Habeas Porpoise: The Strange Case of Morgan the Orca
The current issue of Transnational Environmental Law (TEL) includes a contribution by Arie Trouwborst, Richard Caddell and Ed Couzens, examining the legal position of a rescued whale subsequently retained in captivity. Their original article can be read online here.
In this blog post the authors examine further developments since the article was written.
On 23 June 2010 a distressed orca was rescued by Dutch authorities. The animal, subsequently christened “Morgan”, was successfully rehabilitated at the Harderwijk Dolfinarium in the Netherlands, provoking questions over her long-term future. So began an ongoing legal saga raising important legal questions concerning whether a rescuing state is obliged to return rehabilitated animals to the wild. Having initially undertaken to release Morgan, this position was reversed in December 2010 following advice that the whale’s prospects for survival were compromised by separation from her pod. This downbeat prognosis was subsequently challenged, with other specialists advocating an incremental release programme and expressing greater confidence in the correct identification of her family unit. However, this was rejected by the Dutch government and Morgan was transferred to a facility in Tenerife in November 2011, where she currently remains.
Morgan’s transfer was sanctioned for research purposes, under the appropriate CITES permits granted by the Dutch and Spanish authorities. This was challenged by the Orca Coalition, an NGO campaigning for Morgan to be released into the wild following a rehabilitation process. In August 2011 the District Court of Amsterdam initially blocked the transfer, due to objections concerning the decision-making process. This finding was subsequently repealed, although the basis for retaining Morgan in captivity had shifted from exclusive research considerations to a hybrid of ‘educational initiatives’ and animal welfare concerns, inter alia.
At the time of publication, an appeal was pending before the Dutch courts. In our paper, after analysing the Netherlands’ relevant treaty commitments, we viewed the decision to retain the animal in captivity as legally troublesome. Capture-and-release considerations had previously received minimal legal attention. The main instrument, the Agreement on the Conservation of Small Cetaceans of the Baltic, North-East Atlantic, Irish and North Seas 1992 (ASCOBANS), offered limited guidance but is clear that healthy animals should be released to the wild after capture; and that the intentional taking of cetaceans is to be prohibited, subject only to a narrowly-construed research exemption. We argued (a) that this exemption did not apply to the research purposes cited in respect of Morgan; and (b) that ASCOBANS envisages return to the wild for such animals. Specialist guidelines under analogous marine mammal treaties – albeit not binding on the Netherlands or else dedicated to seals – also mandate a presumption of release. Moreover, the continued captivity of a rehabilitated animal appeared to contravene EU law and the Council of Europe’s Bern Convention. We accordingly considered that the Dutch court erred in approving Morgan’s transfer and that future litigation should expose the conduct of the authorities to a more searching degree of scrutiny.
An opportunity to do so arose on 13 December 2012. The Amsterdam District Court reviewed the previous decision, yet after consideration upheld the finding that Morgan’s transfer was legitimate. We consider this verdict to be demonstrably legally flawed. The Court based its determination primarily on a surprising appraisal of the ASCOBANS text, finding that a removal of an orca for rehabilitation purposes did not constitute “intentional taking” (such taking being precluded under the treaty). Moreover, the Court considered that enduring captivity was justified by the need to conduct research pursuant to obligations under ASCOBANS. This is deeply perplexing, since ASCOBANS does not consider permanent captivity for research (or any other) purposes acceptable. The judgment remains highly unsatisfactory in the light of these and other treaty obligations, while the Court seemingly ignored evidence that the facility to which the orca had been transferred does not engage in substantive research into cetacean ecology.
Morgan’s case remains live, however, and a further appeal against the decision is now pending before the highest national administrative court. Meanwhile, despite claims that she has settled well into her new environment, experts who have observed Morgan have reported numerous problems. Concerns have been raised at apparent bullying of Morgan by other resident orcas, alongside a troubling deterioration in her mental health, and evidence of self-harm. We await the verdict of the Dutch appellate court with considerable anticipation and hope that greater credence is given to the full range of issues highlighted in the article than has as yet been the case.
Arie Trouwborst, Richard Caddell, Ed Couzens
This article can be accessed without charge by following this link.
You can see the Transnational Environmental Law (TEL) homepage here.