Legal Options (and Obligations?) for Enhanced Canada–United States Cooperative Southern Resident Killer Whale Conservation

Abstract The critically endangered Southern Resident killer whale (SRKW) population is at a conservation crossroads. The SRKW’s range extends from California to southern Alaska, but the core habitat of the species is the inland Salish Sea. The principal threats to the population are the decline in Chinook salmon abundance, physical and acoustic disturbance, and environmental contamination. Effective management must respond to the cumulative impact of these threats. The SRKW population has been protected as an endangered species in Canadian and U.S. waters for more than a decade, and emergency conservation measures have been produced in both jurisdictions. Unfortunately, these conservation measures have failed to stabilize the population or advance cooperative ecosystem-based conservation. The United Nations Convention on the Law of the Sea (UNCLOS) legally obligates states to cooperate in marine mammal conservation and, with respect to cetaceans, specifically requires states to work through an appropriate institution for their conservation and management. This article examines ongoing efforts by Canada and the United States to stabilize and recover the SRKW population in view of UNCLOS and the objective of long-term stewardship. This assessment includes ad hoc cooperative mechanisms and possible developments under existing cooperative forums. Although the base legal obligations created by UNCLOS are likely met, the objective of institutionalized cooperative cetacean conservation and management in UNCLOS is not met; moreover, existing cooperative forums are insufficient to effect SRKW recovery. Canada and the United States continue to approve projects without properly assessing the cumulative transboundary impact on the SRKW population or quantifying their contribution to important ecosystem-based thresholds, which reveals the true extent of management dissonance in the Salish Sea. This analysis concludes that enhanced bi-lateral cooperation and long-term co-existence with the SRKW population requires the creation of a new institutional forum, analogous to the International Joint Commission, that coordinates SRKW recovery measures and assesses future projects in view of cumulative effects management.