leagal aspects of the whale watching.pdf - International Fund for ...

It was determined that generally, a special marine protected area includes:
• delimitation of the boundary of the area
• a special management regime applied to the area
• an environmental protection orientation
Domestic legislation and international agreements can both be used to create special marine protected areas.
However, the several different legal regimes for the eight jurisdictional zones established by the 1982 United Nations
Convention on the Law of the Sea (UNCLOS) must be taken into account when establishing such areas; in particular
the 12 nautical mile territorial sea, the 200 nautical mile Exclusive Economic Zone (EEZ), and the high seas. In
internal waters, whale watching falls wholly within the sovereignty of the coastal state, as it does also in the
territorial sea, although third states enjoy a right of innocent passage in the latter. In the EEZ, whale watching can
also be regulated by the coastal state, as the coastal state has sovereign rights to explore, exploit, conserve and
manage its natural resources, and under Article 65 of UNCLOS, in the case of marine mammals, to prohibit or
regulate their exploitation as appropriate more strictly than other marine species. The coastal state must also
conform to various other requirements of UNCLOS concerning both conservation and protection of the marine
environment. It is unclear to what extent a coastal state can control navigation which might interfere with whale
watching in the EEZ.
Special marine protected areas may be established under various international and regional agreements for a variety
of purposes. The Southern Ocean and Indian Ocean sanctuaries, were both established by the IWC by amendment
of the Schedule to the ICRW, as provided for in Article V of the latter. Examples of various types of special areas and
sanctuaries were discussed, including the special problems related to the creation of the most recent sanctuary in
the Mediterranean which makes specific provisions for whale watching.
It was noted that states could be encouraged in the light of Article 65 of UNCLOS, which is also made applicable to
the high seas by Article 120, to establish special marine protected areas for the conservation of whales both within
and beyond areas of national jurisdiction. Article 65 not only requires states to cooperate with a view to the
conservation of marine mammals but, in the case of cetaceans in particular, to work through the appropriate
international organisations for their conservation, management and study.
The Mediterranean
In the Mediterranean, states have, so far, preferred to “absent” themselves from the sea areas beyond the 12
nautical mile territorial sea, as surrounding states are so closely related geographically that EEZs, if they claimed
them, would overlap significantly, causing maritime boundary problems. Four countries do, however, claim fishing
rights beyond their 12 nautical mile territorial zone in this area.
An area (comprised mainly of “high seas”) situated between Italy, France, Corsica and Sardinia (see map 1) has been
proposed as a sanctuary for marine mammals. To this end, a joint, non-binding declaration was recently agreed
upon by France, Italy and Monaco, which should lead to the conclusion of a trilateral treaty providing for the
establishment of a management authority. This declaration prohibits the use of drift-nets and demands that whale
watching for tourism should be regulated within the sanctuary. However, even if the declaration were to be made
binding, it would not give the contracting parties authority over vessels on the high seas flying the flags of nonparties
to it.
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