This is a memorandum of opinion on the legality of the action taken by the International Whaling commission (IWC) in adoption the Southern Ocean Sanctuary (SOS). The specific legal issue is whether the IWC complied with its basic charter, the International Convention for the Regulation of Whaling (ICRW). The conclusion is that it did not, considering the actions of the IWC and subsidiary bodies and the requirements spelled out in Articles I and V. In appraising the lawfulness of actions taken under the ICRW, two different perspectives are relevant. One is to consider the applicable law in light of the text of the ICRW and the other is to consider whether the ICRW as written in 1946 must today be interpreted differently than its language appears to call for. This memorandum employs the former approach and rejects the latter, as explained in the last section.
Applicable law in the light of the ICRW
The IWC has clear authority under its basic charter to establish
a sanctuary area. Article V(1) provides for adoption of amendments to the
Schedule "fixing.(c) open and closed areas, including the designation
of marine sanctuaries". Under Article I, the Schedule is agreed to
be a part of the Convention which the Commission is authorized to amend
from time to time "in accordance with the provisions of Article V".
This provision of Article I raises the fundamental question involved in
the sanctuary, whether the Commission acted "in accordance with Article
V".
To comply with Article V(2), amendments to the Schedule (designation of a Sanctuary for present purposes) shall (a) "be such as are necessary to carry out the objectives and purposes of the Convention and to provide for the conservation,development and optimum utilization of the whale resources": (b) "be based on scientific findings" and (d) "take into consideration the interests of the consumer of whale products and the whaling industry." In the actual text. the term "shall" is appended to each one of these requirements, suggesting that each is to be met when an amendment is adopted. It is apparent, however, that the third listed requirement is not a significant condition: "shall take into consideration" is a formula that serves mainly as a reminder of relevant interests rather than mandating satisfaction of such interests.
The remainder of this memorandum discusses the Southern Ocean Resolution in terms of elements comprising the first two requirements mentioned above. Thus the questions are whether the Sanctuary in necessary to secure the objectives and purposes of the ICRW, facilitates optimum utilization and conservation of whale stocks, 1 or is supported by scientific findings. The discussion includes references to two important working groups, the Technical Committee Working Group on Sanctuaries, reporting in 1982, and the Report of the Working Group on the Southern Ocean Sanctuary established by the Commission to report in early 1994. Both suggest criteria for the text of the original French proposal of a Southern Ocean Sanctuary.
a. Objectives and purposes of the ICRW Whether the Southern Ocean
Sanctuary is "necessary to carry out the objectives and purposes"
of the Convention depends upon what other actions have been taken by the
IWC to seek those objectives and purposes. The latter may be taken to include
the goals of assuring that whale stocks remain in existence for future
generations (Preambular para.1), protect stocks from overfishing (Preambular
para.2), achieve and maintain an optimum level of whale stocks" (Preambular
para. 4), and "ensure proper and effective conservation and development
of whale stocks" (Preambular para. 6). The final paragraph of the
preamble provides the most general statement of purpose: "to conclude
a convention to provide for the proper conservation of whale stocks and
thus make possible the orderly development of the whaling industry."
The implication of the requirement that a sanctuary is necessary to carry out objectives is that other actions have been unable to achieve the conservation and development objectives set out in the ICRW preamble. On its face, a conclusion that a sanctuary is necessary is implausible when the IWC moratorium on commercial whaling is still applicable and, so far as known, non-commercial whaling is not threatening stocks in the areas of the Southern Ocean. For conservation purposes, a sanctuary adds nothing to the moratorium. Of course, the moratorium is itself inconsistent with the concurrent development of the whaling industry when there are whale species which are sufficiently abundant to permit a sustainable commercial harvest. The addition of a sanctuary in a region known to be the habitat of such abundant stocks is not likely to assist in orderly development of the commercial whale harvesting industry. It is more likely that provision for a sanctuary of indefinite duration would prevent further (or any) development of that industry. Achievement of that result by the means of a sanctuary is not consistent with the agreement as written in 1946.
If the commercial moratorium is terminated in the near future, and no other restrictions on harvesting whales were adopted, a sanctuary might be an effective way to conserve some whales if it is effectively enforced. Of course the sanctuary is irrelevant and unjustified if other regulations already prohibit any take of particular species, which is the actual situation. In this actual situation, the Southern Ocean Sanctuary is redundant and has no place. Of course, the Sanctuary proposal and its adoption are aimed at the post-moratorium situation.
Because of the large whale stocks found in the Southern Ocean, a permanent sanctuary there would surely inhibit if not completely prevent further development of the whaling industry. On the other hand, if the Southern Ocean Sanctuary were of a specific, limited duration, it might at its expiration contribute to the orderly development of the industry as well as achieve conservation objectives for stocks not otherwise subject to regulation. However, it is expected, indeed it is a part of the basis of the Southern Ocean Sanctuary proposal, that the moratorium will end and that other regulations will be applied to the harvest of whales there and everywhere else otherwise permitted. The Commission has already approved a new means for determining limits on whale catches, a means which has been subjected to testing for its strength in light of significant contingencies including environmental change as well as poor catch data.
The new arrangement, The Revised Management Procedure (RMP), is specifically designed to reduce the risk that stocks would be threatened with extinction when subject to regulated exploitation. The inauguration of the RMP makes the Southern Ocean Sanctuary redundant as a means of conserving stocks in the region. To circumvent application of the RMP to the Southern Ocean, which is the effect of the Sanctuary, is inconsistent with "full regard" for the guideline that "sanctuaries should be established to provide necessity and desirable protective measures which are not available to conserve whales under other regulatory measures of the Convention. "This guideline is found in the Report of the Technical Committee Working Group on Sanctuaries. (IWC Doc. IWC '34'14.p.4.)
Attempting to answer this obvious point, the French proposal on the Southern Ocean Sanctuary in para 3. states that a sanctuary is "intended to supplement, rather than to supplant, still less to invalidate, the Revised Management Procedure (RMP)..."Often the best test of intention is what is done rather than what is said to be done. Whatever the French proposal says is intended, it is quite obvious that what it does is set aside the Revised Management Procedure in a large fraction of the ocean in which some abundant whale populations are found and where the risk of harmful error is slight under proper management. In light of the subsequent argument in the French proposal that the RMP is not likely to be infallible and therefore this "supplement" is designed to avoid "mistakes", it is impossible to avoid the conclusion that supplanting the RMP is exactly what is intended. By such an argument, of course, any future regulatory mechanism adopted by the IWC would need to be supplemented by a moratorium or a sanctuary since none is likely to be infallible.
Clearly the French proposal in 1992 considered that the potential implementation of the RMP would be the biggest obstacle to favourable consideration of its sanctuary proposal since it devoted several long paragraphs to forecasting the failure of the RMP, castigating in advance the Scientific Committee's alleged lack of ability to apply such new rules, and advocating the desirability of measures that differ from the RMP. The different measure is of course the Southern Ocean Sanctuary which has the virtue, according to proponents, of abandoning the recently won approach to whale conservation on a species by species, stock by stock basis in favour of regulation which does not distinguish species and stocks in the area concerned. It is alleged that a sanctuary has its focus on a "complex of species and populations", but the inconsistency with the ecosystem management approach of the other Antarctic regulatory body is not mentioned 2. Elsewhere, however, in its proposal it is implied that this measure is consistent with regulations adopted by CCAMLR (para.19).
In short, the Southern Ocean Sanctuary should be considered invalid as an attempt to displace other regulatory measures which themselves have been rigorously tested for prudent and cautious application, especially in light of poor data.
b. Optimum utilization under the ICRW.
The current moratorium on commercial whale harvesting and the future
implementation of the RMP also show that a Sanctuary is unnecessary for
optimum utilization whether the latter is defined as zero or some positive
level of catch.
Whether a sanctuary provides for optimum utilization depends in part upon the definition of the latter term. Even during its duration, a sanctuary could contribute to optimum utilization if the latter is defined as zero for all stocks. But if a zero commercial harvest is the applicable regulation, there would be no need for a sanctuary. This is the situation that exists: the Southern Ocean Sanctuary does not meet this test and it is therefore invalid.
If optimum utilization is defined to allow for some commercial harvest, a temporary sanctuary might still promote optimum utilization in the future if it were necessity to rebuild badly depleted stocks. In these terms, assessment of the sanctuary's validity depends upon its duration, the research conducted and knowledge produced during its existence, the ultimate state of the stocks in the region, and whether other measures are applicable. As noted above, given the moratorium's existence, it is difficult to believe that the sanctuary currently contributes to any of the IWC's objectives and it appears to be invalid for that reason alone.
More importantly, the Sanctuary is unnecessary for conservation for optimum utilization in light of the proposed implementation of the Revised Management Procedure. The RMP will allow for some harvest form particular stocks in accordance with carefully designed catch limits, protecting and conserving stocks and species requiring such action.
It is urged that the Southern Ocean Sanctuary is a necessary safety net, allowing for failure of the RMP in other parts of the ocean. This is said to be an application of the precautionary approach. It is suggested that such a precautionary approach is necessary because the RMP is not infallible. Of course it is true that the RMP is not likely to be infallible, nothing is infallible. Of course, infallibility could never be an appropriate test for adoption alternative management measures, particularly in light of the injunction form the Working Group on Sanctuaries that a sanctuary should be used for necessary and desirable measures that are not available under other regulatory measures under the Convention. Since other measures are never infallible, a sanctuary would always be necessary an desirable. The Working Group's guideline make no sense under such an approach.
c. The requirement of Article V (2) of scientific findings to support
Schedule amendments
Although the Sanctuary decision does not meet the other criteria,
as just noted, perhaps its most serious shortcoming is the lack of scientific
findings to justify it. The absence of such support may be seen (i) the
failure of the French proposal to comply with the requirements of the Working
Group on Sanctuaries, whose guideline were recommended in 1982. (ii) by
the negative assessments of the Scientific Committee's Subcommittee on
Southern Hemisphere baleen whales. (iii) the negative responses to questions
in the French sanctuary proposal. (iv) the lack of scientific findings
by the Scientific Committee and (v) by the recommendations of the 1994
Working Group on the Southern Ocean Sanctuary that some specific ecological
issues still needed clarification. Each of these sources helps document
both the lack of scientific information to support a Sanctuary designation
and doubt about the utility of the Sanctuary.
(I) The failure to meet the IWC guidelines for considering the establishment
of sanctuaries.
The Working Group on Sanctuaries was established in 1982 to determine
a means for considering the usefulness of sanctuaries. As an outcome of
its deliberations, the Working Group made recommendations of requirements
for the submission of information relevant to a Sanctuary's size, location,
species protection, impacts or current exploitation, and contribution to
research. While the French proposal accepts the guideline by devoting specific
sections to these requirements, these sections do not set out the required
scientific information for their support. Indeed, as indicated in the listing
below, the questions raised in the French proposal suggest that it could
not provide the needed information because it was not available. Beyond
the missing information, the French proposal makes no attempt to address
a number of other requirements identified by the Working Group, including:
- information on the input required to maintain existing scientific
research or to provide information necessary for comparative management,
and new research activities considered essential:
- identification of levels of research needed where trends in whale
population numbers or biological characteristics would provide management
information, together with an assessment of possible programs and costs:
- identification of any requirements for scientific catches;
- provide the time scale for any research activity and the application
of any results obtained; - information on manpower requirements, existing
or proposed, and possible funding sources.
Not all of these requirements involve scientific information although all are related to such data. No information on these matters was provided in the French proposal, nor is such information evident in or developed later in the recorded deliberations of the Commission or its subsidiary groups.
(ii) Negative evaluations in the Subcommittee on Southern Hemisphere
Baleen Whales.
In this appraisal of the Sanctuary proposal the Scientific Committee
referred questions and comments to its Subcommittee on Southern Hemisphere
Baleen Whales. The Subcommittee observed, directly contradicting assertions
in the French proposal, as already noted, that "the sanctuary proposal
constituted a replacement for the RMP in the Southern Ocean." The
discussion in the Subcommittee focused on the value of the Sanctuary as
a management tool. For this task the Subcommittee had the benefit of two
studies "using simulation trials and modelling to investigate aspects
of the proposal." Neither study indicated that the Sanctuary would
be superior to the RMP for management. One question was whether the Southern
Ocean Sanctuary was reasonable place for a "sanctuary, leading to
consideration of its effects on population growing rate(r) of depleted
stocks." The response was that the SOS "would have little effects
on estimating population growth rates of still heavily depleted populations
compared to constant catch rates, but would be counter-beneficial for Southern
Hemisphere minke whale stocks." Obviously a sanctuary would preclude
constant catch rates.
Another question addressed in one of the studies was whether interpreting the effects of climate change or their habitat degradation on whale populations would be confounded in the absence of a sanctuary. The conclusion was that the sanctuary was of little consequence for this purpose and was still counter- beneficial for estimation of growth rates.
In general, the studies tended to indicate not only the questionable value of the sanctuary as a management tool, but that the RMP was a superior management option although it was also observed that in either case the need was for further research. Butterworth, co-author of the two studies,said "the studies showed that with a 50-year sanctuary, there were essentially no long-term gains in respect of estimation of MSY and realized long-term catches." The gist of Subcommittee discussion is that the scientific basis for the Southern Ocean Sanctuary was not established. This is confirmed when, at the end, the Subcommittee underscored the need for further research and "recommended that should the Commission require further advice, development of a set of trials for this purpose would be necessary, requiring more than one meeting of the Scientific Committee before further advice could be given."
(iii) Negative responses to questions in French sanctuary proposal
After recording this recommendation which calls for more scientific
investigation and refrains from positive findings in support of the sanctuary,
the Subcommittee reviewed questions about the sanctuary proposal and comments
by member stated on it. Significantly, these included questions which the
French sanctuary proposal had addressed to the Scientific Committee as
useful to answer. It is obvious from reading the responses in the Subcommittee
that there was insufficient information to provide answers, that sometimes
the questions were beyond the scope of the Subcommittee, and that sometimes
the answer was negative and adverse to the proposal. None of the leading
French questions received an affirmative response.
French question: "Is it reasonable assessment that prior surveys and related studies provide a better database from which recovery under long-term protection could be monitored and analyzed than for any other area?"
Response: "Some members commented that an unequivocal answer is not possible because the probability of detecting a trend depends on the precision (as well as frequency) of surveys, and the accessibility of the species for future monitoring and these may vary between species and oceans. As an indication, on nine stocks of large whales for which recovery rates have already been measured, five are Southern Hemisphere stocks and four northern". Translated the quoted passage means the answer is no, based on past experience. French question: "Is it reasonable that the prospects for containing environmental effects are better in the Southern Ocean than elsewhere?" Response: The subcommittee considered this question to be beyond the scope of the subcommittee.
French question: "Is it a reasonable appraisal of existing information that it is necessary to protect whales in their higher latitude feeding grounds over a wider sector than only one of the three ocean regions, and that whale marking reveals very broad circumpolar movement on the feeding grounds within and between years?"
Response: In the subcommittee discussion "Several different views were expressed". One view was that the postulated need to protect over a wider sector was not borne out by existing information, indicating the assertion is not a reasonable appraisal. Another view was that current analyses of long-range movements give equivocal results. This also suggests the assumed appraisal was not reasonable. Finally, "it was agreed that there is not enough information available to explain fully the major longitudinal movement of individuals or stocks" except that some believe that for minkes there is no need for the sanctuary to extend over the whole southern ocean in order to protect one or more breeding stocks in the Indian Ocean. In short, a fair assessment of these views is that the Subcommittee's answer was no, the suggested appraisal of existing information is not reasonable.
French question: Is the proposed northern boundary in reasonable accord with present knowledge of relevant oceanographic features and the northward limits of high concentrations of the species which collectively form the major foods of the baleen and sperm whales ?
Response: The Subcommittee answer is negative for some baleen whale species but positive for others. For adult sperm whales the boundary had no biological significance in terms of feeding.
French question: Is it reasonable to say that a combination of the Indian Ocean Sanctuary and Southern Ocean Sanctuary would offer full protection to at least one population of each large whale species?
Response: "The sub-committee recognized that only for one species (the humpback), and then only in part of the region...,was there sufficient evidence of movement to come to any conclusion." It is a fair inference that to endorse the French assertion would be unreasonable.
(iv) The lack of supporting scientific findings from the Scientific
Committee
As noted above, the Scientific Committee in 1993 itself made no
recommendations or findings regarding the necessity or appropriateness
of the sanctuary, which nay not be surprising in light of the general lack
of information as well as negative evaluations in the Subcommittee on Southern
Hemisphere baleen whales. In 1994, the Chairman of the Scientific Committee
stated that the Committee had neither seen nor discussed the latest amended
proposal for the Southern Ocean Sanctuary.
(v) The Working Group on the Southern Sanctuary.
The report and recommendations of the Working Group on the Southern
Ocean Sanctuary, which met in February, 1994, further confirm the absence
of scientific findings to support the sanctuary proposal. This Working
Group was established to address the "outstanding legal, political,
ecological, geographical, management, financial and global environmental
issues relating to such a sanctuary." The Working Group made 15 recommendations,
some more responsive than others to the questions involved. On the vital
issue of the legality of adoption the French proposal in its original form,
the Working Group made no specific recommendation. Instead it passed the
ball to the IWC in a recommendation of such peculiar wording that one might
reasonably surmise differences within the Working Group. This appears to
be the main significance of the 15th and final recommendation, which read
as follows:"It seems there are no irreconcilable objections to establishing
a sanctuary in conformity with Article V of the 1946 Convention
among the members of the Working Group, and that a Sanctuary can be created
by the Commission if its members so decide."
As is apparent, such a statement is not responsive -- it simply repeats the questions at issue, namely what is in conformity with Article V. It is not an assertion that all the members of the Working Group believed the Sanctuary as proposed was in conformity with Article V. The report of the Working Group states clearly that some members did not believe the concept of the Southern Ocean Sanctuary was in conformity with the ICRW ( or several other international agreements, for that matter), hence it is apparent there was no consensus in the Working Group on this question.
On the critical question of whether a resolution for a Southern Ocean Sanctuary was supported by "scientific findings", as required by Article V(2), the Working Group Report created as many questions as it answers. The report clearly stated that some delegations felt there was no scientific basis for the Sanctuary. In the end the Working Group recommends the continued study by the Scientific Committee of several questions bearing on the size and boundaries of the Sanctuary. The following is the specific language of the recommendation:
"7. In the light of a number of specific ecological issues requiring clarification, the Scientific Committee continues to study and gives guidance to the Commission concerning inter alia, the following:
a) Areas of specific whale activity, e.g. feeding and breeding grounds
and the length of stay in any area.
b) north-south migration between feeding and breeding areas:
c) east-west migrations for information on the possibility of significant
movements between major ocean basins and populations;
d) species interactions including inter-species competition;
e) global environmental and abiotic factors affecting whales in the
Southern Ocean."
In the absence of further work by the Scientific Committee in the 1994 meeting, the Commission also appears to have acted without the guidance of the Scientific Committee on these specific ecological issues in endorsing the concept of the original sanctuary proposal or in accepting the amended one it actually adopted.
Thus, the originally proposed boundaries and other characteristics of the Southern Ocean Sanctuary were initially advancer, and later changed, each time without adequate knowledge of several pertinent ecological considerations. In summary, from the foregoing discussions, it is evident that major factors suggested in 1982 as guidelines for consideration of a sanctuary proposal were not addressed either by the proposing state, by the Intercessional Working Group on the Southern Ocean Sanctuary, by the Scientific Committee or by the Commission itself. Nor were pertinent scientific questions, either those identified in the French proposal, or other more important questions, actually answered positively. Indeed the verbatim record of relevant discussion during the 46th meeting of the IWC shows that the delegation of Japan was unable to elicit an answer from the Chairman of the Scientific Committee about its scientific findings because the Chairman stated that the latest French proposal had not even been seen by the Scientific Committee. Obviously, it is difficult to make genuine findings on issues that were not examined or even discussed. In the absence of such findings, the resolution adopting the Southern Ocean Sanctuary is not consistent with the ICRW.
Interpretation of the ICRW in light of contemporary expectations.
An argument might be made that the meaning of the ICRW should not remain
static but must evolve, and has evolved, over the decades so that its terms
no longer signify as they did in 1946. In this view significant changes
in culture and technology warrant attaching new meanings to the ICRW .
Such changes include the contemporary belief that large cetaceans (at least)
should be completely protected from artificial mortality, the development
of technology including new scientific methods, and the development of
new, non-consumptive forms of utilization of whales.
Such new interpretations might include, for example, that the term "whaling- industry" is on longer limited to harvesting activity but includes non-consumptive uses such as whale-watching. In such a view, the "whaling industry" might be promoted by measures that do not permit any commercial take of whales. Or, in reference to the precautionary approach, measures necessary for conservation as called for in Article V might now mean measures that must be or should be adopted unless shown to be unnecessary.
The difficulty with these and similar interpretations is that they turn the terms of the ICRW completely upside down and defeat the major purpose of the original agreement. Where the fundamental goal of the initial treaty was to conserve whales in order to permit a sustainable harvest, the purpose would now be to protect whales against any harvest. Optimum utilization, reasonably understood by the parties to mean actual harvest at a conservative level, would now mean no harvest ever.
Re-interpretation of an agreement which defeats the major purpose of the parties, and substitutes a purpose not shared by all parties and actively rejected by some, is not a permissible means of interpretation under contemporary international law. If parties to the ICRW come to believe its major purpose is no longer acceptable and that different expectations must now be met, the proper step is to negotiate a new agreement incorporating the new goal and seeking to realize the new expectations.
CONCLUSION
The overall message from the IWC reports for 1992-1994 is that
the absence of scientific findings to justify the Southern Ocean Sanctuary
was not inadvertent. Despite rhetoric about the alleged scientific value
of the sanctuary, the IWC record as a whole strongly suggests that for
the majority of members it was neither expected nor required to have such
support, whatever article V(2) may say. Certainly it never got it.
It was recognized from the beginning that the reception of the proposal in the Scientific Committee was "unenthusiastic". Lack of enthusiasm is perhaps due to the recognition, contrary to the French characterization of its proposal as a "supplement" to the RMP, that it displaced the Revised Management Procedure which, in further contrast to the process used in examining the sanctuary,"represented the culmination of several years of extensive development and had been tested against uncertainty, with a rigor unparalleled in the management of any biological resource",(comments in Report of Scientific Committee, 44th IWC. p.72). The absence of scientific support is further unsurprising in light of the fact that "The RMP had been developed to provide safe management in the abssence of sanctuary areas."(Ibid).
Confirmation that scientific findings were not seriously expected, nor thought to be required as provided in article V(2) , is also evident in the action of the Technical Committee which effectively recommended that the Commission instruct the Scientific Committee to provide scientific advice but took care that the recommendation was amended to remove the condition that the advice be provided before full and final action on the sanctuary. In effect, therefore, the Technical Committee advised the Commission that it was appropriate to take final action even though the Scientific Committee had not acted to provide the full advice required. Considering that the Technical Committee members are also the Commissioners, there could hardly be more striking evidence that the sanctuary decision was political, having little or no regard to the Convention requirement of scientific findings. In this light the Sanctuary proposal should be considered ultra vires and without effect.
1 In the Preamble to the ICRW, the term
"stocks" is used as a generalized reference to whale resources
rather than as a technical management term. This use is followed here except
where the context indicates otherwise.
2 It is generally considered that the
conservation objectives of CCAMLR aim at ecosystem management. Under Article
II that treaty "conservation includes rational use" and rational
use is stated to be the "sustainable utilization of a resource in
perpetuity," (de la Mare, Factors to consider in developing management
measures for kill, in CCAMLR Scientific Committee,1990 Selected Scientific
Papers at 1"6). The French Sanctuary proposal has the very different
objective of insulating a sustainable resource from any utilization for
an indefinite period. Such an objective is inconsistent with the ecosystem
approach in CCAMLR.
Perhaps more importantly the latter agreement also calls for maintaining ecological relationships between harvested and dependent species. That objective would be difficult if not impossible to attain if the level of abundance of particular species is decided without the participation of the Antarctic Commission. This is the effect of the declaration of a Southern Ocean Whale Sanctuary by the IWC. In this specific instance, CCAMLR had not even designated an observer to attend the Intercessional Working Group on the Southern Ocean Sanctuary. Previously, the Antarctic Commission had declined to respond to a request of the IWC for comment on the French proposal.:"There was a range of views on the scientific basis of the proposal and its relationship to the IWC's Revised Management Procedure, but no advice could be offered that had not already been reflected in the discussion of this topic by the Scientific Committee of the IWC", (CCAMLR. Report of the Eleventh Meeting of the Scientific Committee. p.75). The report of the 1992 IWC Scientific Committee predominantly comments adversely on the sanctuary proposal (43rd IWC Rep. 92-93).
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