Full Title Name:  The Canadian Commercial Seal Hunt: In Search Of International Legal Protection For Harp Seals

INTRODUCTION

                The Canadian commercial seal hunt is the largest marine mammal hunt in the world.[ 1 ] Up to 350,000 harp seals are killed each year[ 2 ] in this controversial hunt that has been the focus of international criticism since 1961.[ 3 ] Many opponents believe that the seals are subjected to unacceptable cruelty, and that the numbers killed are unsustainable.[ 4 ] Conservation and humane groups have been trying to protect seals since the early 1970’s,[ 5 ] but the hunt continues. It is a situation that shocks the conscience and raises concerns for the long-term viability of the species.[ 6 ]
            Seal hunt observers have witnessed brutal acts such as seals being skinned, cut open, and dragged with hooks while still alive, or clubbed and left to languish in agony before finally being put out of their misery.[ 7 ] For example, Captain Paul Watson,[ 8 ] witnessed a particularly gruesome act by a sealer:

... a young sealer walked ... with a writhing pup slung over his shoulder. Tossing the seal onto the ice ..., he ... then kicked the pup full in the face. As I watched, he flipped the stunned creature over and slit it from crotch to throat. While the pup continued to thrash about, the swiler placed a foot on its head and tore the skin from its still live and quivering body.[ 9 ]

Another eyewitness recounts that “... a seal appear[s] to gasp for air, blood running from its nose ... The seal seems to be thrashing as its fur is sliced from its torso.”[ 10 ] Unfortunately, the skinning of seals alive appears to occur with some frequency. An independent veterinary panel (“Burdon panel”) that observed the 2001 seal hunt, concluded that up to 42% of the seals may have been skinned while alive and conscious.[ 11 ]
            In addition to the devastating cruelty inflicted upon the seals is the equally disturbing unsustainable exploitation. The harp seal population in the Northwest Atlantic, the target of the commercial hunt, is estimated to be in the range of 5.4 to 5.5 million,[ 12 ] down from perhaps as many as 24 million prior to commercial exploitation.[ 13 ]  Approximately 1,855,000 harp seals have been killed in the Canadian commercial hunt in the past five years.[ 14 ]  The high number of seals killed each year is considered by some experts to be unsustainable.[ 15 ] Yet, despite scientific reports suggesting the seal population cannot sustain such mass slaughter,[ 16 ] Canada has not significantly reduced the quotas.
            Harp seals, as a species, face many threats to their survival apart from hunting. On top of the tremendous quotas that are issued each year,[ 17 ] they are facing other threats, such as global warming.[ 18 ] Poor ice conditions, a consequence of global warming, have resulted in thousands of pups drowning.[ 19 ] Another cause of mortality is “struck and loss,” which is the term used to describe when a sealer is unable to retrieve an injured or dead seal.[ 20 ] Fishing gear also takes a high toll on seals. Perhaps as many as 40,000 were killed in the 1990’s as by-catch.[ 21 ]
            A combination of high mortality and low reproduction rates has caused the harp seal population to drop from 5.8 million to 5.4 million over the last few years.[ 22 ]  According to leading marine mammal scientist, Dr. Gary Stenson, the current government seal hunt management plan may pose a serious risk to the survival of the seal population.[ 23 ] Dr. Stenson has stated that “if the catches remain the same,” the decline in seal numbers “could be an environmental concern in the very near future.”[ 24 ]
            Because harp seals, the main targets of the Canadian commercial hunt, are a migratory species[25] subjected to international trade,[26] they depend on the international community to conserve and protect them.[ 27 ][ 28 ]
    This paper considers several sources of international law as potential candidates to protect harp seals from cruelty and over-exploitation. Part I of this paper discusses the Canadian Marine Mammal Regulations, which are the legal-regulatory structure under which the hunt takes place. Part II describes the range and status of the main species targeted in the commercial seal hunt, namely, the harp seals. Part III reviews several several sources of international law as potential candidates to protect and conserve the targeted harp seals. This paper concludes that the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is the most likely candidate to protect harp seals from unsustainable trade, and that they should be listed as a protected species under Appendix II.

I. CANADA’S SEAL HUNTING REGULATIONS

  The market for seal products is the engine driving the commercial hunt, which necessitated the current regulations. Seals have been hunted for their pelts and oil in the Northwest Atlantic for several centuries.[ 29 ] European demand for seal oil and skins led to the development of the commercial seal industry in the mid 18th century.[ 30 ] Canada now exports seal products to such international markets as the European Union (EU) and China.[ 31 ] However, the largest market is Norway,[ 32 ] where the majority of raw harp seal pelts are exported for further processing.[ 33 ] The commercial seal industry is now worth over $55 million annually to the local economies[ 34 ] of Newfoundland and Labrador.[ 35 ] 

         The seal hunt is regulated by the Canadian Department of Fisheries and Oceans (DFO).[ 36 ]  In 1965, the first seal hunting regulations were introduced.[ 37 ] These regulations set annual quotas, hunting seasons, and other controls.[ 38 ] 1n 1992, the first seal hunt management plan was implemented, and in 1993, the Marine Mammal Regulations (“Regulations”) were adopted.[ 39 ] The Regulations “apply in respect of the management and control of fishing ... for marine mammals and related activities in Canada or in Canadian fisheries waters.”[ 40 ] Anyone who intends to “fish for seals” must have a personal use seal fishing license, a commercial use seal fishing license, or a license to take a nuisance seal.[ 41 ]

A. Hunting Methods

            The Regulations describe the ways in which seals may be hunted and killed. In hunting for seals, the Regulations state that “[n]o person shall attempt to kill a marine mammal except in a manner that is designed to kill it quickly.”[ 42 ] To that end, the Regulations specify the types of weapons that may be used to kill seals, such as a club, a hakapik, a rifle, or a shotgun.[ 43 ]
            A person who strikes a seal with a club or a hakapik must hit the seal on the forehead until he crushes its skull.[ 44 ] The person must then check the skull or administer a blinking reflex test,[ 45 ] which is basically poking the seal in the eye to see if it will blink, to confirm that the seal is dead before moving on to the next seal.[ 46 ] If the person shoots a seal, or is the one to retrieve it, that person must administer a blinking reflex test as soon as possible after the seal is shot to make sure it is dead.[ 47 ] If the seal blinks, the person shall “immediately strike the seal with a club or hakapik on the forehead until its skull has been crushed, and the blinking reflex test confirms that the seal is dead.”[ 48 ] The Regulations stipulate that “[n]o person shall start to skin or bleed a seal until a blinking reflex test has been administered, and it confirms that the seal is dead.”[ 49 ]
            Unfortunately, the Regulations fail to ensure that seals are killed humanely, despite the Canadian Government’s claim that the hunt is “acceptably humane.”[ 50 ] According to Dr. Ian Robinson, a British member of the 2001 Burdon panel:

The Canadian Government insists that the seal hunt is an animal production industry like any other. They say that it might not be pretty, but basically, it is just like any abattoir except on the ice. But we found obvious levels of suffering which would not be tolerated in any other animal industry in the world.[ 51 ]

If one thinks of “humane killing” as causing the immediate loss of consciousness that “renders an animal insensible to pain,” [ 52 ] then the requirements are inadequate for a couple of reasons. In conventional slaughter, “an effective process which induces immediate unconsciousness and insensibility or an induction to a period of unconsciousness without distress, and [the] guarantee of non-recovery from the process until death ensues” are “basic principles.”[ 53 ] Unfortunately, these “basic principles” are violated in the seal hunt, because neither “immediate unconsciousness” nor “non-recovery” can be “guaranteed.”[ 54 ] One problem with the “as soon as possible” language in the Regulations is that a seal can languish for hours in agony before finally being killed.[ 55 ] In contrast to the Meat Inspection Regulations, 1990, which mandate that food animals shall be rendered unconscious by “delivering a blow to the head ... in a manner that causes immediate loss of consciousness,”[ 56 ] seals are to be struck on the forehead until the skull has been crushed.[ 57 ] This would seem to suggest that seals may be subjected to multiple blows,[ 58 ] which some consider to not be “acceptable from an animal welfare point of view.”[ 59 ] In addition, hitting the seal on the forehead may not be the best way to render it unconscious. According to the Burdon Report[ 60 ]:

The most efficient way to render an animal unconscious by a blow to the head, is a blow to the brain stem... [I]n seals, flexion of the neck places a thick layer of blubber over the base of the skull. Therefore, the only target area available in a seal is the skull overlying the cerebral cortex. Delivering a blow to this area and the underlying cortex is a much less efficient way of rendering an animal unconscious.[ 61 ]           

Unfortunately, even a “large blow to the cerebral cortex is unlikely to result in immediate brain stem herniation.”[ 62 ] Therefore, it cannot be relied upon as a method of causing immediate unconsciousness, and should be considered as a stunning method only, “producing a potentially temporary loss of consciousness.”[ 63 ]

            Not only is the Regulations’ language inadequate to ensure humane killing, but also the hunters’ frequent non-compliance with the rules results in seals often experiencing “a slow death preceded by suffering.”[ 64 ] Horrifyingly, some seals are skinned while they are still alive and conscious. The Burdon Report concluded that the majority of seal hunters were not administering a blinking reflex test before skinning or bleeding seals. In fact, they found that “79% did not check a corneal reflex, indicating that many of these seals could potentially have been skinned or hooked alive.”[ 65 ] The Daoust Report[ 66 ] found that “[a] large proportion (87%) of the sealers ... failed to palpate the skull or check the corneal reflex before proceeding to hook or bleed the seal, or go to another seal.”[ 67 ] The Burdon Report concluded that up to 42% of the seals examined had been skinned alive.[ 68 ] Rebecca Aldworth of the Humane Society of the United States has said that she “routinely witness[es] ... seals being skinned alive..."[ 69 ] while hearing the seals utter “indescribable sound[s] of wails and screams,”[ 70 ] and seeing them convulse while being skinned.[ 71 ]
            Skinning or hooking a seal alive not only violates the Regulations, but perhaps also the Canadian animal cruelty statute, which states that “[e]very one commits an offence who ... wilfully causes ... unnecessary pain, suffering or injury to an animal...”[ 72 ] A person who subjects a seal to multiple blows, or who hooks and drags it while it is still alive, or does not ensure a seal is dead before skinning it, is willfully causing unnecessary pain and suffering to that seal. For these reasons and in these ways, the Regulations fail to ensure that seals are killed humanely, and as a consequence[1] , the seal hunt “result[s] in considerable and unacceptable suffering.”[ 73 ]

B. Legal Obstacles to Observing the Hunt

         Canada imposes legal obstacles on anyone attempting to protect seals, or to observe and document the hunt. Primarily, it does so by regulating the distance a person without a license can approach a sealer hunting seals. The official reason is to prevent disruption to the seal fishery.[ 74 ] However, Paul Watson may be correct that “Canada does not want us to see and document what happens up on those forlorn and lonely ice floes.”[ 75 ] Canadian officials seem to be aware that not all seals are killed humanely,[ 76 ] and may be interested in preventing the world from seeing gruesome footage of seals being clubbed to death, because such images helped cause the collapse of the fur seal market in the late 1970s.[ 77 ]
         In order to observe the hunt, a person must be issued a seal fishery observation license.[ 78 ] Without such a license, a person can come no closer than one-half nautical mile to someone “fishing for seals.”[ 79 ] The objective of this provision “was to address the need that the seal fishery be allowed to take place without the interference of the public and particularly those who wished to express their opposition.”[ 80 ]
         The DFO minister has discretion whether to issue a license to observe the hunt. Under the Regulations a license “may be issued only if the Minister determines that the issuance of the licence will not cause disruption to a seal fishery.”[ 81 ] The minister will only issue a license if he or she “comes to the conclusion the issuance of a license to an applicant will not disrupt the seal fishery in a particular area.”[ 82 ] In deciding whether to issue a license, the minister will consider whether the applicant intends to disrupt the seal hunt, or has been convicted in the past five years of tagging, marking or moving a live seal, or of coming within one-half nautical mile of a person hunting seals without holding a seal fishery observation license.[ 83 ]
         For these reasons, it can be a challenge for anyone wishing to protect seals, or to film the hunt, to be granted an observation license. While there is no violation if a person without a license approaches or is within one-half nautical mile of a person who is not fishing for seals,[ 84 ] the term, “fishing for seals,” has been very broadly interpreted. Under the Fisheries Act, "’fishing’ means fishing for, catching or attempting to catch marine animals by any method.”[ 85 ]  Even just walking on the ice and looking around may constitute “fishing for seals.”[ 86 ] Without a license, a person is not allowed to be within one half nautical mile of seal hunting activities without risking violating the Regulations. At such a distance, it would be difficult to protect seals or adequately film or photograph the actions of the sealers to document how the hunt is conducted. In this way, Canada is able to keep seal advocates away from the seals and the hunt, minimizing the amount of exposure to which the hunt is subjected.

II. TARGETED SEAL SPECIES AT RISK

            The harp seals are the main target of the Canadian commercial hunt.[ 87 ] This section discusses the migration, range, commercial use, status assessments, and exploitation of harp seals with a focus on those in the Northwest Atlantic, where the Canadian commercial hunt occurs.[ 88 ] 

A. Harp Seal Populations and Range

         Harp seals inhabit the North Atlantic and Arctic Oceans from Newfoundland and the Gulf of St. Lawrence to northern Russia.[ 89 ] Harp seals are highly migratory, and their range is defined by the northern and southern edges of the pack ice in summer and winter.[ 90 ] Their range spans several countries, including Canada, Greenland, Norway, Russia,[ 91 ] Iceland, and the United States.[ 92 ] The seals breed on the pack ice from February to March,[ 93 ] then after molting, they travel widely to feed.[ 94 ] In late September, harp seals begin a southward migration toward the winter breeding grounds.[ 95 ] Their annual north-south migration ranges from 6,000 to 8,000 km.[ 96 ]
         The harp seal gets its name from the harp-shaped pattern on the dorsal side and flanks of adult seals.[ 97 ] The natural life span is about 30 to 35 years, but the mortality rate for pups is rather high, with 20 to 30% dying in their first year.[ 98 ] Males and females reach breeding age between 4 and 6 years old.[ 99 ] There are three distinct populations of harp seals found in the frigid waters of the Arctic and northern Atlantic Oceans, based on small physical, genetic, and behavioral differences.[ 100 ] These are the Northwest Atlantic population, the White Sea population, and the Jan Mayen or Greenland Sea population.[ 101 ] The Northwest Atlantic population is found off the coasts of eastern Canada and western Greenland.[ 102 ] The Greenland Sea population is found off the East coast of Greenland and near the island of Jan Mayen.[ 103 ] The third population lives in the Barents Sea and White Sea off the coast of Russia.[ 104 ]
            The Northwest Atlantic population, the target of the Canadian commercial hunt, is found off the coast of eastern Canada in the spring, and off the coast of western Greenland in the summer.[ 105 ] This population is the largest of the three.[ 106 ] It is possible that the number of harp seals in this area was once as high as 24 million.[ 107 ] In 2000, the population was estimated to be 5.2 million seals (95% confidence interval (“C.I.”) 4 - 6.4 million).[ 108 ] In 2005, the DFO estimated this population to be in the range of 5.9 million seals (95% C.I. 4.6 - 7.2 million).[ 109 ] However, the actual seal population may be up to 1.3 million lower than the 5.9 estimated, or 4.6 million.[ 110 ]
            In the spring, the Northwest Atlantic population breeds in the Gulf of St. Lawrence and off the coasts of Labrador and Newfoundland.[ 111 ] They then travel to their summer feeding areas in the eastern Canadian Arctic and off western Greenland.[ 112 ] They reach Baffin Island and southwest Greenland in early summer, then travel to Ellesmere Island in the high Arctic, some going as far as Hudson Bay, by late summer.[ 113 ] They then spend the summer feeding in Hudson Bay, around Baffin Island and northwestern Greenland, before traveling south in the autumn.[ 114 ] They stay ahead of the forming ice, arriving at the southern edge of their range in the Gulf of St. Lawrence and off the coast of Newfoundland by late December or early January.[ 115 ]
        The East Greenland population lives off the East coast of Greenland and breeds on sea ice near the island of Jan Mayen.[ 116 ] They have been spotted feeding to the north of Iceland and Norway.[ 117 ] Population estimates for the East Greenland seals is approximately 300,000.[ 118 ] The Jan Mayen population was estimated to be about 350,000 in 2003.[ 119 ]
        The Barents Sea and White Sea population of harp seals lives in the Barents Sea, and breeds in the White Sea off the coast of Russia.[ 120 ] Before large scale exploitation began in 1875, the population of the seals in the Barents Sea was around 6 million.[ 121 ] This population was estimated to be between 1.6 and 2.1 million seals in 2003,[ 122 ] but may now number only 1.2 million.[ 123 ]
            Although all three harp seal populations are hunted commercially for their oil and fur,[ 124 ] the next section will focus on the Northwest Atlantic population, which is the population targeted in the Canadian commercial seal hunt.[ 125 ]

B. Unsustainable Hunting of Northwest Atlantic Harp Seals

         As the commercial seal hunting industry off the eastern Coast of Canada has grown, the number of harp seals in the Northwest Atlantic has declined. In the early to mid 19th century, a large number of seals, over 200,000, were killed annually.[ 126 ] By the 1950s, this number had grown to an average of 310,000 seals.[ 127 ] By 1971, scientists estimated that the harp seal population had decreased by as much as two-thirds.[ 128 ] Fortunately, from approximately 1971 to 1986, annual catches of harp seals decreased to an average of 60,000 per year, which allowed the depleted population to recover somewhat.[ 129 ]  However, in 1995, DFO Minister, Brian Tobin, increased the quota, claiming that harp seals were preventing depleted cod stocks from recovering.[ 130 ] However, scientists believe that over-fishing and failures in fisheries management were to blame for depleted cod stocks.[ 131 ]
         As the regulatory body, the DFO in the department that sets the Total Allowable Catches (TACs) for the Northwest Atlantic population.[ 132 ] TACs are set for a three-year period.[ 133 ] In 1997 and 1999, the TAC set for harp seals was 275,000.[ 134 ] In 2003, the DFO increased the quota to 350,000 seals, allowing 975,000 harp seals to be killed from 2003 to 2005.[ 135 ] In 2006, the TAC was reduced to 335,000.[ 136 ] The TAC was reduced further in 2007 to 270,000, but raised again in 2008 to 275,000 seals.[ 137 ] The reported kills were 244,552 in 1999, 91,602 in 2000,[ 138 ] 289,512 in 2003, and 365,971 in 2004.[ 139 ] However, the reported total catch is not the total number of seals actually killed.[ 140 ] Because the landed catch statistics do not include the numbers of seals that are killed but are not landed (struck and lost),[ 141 ] the total numbers of seals killed is higher than reported.[ 142 ]       
            Continued hunting of such large numbers of seals could cause the population to become “depleted,” which means reduced to levels less than half of its maximum population size.[ 143 ] Total removals that exceed 288,000 seals could cause the harp seal population to become depleted.[ 144 ] Even if TACs were lowered to 275,000, government scientists predict that the population would be reduced to about 3.85 million seals by 2011.[ 145 ] This seems to be the plan, as Canadian officials have intimated that “large-scale hunting will be allowed to continue until the number of harp seals falls to 3.85 million.”[ 146 ] Thus, the objective of the current management plan seems to be to increase the number of harp seals killed “while maintaining the population above a precautionary reference point set at 70% (3.85 million seals) of the current population level.”[ 147 ] However, setting population at 70% may be unsafe because it is difficult to estimate current population size, and may even threaten the Northwest Atlantic harp seal population.[ 148 ]
            By a number of accounts, the Canadian TACs for the seal hunt are likely unsustainable. Some scientists consider the scientific model used by the DFO to set harp seal TACs to be risky because it “fails to take into account many uncertainties.”[ 149 ] Any change in a number of variables could cause a drastic decline in the size of the harp seal population.[ 150 ] The management plan may fail to sufficiently consider such variables as environmental “unpredictability, climate change and the bioaccumulation of anthropogenic toxins, which in turn reduce reproductive rates and increase mortality.”[ 151 ] Another variable that is not taken into account is the unregulated hunt that occurs in the summer off the West coast of Greenland.[ 152 ] This hunt targets the same seal population that is killed in the commercial Canadian hunt in the spring.[ 153 ] Approximately 100,000 to 180,000 harp seals are killed in the Greenland hunt each year.[ 154 ] Unfortunately, DFO does not consider the loss of these seals when setting its TACs.[ 155 ]
         In addition to hunting, harp seals are facing other threats. For example, over-fishing will probably reduce harp seal numbers as food becomes scarcer.[ 156 ] Harp seals are also killed as incidental by-catch in commercial fisheries.[ 157 ] The Northwest Atlantic population loses an estimated 17,000 individuals in gillnets in Newfoundland each year,[ 158 ] and about 400 in multi-species sink gillnet fisheries in the northeastern United States each year.[ 159 ] It is likely that more seals are killed as by-catch, but are not reported.[ 160 ]
         Harp seals are also facing increased environmental threats from pollution, particularly in the St. Lawrence River estuary,[ 161 ] and from global warming. Warmer winters have caused the ice in the Gulf of St. Lawrence to break up and melt earlier each year.[ 162 ] This has led to an increase in the mortality rate of seal pups, which drown or are crushed by breaking ice.[ 163 ] In 2002, “government scientists estimated that poor ice conditions resulted in as much as a five-fold increase in the natural mortality of pups.”[ 164 ] Chemicals such as PCBs, DDT, DDE and heavy metals, such as lead and zinc, have been found at levels that may adversely affect the seals’ reproductive and immune systems.[ 165 ] These chemicals “represent a serious but unknown threat to seal populations,” because negative effects “include reproductive failure, infertility and reduced individual survivorship.”[ 166 ]
            With so many unknown variables that have the potential to take a toll on the harp seal population, it would be appropriate to apply a precautionary approach in managing harp seal populations,[ 167 ] which is important to prevent over-exploitation that could devastate, possibly even obliterate, the existing population.[ 168 ] Unfortunately, it seems the Canadian government considers the seal hunt to be “market-driven,” and has the goal of achieving the maximum economic benefit from the hunt.[ 169 ] Not surprisingly, some experts feel the DFO’s management of the seal hunt is not consistent with a precautionary approach.[ 170 ] The DFO’s management has been criticized for failing to take many uncertainties into account,[ 171 ] and for making assumptions that the environment will remain the same, that the scientists’ numbers are completely accurate, and that nothing else will change in the future.[ 172 ] The DFO’s style of natural resources management may have contributed to the collapse of the cod fishery off the East coast of Canada in the late 1980s and early 1990s.[ 173 ] The same fate may befall the harp seals.
         Some scientists believe that the current level of harp seal removal is unsustainable. In the past, when total removals were around 350,000 harp seals each year, the population plummeted to below 1,800,000 in the early 1970s, and only recovered when total removals were reduced significantly.[ 174 ] Taking into account mortality from hunting, struck and lost, and fisheries, it is estimated that approximately 465,000 harp seals in the Northwest Atlantic population were killed each year from 1997 to 1999.[ 175 ] The total removal for 1999 was approximately 483,000 harp seals, of which 281,000 were pups.[ 176 ]  Considering the “dramatic unreliability of harp seal population estimates, the uncertainty surrounding environmental related mortality and two non-cooperating fisheries (Canada and Greenland), such high levels of removals are unsustainable.”[ 177 ] There is some concern that that harp seal populations are already in decline because the total catches are higher than the birth rate,[ 178 ] but the true impact on the population may not be noticed for several years.[ 179 ] If a truly precautionary approach were to be taken with respect to the commercial seal hunt, then the TAC’s likely would have to be reduced to 100,000 seals a year or fewer.[ 180 ]
         In an effort to protect harp seals from cruel and unsustainable exploitation, and provide some oversight for the hunt at the international level, several sources of international law are evaluated in the next section.

III. POTENTIAL INTERNATIONAL SOURCES OF PROTECTION FOR SEALS

            In its current state, international law is failing to protect the harp seals targeted by the Canadian commercial hunt. International law seems to be an appropriate tool because it is the world community’s choice for protecting global biodiversity,[ 181 ] and because harp seals are a migratory species[ 182 ] subjected to international trade.[ 183 ] Several sources of international law are considered in this section as candidates to conserve and protect these seals.[ 184 ] Several are ultimately rejected as being unsatisfactory, but one, CITES, has potential to protect harp seals from cruel and unsustainable exploitation.

A. Unsatisfactory Sources of International Legal Protection

            The United Nations Convention on the Law of the Sea[ 185 ] (UNCLOS) is the first source of international law to be considered as a candidate to protect seals. UNCLOS is the convention for the marine environment,[ 186 ] and defines the rights and duties of coastal, port and flag states with respect to the use of the world’s oceans.[ 187 ] Canada is a party to UNCLOS.[ 188 ]
            Part V of UNCLOS on the rights and duties of parties in their Exclusive Economic Zone (EEZ) appears promising at first because seal hunting occurs in Canada’s EEZ.[ 189 ] The EEZ lies between 24 and 200 miles from the coast.[ 190 ] Article 61 of this section obligates coastal states to avoid over-exploitation of their marine resources in the EEZ.[ 191 ] Subsection 2 imposes an obligation on coastal states to ensure that “the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation,” taking into account “the best scientific evidence.”[ 192 ] Article 65 mandates that “[s]tates shall cooperate with a view to the conservation of marine mammals ...”[ 193 ]
            Although bound by this treaty, Canada may not be fulfilling its commitments under Article 61 or 65. Canada seems to be violating Article 61 by failing to adequately take into account scientific warnings about over-exploitation in setting its quotas.[ 194 ] Under Article 65, parties are required to cooperate with other states to protect marine mammals.[ 195 ] However, Canada is not cooperating with Greenland or Norway to conserve seals.[ 196 ] In addition, when Belgium and the Netherlands, also Parties to UNCLOS,[ 197 ] attempted to protect seals by banning seal products, Canada brought a complaint to the World Trade Organization (WTO),[ 198 ] rather than cooperate with them to conserve seals. As currently drafted, UNCLOS provides little recourse. Unfortunately, UNCLOS has no substantive provisions or dispute settlement provisions for Parties to resolve issues such as in this case, even though the treaty is supposed to address conservation concerns. Therefore, UNCLOS does not appear to be a likely candidate to protect seals from over-hunting.
            Another treaty, the Convention on Biological Diversity[ 199 ] (CBD) also appears promising at first glance, as it is a Multilateral Environmental Agreement (MEA) for the protection of biodiversity.[ 200 ] CBD’s objectives include “the conservation of biological diversity, [and] the sustainable use of its components.”[ 201 ] Unfortunately, the implementation of the CBD is problematic because it contains mainly soft law, general provisions rather than unambiguous, “hard-law” obligations.[ 202 ] The CBD imposes only one binding commitment on its parties: the submission of national reports.[ 203 ] The CBD also mitigates the obligations imposed on parties with the use of “as far as possible and as appropriate.”[ 204 ]
            Although the CBD does not currently protect seals, it does provide a mechanism that could, in theory, do so.[ 205 ] This would be to adopt a protocol on the conservation of seals pursuant to Article 28, which states that “the Contracting Parties shall cooperate in the formulation and adoption of protocols to this Convention.”[ 206 ]  However, promoting a protocol to the CBD could take years to draft and negotiate before finally being adopted and ratified.[ 207 ] The CBD has yet to adopt specific protocols containing binding provisions pursuant to Article 28,[ 208 ] and is unlikely to do so in face of “the existing lack of political will.”[ 209 ]  For these reasons, the CBD also appears to be an unlikely candidate to protect seals.
            The last source to be considered and rejected is the North Atlantic Marine Mammal Commission (NAMMCO), which is an international body established for the conservation, management and study of marine mammals in the North Atlantic.[210] The NAMMCO Agreement[ 211 ] was signed by Norway, Iceland, Greenland and the Faroe Islands, but not Canada.[ 212 ]
            NAMMCO also seems promising at first because its objective is “to contribute through regional consultation and cooperation to the conservation, rational management and study of marine mammals in the North Atlantic.”[ 213 ] Unfortunately, NAMMCO focuses on domestic implementation rather than international management. The Management Committees propose “to their members measures for conservation and management” of “stocks of marine mammals within their respective mandates.”[ 214 ] Although NAMMCO provides a mechanism for the cooperation on conservation and management for seals in the region with non-member states,[ 215 ] such states are not bound to cooperate. For these reasons, NAMMCO also appears to be an unlikely tool to protect the Northwest Atlantic harp seals from unsustainable exploitation at an international level.

B. CITES as a Source of International Legal Protection

            Unlike the previously discussed international sources of law, CITES seems to have real potential to protect harp seals from cruel and unsustainable exploitation at an international level. CITES’ objective is to regulate the international trade, which includes export,[ 216 ] of wild animals to ensure that their survival is not threatened.[ 217 ] In so doing, CITES’ recognizes that “international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade.”[ 218 ] Because products made from the slaughtered seals, such as fur, oil, and meat, are marketed internationally,[ 219 ] harp seals would come under CITES’ purview.
           CITES prevents unsustainable use of species listed in its three appendices by regulating international trade through controls and regulations that are required before the species may be imported or exported.[ 220 ] However, parties are free to adopt stricter regulations or even prohibitions of listed or unlisted species.[ 221 ] Each party is required to adopt national legislation and to designate two national authorities, namely, a Management Authority and a Scientific Authority.[ 222 ] The Management Authority is responsible for ensuring that permits and certificates are not issued if a specimen had been “obtained in contravention of the laws of that State for the protection of fauna and flora.”[ 223 ] The Scientific Authority is responsible for ensuring that export permits will only be issued if “such export will not be detrimental to the survival of that species.”[ 224 ] The Scientific Authority is also tasked with maintaining exports such that the species remains at a level consistent with its role in the ecosystems throughout its range “and well above the level at which that species might become eligible for inclusion in Appendix I....”[ 225 ] Appendix I includes “ all species threatened with extinction which are or may be affected by trade.”[ 226 ] These two national authorities also assist in enforcing CITES by cooperating with customs, police and other agencies.[ 227 ] Parties also maintain trade records that they forward to CITES annually, which enables the compilation of statistical information on the amount of international trade in species listed in the appendices.[ 228 ] 
            The harp seals may be a candidate species for listing under Appendix II, which contains species that may become endangered if their trade is not regulated.[ 229 ] This includes:

all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.[ 230 ]

International trade in Appendix II species is subject to an export permit, which requires a finding by the Scientific Authority of the exporting state that “such export will not be detrimental to the survival of that species.”[ 231 ] The Management Authority of the exporting state must also be “satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna...”[ 232 ]
            In order to list a species in Appendix II, a party must submit a proposal to the Conference of the Parties (COP) for approval, and include scientific and biological data on population and trade trends.[ 233 ] “Any member country can nominate a species for listing; the nominated species does not have to be native to the nominating country.”[ 234 ] The COP then decides in which Appendix to list a species.[ 235 ] The proposal must be adopted by a two-thirds majority of parties present at the COP.[ 236 ]
            To ensure that CITES is correctly implemented, Article XII authorizes the Secretariat “to undertake scientific and technical studies ... as will contribute to the implementation of the present Convention...[ 237 ] and to study the reports of Parties and to request from Parties such further information ... as it deems necessary to ensure implementation.”[ 238 ] Article XIII also requires the Secretariat to act if he or she becomes aware that any Appendix II species is adversely affected by trade.[ 239 ] He or she must then communicate such knowledge to the appropriate party,[ 240 ] which may then propose remedial action.[ 241 ] The information provided by the party will then be reviewed by the next COP “which may make whatever recommendations it deems appropriate.”[ 242 ]
            From the scientific reports, the Secretariat must determine if trade in an Appendix II species would be to the detriment of the species or not. The issuance of non-detrimental findings is the primary means by which the Secretariat ensures that international trade is not detrimental to a species, that CITES is being implemented, and that it is effective in protecting endangered or threatened species.[ 243 ] Non-detrimental findings are addressed in Article IV:

2. The export of any specimen of a species included in Appendix II shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species; (b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; ....
3. A Scientific Authority in each Party shall monitor both the export permits granted by that State for specimens of species included in Appendix II and the actual exports of such specimens. Whenever a Scientific Authority determines that the export of specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I, the Scientific Authority shall advise the appropriate Management Authority of suitable measures to be taken to limit the grant of export permits for specimens of that species.[ 244 ]

            Non-detrimental findings issued contrary to scientific findings violate CITES.[ 245 ] Such action “would trigger the non-compliance procedure under CITES against the exporting party, which could ultimately lead to the cessation of the exporting party's trading rights.”[ 246 ] Resolution Conf. 10.3 of the CITES COP, which is entitled "Designation and Role of the Scientific Authorities," furthers the purpose of Article IV.[ 247 ] Resolution Conf. 10.3 states that the “issuance of permits by a Management Authority without appropriate Scientific Authority findings constitutes a lack of compliance with the provisions of the Convention and seriously undermines species conservation,” and recommends that:

the findings and advice of the Scientific Authority of the country of export be based on the scientific review of available information on the population status, distribution, population trend, harvest, and other biological and ecological factors, as appropriate, and trade information relating to the species concerned.[ 248 ]

            Under CITES, the potential exists that, upon showing evidence of the detrimental effects of the trade in the targeted population of seals, the Secretariat would bring the relevant information to the attention of Canada.[ 249 ] Canada would then be obligated to "inform the Secretariat of any relevant facts."[ 250 ] Upon receiving that data, the Secretariat would then bring the information to the COP for its review and recommendations.[ 251 ] The existing data showing the detrimental effects of the hunt on the harp seal species should persuade the COP to recommend listing them as Appendix II species so as to “avoid utilization incompatible with their survival.”[ 252 ]  If the COP decides to list harp seals as an Appendix II species, an export permit would be required for international trade in products made from them, which would only be issued if trade were not detrimental to the species.[ 253 ] Because evidence shows that the seal hunt is detrimental to the harp seal species, Article IV and Resolution Conf. 10.3 may be a way to challenge the issuance of export permits.[ 254 ]
            In addition, other provisions of CITES may be brought to bear in limiting the number of permits issued. Within the framework of CITES, Canada’s own laws may be used to advance protections. The provision that harp seals may not be “obtained in contravention of the laws of that State for the protection of fauna...”[ 255 ] may form another basis by which to challenge the issuance of export permits. For example, the Canadian animal cruelty statute makes it an offense for anyone to “wilfully cause[] ... unnecessary pain, suffering or injury to an animal...”[ 256 ] Some seals are subjected to multiple blows, are hooked, dragged, and/or skinned alive. This may constitute a violation of the animal cruelty statute, as well as a violation of the Regulations. The fact that seals are killed by means that do not comply with Canadian law may form a basis to challenge the issuance of export permits for harp seal products.
            CITES seems to provide a means of reducing the international market for harp seal products by limiting the number of export permits issued for harp seal products. It is hoped that reducing the market would lead to Canada lowering the number of harp seals killed in the commercial hunt to a sustainable level, and to ensure compliance with laws protecting fauna, i.e. the Regulations and the animal cruelty statute.

CONCLUSION

            The nations of the world must cooperate to end the intolerable cruelty inflicted upon the seals targeted by the Canadian commercial seal hunt, and to ensure the survival of the species. Hundreds of thousands of harp seals are butchered every year off the coast of Northwest Canada. As migratory species that are the subjects of international trade, harp seals depend upon the cooperation of the global community to protect them from cruelty and unsustainable exploitation.        
            Unfortunately, the existing international legal regimes have, thus far, failed to protect seals from wholesale slaughter, and the seal populations, defenseless against the brutality and over-hunting, are declining in numbers. Several sources of international law have been examined and rejected as means to protect seals. For example, under the CBD, a protocol dealing with the conservation of the targeted seals pursuant to Article 28 could be adopted, but this process could take years, and is unlikely to happen. UNCLOS provides no substantive provisions or dispute settlement provisions to prevent unsustainable exploitation. Therefore, there is no way to address the fact that Canada's seal hunting practices do not live up to a couple of articles in Part V. Finally, NAMMCO is an agreement between Norway, Iceland, Greenland and the Faroe Islands that focuses on domestic management of marine mammal stocks. Unfortunately, Canada is not a party to the NAMMCO Agreement, and thus, does not have to cooperate with the other countries to conserve seals. For these reasons, UNCLOS, CBD, and NAMMCO do not seem to be viable candidates to protect seals at an international level.
            In contrast, CITES seems to be a promising candidate to protect harp seals from cruel and unsustainable exploitation. CITES may be used as a tool to reduce the international market for harp seal products by limiting the number of export permits issued. If harp seals were listed as Appendix II species to avoid over-utilization, Canada would have to issue an export permit before harp seal products could be exported.[ 257 ] This could only be done if the export would not be detrimental to their survival.[ 258 ] Because the trade in seals killed in the hunt is detrimental to the species, such export permits could be challenged. In addition, the fact that seals are killed by means that do not comply with Canadian law to protect fauna may form another basis to challenge the issuance of an export permit for harp seal products. It is hoped that reducing the international market for seal products would encourage Canada to reduce the number of seals killed in the commercial hunt to a sustainable level, and to ensure that the seals are killed humanely.