From the inter- and intra-generational equity perspective (current and future generations)
Auriane Boileau, LLM student 2025
Amid growing momentum for ocean conservation, the movement to recognise the Rights of Nature is expanding and whales are part of it. By recognising and respecting the Rights of Nature, one has the power to shift the direction humanity is taking the planet Earth, for both current and future generations.
Annually 300,000 whales are killed as bycatch1, with fishing gear ingestion a leading cause in the United Kingdom.2 While Japan, Norway and Iceland continue to hunt whales despite a global ban on commercial whaling. Legal experts, scientists, policy-makers and ocean advocates should rethink environmental governance, analyse international legal gaps and propose stronger compliance mechanisms.
By integrating the Rights of Nature, whale species ought to be recognised as sentient beings with legal standing. This approach means that a treaty reform to protect oceanic life as a core responsibility to future generations is required.
Are current international legal frameworks effective enough in protecting whales in the context of future generations’ rights?
The international legal framework for whale protection has undergone a remarkable transformation, shifting from sustaining commercial exploitation to prioritising conservation.3
The foundation era (1946–1970s) was established through the 1946 International Convention for the Regulation of Whaling (ICRW), which evolved from managing whale stocks4 to implementing a comprehensive ban on commercial whaling5 through the 1982 International Whaling Commission moratorium.6
The framework’s effectiveness is strengthened by complementary regulatory instruments, including the United Nations Convention on the Law of the Sea provisions for marine mammals’ protection;7 the Convention on International Trade in Endangered Species of Wild Fauna and Flora listing many endangered or threatened whale species under Appendix I;8 and core regulatory mechanisms such as whale sanctuaries in the Indian and Southern Oceans and an extensive global network of Marine Protected areas.9
Nevertheless, this effectiveness remains constrained by the systematic exploitation of legal loopholes and exemptions on aboriginal subsistence and scientific whaling under Article VIII of the ICRW.10 As demonstrated by the International Court of Justice’s 2014 ruling on Japan’s JARPA II program,11 pro-whaling nations continue operations despite international prohibitions.12 Such compliance failures exacerbate the scarcity of robust enforcement mechanisms within the institutional frameworks.13
Although the international legal framework has successfully reached global consensus on whale conservation, future effectiveness resides in a revised treaty on whaling, aligned with the Rights of Nature movement, to enhance compliance and strengthen enforcement mechanisms.
Whales and the Rights of Nature – toward legal recognition and protection for the benefit of current and future generations
Transitioning towards international legal frameworks on environmental conservation creates opportunities to integrate innovative juridical mechanisms that merge immediate environmental protection through the Rights of Nature movement and advocate for long-term stewardship via the intergenerational equity perspective.
As such, this convergence enables the establishment of dual guardianship systems, where ecological guardians advocate for Nature’s intrinsic rights14 and temporal guardians represent future generations’ interests. Thereby transcending traditional anthropocentric limitations.
Successful precedents include Ecuador’s constitutional commitment to make citizenship coexist with Nature and enforce its rights judicially and New Zealand’s Te Awa Tupua Act granting legal personhood to the Whanganui River through appointed guardianship representation.15 Additionally, while Indigenous Māori and Pacific leaders called for whale legal personhood before the 2023 United Nations General Assembly, the He Whakaputanga Moana Treaty recognised whales as legal persons under international and indigenous frameworks.16
Academics have proven whales’ high intelligence capacity, often qualified as ‘self-conscious beings who can plan, hope and reflect on goals’, making them of primary moral concern.17
Nevertheless, while the Rights of Nature radically shift away from human-centred interests, the movement faces structural limitations as it still operates within human-created legal systems.18
The doubted effectiveness resides within weak legal enforcement, political corruption and regulatory captures that would persist under Rights of Nature frameworks unless directly addressed through coherent legal systems and strict monitoring.19
Way Forward
An improved future requires undertaking transformative legal reforms in whale conservation frameworks. Key measures include granting legal standing to guardians to represent whales’ intrinsic rights, strengthening existing legal regimes with Rights of Nature and intergenerational principles for better enforcement and accountability. Also supporting a United Nations resolution for a permanent commercial whaling ban alongside a “Declaration for the Rights of Whales”.
Innovative governance models are needed to reflect whales’ migratory and borderless nature. This involves mechanisms for documenting whales’ rights breaches, incorporating ecosystem-based management into decision-making processes and adopting adaptive approaches that evolve with scientific understanding.
Unlike territorially grounded natural entities, whales’ migratory status challenges traditional Rights of Nature frameworks. To ensure generational equity, domestic laws should embed Rights of Nature principles with clear compliance timelines. Internationally, whale rights must align with the Biodiversity Beyond National Jurisdiction Agreement,20 recognising whales as part of the global commons and deserving transboundary protection.
This blog post expands on the author’s legal research project supervised by Dr. Onita Das, submitted in 2025.21
References
[1] International Whaling Commission, ‘The Bycatch Mitigation Initiative – Bycatch’ (IWC, 2025). ↩︎
[2] BBC News, ‘Hundreds of Whales Stranded on Scottish Island’ (BBC, 3 January 2020); Seaspiracy (dir Ali Tabrizi, Netflix 2021) 01:01:15. ↩︎
[3] International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72 (Preamble); P Birnie, ‘The Role of Developing Countries in Nudging the International Whaling Commission from Regulating Whaling to Encouraging Nonconsumptive Uses of Whales’ (1985) 12 Ecology L Q 939. ↩︎
[4] Birnie (n 3) 939; M Fitzmaurice, ‘The International Convention for the Regulation of Whaling and International Whaling Commission – Conservation or Preservation – Can the Gordian Knot Be Cut (or Untangled)?’ (2013) 5 Yearbook of Polar Law 459-461; C Pinon Carlarne, ‘Saving the Whales in the New Millenium: International Institutions, Recent Developments and the Future of International Whaling Policies’ (2005) 24 Va Env’l L J 32-33, 41. ↩︎
[5] Fitzmaurice (n 4) 473-474. ↩︎
[6] AE Boyle, C Redgwell and PW Birnie, Birnie, Boyle & Redgwell’s International Law and the Environment (4th edn, Oxford University Press 2021) 765. ↩︎
[7] Boyle et al (n 6) 750-751, 764; United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, Articles 65, 120, 194(5). ↩︎
[8] Fitzmaurice (n 4) 472; Birnie (n 3) 947; Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243, Appendix I. ↩︎
[9] Boyle et al (n 6) 765; Fitzmaurice (n 4) 476; K Grorud-Colvert K et al, ‘The MPA Guide: A Framework to Achieve Global Goals for the Ocean’ (2021) 373 Science (American Association for the Advancement of Science) 1. ↩︎
[10] Fitzmaurice (n 4) 466-467, 473-474, 477; R Wichert and MC Nussbaum, ‘Scientific Whaling? The Scientific Research Exception and the Future of the International Whaling Commission’ (2017) 18 Journal of Human Development and Capabilities 360. ↩︎
[11] Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226. ↩︎
[12] See Boyle et al (n 6) 765; Pinon Carlarne (n 4) 45-46; M Mangel, ‘Whales, Science, and Scientific Whaling in the International Court of Justice’ (2016) 113 Proceedings of the National Academy of Sciences – PNAS 14525; R Wichert and MC Nussbaum (n 10) 360. ↩︎
[13] Pinon Carlarne (n 4) 45-46. ↩︎
[14] M Bender and R Bustamante, ‘Reimagining Fishing in the Anthropocene Through a Rights of Nature Lens’ (2024) 15 JHRE 163. ↩︎
[15] Ibid 165. ↩︎
[16] C Rodríguez-Garavito, DF Gruber, A Nemeth and G Beguš, ‘What If We Understood What Animals Are Saying? The Legal Impact of AI-Assisted Studies of Animal Communication’ (2025) 52(1) Ecology L Q 47. ↩︎
[17] PS Elder, ‘Legal Rights for Nature – the Wrong Answer to the Right(s) Question’ (1984) 22 Osgoode Hall L J 290. ↩︎
[18] J Bétaille, ‘Rights of Nature: Why It Might Not Save the Entire World’ (2019) 16 JEEPL 54, 57-58. ↩︎
[19] Ibid 63. ↩︎
[20] Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (adopted 19 June 2023, not yet in force) UN Doc A/CONF.232/2023/4. ↩︎
[21] This blog post therefore refers to the state of the law as of early September 2025. ↩︎