To Free or Not to Free? State Obligations and the Rescue and Release of Marine Mammals: A Case Study of 'Morgan the Orca'

2(1) Transnational Environmental Law 117-144

26 Pages Posted: 24 Jan 2015

See all articles by Arie Trouwborst

Arie Trouwborst

Tilburg University - Department of European & International Public Law; Tilburg Sustainability Center

Richard Caddell

Swansea University College of Law

Ed Couzens

University of KwaZulu-Natal - Faculty of Law (Howard College and Pietermaritzburg Campuses)

Date Written: 2013

Abstract

Wild animals periodically encounter difficulties or suffer injuries that require human intervention and assistance. The natural assumption is that a surviving animal will, where viable, be released back to the wild. But is there a formal legal obligation for a rescuer to do so? This question arose recently in the context of ‘Morgan’, a female killer whale rescued in poor health in Dutch waters. Morgan was successfully restored to full health, but the Dutch authorities subsequently declined to repatriate her to the wild and, controversially, transferred her to a zoological facility in Spain. This article examines the largely unexplored legal obligations incumbent upon the Netherlands in respect of rehabilitated cetaceans, in the process exposing certain problems of clarity and consistency within the present regulatory framework. By necessary implication, this article identifies emerging issues of interpretation posed by the Morgan saga, illustrating the tensions between animal welfare and nature conservation – especially in the transboundary context – and concluding firmly that the Dutch authorities erred legally in making their final decision.

Keywords: marine mammals, rescue, rehabilitation, international wildlife law, killer whale, orca, ASCOBANS, Habitats Directive, Bern Convention, CITES

Suggested Citation

Trouwborst, Arie and Caddell, Richard and Couzens, Ed, To Free or Not to Free? State Obligations and the Rescue and Release of Marine Mammals: A Case Study of 'Morgan the Orca' (2013). 2(1) Transnational Environmental Law 117-144, Available at SSRN: https://ssrn.com/abstract=2554294

Arie Trouwborst (Contact Author)

Tilburg University - Department of European & International Public Law ( email )

Tilburg, 5000 LE
Netherlands

Tilburg Sustainability Center ( email )

P.O. Box 90153
Tilburg, North Brabant 5000 LE
Netherlands

Richard Caddell

Swansea University College of Law ( email )

Singleton Park
Singleton Park
Swansea, SA2 8PP
United Kingdom

Ed Couzens

University of KwaZulu-Natal - Faculty of Law (Howard College and Pietermaritzburg Campuses) ( email )

Durban 4041
South Africa

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