Michaela Girvan proposes new ways to protect cetaceans under international environmental law due to their role in helping to tackle climate change.
 

Article from Responsible Science Journal No. 7 (2025). Advance online publication: 24 March 2025.

Whales and other cetaceans are important in helping to remove carbon from the atmosphere, and they do this in several ways. Firstly, they consume carbon-rich prey, and the carbon is then stored in their bodies for decades. When they die, their carcasses sink to the ocean floor taking the carbon with them. Secondly, some species feed in deeper waters, and when they return to the surface, they excrete nutrients which fertilise ocean plant life which itself takes up more carbon from the atmosphere. It is this latter process – known as the ‘whale pump’ – which has by far the larger effect, thought to fix tens of millions of tonnes of carbon per year.

The science surrounding the carbon sequestration capabilities of whales is not novel; it has been established for over two decades.[1] Comprehensive studies have quantified the contributions of multiple whale species to carbon capture,[2] facilitating vital oceanic processes.[3] However, these advancements in scientific understanding have not yet been reflected in international environmental law. This needs to be corrected.
 

Mapping the legal connections

The interplay between international ocean law, climate change law, and the regulation of whaling presents a complex landscape shaped by numerous United Nations treaties. Key among these are the UN Framework Convention on Climate Change (UNFCCC), the UN Convention on the Law of the Sea (UNCLOS), and the Convention on Biological Diversity (CBD). Each has been subject to extensive scholarly discussion, focusing on their implications for marine conservation and climate science. However, despite the wealth of literature surrounding cetacean science and the legal frameworks governing their conservation, a critical gap remains: where are whales in climate change law, and how might we begin to include them?

The relationship between humans and whaling is nearly as old as ocean law itself,[4] with ancient civilisations establishing unwritten maritime customs. The earliest formalised ocean laws are traceable to Rhodes around 900 BCE.[5] Fast forward to the twentieth century and there is UNCLOS, adopted in 1982 and effective from 1994. This replaced the ‘quad-treaties’ of the 1958 Convention on the High Seas. UNCLOS holds significant relevance in climate change law without the phrasing ever being in the text. In contrast, the International Convention on the Regulation of Whaling (ICRW) appears outdated amid contemporary environmental challenges and evolving societal values on wildlife conservation. When the ICRW was established in 1946, climate change was not a concern, and as such the terms ‘climate change’ and ‘carbon sequestration’ are absent from its text and legal discourse. However, these concepts are crucial for understanding whale biodiversity, population dynamics, and shifting migratory patterns, as whales will follow food to more suitable climates as oceans heat up.

The primary focus at the ICRW’s creation was to regulate unsustainable whaling practices,[6] ensuring the sustainability of whale populations—an objective that has largely been achieved and one in line with the CBD and global biodiversity aims, with whale populations rebounding significantly and only a handful of nations continuing to partake in commercial whaling activities.

The complexities of conservation efforts, along with ongoing challenges in enforcement and compliance, suggest that despite the progress, the effectiveness of the ICRW’s governing body – the International Whaling Commission (IWC) – remains “ambiguous”.[7] Important questions remain about the continuation of the ICRW in its current form. The evolution of international environmental law, ocean law, and emerging fields such as climate, biodiversity and plastics law, highlights the growing need for ICRW to adapt, to remain the competent authority for cetaceans dealing with modern legal challenges. Those adaptions need not be large.
 

Reforming international law

There exists a growing consensus that the IWC is outdated, operating under an antiquated treaty and scientific understanding.[8] This analysis contends that the matter of increasing the abundance of cetaceans has shifted to their critical role as ‘climate mitigators’. This term I define here as “a species aiding in the mitigation of climate change through their specific biological processes and cycles.” Despite the significant ecological contributions of whales,[9] particularly their involvement in carbon sequestration[10] and ocean nutrient cycling, global law has largely overlooked this importance. A key reason for this shortcoming is the significant delay between the emergence of scientific understanding and its codification into law.

While the International Tribunal for the Law of the Sea (ITLOS) recently issued a landmark advisory opinion addressing climate change, this opinion remains non-binding and serves primarily as an interpretative guide for future legal considerations. Although it references biodiversity and ecosystem health, it does not specifically address cetaceans, whales or any particular species. This absence is unsurprising, given the monumental scope of the advisory opinion and its historical significance in legal discourse. The need for an updated legal framework that recognises and incorporates the ecological importance of whales in climate mitigation efforts is increasingly urgent.

To address this critical legal gap, I propose two pathways worth further exploration. The first is to add a new annex to the existing ICRW acknowledging cetaceans as some form of ‘climate mitigator’ species in law. With global law processes, this may take 10 to 50 years. If we are in no rush to aid our climate-mitigating allies, then this would be a viable option. Alternatively, a more creative angle could involve amending the ‘IUCN Red List’ for endangered species to include a climate annex, recognising their carbon-capturing efforts of cetaceans as climate mitigators.

The inclusion of cetaceans as ‘climate mitigators’ into global climate law is not merely a matter of their conservation or ecological necessity, but would have much broader benefit. The frameworks governing international ocean and environmental law must evolve to reflect the issue of climate change. The contribution of whales, dolphins and other cetaceans to marine ecosystems is essential for global climate health. Without a re-evaluation of the ICRW, and the incorporation of established scientific data of cetaceans into climate change legislation, we risk neglecting a vital component of legal discourse for our planet’s ecological protection and humanity’s struggle against anthropogenic climate change.
 

Michaela Girvan is the lead representative for Common Weal for the UNFCCC, a co-founder of The Ocean Rights Coalition (TORC), and a specialist in international ocean law and governance.

TORC actively encourages research collaborations on science and law, which can be used in its campaign work - see: https://oceanrights.org.uk/

Image by Monica Max West from Pixabay
 

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