Ed Couzens

To free or not to free? State obligations and the rescue and release of marine mammals : A case study of 'Morgan the Orca'

Wild animals periodically encounter difficulties or suffer injuries that require human intervention and assistance. The natural assumption is that a surviving animal will, where viable, be released back to the wild. But is there a formal legal obligation for a rescuer to do so? This question arose recently in the context of ‘Morgan’, a female killer whale rescued in poor health in Dutch waters. Morgan was successfully restored to full health, but the Dutch authorities subsequently declined to repatriate her to the wild and, controversially, transferred her to a zoological facility in Spain. This article examines the largely unexplored legal obligations incumbent upon the Netherlands in respect of rehabilitated cetaceans, in the process exposing certain problems of clarity and consistency within the present regulatory framework. By necessary implication, this article identifies emerging issues of interpretation posed by the Morgan saga, illustrating the tensions between animal welfare and nature conservation – especially in the transboundary context – and concluding firmly that the Dutch authorities erred legally in making their final decision.

International Wildlife Law: Understanding and Enhancing Its Role in Conservation

Many conservation professionals are familiar with the Convention on International Trade in Endangered Species (CITES), the Convention on Migratory Species (CMS), the Convention on Biological Diversity (CBD), the Ramsar Convention, and the World Heritage Convention. Regional instruments, such as those focusing on Africa, Antarctica, or Europe, are also conspicuous features of the conservation arena. Other international wildlife agreements focus on particular species, such as polar bears or albatrosses, or particular transboundary protected areas, such as the huge Kavango-Zambezi Transfrontier Conservation Area (see table 1). These agreements are collectively known as international wildlife law (Bowman et al. 2010). The binding agreements themselves are typically accompanied and informed by an evolving set of nonbinding instruments, such as Conference of the Parties (COP) decisions and action plans.

Whales and Elephants in International Conservation Law and Politics : A Comparative Study

1. Introduction 2. Multilateral Environmental Treaties 3. The First Old Watchdog: the ICRW 4. The Second Old Watchdog: CITES 5. CITES and Elephants 6. The IWC, CITES and Whaling 7. Conservation of Elephants and Whales 8. Sovereignty and Environmental Damage 9. Different Palates: Oriental and Occidental 10. Biodiversity 11. ICRW/IWC Membership 12. Special Animals and Links between Species 13. Toward a Conclusion 14. In Black and White and Shades of Grey: Recommendations

Size Matters, Although It Shouldn’t: The ICRW and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran

Written as a response to the article ‘Does Size Matter? The ICRW and the Inclusion of Small Cetaceans’ by Sean Stephenson, Arne Mooers and Amir Attaran, this commentary considers how important global and regional biodiversity- or conservation-related conventions have deliberately avoided the issue area of cetacean management. One of the effects of this is that so-called ‘small cetaceans’ – approximately 70 species – are left largely unregulated. This article differs from that of Stephenson and his co-authors, who argue that the ‘only appropriate’ forum for dealing with the issue is the International Court of Justice. Instead, it is argued here that the ‘Future of the IWC’ compromise process may yet represent the best course for bringing small cetaceans under IWC management authority. Another alternative was recently suggested in a draft resolution put forward by Monaco in 2012 – and is likely to be put forward again in 2014 – which advocated involving the United Nations General Assembly in the issue. The issue is both complicated and important, and a solution is needed.

Size Still Matters, Although It Shouldn’t: The Debate on Small Cetaceans, IWC 65, and Monaco’s Resolution on Highly Migratory Cetaceans

This commentary is an update to an article in an earlier issue of Transnational Environmental Law (E. Couzens, ‘Size Matters, Although It Shouldn’t: The IWC and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran’ (2014) 3(2) Transnational Environmental Law , pp. 265–78) on the treatment of small cetaceans by the International Whaling Commission (IWC). That article discussed an unsuccessful proposal submitted by Monaco, at the 64 th meeting of the IWC in 2012, for a resolution on highly migratory cetaceans. Monaco renewed its proposal in 2014 and, on that occasion, did generate sufficient support for a resolution to give contracting parties to the International Convention for the Regulation of Whaling a mandate to initiate debate over small cetaceans in other fora. Following this IWC Resolution, in December 2015, the United Nations General Assembly included a clause proposed by Monaco in its Resolution on Oceans and the Law of the Sea. The nature of international law is such that it is difficult to force change without upsetting a delicate equilibrium. Monaco’s initiative, however, may provide significant momentum towards a solution for what remains the real and under-acknowledged problem that there is virtually no international law applicable to small and/or highly migratory cetaceans.

Climate Change Responses in South Africa

South Africa is a significant emitter of greenhouse gases. Despite a long history of policy development, there is insufficient legislation addressing climate change (the chapter briefly canvassing what legislation there is) – and numerous policy imperatives which might undermine the effectiveness of recent policy innovations. Policy documents – especially the recent White Paper on the National Climate Change Response (2011) – are considered in some detail. Also considered is the recent White Paper on South Africa’s Foreign Policy (2011), which provides important insight into South Africa’s intentions in respect of international commitments and both national and regional growth. As a counterweight to the environmental aspirations of the White Paper, South Africa’s energy policy is then considered and it is concluded that while South Africa continues on the path it is presently treading it is going to be all but impossible to reconcile the goals of strong economic growth and poverty alleviation with environmental protection generally, and South Africa’s international commitments in the climate change issue-area specifically.

Protecting Forest and Marine Biodiversity

Biodiversity e Role of Law e IUCN Academy of Environmental Law series Edited by Ed Couzens, Associate Professor, e University of Sydney Law School, Australia, Alexander Paterson, Professor, Institute of Marine and Environmental Law, Faculty of Law, University of Cape Town, South Africa, Sophie Riley, Senior lecturer, University of Technology Sydney, Australia and Yanti Fristikawati, Dean and Lecturer in the Faculty of Law, Atma Jaya Catholic University of Indonesia, Indonesia

Legal aspects of the protection of forest and marine biodiversity: understanding the context: The Role of Law

As highlighted by its title, this book seeks to contribute to the global discourse on promoting the conservation and sustainable use of marine and forest biodiversity through legal responses at the international, regional and domestic levels. Its scope is accordingly somewhat broad, which brings to mind the words of Kenneth Noland, namely that ‘for me context is the key – from that comes the understanding of everything’.1 Bearing this in mind, and not purporting to provide an understanding of everything, perhaps it would be prudent to use this chapter to set the necessary context to three broad issues. The first is the natural areas the book seeks to focus on – oceans and forests – with a view to highlighting their importance and the major threats posed to them. The second is the response of the international legal community pertaining to these areas, in an effort briefly to scope the international legal framework which informs, or should inform, the current and future effort of domestic lawand policy-makers to promote the conservation and sustainable use of marine and forest biodiversity. The third is a broad overview of the structure, form and content of the book.