Robert L. Friedheim
A workshop was convened in Tokyo in January 1996, sponsored by the Institute of Cetacean Research (ICR), to discuss and assess the international legal issues raised by the decisions of the International Whaling Commission (IWC) in the last 15 years - especially the 1982 moratorium and the 1994 Southern Ocean Sanctuary. Manifestly in recent years, the majority of current IWC members, through votes, has reinterpreted the mandate and powers of the organization. In the process of transforming the convention, the majority terminated the rights of some parties. The question is whether such a transformation is in accordance with international law.
The best method of determining the legality of transforming the International Convention for the Regulation of Whaling (ICRW) is subjecting the issues to a third-party review. As yet, such a review has not been attempted. Short of that, the Government of Japan has requested that the legal issues be considered as an official agenda item for the 48th Meeting of the IWC in Aberdeen, Scotland, in June 1996.
The purpose of the Workshop was to better understand the issues in the expectation that they would be officially reviewed in the near future. Consensus of views among the participants was not sought as an outcome of the Workshop, but a considerable degree of agreement on the major issues resulted. It was understood that the output of the Workshop was to record a set of legal opinions. Since the Workshop was not a determinative body, the opinions expressed are not definitive expressions of the current state of international law on the issues reviewed.
The Workshop was organized by R.L. Friedheim, School of International Relations, University of Southern California. Two legal scholars from Japan, two from the United States, one from Canada, as well as a knowledgeable observer from Norway, participated. They Were joined by senior scientists from ICR and officials from the Government of Japan familiar with the legal issues raised in the IWC. Legal scholars were chosen for participation because of their outstanding scholarship as well as the fact that they had not recorded a legal opinion on the issues under examination. (A list of participants is attached.)
Questions Raised at the Workshop
While the panel ranged broadly over the issues, it was asked specifically to consider the following questions:
General Findings
Early in Workshop discussions it became obvious that all sides to the issues could mount arguments based upon recognized legal principles. It was not a case of one side having all relevant legal principles to back its "case" while another had none. The underlying problem was a clash of principles.
Two schools of thought clashed in the transformation of the IWC - one believing in legality of "progressive development" and its newest manifestation of "soft law," and the other believing in the more traditional doctrine of the law between states deriving from agreements between sovereign parties that bind them until such obligations are terminated by legally recognized means. The latter "school" believes that international organizations derive their mandate from an agreed constitutive document and their only powers are derived therefrom. In the course of discussion, it became obvious that these are not immutable positions but each could be viewed as part of a continuum with one shading into the other. Nevertheless, most participants felt that if one values the words in a convention and deems that actions should pass a "good faith and ordinary meaning" test, that the organization's activities be viewed in the light of the long history of international law and its major doctrines, and interpreted in regard to the requirements of the Vienna Convention on the Law of Treaties (VCLT), then those parties claiming their rights have been violated by the recent actions of the Commission and that the Convention has been illegally transformed have a strong case.
What Are The Rights and Duties of
Parties Under the ICRW?
All participants agreed that the 48-year-old ICRW needed updating. The original Convention was a skeletal document with inadequate tools for modern management. But have the alterations gone beyond what might be judged as legally permissible? There was a good case that they had done so, although as one legal expert put it, one's judgment might depend upon whether one was considering the issues from the perspective of litigation, operational or diplomatic considerations, or ethical or societal values.
Over the last 15 years the IWC has been transformed from a convention based upon principles of sustainability to a principle of preservation of whales regardless of the state of the stocks. Some proponents of the new direction have claimed that there is a new societal set of values that requires the total preservation of whales (with perhaps an exception for aboriginal peoples) because they are special creatures. The bolder among them claim that this is a new jus cogens or a preemptory norm which voids a previous treaty obligation as stated in Article 64 of the Vienna Convention on the Law of Treaties. But the notion of jus cogens was controversial during the making of the Vienna Convention, and remains so today. Sir Ian Sinclair, the leading expert on the VCLT, noted that it was all too easy to postulate as a principle of international law a concept that serves a particular ideological or economic goal. This seem to be what has happened in the IWC - postulation of a new direction that serves the ideological interest of urbanized, western societies, a set of values not shared by all members.
Preservation as a value is not well supported as a principle of international law in other recent environmental conventions - sustainability, or sustainable use, is. Sustainability can be seen in the work of the World Commission on Environment and Development, the Rio Declaration on Environment and Development, and Section 17 of Agenda 21 , and the "optimal utilization" (Articles 61-62, 117 - 119) requirement of the United Nations Convention on the Law of the Sea.
Can preservation be substituted for sustainable use? Article 31 of the Vienna Treaty is critical - it is the general rule of interpretation. It requires that the ordinary meaning of the agreement be given to the text, preambles and annexes of a treaty. ICRW clearly calls for the prevention of "further overfishing," "achieving the optimum level of whale stocks," and "the orderly development of the whaling industry" (Preamble, ICRW). While whale-watching and other nonlethal uses of whales might be considered as part of a "whaling industry" it cannot simply be substituted for lethal uses. Moreover, Article 32 of the VCLT requires that interpretation not give a meaning to a treaty that is obscure or "manifestly absurd."
Other articles of the Vienna Convention also are relevant in judging the legality of recent changes in the IWC's mission and the obligations of state members to carry out the new requirements. It might be claimed that the transformation was so extreme that it constituted a de facto amendment of the ICRW; it is not mere interpretation. If so, it does not bind those members who have stated objections since an "amending agreement does not bind any state already a party to a treaty which does not become a party to the amending agreement..."(Article 40, VCLT). Some participants also suggested that objecting states might invoke Article 60 of the VCLT, claiming that the majority's actions constituted a "collective breach" of the ICRW and that the new rules be suspended in whole or in part. Proponents of the changes in the IWC invoke Article 18 of the Vienna Convention, claiming that the opponents of preservation are trying illegally to "defeat its purpose." But that argument can be tuned on its head with a claim that the opponents of preservation remain steadfast proponents of the original treaty; the proponents of preservation have worked to defeat the original purpose of the treaty; and that their alterations are ultra vires - the objecting states are not bound by the changes in Commission mandate.
Finally, the attempt to use resolutions to force state members to change their behavior is also legally questionable. While member states should consider in good faith the content of resolutions, they are not obligated to alter their behavior on issues such as the nature of scientific research and humane killing. The only legally binding measures under the ICRW are those associated with modifications in the Schedule (Article VIII).
Legal Status of the Moratorium
Was the moratorium legally imposed? The assembled legal experts said yes - as it was originally justified, since states have an obligation to conserve. The purpose of the moratorium was to allow stocks to recover and to develop a new catch algorithm. It was based on scientific advice and its purpose was to "provide for the conservation, development and optimum utilization of the whale resources" (Article V, ICRW). However, when exploitable stocks have recovered, and a new catch algorithm was in place, the moratorium should have been lifted. The Schedule promised a review by 1990. Instead, more requirements have been added through a Revised Management Scheme. Although proponents might deny it, there seems to be an effort to delay indefinitely lifting the moratorium, or making it permanent. If it becomes permanent, it would raise serious legal issues.
Article V allows state parties who disagree with a decision relating to the Schedule to file an objection. Japan and Norway took advantage of this right. Norway has sustained its objection; Japan, it is said, under the inducement of the United States, withdrew her objection. While participants in the Workshop were not privy to data concerning what was said or promised in the U.S.- Japan negotiations, it is commonly understood that the U.S. offered Japan a continued fish quota in the U.S. 200 Exclusive Economic Zone (EEZ) in exchange for Japan dropping its objection to the moratorium. Later, the US withdrew the right of all foreign fishermen to fish in the U.S. 200 EEZ. Was this fraud? The Vienna Convention on the Law of Treaties contains a provision concerning fraud in the making of treaties (Article 49), not in the operation of a treaty, but by analogy, it might apply. But this is an extremely serious claim, and Japan should consider its options with care.
Legal Status of the Southern Ocean Sanctuary
Despite the fact that the Commission is empowered in Article V (1)(c) of the ICRW to designate sanctuary areas, the Southern Ocean Sanctuary is ultra vires. The majority's actions on the Southern Ocean Sanctuary were in nonconformity with the rationale of Article V. This is not a matter of mere interpretation allowed by Article 31 of the Vienna Convention on the Law of Treaties. Majority actions were part of a consistent pattern of ignoring the legal requirements of the ICRW. First, they reinterpreted the concept of "sanctuary" to mean an area in which there would be a permanent ban on commercial whaling. This ignored a report of the Technical Committee Working Group on Whale Sanctuaries, which stated that prime objective of sanctuaries was to "provide for the conservation and utilization (our emphasis) of whale resources in accordance with the Preamble to the Convention...." A total ban obviously does not foster utilization. The language allowing the Sanctuary to be reviewed at 10-years intervals mocks the purpose of the ICRW, when a Southern Ocean Sanctuary "applies irrespective of the conservation status of baleen and toothed whale stocks." But what should be discussed at 10-year intervals - the status of the stocks when it was studiously ignored during the time the sanctuary was being enforced?
The Southern Ocean Sanctuary was established without it being "based on scientific findings" and without "taking into consideration the interests of consumers of whale products and the whaling industry." It ignored the recommendations of its own Scientific Committee as well as the advice of the Scientific Committee on Antarctic Research, which stated "that there is little scientific justification for the establishment of the whole of the Southern Ocean as a whale sanctuary." Indeed, as Dr. Phillip Hammond noted in his letter of resignation as chair of the Scientific Committee, "what is the point of having a Scientific Committee if its unanimous recommendations on a matter of primary importance are treated with such contempt?"
Concluding Remarks
Despite the fact that a strong case can be constructed to demonstrate that many of the recent actions of the IWC are of dubious legality, most of the participants in the Workshop urged Japan and other states dismayed by the current direction, not to exercise their right to withdraw from the IWC. However, the clash between opposing sides relates to fundamental issues and if it is not possible to reconcile their positions through negotiation, the Workshop participants urged that their differences be submitted to third-party settlement.
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