This commentary is an update to an article in an earlier issue of Transnational Environmental Law (E. Couzens, ‘Size Matters, Although It Shouldn’t: The IWC and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran’ (2014) 3(2) Transnational Environmental Law, pp. 265–78) on the treatment of small cetaceans by the International Whaling Commission (IWC). That article discussed an unsuccessful proposal submitted by Monaco, at the 64th meeting of the IWC in 2012, for a resolution on highly migratory cetaceans. Monaco renewed its proposal in 2014 and, on that occasion, did generate sufficient support for a resolution to give contracting parties to the International Convention for the Regulation of Whaling a mandate to initiate debate over small cetaceans in other fora. Following this IWC Resolution, in December 2015, the United Nations General Assembly included a clause proposed by Monaco in its Resolution on Oceans and the Law of the Sea. The nature of international law is such that it is difficult to force change without upsetting a delicate equilibrium. Monaco’s initiative, however, may provide significant momentum towards a solution for what remains the real and under-acknowledged problem that there is virtually no international law applicable to small and/or highly migratory cetaceans.

Written as a response to the article ‘Does Size Matter? The ICRW and the Inclusion of Small Cetaceans’ by Sean Stephenson, Arne Mooers and Amir Attaran, this commentary considers how important global and regional biodiversity- or conservation-related conventions have deliberately avoided the issue area of cetacean management. One of the effects of this is that so-called ‘small cetaceans’ – approximately 70 species – are left largely unregulated. This article differs from that of Stephenson and his co-authors, who argue that the ‘only appropriate’ forum for dealing with the issue is the International Court of Justice. Instead, it is argued here that the ‘Future of the IWC’ compromise process may yet represent the best course for bringing small cetaceans under IWC management authority. Another alternative was recently suggested in a draft resolution put forward by Monaco in 2012 – and is likely to be put forward again in 2014 – which advocated involving the United Nations General Assembly in the issue. The issue is both complicated and important, and a solution is needed.