.pdf.

(121.) National Marine Fisheries Service, Recovery Plan for the North Atlantic Rights Whale (Eubalaena glacialis): Revision, NOAA (May 26, 2005), http://www.nmfs.noaa.gov/pr/pdfs/recovery/whale_right_northatlantic.pdf.

(122.) National Oceanic and Atmospheric Administration: Office of Protected Resources, North Atlantic Right Whales (Eubalaena glacialis), NOAA (Aug. 27, 2013), http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/rightwhale_northatlantic.htm.

(123.) Speed Restrictions to Protect North Atlantic Right Whales, 50 C.F.R. § 224.105 (2011).

(124.) Id. at § 224.105(a).

(p.149) (125.) National Oceanic and Atmospheric Administration: Fisheries Service, Compliance Guide for Right Whale Ship Strike Reduction Rule (50 C.F.R. § 224), at 2, http://www.nmfs.noaa.gov/pr/pdfs/shipstrike/compliance_guide.pdf.

(126.) National Oceanic and Atmospheric Administration: Office of Protected Resources, Mandatory Ship Reporting System for North Atlantic Right Whales (June 2, 2014), http://www.nmfs.noaa.gov/pr/shipstrike/msr.htm.

(127.) North Atlantic Right Whale Protection, 50 C.F.R. § 217 & 222 (1997); see National Oceanic and Atmospheric Administration: Northeast Regional Office, North Atlantic Right Whales, http://www.nero.noaa.gov/Protected/mmp/viewing/regs/ (last visited June 15, 2015).

(128.) Northern Right Whales, 322 C.M.R. 12.00 (1993).

(129.) Coast Guard District Eleven, Changes to Offshore Traffic Separation Schemes off San Francisco Bay (2013), http://www.uscg.mil/d11/vtssf/TSSflyer.pdf.

(130.) International Maritime Organization, Introduction to IMO (2013), http://www.imo.org/About/Pages/Default.aspx.

(131.) 1 Nov. 1974, 1184 U.N.T.S. 278, 32 U.S.T. 47; International Maritime Organization, Ships’ routeing (2015), http://www.imo.org/en/OurWork/Safety/Navigation/Pages/ShipsRouteing.aspx.

(136.) Gregory K. Silber et al., The Role of the International Maritime Organization in Reducing Vessel Threat to Whales: Process, Options, Action and Effectiveness, 36 MAR. POL. 1221, 1221–33 (2012) [“Silber et al.”].

(137.) Id. at 1231.

(139.) See Hector M. Guzman et al., Potential Vessel Collisions with Southern Hemisphere Humpback Whales Wintering off Pacific Panama, 29 MAR. MAMM. SCI. 629 (2013); see also Hector M. Guzman, Population Size and Migratory Connectivity of Humpback Whales Wintering in Las Perlas Archipelago, Panama, 31 MAR. MAMM. SCI. 90 (2015).

(140.) See International Whaling Commission, Proposal of the Republic of Panama for the Establishment of Traffic Separation Schemes and Prevention of Vessel Collision with Whales, IWC/64/CC23 Rev1 (June 26, 2012), http://iwc.int/cache/downloads/7331ybhucz8c8ok4gk4co8000/64-CC23%20Rev1.pdf.

(141.) Government of the United States, United States Voluntary National Cetacean Conservation Report, 2012, at 7 (2012), http://www.nmfs.noaa.gov/ia/species/marine_mammals/inter_whaling/2012_cetacean_conservation_report.pdf.

(142.) See IWC Ship Strikes, supra note 112; International Whaling Commission, The Berlin Initiative on Strengthening the Conservation Agenda of the International Whaling Commission, IWC/55/4 Rev (2003) (which cemented the IWC’s conservation agenda, contemplated enhanced collaboration with other international regimes, and established the Conservation Committee).

(145.) L.S. Weilgart, The Impacts of Anthropogenic Ocean Noise on Cetaceans and Implications for Management, 85 CAN. J. ZOOL. 1091, 1092 (2007) [“Weilgart”].

(146.) 10 Dec. 1982, 21 I.L.M. 1261, 1833 U.N.T.S. 3, at art. 1(4) [“UNCLOS”].

(147.) Davidson et al., supra note 87, at 3395.

(150.) Id. (noting that the “Dirty Dozen” includes the following chemicals: aldrin, chlordane, dichlorodiphenyl trichlorethane, dieldrin, heptachlor, hexachlorobenzene, mirex, toxaphene, polychlorinated biphenyls, polychlorinated dibenzo-p-dioxins, and polychlorinated dibenzofurans).

(152.) Chris Metcalfe, Persistent Organic Pollutants in the Marine Food Chain, UNITED NATIONS UNIVERSITY (Feb. 23, 2012), http://unu.edu/publications/articles/persistent-organic-pollutants-in-the-marine-food-chain.html [“Metcalfe”] (noting that the effect of this position in the food web means pollutants entering the ocean accumulate or magnify as they progress up the various levels in the food web, being found in greatest concentrations at the top).

(153.) G.J. Pierce et al., Bioaccumulation of Persistent Organic Pollutants in Females Common Dolphins (Delphinus delphis) and Harbour Porpoises (Phocoena phocoena) from Western European Seas: Geographical Trends, Causal Factors and Effects on Reproduction and Mortality, 153(2) ENVTL. POLL. 401, 402 (2007) [“Pierce et al.”].

(155.) Metcalfe, supra note 152.

(156.) See Shinsuke Tanabe, Hisato Iurata & Ryo Tatsukawa, Global Contamination by Persistent Organochlorines and Their Ecotoxicological Impact on Marine Mammals 154 SCI. TOTAL ENV’T 163, 171 (1994).

(157.) Cameron Jefferies, Assessing a Public Health Justification for Reducing Whale Consumption in Northern Canada, 18(1) HEALTH L. REV. 12 (2009).

(158.) See Amitabh Avasthi, Tainted Whales Must Stink or Swim, 198(2655) NEW SCIENTIST 41 2008 [“Avashti”].

(159.) Id. at 41.

(161.) Pierce et al., supra note 153; see R.L. De Swart, Impaired Immunity in Seals Exposed to Bioaccumulated Environmental Contaminants (1995) (Ph.D. dissertation, Erasmus Universiteit); see P.S. Ross, Seals, Pollution and Disease: Environmental Contaminant-Induced Immuno-suppression (1995) (Ph.D. dissertation, Universiteit Utrecht).

(162.) Pierce et al., supra note 153; see generally A.J. Hall et al., The Risk of Infection from Polychlorinated Biphenyl Exposure in Harbor Porpoise (Phocoena phocoena): A Case-Control Approach, 114(5) ENVTL. HEALTH PER. 704 (2006).

(163.) Pierce et al., supra note 153; see generally P.J.H. Reijnders, Man-Induced Factors in Relation to Fertility Changes in Pinnipeds, 11 ENVTL. CONSERV. 61 (1984); see generally P.J.H. Reijnders, Reproductive Failure in Common Seals Feeding on Fish from Polluted Coastal Waters, 324 NATURE 456 (1986).

(p.151) (164.) See Gillespie, Environmental Threats, supra note 6, at 102; see generally T. Colborn & M.J. Smolen, Epidemiological Analysis of Persistent Organic Pollutants on Cetaceans, 146 REV. ENVTL. CONT. & TOX. 91 (1996); see generally T. Troisi, Toxic Effects of PCBs on Marine Mammals (1996) 2 SOUNDINGS 1 (1996).

(165.) Pierce et al., supra note 153, at 1 (noting that the connections and impacts are still being studied and investigated, suggesting that further research is required).

(166.) Edward C.M. Parsons, AN INTRODUCTION TO MARINE MAMMAL BIOLOGY AND CONSERVATION 239 (2012) [“PARSONS”] (noting that heavy metals, such as lead and mercury, also accumulate in marine mammals with harmful consequences).

(167.) Id. at 241–42 (noting that plastics and other forms of solid waste that end up in the ocean and do not biodegrade are hazardous to marine mammals if consumed or if they entangle individuals).

(168.) Id. (noting that this can lead to disease outbreaks).

(169.) Id. at 242–43 (noting that oil spilled through tanker accidents or well-blowouts, such as the Deep Water Horizon incident, can be harmful and potentially fatal to marine mammals if they are in the area of the disaster or if they ingest prey species that have been affected).

(170.) PARSONS, supra note 166, at 241 (noting that nutrient loading in the ocean can result in increased numbers of phytoplankton and/or algal blooms, which can produce toxins that are harmful to marine mammals).

(171.) Convention on Biological Diversity: Subsidiary Body on Scientific, Technical and Technological Advice, Scientific Synthesis on the Impacts of Underwater Noise on Marine Biodiversity and Habitats, UNEP/CBD/SBSTTA/16/INF/12 (12 March 2012) [“CBD Synthesis”].

(172.) Id. at 2.

(173.) Id. at 4.

(174.) Karen S. Scott, International Regulation of Undersea Noise, 53 INT’L & COMP L.Q. 287, 289 (2004) [“Scott, International Regulation”]; Weilgart, supra note 145, at 1094.

(175.) Weilgart, supra note 145, at 1093.

(176.) Scott, International Regulation, supra note 174, at 288.

(177.) Caroline R. Weir & Sarah J. Dolman, Comparative Review of the Regional Marine Mammal Guidelines Implemented during Industrial Seismic Surveys, and Guidance towards a Worldwide Standard, 10(1) J. INT’L WILDLIFE L. & POL’Y (2007).

(178.) R. Payne & D. Webb, Orientation by Means of Long Range Acoustic Signaling in Baleen Whales, 188(1) ANN. N Y. ACC. SCI. 110 (1971).

(179.) Weilgart, supra note 145, at 1092.

(180.) Id. (note that stranding events are quite highly publicized. They are also contentious as they are quite often linked to military operations and sonar in particular. See, e.g., Joel R. Reynolds, Submarines, Sonar and the Death of Whales: Enforcing the Delicate Balance of Environmental Compliance and National Security in Military Training, 32(3) WM. & MARY ENVTL. L. & POL’Y REV. 759 (2008)).

(181.) Scott, International Regulation, supra note 174, at 291.

(182.) Gillespie, Environmental Threats, supra note 6, at 97.

(183.) Id. at 105–06.

(184.) UNCLOS, supra note 146.

(p.152) (185.) Gillespie, Environmental Threats, supra note 6, at 106–08 (noting, as examples, the Convention for the Protection of the Mediterranean Sea against Pollution, Feb. 16, 1976, 1102 U.N.T.S. 27 and framework regional treaties for Kuwait, South East Pacific, Red Sea and Gulf of Eden, South Pacific Region, Wider Caribbean Region, and Eastern African Region).

(186.) Id. at 106.

(187.) International Whaling Commission, 25th Annual Report 27 (1976); Gillespie, Environmental Threats, supra note 6, at 98.

(188.) International Whaling Commission, Chairman’s Report of the Thirty-Second Annual Meeting, Appendix 10: Resolution on Preservation of the Habitat of Whales and the Marine Environment, REP. INT. WHAL. COMM. 32 (1980); Gillespie, Environmental Threats, supra note 6, at 99.

(189.) Gillespie, Environmental Threats, id. at 99–100.

(190.) International Whaling Commission, Environmental Change (2013), https://iwc.int/environment (note that the IWC indicates that environmental change, for the purposes of this endeavor, includes “pollution, cetacean diseases, anthropogenic sound, climate change and ecosystem modeling”).

(191.) International Whaling Commission, Resolution 2000-7: Resolution on Environmental Change and Cetaceans, https://archive.iwc.int/pages/search.php?search=%21collection72&k= (last visited June 15, 2015).

(195.) Gillespie, Environmental Threats, supra note 6, at 108.

(196.) 22 May 2001, 2256 U.N.T.S. 119, 40 I.L.M. 532.

(198.) United Nations Environment Programme, Stockholm Convention: About the Convention, http://chm.pops.int/Convention/tabid/54/Default.aspx (last visited June 15, 2015).

(199.) Stockholm Convention, supra note 197.

(201.) Secretariat of the Stockholm Convention, Success Stories: Stockholm Convention 2001–2011, at 9 (2012) [“Success Stories”].

(202.) United Nations Environment Programme, Ridding the World of POPS: A Guide to the Stockholm Convention on Persistent Organic Pollutants 7 (2005), http://www.pops.int/documents/guidance/beg_guide.pdf.

(203.) See United Nations Environment Programme, The Hazardous Chemicals and Wastes Conventions 1 (2003), http://www.pops.int/documents/background/hcwc.pdf; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 2, 1989, 28 I.L.M. 657, 1673 U.N.T.S. 126; Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 10, 1998, 2244 U.N.T.S. 337, 38 I.L.M. 1.

(204.) See generally Success Stories, supra note 201.

(205.) 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120 [“London Convention”]; International Maritime Organization, London Convention and Protocol: Their Role and (p.153) Contribution to the Protection of the Marine Environment (2011) [“London Convention and Protocol”].

(206.) Gillespie, Environmental Threats, supra note 6, at 115–16.

(207.) London Convention and Protocol, supra note 205, at 2.

(208.) Gillespie, Environmental Threats, supra note 6, at 115.

(209.) International Maritime Organization, Status of the London Convention and Protocol, (Dec. 12, 2015), http://www.imo.org/en/OurWork/Environment/LCLP/Pages/default.aspx.

(210.) Gillespie, Environmental Threats, supra note 6, at 115.

(211.) 1972, Nov. 7, 1996, 36 I.L.M. 1.

(212.) London Convention, supra note 205, at Annex I (which provides that dumping, once approved, is permitted for:

  1. (1.) Dredged material

  2. (2.) Sewage sludge

  3. (3.) Fish waste, or material resulting from industrial fish processing operations

  4. (4.) Vessels and platforms or other man-made structures at sea

  5. (5.) Inert, inorganic geological material

  6. (6.) Organic material of natural origin

  7. (7.) Bulky items primarily comprising iron, steel, concrete and similar unharmful materials for which the concern is physical impact and limited to those circumstances, where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping.

  8. (8.) CO2 streams from CO2 capture processes (added under the amendments adopted in 2006, which entered into force in 2007)).

(213.) Gillespie, Environmental Threats, supra note 6, at 115.

(214.) London Convention and Protocol, supra note 205, at 4.

(215.) 2 Nov. 1973, 12 I.L.M. 1319, 1340 U.N.T.S. 184.

(216.) International Maritime Organization, International Convention for the Prevention of Pollution from Ships (MARPOL), http://www.imo.org/about/conventions/listofconventions/pages/international-convention-for-the-prevention-of-pollution-from-ships-(marpol).aspx (last visited June 16, 2015) [“IMO MARPOL”].

(217.) 17 Feb. 1978, 1340 U.N.T.S. 61, 17 ILM 546.

(218.) IMO MARPOL, supra note 216.

(219.) Gillespie, Environmental Threats, supra note 6, at 112–13 (it must be noted that MARPOL is not the only international response to ocean pollution. Another notable example, which can be categorized as soft law, as discussed by Gillespie at 120, is the 1995 Global Programme of Action for the Protection of the Marine Environment from Land Based Activities (“GPA”). The GPA, as a component of the United Nations Environment Programme, provides a forum for nations to gather and to cooperate toward reducing land-based sources of pollution (see United Nations Environment Programme, Global Programme of Action for the Protection of the Marine Environment from Land Based Activities, http://www.gpa.unep.org (last visited June 16, 2015)). Interested nations met last in January 2012, with the goal of working toward a new implementation approach that will carry forward until 2016 (see United Nations Environment Programme, Third (p.154) Intergovernmental Review Meeting on the Implementation of the GPA, http://unep.org/gpa/resources/IGR3.asp)).

(220.) Scott, International Regulation, supra note 174, at 298.

(221.) Karen N. Scott, Sound and Cetaceans: A Regional Response to Regulating Acoustic Marine Pollution, 10(2) J. INT’L WILDLIFE L. & P. 175, 185 (2007) [“Scott, Sound and Cetaceans”].

(222.) Id. at 178–79.

(223.) See generally Randall S. Abate, NEPA, National Security, and Ocean Noise: The Past, Present, and Future of Regulating the Impact of Navy Sonar on Marine Mammals, 13(4) J. INT’L WILDLIFE L. & P. 326, 327 (2010) [“Abate”] (describing the interplay between naval sonar and environmental groups in the United States as a “common manifestation of the tensions between national security and environmental protection objectives.” The article details the challenges that have been made in American courts to naval sonar testing using NEPA (National Environmental Policy Act), and questions whether a balance between naval necessity and environmental protection can be captured using NEPA).

(224.) Scott, Sound and Cetaceans, supra note 221, at 177.

(225.) Id. at 198; contra Caroline R. Weir & Sarah J. Domla, Comparative Review of the Regional Marine Mammal Mitigation Guidelines Implemented during Industrial Seismic Surveys, and Guidance towards a Worldwide Standard, 10(1) J. INT’L WILDLIFE L. & POL. 1, 19 (2007) (which advocates for the development of a minimum best practice guideline for mitigation and/or minimization of noise pollution during seismic exploration in light of global inconsistency (i.e., “[t]‌his lack of consistency needs to be addressed so that a minimum ‘best practice’ with a scientific basis offering adequate protection to all marine mammal species is adopted worldwide”)).

(226.) Scott, International Regulation, supra note 174, at 310; see also Abate, supra note 223, at 354 (where he indicates that the goal of enhanced international marine mammal protection can be reached in three ways: “protect species, protect habitat, and promote regional and international cooperation on marine mammal conservation”).

(227.) CBD Synthesis, supra note 171, at 4–5 (noting “[o]‌ver the last decade the issue of underwater noise and its effects on marine biodiversity have received increasing attention at the international level. The Convention on the Conservation of Migratory Species (CMS), the International Whaling Commission (IWC), the United Nations General Assembly (UNGA), the European Parliament and European Union, the International Union for Conservation of Nature (IUCN), the International Maritime Organization (IMO), the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, the Convention on the Protection of the Marine Environment of the Baltic Sea Area (HELCOM), the Agreement on the Conservation of Cetaceans in the Black Sea Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS) and the Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS) have all considered the negative effects of anthropogenic underwater noise through the adoption of resolutions or recognition of the issue for the marine environment.” This proceeds to note at 5–6 that “[a]lthough noise is a recognized form of pollution, sources of noise in the marine environment are not regulated at the international level. There has been progress made at the regional level (e.g., OSPAR, ASCOBANS, (p.155) ACCOBAMS, HELCOM) in terms of regulatory frameworks for the prevention of pollution and preservation of biodiversity that provide an existing mandate for the control of noise pollution”).

(228.) See International Whaling Commission, Independent Review of a 2008 Mass Stranding in Madagascar (2013), http://iwc.int/2008-mass-stranding-in-madagascar (noting that “the IWC facilitated a review of the circumstances of the stranding in conjunction with the US Marine Mammal Commission, the US National Oceanic and Atmospheric Administration, the US Bureau of Ocean Energy Management, ExxonMobil Exploration and Production (Northern Madagascar) Ltd, the International Fund for Animal Welfare, the Wildlife Conservation Society and the Government of Madagascar. An independent scientific review panel (ISRP) of five experts was invited to conduct a formal examination of the available facts”); see B.L. Southall ET AL., FINAL REPORT OF THE INDEPENDENT SCIENTIFIC REVIEW PANEL INVESTIGATING POTENTIAL CONTRIBUTING FACTORS TO A 2008 MASS STRANDING OF MELON-HEADED WHALES (PEPONOCEPHALA ELECTRA) IN ANTSOHIHY, MADAGASCAR 4 (2013) (concluding that a “high frequency active mapping sonar” system was the primary cause for the stranding event).

(229.) Gillespie, Environmental Threats, supra note 6, at 105.

(230.) United Nations Environmental Programme, Report of the Regional Workshop on Marine Mammal Watching in the Wider Caribbean Region 1 (2011), http://www.cep.unep.org/meetings-events/7th-spaw-cop/IGM15_UNEP%28DEPI%29CAR%20WG.34INF.9_EN.pdf/view.

(231.) Erich Hoyt, Whale Watching, in ENCYCLOPEDIA OF MARINE MAMMALS 1223, 1227 (William F. Perrin et al. eds., 2d ed. 2009) [“Hoyt, Whale Watching”] (noting that whale watching can also serve an educational function); see Michael Luck, Education on Marine Mammal Tours as Agent for Conservation—But Do Tourists Want to Be Educated?, 46 OCEAN & COAST. MAN. 943 (2003) [“Luck”] (suggesting that tourists do in fact want to be educated during marine mammal watching tours).

(232.) See, e.g., J.E.S. Higham & D. Lusseau, Urgent Need for Empirical Research into Whaling and Whale Watching, 21(2) CONSERV. BIOL. 554, 558 (2007) [“Higham & Lusseau”] (where these authors indicate that there is a need for more empirical evidence on whale watcher demographics, the “carrying-capacity” of whale watching, and the effects of whaling on whale watching).

(233.) Hoyt, Whale Watching, supra note 231, at 1223.

(238.) Hoyt, Whale Watching, supra note 231, at 1225.

(239.) A.M. Cisneros-Montemayor et al., The Global Potential for Whale Watching, 34 MAR. POL’Y 1273, 1273 (2010) [“Cisneros-Montemayor et al.”].

(240.) Id. at 1274.

(241.) Id. at 1275.

(242.) Luck, supra note 231, at 953.

(p.156) (243.) Hoyt, Whale Watching, supra note 231, at 1226; see generally Erich Hoyt & Glen T. Hvenegaard, A Review of Whale-Watching and Whaling with Applications for the Caribbean, 30 COASTAL MAN. 381 (2002).

(244.) Andre Steckenreuter, Luciano Moller & Robert Harcourt, How Does Australia’s Largest Dolphin-Watching Industry Affect the Behaviour of a Small and Resident Population of Indo-Pacific Bottlenose Dolphins?, 97 J. ENVTL. MAN. 14, 18 (2012) (this study tends to confirm the results in D. Lusseau & J.E.S. Higham, Managing the Impacts of Dolphin-Based Tourism through the Definition of Critical Habitats: The Case of Bottlenose Dolphins (Tursiops spp.) in Doubtful Sound, New Zealand, 25(6) TOURISM MGMT. 657 (2004) [“Lusseau & Higham”]; see also K.A. Stockin et al., Tourism Affects the Behavioural Budget of the Common Dolphin Delphinus sp. in the Hauraki Gulf, New Zealand, 355 MAR. ECOL. PROG. SER. 287 (2008)).

(245.) Hoyt, Whale Watching, supra note 231, at 1225.

(249.) Id. at 1 (note, this assessment provides a summary of many key aspects of whale watching, including: (1) “Permitting, Training and Reporting,” (2) vessel operation when whales are in the vessel’s vicinity, (3) “Recommended Caution Zone for Vessel Approach and Departure,” (4) vessel speed and engine control, (5) time spent observing the whales, (6) the number of vessels allowed in the whales’ vicinity, (5) approach distances (including approaches for mother and calf pairs), (6) recommended direction of approach, (7) permitted human-whale interactions, (8) distances between whales and aircraft, and (9) special codes for particular species).

(251.) International Whaling Commission, Whale Watching (2013), http://iwc.int/whalewatching [“IWC Whale Watching”]; see also International Whaling Commission, General Principles for Whalewatching (1996), http://iwc.int/wwguidelines#manage [“IWC Whale Watching Principles”].

(252.) Lusseau & Higham, supra note 244.

(253.) Cisneros-Montemayor et al., supra note 239, at 1277.

(254.) IWC Whale Watching Principles, supra note 251.

(256.) International Whaling Commission, A Review of Whale Watch Guidelines and Regulations around the World: 2012 Version, IWC, https://iwc.int/whalewatchingdocument (last visited June 16, 2015).

(257.) International Whaling Commission, Five Year Strategic Plan for Whalewatching, IWC (2011), https://iwc.int/whalewatching (last visited June 16, 2015).

(258.) IWC Whale Watching, supra note 251.

(259.) Emily Lambert et al., Sustainable Whale-Watching Tourism and Climate Change: Towards a Framework of Resilience, 18(3) J. SUS. TOUR. 409, 415 (2010).

(260.) See Jennifer L. Bailey, Whale Watching, the Buenos Aires Group and the Politics of the International Whaling Commission, 36(2) MAR. POL. 489 (2012).

(261.) Cisneros-Montemayor et al., supra note 239, at 1276.

(262.) Id. at 1276–77 (recognizing at 1276 that basic whale watching can be “launched with little initial investment and can be carried out by local fishers who are (p.157) already familiar with the area,” and that “[w]‌hile this study offers an estimate of potential revenue from whale watching, there is much less information regarding the possible costs (e.g., foregone fishing opportunities or foreign aid contingent on expressions of support for whaling) of marine mammal conservation, necessary for a full cost-benefit analysis to be undertaken. This is clearly an interesting future research project, particularly as the widespread development of whale watching industries may contribute to a shift of votes at the IWC, and a dissolution of the blocs that have made it largely dysfunctional”).