Legal battle over Iceland’s re-entry to the IWC

High North News 20.07.2001

The return of Iceland to the International Whaling Commission (IWC) has erupted into a legal battle.

The contentious point is that Iceland re-entered with a reservation to the current whaling ban imposed by the IWC in 1982. With such a reservation, Iceland is exempted from the general whaling ban, and can thus resume whaling under the auspices of the IWC. Australia, Germany, New Zealand, Mexico and the UK have sent letters of protest on Iceland’s return to the IWC. On the other hand, a legal analysis by Switzerland concludes that Iceland’s re-entry with a reservation is in full conformity with international law. Different approaches New Zealand and Australia say in their letters that until “the Commission has taken a decision on the reservation, … Iceland may not be regarded as a member of the Commission.” Germany, Mexico and the UK, though, simply state that they “do not accept Iceland’s reservation”. There are interesting differences between these two approaches. These differences seem to have their origin in differing notions on which procedures and actions are appropriate for those members that don’t find Iceland’s reservation acceptable. New Zealand and Australia are of the opinion that the reservation addresses a provision which is part of “the constituent instrument of an international organisation” and that it therefore has to be accepted by the organisation established by that Convention. In other words, that IWC should accept or reject Iceland. The other approach by Germany, Mexico and the UK does not call for Iceland’s re-entry to be voted on by the IWC. Nor do they say that they don’t accept Iceland as a member. What they do is register a protest which is solely relevant for their own bilateral treaty relationship with Iceland. Probably, this choice of action builds on the notion that the moratorium decision is not “the constituent instrument” of the IWC. To explain why they see a need to protest they point out that the “reservation relates to the moratorium on commercial whaling which we consider to be a fundamental and longstanding aspect of the regime for management of whaling and one which the majority of IWC members supported when the measure was adopted in 1982”. Switzerland says it is ok In a legal analysis by Switzerland, it is argued that Iceland’s re-entry to the IWC with a reservation on the whaling ban is “in conformity with international law”. One reason being that Iceland’s re-entry is in conformity with the purpose and objective of the International Convention for the Regulation of Whaling. The legal analysis therefore says that Switzerland should not object to the reservation made by Iceland. Adding that such an objection will have no practical meaning, and it will not serve a constructive dialogue with Iceland on the issue of whaling. “Legally acceptable, but politically unacceptable” A comment by an anti-whaling delegate today in the corridors at the IWC-meeting seems to summarise the controversy: “Iceland’s re-entry to the IWC is legally acceptable, but politically unacceptable”. “When dealing with international law, the member states to the IWC should focus on law and not on what is politically expedient. While there are different opinions on the whaling issue, everybody must show respect for international law, there is no other alternative,” says Rune Frøvik of the High North Alliance. For more information, please see the following articles on Iceland to be published in the International Harpoon on 23 July:

IWC Media Kit Must Iceland give up whaling option to join IWC? IWC Chairman on Iceland’s return: Very nice – but problematic Former IWC Chair: “You join or you don’t join” Reserved seats at the IWC: Not the first time...