The Protection of Small Cetaceans in the Face of Uncertainty: An Analysis of the ASCOBANS Agreement
![handle is hein.journals/gintenlr9 and id is 289 raw text is: The Protection of Small Cetaceans in the Face of
Uncertainty: An Analysis of the ASCOBANS
Agreement
HUGO NIJKAMP* & ANDRE NOLLKAEMPER**
I. INTRODUCTION
In 1994, the Agreement on the Conservation of Small Cetaceans of the Baltic
and North Seas [hereinafter ASCOBANS] entered into force.' The ASCOBANS
is the first regional agreement that aims to provide comprehensive protection for
small cetaceans from fisheries, pollution, and other threats. The problems
experienced by small cetaceans in the Baltic and North Seas are relatively
inconsequential compared to their fate in other parts of the world.2 Yet, the
ASCOBANS carries important lessons that warrant a close analysis. Despite
years of studies, we know little about the status of and threats to small cetaceans
in the Baltic and North Seas. Parties to the ASCOBANS have faced the question
of how to develop regulatory responses to perceived threats to small cetaceans in
a situation characterized by pervasive scientific uncertainty. This makes the
ASCOBANS an appropriate case-study of the development application of what is
now commonly known as the precautionary approach to the protection of marine
mammals.3
This article discusses how the ASCOBANS and related international legal
instruments have responded to signals of threats to small cetaceans in a situation
of high scientific uncertainty. It assesses what we know about small cetaceans in
the Baltic and North Seas (Part II); discusses how the applicable legal instru-
ments have responded to the scientific (un)certainty (Part III); and identifies the
outstanding issues faced by the parties to the ASCOBANS in implementing and
elaborating precautionary policies (Part IV). The article concludes that states
* Hugo Nijkamp is a marine biologist and Senior consultant at AIDEnvironment, Amsterdam.
** Andre Nollkaemper is an international lawyer and Senior Research Fellow at the Centre for International
Natural Resources Law and the Faculty of Law of the Erasmus University Rotterdam.
1. Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, New York, 1992,
reprinted in II THE MARINE MAMMAL COMMISSION COMPENDIUM OF SELECTED TREATIES, INTERNATIONAL
AGREEMENTS, AND OTHER RELEVANT DOCUMENTS ON MARINE RESOURCES, WILDLIFE, AND THE ENVIRONMENT
1612 (1994) [hereinafter ASCOBANS].
2. See overview in William C. Bums, The International Whaling Commission and the Regulation of the
Consumptive and Non-Consumptive Uses of Small Cetaceans: The Critical Agenda for the 1990s, 13 WIS. INT'L
L. J. 106-107, 111-123 (1994).
3. The precautionary approach has been promoted in recent treaties and policy instruments and by legal
scholarship as the recommended approach for international policies with regard to protection of marine
ecosystems. See infra Part IV.](ViewImageLocal?handle=hein.journals/gintenlr9&div=19&collection=journals&method=preview&ext=.png&size=3)
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The Protection of Small Cetaceans in the Face of Uncertainty: An Analysis of the ASCOBANS Agreement
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