"Gutachten"

The Norwegian government is not allowed to permit commercial whaling of minke whales.

1. Introduction

2. Commercial whaling

3. Whaling moratorium and Norway's objection

4. Protection of whales is customary international law and binds Norway despite its objection against the moratorium

5. If the Norwegian government were correct in its judgement

6. Conclusion

7. Summary

1. Introduction

Minke wahles (balaenoptera actuatorostrata, balaenoptera bonaerensis) are baleen whales capable of growing to a length of up to eight to ten metres, or 33 feet. One of the most widely migrating species of marine mammal, minke whales are distributed between the sub-tropics and the Arctic or Antarctic; they are rarer in tropical regions. There are no precise estimates of their stocks. According to the International Whaling Commission the stock of minke whales in the North-East-Atlantic was reduced by about fifty per cent between 1930, when commercial whaling of minke whales began, and 1980 (see also BundestagS-Drucksache parliamentary records no. 13/3969, Appendix 2, of 5 March 1996). The stock has not sufficiently recovered since then. The IWC has therefore upheld until today the protected status it accorded the minke whale stock in the North-East Atlantic in 1985.

2. Commercial whaling

Acting against the moratorium, Norway in 1993 unilaterally resumed commercial whaling in addition to so-called scientific whaling. It had a quota of 157 minke whales. Since then this quota has risen year by year as follows:

1994 202 whales

1995 232 whales

1996 425 whales

1997 623 whales

1998 671 whales

1999 753 whales

The Norwegian Fisheries Ministry recently promised it would raise the quota of minke whales to 1,200 1,300 by the year 2002.

3. Whaling moratorium and Norway's objection

In implementing the international agreement of 2 December 1946 on regulating whaling (1946 International Convention for the Regulation of Whaling) the IWC agreed a moratorium on whaling for an indefinite time, this applying to minke whales under number 10e in the list of February 1998 (1997 schedule). Norway lodged an objection. It did not feel itself bound by the moratorium. But this would only apply if it were itself allowed to determine the extent and way in which whaling was done. Taking such a rar-reaching position vis-à-vis the IWC is not, however, something even the Norwegian Government is doing. Norway instead sees a necessity to justify its quota with purportedly justifiable figures for catches and/or management procedures (Bundestags-Drucksache no. 13/3969, p.4).

4. Protection of whales is customary international law and binds Norway despite its objection against the moratorium

According to international law doctrine complete consensus between states is no longer necessary in order to establish customary law. It suffices for the vast majority of states to take a uniform view on a matter of relevance in international law. (In the case of Canada extending its territorial waters to a 12-mile zone a majority of 103 countries to 24 was enough for a customary law practice to be created (Hohmann, p. 222). For a customary international law to be established there must be sufficient "manifestations" providing evidence that the international community is aware of a "norm" (Hohmann, p. 221).

(1) The IWC has almost unanimously declared a moratorium to be necessary since 1985/86. The Government of Norway was called on to immediately stop all whaling activities and concur with the moratorium in resolutions in 1996, 1997 and 1998.

(2) Under Part 1 of Appendix C of the EU Commission's regulation no. 3626/82, 1982, all species of whales are, in accordance with Article 3, paragraph 1, of the regulation to be treated as specimens of species threatened with extination listed in Appendix I of the Washington Convention of Endangered Species.

(3) Whales are also privy to protection under the Bonn Convention on the Conservation of Migratory Species of Wild Animals, to which 27 states and the EU acceded.

(4) The United Nations Convention on the Law of the Sea (UNCLOS) protects the whales both in economies zones (Art. 64, 65) and on the high seas (Art.120, 65).

(5) In modern international law literature, whales are part of the Common Heritage of Mankind. Whaling is something declared to be "an international crime,, and on an equal footing with piracy (see Kunig, p. 2714).

(6) The Norwegian Government itself sees a necessity to justify itself and set quotas.

These manifestations are sufficient to presume a customary international law which puts minke whales under the common protection of mankind. Here coastal states have a guardian/trustee function in their economic zones (Hohmann, p. 379). Economic interests must withdraw accordingly. The coastal states and people living in them become the trustees for the interests of the common assets to be protected by mankind (Hohmann, p. 380).

The new rule of customary law also binds states which have not accepted it, because modern environmental law is developing from a law of classical coexistence to one of cooperation.

5. If the Norwegian Government were correct in its judgement

Even if one were persuaded that the quotas for catches set by Norway were still reconcilable with securing the stock, they would be impermissible in international law.

Articles 65 and 119 of the Convention on the Law of the Sea call on states to work together to conserve marine mammals. At the same time it has to be ensured that no state is descriminated against legally or in actual practice. This means, however, that no state may exploit other states which act responsibly to protect species in order, for example, to exhaust for itself alone a quota for catches which might come into question for the international community as a whole. This would thwart the good conduct of states in protecting species and posterity, and discriminate against them, effectively nullifying their own abstinence. But such conduct is against international law. Even the Norwegian Government is not of the view that all states capable of whaling operations might likewise aspire to set quotas matching those of Norway. Norway claims a privilege for itself and so discriminates against states which, out of concern for the protection of species and posterity, renounce whaling. Norway is undermining their efforts. This contradicts the principle of good neighbourliness and the common concern of mankind.

6. Conclusion

The Government of Norway ought not to permit to hunt minke whales commercially. If it does it is violating international law.

7. Summary

Norway is not bound by the whaling moratorium if it is allowed to unilaterally determine the extent and way in which whaling is done. This is not the case, however. According to more recent doctrine in international law, protecting the common heritage has become part of customary international law. There are sufficient number of manifestations in support of this. The new rule of customary international law also binds states not involved in establishing it. The level of protection afforded should be in accord with the obligation to take precautionary measures and the

principle of acting where there is cause for concern. Since there is manifestly no certain or universally accepted knowledge about securing the stock of minke whales or of the danger to it, or of justifiable quotas for catches or management methods, it is necessary, in accordance with the precautionary principle, that all whaling activities are desisted from. An isolated country cannot be allowed to ignore the majority view of the international community in this matter.

Even if, however, one shared the Norwegian Government's view that the Norwegian quotas were reconcilable with securing the stock, they would be impermissible in international law. Norway cannot be allowed to exploit other states which are acting responsibly to protect species by its approving a quota for catches which relies on these states renouncing whaling. Not even Norway is of the view that, if all states capable of conducting whaling operations received quotas similar to those claimed by Norway, this would then be reconcilable with securing the stock. But Norway should not be allowed to take advantage of responsible restraint by other countries and so nullify the regime of protection intended by the majority of the community of states. This contradicts the principle of the common concern of mankind and the principle of good neighbourliness.

Hamburg, 28 April 1999

Michael Günther, Attorney-at-law

Dr. Cornelia Ziehm, Attorney-at-law

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