Must Iceland Give Up Whaling Option to Join IWC?

The wish of Iceland is to rejoin the IWC but with a reservation against the current moratorium on commercial whaling. Without that reservation, it believes that joining the IWC would compromise its right to harvest whales. The procedural question that must be addressed is whether the IWC should put Iceland's membership application with a reservation to the vote, or whether it should be up to individual members to react as they see fit. In either case, the crucial issue is whether Iceland's application is valid in terms of being compatible with "the objective and purpose" of the International Convention for the Regulation of Whaling (ICRW), the treaty which constitutes the IWC.

UK Rejection

The mind of the UK has already been made up. "Iceland need not be accepted as a member," states IWC commissioner Richard Cowan to the International Harpoon. He wants Iceland's reservation to be put to a vote, and wants it rejected.

Norway, by contrast, has no problem with Iceland's reservation. In the view of Turid Eusebio of the Foreign Ministry's Resource Department, the reservation is in accordance with "the objective of the whaling commission which is to promote sustainable whaling." The moratorium, which has been turned into a tool to halt commercial whaling indefinitely and for reasons other than conservation, "is against the spirit as well as the letter of the convention," she reasons.

It is a generally held view that the appropriate legal reference for this matter is the Vienna Convention on the Law of Treaties. On the one hand, the Vienna Convention appears to leave no doubt that Iceland is free to sign the ICRW with a reservation concerning a specific part of it. Such a reservation is allowed if the treaty in question does not explicitly forbid it, and if the reservation is not "incompatible with the object and purpose" of that treaty, states the Vienna Convention.

But there is another stipulation which could be considered relevant to Iceland's case, and which is clearly the reason the UK believes a vote can be called for. The Vienna Convention states that when a convention "is a constituent instrument of an international organisation … a reservation requires the acceptance of the competent organ of that organisation," in this case the IWC.

Not Constituting

The moratorium which is the subject of Iceland's reservation is not a part of the original ICRW treaty but of the Schedule, which is revised continually by the IWC to reflect its management decisions. However, the ICRW states that the Schedule is part of the Convention itself.

The Icelandic authorities have opted to save their legal arguments until the issue is raised in the IWC plenary. But they might argue with some strength that the Schedule, although explicitly "included" in the ICRW, is still clearly not part of the original agreement of the parties, which sets out the IWC's objective and purpose, the limits of its mandate, and the criteria and rules for its decision-making process. There is a clear difference between the comparatively inflexible ICRW, which can only be amended by the unanimous action of the States Parties (not by the Commission itself), and the Schedule, which can be amended by a three-quarters majority of the Commission. The Schedule does not constitute the IWC, as the Schedule is the product of the activity of the IWC.

If this line of thought prevails among IWC members, then it will not be necessary for the IWC to accept or reject Iceland's reservation. However, individual members could still object to it. Should an IWC member choose to lodge such an objection, then the reservation would be invalid for the treaty relation between Iceland and that state.

Proper Criterion

On what basis, then, should the appropriateness of the Icelandic reservation be judged?
"The proper criterion for determining its validity is whether it is compatible with the object and purpose of the Convention," says a respected expert on international maritime law, Professor Emeritus William T. Burke of the University of Washington, to the International Harpoon. And in Burke's opinion, it is compatible.

He is one of several experts on international law and international relations who argue in the recently published book Towards a Sustainable Whaling Regime that the IWC is on a collision course with its constituent treaty. Burke stresses in his contribution that the IWC itself "has no authority to change its basic principles." But in his judgement, this is exactly what it has done. The IWC is at present controlled "by members who reject the basic tenet of sustainable harvesting as established by the ICRW" and "is not … interested in conservation in any sense consistent with the treaty's mandate and purposes."

The book's editor, Prof. Robert Friedheim, who taught international relations at the University of Southern California until his recent death, agrees. "Clearly the stated regime goal of fostering 'the orderly development of the whaling industry' has been dropped from the considerations of the commission," he says.
A third contributor, Jon L. Jacobson, professor emeritus at the University of Oregon School of Law, concludes that IWC decisions which violate the objective of the ICRW are "ultra vires and thus should be of no effect at all." As examples he mentions the Southern Ocean Sanctuary and "a permanent moratorium on commercial whaling."

"The main crystal-clear objective of the treaty was, and still is, to provide for the conservation of whales for the benefit of the whaling industry and its customers," Jacobson emphasises. (Before whale rights groups decry these distinguished authors as lackeys of the whaling industry, it should be noted that Jacobson says he "would prefer a world in which whales were not hunted and killed by humans." But it should not be at the cost of the rule of law. "Saving whales is indeed a noble objective," he says, "but those who contort law in the attempt to achieve this goal are, in my view aligned with all others who for their own special cause, are also willing to burn the [global] village to save it.")

Iceland could argue that the conflict between the Schedule and the original ICRW compels it to make a choice, since it cannot, in honesty, honour both at the same time. And the choice, in that case, would obviously be to favour the objective of ICRW over later decisions made by the IWC which are incompatible with that objective.

Effectively Permanent

The UK has declared that it is unwilling to consider the lifting of the moratorium, a stance shared by the US, New Zealand and Australia. Should these nations continue to exercise the influence over votes which they currently enjoy in the IWC, the moratorium will become permanent.
Thus, by demanding that Iceland drop its reservation, the UK is effectively seeking to cancel Iceland's right to take whales in perpetuity, even from abundant stocks, and not only in international waters but also in its own waters.

Such a right, argues Burke in Towards a Sustainable Whaling Regime, is granted not only by the ICRW but also by the Law of the Sea.

Source: The International Harpoon - The Paper With a Point, High North Alliance, 23 July, 2001 (In press).