Source: "Whaling in the North Atlantic - Economic and Political Perspectives," Ed. Gudrun Petursdottir, University of Iceland, 1997, ISBN 9979-54-213-6. Proceedings of a conference held in Reykjavik on March 1st, 1997, organized by the Fisheries Research Institute and the High North Alliance.
Author: William T. Burke Professor, School of Law, University of Washington, Seattle

Whaling and international law

The organizers of this meeting have suggested some topics for brief comment and my remarks center on them.

1. A short evaluation of the International Whaling Commission and its present role in view of international law, the Law of the Sea Treaty, and whaling management in general.
2. Actions Iceland must carry out so that its whaling operations accord with the international law of the sea.
3. Can NAMMCO be considered an “appropriate” international organization for the conservation, management and study of whales? If not, what would be required to be “appropriate”?
4. Is it possible for Iceland to reenter the IWC with a reservation to the moratorium?
   Canada’s policy on whaling.
5. Recent IWC decisions and dispute settlement.

 

1. Short evaluation of the IWC and its present role in view of international law, the Law of the Sea Treaty, and whaling management in general.

The first and overriding consideration in responding to this question is simply what is the international law for whaling. In my view, under general or customary international law the nationals of all states are entitled to harvest whales on the high seas unless the state of registry or flag has agreed otherwise; each coastal state has control over whales within its national jurisdiction, subject to its international agreements, and it has sole authority over the activities of its nationals on the high seas. I think these propositions accurately state current international law on whaling.
Some states are parties to agreements that affect their position on whaling both within and outside national jurisdiction. Approximately 190 entities are now generally recognized as independent states, of which 40 have specifically agreed to international regulation of whaling. I am not sure how many of these States have nationals who harvest cetaceans, large and small, but I believe it considerably exceeds 40.

Two major agreements affect whaling for States parties to them, the International Convention fro Regulation of Whaling (ICRW) and UNCLOS, so the more specific question is what is the effect of the ICRW and the UN Convention on the Law of the Sea on the general freedom to take whales. Articles 87 and 116 of UNCLOS affirm that the nationals of all states are free to take living resources on the high seas, subject to their treaty obligations and to UNCLOS itself. UNCLOS articles otherwise do not forbid whaling, nor does the ICRW.

The ICRW seems to me unequivocally to provide for the sustainable harvest of whales. Every article from the Preamble through Article IX envisages the harvest of whales, for commercial, scientific, and cultural purposes, subject to regulation for purposes other than scientific. This view of the treaty is rejected by major parties to the ICRW who believe that it is consistent with the treaty to prohibit all commercial harvesting of whales permanently. There is no basis for such an interpretation that can be considered binding on members who disagree.

Another question is whether principles of customary international law have developed which override the provisions of the ICRW. I am unaware of any such principles. Furthermore, if there were such principles, they would not eliminate invocation of still another principle, namely that persistent objectors to an emerging principle of customary international law are not bound by it. Japan and other whaling members of the IWC clearly object to the view that any alleged customary law principle over-rides the provisions of the ICRW which clearly provide for sustainable whaling.

The most recent international instruments that address the taking of marine mammals, specifically including large cetaceans, do not by any remote feat of the imagination forbid their harvest. As noted above, the UN Convention on the Law of the Sea affirms the precise opposite of that proposition. A second instrument, although not a treaty, is Agenda 21, the plan of action produced by UNCED. The efforts in Rio de Janeiro to eliminate the right of whaling on the high seas were quite specifically rejected and the right of sustainable harvesting of all marine living resources of the high seas was reaffirmed in para. 17.46. Para. 17.47 reiterates article 65 of the LOS treaty in relation to marine mammals on the high seas, which simply underscores that sustainable harvesting of whales is specifically countenanced unless an individual State or an international organization with the competence to do so limits or prohibits such exploitation.

UNCLOS Articles 65 and 120 do not, in my opinion, require a State accepting UNCLOS (now well over 100 have done so) also to become a party to the ICRW or even necessarily to “work through” that organization, nor do they by themselves modify the right recognized in article 116 to take living resources on the high seas. Article 65 (and 120) uses the plural term “organizations”, leaving open resort to other organizations than the IWC when that is deemed an effective way to proceed. I have yet to see a plausible reason for the too common practice of ignoring that plural term.

I am aware of recent suggestions that under current international law whales are now res communis, meaning that they are wholly subject to international controls in the sense that they can only be taken if the international community affirmatively permits it. This view wholly ignores the LOS treaty and its reiteration in article 116 of customary law on freedom of fishing beyond national jurisdiction. One observer finds authority for the res communis nature of whales in the 1970 UN Declaration of Principles about uses of the ocean floor beyond national jurisdiction, arguing that the statement therein of the common heritage of mankind should and can be extended to whales.

I think it can be stated without fear of contradiction that no one in the law of the sea negotiations, which occurred after adoption of this Declaration of Principles, gave any serious thought to including living resources within the notion of common heritage. It hardly takes a genius to recognize that most states in these negotiations were most concerned to capture for their own exclusive use as much of the ocean’s living resources as could be coralled in the negotiations. And they managed to get everything in about 35% of the ocean. Marine mammals were not excluded from coastal state sovereign rights. For the area beyond the exclusive economic zone, on the other hand, the notion of freedom of fishing for all living marine resources was accepted, subject to the obligation to conserve.

The IWC itself is obviously not an effective organization in the context of the terms of its original agreement. As noted above, it is my assumption that the relevant provisions (i.e. objectives, scope of authority) of the ICRW have not been changed by the States Parties by means recognized in international law. The ICRW is routinely violated by the majority of its members and no one has yet managed to challenge this, except by withdrawal and sometimes by the objection procedure. But these procedures for registering objections to IWC actions do not change the practice of other States in violating the treaty. In its own terms, in any case, it is a pretty primitive instrument, with no enforcement provisions and no dispute settlement arrangement provided. As is well known, the advice of its Scientific Committee is ignored when it does not satisfy the political preferences of members.

In my opinion, as an outside observer, the IWC could be on the verge of collapse although the conditions for that to happen do not seem likely to occur. Only Japan’s unwillingness to withdraw keeps it alive. However, so far as known to me, Japan does not plan to withdraw anytime soon although it mentions the possibility from time to time in reaction to the departures from the treaty.

If Japan did withdraw, and if Norway continues to object to the moratorium, the IWC would become largely irrelevant in relation to whaling. In any substantive sense of regulating whaling, as opposed to trying to halt whaling, it is irrelevant already, but it is propped up by the US threat of embargoes coupled with Japan’s unwillingness to force States to abide by the treaty. I have no inside knowledge about Japanese policy, but a guess is that Japan does not rate continuation of whaling very high on the political scale of importance. It will not risk much political injury in defense of its whaling interests.

Current perceptions of the IWC strongly suggest that legal commentary about its actions is mostly superfluous. The IWC is now considered by most of its members as wholly political, resembling the UN General Assembly in its adoption of resolutions. Legal considerations have little to do with decisions in the IWC. I suspect that this attitude prevails among many members, especially those who must face severe domestic political pressure from environmental groups. There is no countervailing pressure in such states and in the absence of any international pressure it is the easiest decision in the world to indulge whatever environmental groups demand. In my view this describes much of what happens in the IWC.

Thus, in some ways, the IWC resembles the UN itself. The latter has a governing treaty, but it is widely ignored and departures from it are not sanctioned. Even the basic matter of meeting financial obligations is disregarded by the United States, for example, as if the UN Charter itself was wholly unimportant. This is not far from my perception of the US attitude toward the ICRW: its provisions simply don’t matter except when it is politically expedient to invoke them.

In relation to “whaling management in general”, the IWC really appears to be removing itself from action, given the current refusal to implement the Revised Management Procedure while stonewalling the associated enforcement issues. Simply prohibiting all commercial whaling for an indefinite time is not managing.

Until the moratorium is removed, which some observers believe will not happen soon, the IWC has relatively little to do except play around the edges with discussions of somewhat peripheral issues of aboriginal and small type coastal whaling, the niceties of humane killing, concerns about small cetaceans, and the regulation of whale watching. These matters are not unimportant to those affected as well as others, but to my mind it is somewhat ludicrous to see so much effort and resources devoted to debates about the catch of one or two whales. Ironically, those who complain about these catches are the ones who ignore the treaty in other contexts. So what happens in the end, is that no one can be obligated to do anything unless coerced to do so. This is what results from a pattern of continuous treaty violation. The United States has had a considerable record over the last 15 years of contributing to this state of affairs.

 

2. Actions Iceland must carry out so that any whaling will be in accordance with the requirements of the law of the sea.

My understanding of the “requirements of the law of the sea” is that Iceland has the right to engage in whaling on the high seas and the obligation to cooperate with other nations in the conservation of whales. Cooperation might take many forms, of course. Cooperation does not mean that Iceland is obligated to join the IWC by again becoming party to the ICRW. To cooperate with other nations does not mean that it must accept the views of other States that no commercial whaling is permissible until these other States say so. Of course, the ICRW itself has no such requirement.
In one form of cooperation, Iceland can seek to agree, through negotiations with other States, on the conservation measures that are considered necessary for specfic stocks on the basis of the best scientific evidence available. Good faith negotiations would address the needs of whale conservation. Such negotiations would not be dictated by the notion that the only acceptable outcome is an agreement on ceasing all whaling irrespective of stock abundance. This latter is the position taken by Australia, New Zealand, and the United Kingdom in the IWC. Negotiations conducted by States who insist on this outcome to the exclusion of any other goal are not negotiations in good faith. There is no legal requirement of which I am aware that Iceland must negotiate with States who proceed from this premise and postulate this as the only goal for the negotiation.

What national control over whaling is required by international law? There is no obligation under international law to join an international mechanism that deals with whaling although such a mechanism could be helpful if it were employed in good faith (the IWC is not so employed). Article 65 would have to be written in different terms to establish the obligation to join an international mechanism. “Working through” is awfully general language to convey the concept that a State cannot cooperate except by adhering to a specific organization, especially one in which it had no say about its objectives, principles, operations, voting, financing etc.,. If “national control” means national decision-making that seeks to cooperate in the conservation of high seas whales, then I see no difficulty in asserting such control. But, surely, if one can establish an institutional means for cooperation this might make the objective more easy to accomplish. Under current practices and its present organizational structure, the IWC is not “functional” for the purposes of effective conservation action. Iceland, or any other State interested in harvesting whales on a sustainable basis, has every reason to avoid the IWC. Joining it under present circumstances is simply to ask for endless frustration and difficulty. On the other hand, cooperation with the Scientific Committee and use of this information could be a form of productive cooperation.

If the members of the IWC took the treaty seriously and sought actually to regulate for sustainable whaling, then the situation would be very different. The trend of recent events does not suggest this will happen any time soon.

 

3. Can NAMMCO be regarded as an “appropriate” international organization when it comes to the conservation, management and study of the great whales? If not, what would be required to be “appropriate”.

To speak very generally, an “appropriate” organization is one that has the objectives of conservation as the major goal (and this probably needs some more specific definition), has a membership suited to this objective and the interests it serves, has a structure or organization to enable it to work effectively (including research functions, data acquisition, rule-making procedures, surveillance and enforcement provisions, etc.), is provided with the authority to make the required decisions, is funded properly, and has available or has access to scientific information about whale stocks. There are very few, if any, international fishery organizations that meet all of these criteria, but they should be met to the maximum degree possible. (Despite the provisions of the ICRW, the IWC lacks the appropriate objective because in practice a majority of its members does not accept the conservation objective of sustainable harvests of whales) I am not particularly knowledgeable about NAMMCO, but it seems mostly to be aimed at providing a forum for exchanging views and making recommendations that may or may not be accepted.

If NAMMCO is to have credibility at the international level, it probably needs to have its functions spelled out in greater detail, show greater precision in identifying specific regulatory measures and, above all, set up an effective enforcement regime.

 

4. Is it possible for Iceland to reenter the IWC with a reservation to the moratorium?

The ICRW does not mention reservations and I don’t know if others have tried to make reservations. Since the treaty does not prohibit them, at least some reservations could be effective. The moratorium is not itself a part of the ICRW text so a reservation is not specifically needed to combat that directly. While there is little question that a reservation of some kind could be made, its effect would depend upon its subject matter and on the reaction to it of other parties to the ICRW. For those who don’t object, an otherwise acceptable reservation would be effective. For those who did object, it would not and conceivably could not allow the reserving state to be a party to the ICRW.

Whatever the legal situation might be, I can’t imagine why anyone would want to join the IWC, even with a reservation, since its membership might adopt new and unacceptable measures (how about a sanctuary in the area around Iceland or in the North Atlantic as a whole?) which could only be escaped by an objection, and this invites economic conflict with the US. Given the arbitrary departures from the ICRW by the IWC over the past decade or so, it seems to me remarkable that any State would willingly submit its fate in relation to whale harvesting to such an agency. It must say something about the perception of the IWC that anyone would reach the conclusion just stated. Here is the supposed principal international body concerned with conservation of whales, but its mandate has been so distorted by some members that it cannot be taken seriously any longer as a means of reaching the goal it was established to achieve, namely sustainable whaling.

 

5. Canadian whaling and the law of the sea

I have also been asked to comment on Canadian whaling and the law of the sea. My understanding of Canadian policy is based on a 1996 paper by Dan Goodman of the Dept. of Fisheries and Oceans.

“Acknowledging that the International Whaling Commission is responsible for the management of bowhead whaling, it is the position of the Government of Canada that with regard to the harvesting of bowhead whales in Canada, its obligations in respect of article 65 of the UNCLOS to `work through the appropriate international organizations for the conservation, management and study of cetaceans,’ are met by working through the Scientific Committee of the IWC.”

These statements are not particularly ambiguous, but they may need some interpretation. (1) Canada is not a party to the ICRW, and has no obligation to recognize any authority of the IWC over bowhead whales in Canada or elsewhere; (2) Canada is also not a party to the UNCLOS and therefore has no obligations under article 65 of that agreement to work through the IWC, which in any event is not specifically mentioned in article 65. The thought underlying these statements appears to be that Canada’s customary law obligation to cooperate regarding whaling conservation is satisfied by Canada recognizing the role of the IWC in regard to bowhead whales in the Arctic, outside 200 miles at least, and by cooperation through the Scientific Committee. Certainly the seeming acceptance of an obligation regarding either of these agreements cannot rest on the agreements themselves since Canada has not accepted them.

I doubt that Canada’s obligation to cooperate requires recognition of the IWC as “responsible for management of bowhead whaling” although such cooperation may be helpful and is certainly appropriate. In fact, it is not clear to me that Canada actually regards IWC as having authority over bowheads since Canada has authorized takes of both western and eastern stocks of bowheads without regard to the IWC. Canada has expressly rejected the resolution adopted by the IWC last June enjoining Canada to obtain IWC approval for permitting bowhead harvests.

 

6. Recent IWC decisions, the ICRW and dispute settlement

I believe that several recent IWC actions are not consistent with the ICRW, including the Southern Ocean Sanctuary decision, the continued arbitrary refusal to implement the Revised Management Procedure, the refusals to allow takes of whales in small type coastal whaling, and the recommendations for undertaking scientific whaling.

I have done some work on the possibilities of dispute settlement under UNCLOS Part XV and the new Tribunal for the Law of the Sea as established in Annex VI of UNCLOS. IWC actions that arguably involve violations of UNCLOS are eligible for compulsory dispute settlement. Disputes about contradictions between IWC actions and the ICRW can also be brought before the Tribunal for the Law of the Sea under Article 288 and Annex VI, but this would require agreement on submission as I understand the pertinent provisions. The significant point here is that there is now an established and recognized body to whom disputes can be submitted. There is no room anymore for the contention that disputes about the actions of the IWC must be decided only by the IWC itself, there being no other alternative.