Caught Napping by (Sea) Wolves: International Wildlife Law and Unforeseen Circumstances Involving the Killer Whale (Orcinus Orca) and the Gray Wolf (Canis Lupus)

Abstract

This chapter focuses on situations where international legal instruments for wildlife conservation are faced with developments that are clearly within their scope of application but were nevertheless unforeseen when the instruments were drafted. International wildlife law covers a subject matter where surprises abound. It is therefore essential, not only to anticipate future developments as far as possible, but also to adequately deal with unexpected circumstances that nevertheless present themselves. Combining these two requirements – anticipating and responding to changes – with a sufficiently high and durable level of protection, is quite a challenge. This problem is viewed through the lens of two examples. These involve two distinct wild fauna species, the killer whale or orca (Orcinus orca) and the gray wolf (Canis lupus). The first instance considered below is the controversy regarding a killer whale that was rescued from the Dutch Wadden Sea in 2010 and subsequently kept in captivity. This incident clearly brought to the fore that the applicable international legal framework is not tailored to marine mammal rescue operations of this kind. The second example concerns the resilience and adaptability of gray wolves in Europe, which have taken friend and foe by surprise. Aided inter alia by legal protection, these large carnivores are staging a remarkable comeback and are returning to areas and countries from which they have long been absent. This unforeseen homecoming gives rise to several pressing issues, including legal ones. In both cases – and many more examples exist – there is an apparent mismatch between current practical conservation issues and the substance of the applicable legal instruments. In respect of each instance, this contribution concisely explores (i) how it shows that the development in question was unforeseen at the time the rules in question were drawn up; (ii) to what extent this is a problem; and (iii) in what way(s) the problem might be addressed.

Keywords: International law, wildlife conservation, wolf, killer whale, Habitats Directive, ASCOBANS