Whales, large, mysterious, intelligent, and endangered. Has any mammal inspired such romantic images of the sea and love for nature as much as the whale, yet aroused such controversy in global environmental conservation? King of the Seas, symbol of the environmental movement, meat and oil for commercial whaling. Because of its highly controversial nature, whaling has even appeared before the International Court of Justice as Australia instituted proceedings against Japan for alleged breach of international obligations concerning whaling. But legal efforts to protect whales extend beyond whaling issues. Even beyond protection itself. What about legal arrangements dealing with such large marine mammals found stranded on the shoreline? This so-called phenomenon of Cetacean stranding certainly is something that arouses public interest and emotion.
Cetacean stranding is a global phenomenon in which Cetaceans strand themselves on land, usually on a beach. Beached whales often die due to dehydration, collapsing under their own weight, or drowning when high tide covers the blowhole. Every year, up to 2,000 animals beach themselves. Although the majority of strandings result in death, they pose no threat to any species as a whole. Only about 10 Cetacean species frequently display mass beachings, with 10 more rarely doing so. All frequently involved species are toothed whales, rather than baleen whales.
The sperm whale, or cachalot, is the largest of the toothed whales and the largest toothed predator. Strandings of sperm whales have occurred across much of their global range. About 60 per cent of the world's recorded sperm whale strandings occur in three regions, Tasmania, New Zealand and the North Sea. In recent months, multiple strandings of pods of young males occured around the North Sea over 27 days and in three countries: Germany, The Netherlands and England. North Sea scientists are now working together to establish whether there is a link between the pods and why they entered the North Sea. It will be something to look into in the coming weeks and months. But what about our first question concerning the legal arrangements dealing with such large marine mammals found stranded on the shoreline? Different shores, different laws, we might say. Let us have a look at the legal practice of three countries concerned.
England and Wales, Scotland: 'Royal Fish'
In a rule that dates back to a statute from 1324, during the reign of King Edward II, all the whales, dolphins, and sturgeons in the waters around the United Kingdom are technically owned by the Sovereign, at present Her Majesty Queen Elizabeth II. This is an ancient right which falls under the Royal Prerogative. According to Henry de Bracton (1210-c. 1268), an English cleric and jurist, in his De Legibus et Consuetudinibus Angliae:
"de balena vero sufficit . . . si rex habeat caput, et regina caudam,", being translated as: "The King owns the head of a whale; the Queen owns the tail."
This statute, still valid today, recognises whales, dolphins, and sturgeons as 'Royal Fish'. When captured within 3 miles (about 5 km) of UK shores or washed ashore, they may be claimed on behalf of the Crown. For instance, when brought into port, a sturgeon is sold in the usual way, and the purchaser, as a gesture of loyalty, requests the honour of its being accepted by the Queen. Under current law, the Receiver of Wreck, an appointment made under the Merchant Shipping Act 1995, is the Official appointed to take possession of Royal Fish when they arrive on English shores.
The law of Royal Fish continues to excite some notice and occasional controversy, as evidenced when a fisherman caught and sold a sturgeon in Swansea Bay in 2004. A fax was then sent to Buckingham Palace and fairly quickly a return fax came saying the fisherman was free to dispose of it as he wished.
In July 1999, the responsibility for dealing with all Royal Fish in Scotland was devolved to the Scottish Government. On behalf of the Crown, the Scottish Government Marine Directorate has first claim on all ‘Royal Fish’ found stranded dead on Scottish shores. If stranded but not yet dead, animal welfare organisations normally take responsibility for any proposed rescue for these animals. Unfortunately, none of the sperm whales recently stranded on the east coast of England has survived.
The Netherlands: New Protocols
Only occasionally, Cetaceans are washed up on the Dutch coast. Despite the fact that The Netherlands are a monarchy, no 'Royal Fish' here. No rules dating back to medieval times, but two recent arrangements (protocols). In the Samenwerkingsregeling Bestrijding Kustverontreiniging RWS-diensten, Mei 2007 (translated: Cooperation Arrangement Combating Coastal Pollution, May 2007), rules are set how to deal with dead Cetaceans washed ashore. Experts point out that the carcasses of these big marine mammals contain high levels of cadmium in their organs and skeleton and therefore should be regarded as chemical waste. The carcasses must be disposed of as soon as possible and the meat should not be used in animal feed processing. A special destruction company has been appointed for the removal and processing of the carcasses.
In 2013 a new special protocol was drafted after disagreements had arisen about the approach of the live stranded humpback Johanna on a sandbank, de Razende Bol, above Den Helder in December 2012. After days of public discussion whether the animal could be saved or not, Johanna eventually died. But the question remained: what to do with stranded live Cetaceans? No arrangements were made for live whales as the 2007 Protocol only deals with dead animals. Stranding of a live whale can be a 'public' emotional event, partly because of the high risk of death of the animal. Therefore, in the Protocol stranding levende grote walvisachtigen, juni 2013 (translated: Protocol Stranding Living Large Cetaceans, June 2013), new arrangements have been set to adress a ‘live stranding’, a situation where a large whale is beached alive and is no longer able to swim back out to sea itself.
In case of a live stranding, the Dutch State Secretary for Economic Affairs – responsible for the implementation of international commitments and obligations concerning biodiversity and endangered species – will decide the fate of the animal on the advice of a team of experts. Full implementation of the protocol is being watched by a stranding coordinator. Three scenarios are distinguished: return to sea (including post-release monitoring when the animal swims again), temporary accommodation on site or near the stranding site before returning to sea, and euthanasia and palliative care. The latter scenario is implemented in case the animal can’t be rescued within 12 hours. The Ministry of Economic Affairs will fund staffing and other costs concerning the implementation of the protocol.
New Zealand is a hotspot for marine mammal strandings. Since 1840, more than 5000 strandings of whales and dolphins have been recorded around the New Zealand coast. Strandings occur all year round and usually involve just one or two animals. New Zealand is at the forefront of whale rescue work. The Department of Conservation (DOC) manages whale strandings and rescues, with the help of local communities, volunteers, and organisations like Project Jonah. The most common species that strand alone are common dolphins, pygmy sperm whales, and beaked whales. Occasionally mass strandings occur and the majority of these are long-finned pilot whales. Even large whales such as sperm whales have been known to strand occasionally.
The DOC is legally responsible for implementing the Marine Mammals Protection Act 1978. This means that DOC is in charge at marine mammal stranding events. As the lead decision maker, DOC’s responsibilities include:
- Protecting the welfare of stranded animals
- Disposing of any dead marine mammals
- Ensuring the health and safety of staff, volunteers, and the public
- Enabling cultural protocols - this involves consulting with local iwi and hapū through every step of the stranding, including rescue, euthanasia, sampling and disposal
- Enabling research, e.g. through the collection of scientific samples
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A selection of relevant publications from the Peace Palace Library collection
- Burchfield, C., "The Legal Cetacean: A Select Bibliography on Whales and International Whaling", International Journal of Legal Information, 36 (2008), No. 3, pp. 490-505.
- Burnett, D.G., Trying Leviathan: The Nineteenth-Century New York Court Case that Put the Whale on Trial and Challenged the Order of Nature, Princeton, NJ, Princeton University Press, 2007.
- Burns, W.C.G. and A. Gillespie (eds.), The Future of Cetaceans in a Changing World, Ardsley, NY, Transnational, 2003.
- Darby, A., Harpoon: Into the Hart of Whaling, Cambridge, MA, Da Capo Press, 2008.
- Epstein, C., The Power of Words in International Relations: Birth of an Anti-Whaling Discourse, Cambridge, The MIT Press, 2008.
- Friedheim, R.L. (ed.), Toward a Sustainable Whaling Regime, Seattle, University of Washington Press, 2001.
- Gillespie, A., Whaling Diplomacy: Defining Issues in International Environmental Law, Cheltenham, Elgar, 2005.
- Stoett, P.J., The International Politics of Whaling, Vancouver, UBC Press, 1997.