Source: The International Harpoon, Nr. 5, June 28, 1996. IWC 48 Aberdeen
| The view that the IWC is acting contrary to its objectives was sup ported by a panel
of internationally recognized experts on international law at a workshop in Tokyo in
January 1996, sponsored by the Institute of Cetacean Research. The panel was asked to
consider the rights and duties of states under the ICRW, the legal status of the
moratorium on commercial whaling, as well as the legal status of the Southern Ocean
Sanctuary. The chairman of the workshop, Professor Robert Friedheim of the University of
Southern California, pointed out that even though no consensus had been reached by the
participants, there was a considerable degree of agreement on the major issues. “Those questions discussed by the panel of legal experts should not be swept under the carpet. I believe that it would be for the benefit of the Commission’s credibility to appoint an independent body with the task of forming a panel, consisting of well-known experts on international law, in order to ascertain whether current IWC practices are in accordance with the objectives and purposes of the International Convention for the Regulation of Whaling”, says the Commissioner of St. Lucia, J. E. Edmunds to the International Harpoon. Edmunds proposes that in this type of body, the signatory parties could present their views to the panel of legal experts. Since the 1946 ICRW has no built-in dispute settlement mechanism, it is very unlikely that any proposed formal amendment to create such a mechanism would be successful in the present IWC. “Therefore, the solution should come from a third party”, he concluded. Professor Douglas Johnston (University of Victoria in Canada) who also participated in the Tokyo workshop, seems to support Edmunds’ proposal for an ad hoc conciliation panel in the absence of a dispute settlement mechanism. Such a panel could not only produce a non- binding third party interpretation, but it could be a more flexible solution compared with arbitration or a direct appeal to the International Court of Justice (ICJ). A signatory state of the ICWR could request the United Nations General Assembly to appeal to the ICJ to issue an advisory opinion. Such an effort could, of course, be blocked by the anti- whaling countries who are members of the United Nations. Another way to achieve the same goal is by following the compromis procedure in which one party has to find another party who agrees to go to the Court. Such a procedure would create some difficulties because a ruling of the Court would only bind the parties concerned. With regard to the rights and duties of states under the ICRW, the experts agreed that the problem was a clash of principles. Two schools of thought have been analysed; on the one hand the “progressive development” or “soft law” approach, and on the other hand the “more traditional doctrine of the law between states deriving from agreements between sovereign parties that bind them until such obligations are terminated by legally recognized means”. The conclusion was that there is a very strong case for those who maintain that the way the Convention has been transformed and interpreted through recent actions of the Commission is illegal. More precisely, the Tokyo panel agreed that the majority’s decision to establish a sanctuary in the Southern Ocean was not in conformity with the rationale of Article that states that “theCommission may amend from time to time the provisions of the Schedule by adopting regulations with respect to the conservation and utilization of whale resources...” (emphasis added). As to the legal status of the moratorium, the experts gathered in Tokyo said that it was legally imposed because it was originally justified, since states have an obligation to conserve. Nevertheless, they pointed out that efforts to delay indefinitely the lifting of the moratorium, or to make it permanent, would raise serious legal issues. The integrity and the effectiveness of the IWC hinges on the will of all member states to examine these extremely important legal questions. But the 48th meeting of the IWC has once again been witness to the absence of political will among a majority of member states to face reality. Japan’s efforts to open a debate on the legal aspects of the matter during this Plenary Session failed, as did last year’s resolution (IWC 47/45) to protect the integrity of IWC. |
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