Photo courtesy of Forbes Sri Lanka has had multiple reports of threats posed to the lives of blue whales off its southern coast, with incidents having increased in frequency in the recent past. Reports indicate that nine blue whale strandings and fifteen whale mortalities occurred between January 2010 and April 2012 and four blue whale deaths between January and May 2014 in this area. Studies undertaken by the University of Ruhuna have pointed out that Sri Lanka’s existing Traffic Separation Scheme (TSS), or shipping lanes, lie over a major upwelling area in the sea where currents bring up nutrient-rich water to the surface of the ocean. The area also serves as a major feeding ground for a broad variety of marine species, including a substantial proportion of the northern Indian Ocean population of endangered blue whales. This area overlies one of the busiest shipping lanes, midway between Malacca and Bab-el-Mandeb, facilitating more than 100 merchant ship transits per day. The Biodiversity Education and Research (BEAR) observed in 2017 that nearly half of the recorded large whale deaths in Sri Lankan waters were the result of ship strikes. But threats to whales are not only from ship strikes. This maritime area has been identified as one that poses a triple threat to cargo ships and tankers that use the TSS, exposing them to the risk of collisions with whales, small fishing vessels and whale watching boats. The exceptional marine productivity in the area around Sri Lanka’s TSS attracts blue whales (consequently whale watching boats tailing them) as well as small fishing vessels, which operate very close to the traffic lanes even at night, obstructing the traffic in the TSS. It is in this context that an appeal was presented in April to the Marine Environmental Protection Committee (MEPC) of the International Maritime Organisation (IMO) by several international conservation groups, highlighting the need to establish a new TSS further south of the current TSS of Sri Lanka to protect marine species inhabiting this area, specifically the endangered blue whale. Conservation and maritime safety The blue whale remains listed as endangered in the IUCN Red list of threatened species. Humanity’s often contentious relationship with large whales was reflected in the ICJ’s Whaling Case, prohibiting Japan’s long running programme to capture large cetaceans for scientific research.  Increased protection for blue whales is provided for in International Convention for the Regulation of Whaling, United Nations Convention on the Law of the Sea (UNCLOS) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Convention on the Conservation of Migratory Species of Wild Animals (CMS) and the Convention on Biological Diversity (CBD). Sri Lanka is a signatory and is bound by international obligations created by all these conventions for international cooperation in conservation of whales, as well as the national implementation of strict rules on whale protection. Apart from these frameworks, international environmental law principles such as sustainable development, precautionary principle, inter-generational equity and permanent sovereignty over natural resources of the country and other soft law such as the Stockholm and Rio Declarations are equally forceful in advocating the need for conservation and environmental law compliance in economic ventures involving natural resources. National legislation such as the Fauna and Flora Protection Act and the Fisheries and Aquatic Resources Act list blue whales as a strictly protected species and impose penalties up to Rs.100,000 and/or five year imprisonment for killing, injuring and harming them. They are also named as endangered in the National Red List 2012 of Sri Lanka. The National Environment Act stresses on the need for sustainable and rational exploitation of aquatic resources within Sri Lankan jurisdiction. While discussing the rerouting of the TSS, it must be borne in mind that environmental gains generated by such a decision are accompanied by economic costs. However, such costs should be analysed in the context of data from surveys revealing that if the TSS is rerouted 15 nautical miles further south of the existing lanes, 95% of ship collisions can be averted. Currently the traffic lanes lie as close as five nautical miles off the baseline (land) in Dondra Head. Such proximity endangers local fisherman and their vessels (some of whom have perished from ship strikes), marine mammals and whale watching boasts. These changes in marine mammal behaviour and surrounding activity may not have been envisaged when the original TSS was established in 1980. Given Sri Lanka’s inaction in this regard, some major cargo companies have already voluntarily rerouted their shipping routes 15 nautical miles further south from the current TSS in Sri Lankan waters. The maritime safety risks described above have resulted in a large number of ships choosing to sail south of the existing TSS. The Mediterranean Shipping Company (MSC), the world’s largest container carrier, took proactive measures to protect blue whales off the coast of Sri Lanka by altering its shipping route in 2022. Around 33% of ships transiting this area are now choosing to sail south via this unofficial route to avoid the risks incumbent with use of the existing TSS south of the Dondra Head. Countries such as Canada and Spain have backed the requests made to the IMO for rerouting the shipping lanes, supporting the formation of a new TSS. Canada has expressed its support to this request, citing how similar steps have been taken by Canada and the U.S. to conserve the endangered North Atlantic right whales in their east coasts. Canada has expressed its interest in sharing its experience with Sri Lanka to assist with the technical expertise needed in taking proactive steps to safeguard the endangered blue whale population. The Consortium of Conservation Organizations is not in agreement with the argument put forward by the government that the economic cost to the fragile and recovering economy of Sri Lanka due to the rerouting would be overwhelming in comparison with the gains from the conservation of the biggest living creatures on Earth and ensuring maritime safety. This is in the backdrop that the Scientific Committee of the International Whaling Commission (IWC) has recommended that the available data would support a proposal to IMO to establish a new TSS roughly 15 nautical miles south of the existing TSS, thus taking it out of the territorial waters of Sri Lanka. Economics and geopolitics China and India, as the regional superpowers, have supported the government’s stance on its refusal to reroute the TSS, citing the consequent economic costs. It appears to be in strategic interest of both countries – one which benefits from the transhipment facilities and one which operates the Hambantota port. The government noted that the UN Convention on the Law of the Seaprovided the coastal state with the jurisdiction to determine how foreign vessels navigate within its territorial waters within 12 nautical miles from land. However, the convention also provides that a coastal state prescribing a traffic separation scheme in its territorial sea, must take into account any IMO recommendations. Sri Lanka raised issues of possible expense escalation and claimed that there will be an increase in pollution if the new ship route is established, as it would result in ships travelling extra miles to their destinations. Research, however, indicated it would only add 5 to 12 nautical miles to the journey depending on the destination of the ship. Several international shipping associations wrote to the government in 2017 and 2021 requesting Sri Lanka to consider relocating the existing TSS roughly 15 nautical miles south of the existing TSS. In December 2021, the IMO and GoSL organised a national stakeholder consultation to discuss environmental and safety risks associated with the current TSS. The Minister of Foreign Affairs has appointed a stakeholder committee to study the IMO request to review the TSS in June 2023. The government’s stance in this regard has been that the IMO’s request has no merit and if acquiesced the rerouting would have serious implications for Sri Lanka’s maritime lines of communication and shipping, which the island is dependent on for trade and commerce. It is the government’s position that Sri Lanka has ambitious plans to become a trans-shipment hub by leveraging its geographical position in the heart of the Indian Ocean and would oppose the request. The National Aquatic Resources Research and Development Agency (NARA) has been tasked with evaluating the recent IMO report’s data on the alleged impact on critical marine life by the shipping lanes and to submit a report to the government. Solutions and way forward To supplement the rerouting of the TSS or as an alternative in the event the government maintains its objection, Sri Lanka could adopt other measures to conserve the endangered marine mammal population and ensure maritime safety for all parties. These include utilising direct national laws for conservation to weave a web of protection in a concerted and coordinated manner around blue whales through measures such as declaring Mirissa and other popular whale residing waters as Marine National Parks or Marine Sanctuaries. Littoral pollution and sound pollution created by whale watchers, drift net fishers and other small fishing vessels in areas with reported whale populations should be strictly regulated through such laws. Legal provisions and regulations must be put in place to establish speed restriction zones in the southern waters and to ensure that mariners are compulsorily required by law to take safety precautions such as passage planning, keeping watch and reporting collision incidents when entering, leaving or passing through the TSS of Sri Lanka, backed by penalties to ensure mariner compliance. Another step that can be taken is for the marine mammal database maintained at National Aquatic Resources Research and Development Agency (NARA) to be publicised and coordinated with the IWC global database to help understand whale migration patterns and densities, as more information means refined measures of conservation. Mandating regular research into the taxonomic status and population size of the blue whales frequenting Sri Lankan waters, coordinated through the Scientific Committee of the International Whaling Commission (IWC), will also be crucial. Steps can also be taken to better publicise and raise awareness of the public and the relevant stakeholders about indirect conservation measures provided for by the whale-watching guidelines in Sea Mammals (Observation, Regulation and Control) Regulations, No. 1 of 2012. A mechanism must be put in place for the Department of Wildlife Conservation (DWC), armed with required resources, to strictly enforce the guidelines and provide training and facilitation to tour operators engaged in eco-tourist ventures in these waters. Swimming with cetaceans in Sri Lankan waters is currently a restricted activity that requires anyone seeking to undertake it to obtain express permission of the Director General, of the DWC. The need for guidelines setting out appropriate and acceptable conduct for all parties involved in such interactions as swimming with cetaceans has become critical. This is an area in which further legislation and regulation are urgently needed, particularly as it is the most intimate encounter between cetaceans and humans. Initiatives could be taken through organisations such as NARA for experience sharing and collaborations to bring about collective ocean management. Coordination must be maintained with the Indian Ocean Rim Association (IORA) countries to protect cetaceans and other migratory species. For this purpose, Sri Lanka can leverage its position as the Indian Ocean Rim Association (IORA) Chair, 2023-25 to engineer regional conservation agreements covering the Indian Ocean Region, similar to the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS) and Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS). Taking these steps are crucial for Sri Lanka to conserve endangered species in its waters as well as ensure maritime safety.