(from "Chairman's Report of the Thirty-Fifth Annual Meeting")
Submissions were received from Australia, Denmark, Japan, Netherlands, Oman, Seychelles and the UK and were considered under four headings derived from the Treaty interpretation as contained in the Vienna Convention on the Law of Treaties.
The text of the Convention including the Schedule
Two viewpoints were identified.
One, that there is nothing in the text of the Convention (including the
Schedule) which would prevent the Commission from setting catch limits for the
Baird's beaked whale but rather that the Convention authorises and in fact
gives a positive basis for such action.
An alternative viewpoint was that the text of the Convention does not confer
on the Commission the competence to set catch limits for Baird's beaked whales
and that such action would be outside the scope of the Convention.
Object and purpose of the Convention
The view was expressed that the object and purpose of the Convention set forth
in the preamble can hardly be achieved by inserting in Section I of the
Schedule a number of species without the substantive provisions in the
Schedule being applicable to them.
Context of the Convention, in particular the Chart of Nomenclature
There were divergent views on the implications of the Annex (titled
'Nomenclature of Whales') to the Final Act of the 1946 International Whaling
Conference, for the scope of the Commission's regulatory powers.
On the one hand, it was stated that the chart's inclusion is to be regarded as an attempt to secure consistency of terminology in references to whales which were, at the time, the subject of particular attention. No legally binding character should be attributed to the chart, acceptance of which was merely recommended by the Conference as a guide. Therefore, the chart should not be interpreted as restricting the Convention and thereby the Commission's competence with regard to the species for which it can adopt regulations.
On the other hand, the point was made that the reference in the Final Act to the acceptance of the chart as a guide only means that the names therein are to be taken as a guide, whereas the list of species which the Conference regarded as whales is exhaustive and the Commission's competence to adopt regulatory measures is restricted to those species listed. Since the chart was adopted unanimously, the only way in which the Commission's competence to adopt regulatory measures can be extended to additional species is if there is unanimous agreement among Contracting Governments to do so.
Reference was made to the Verbatim Record of the 1946 Conference, which was said to show clearly that the only intent of the chart was to achieve consistency on nomenclature with respect to vernacular names, without prejudice as to whale taxonomy. It was suggested that a full examination of that Verbatim Record would be useful in confirming this.
Subsequent Practice of the Commission
The Steering Committee noted that the killer whale is an example of the
execution of regulatory powers by the Commission on a species not included in
the chart of nomenclature.
It could not reach consensus on whether this constituted a precedent.
The Commission noted that the implications of the Law of the Sea and 200-mile zones are of general importance and do not apply only to the question of its competence to set catch limits for Baird's beaked whales. It adopted the recommendation of the Technical Committee proposed by St Lucia and seconded by the Seychelles and Oman that the Scientific Committee review the status of this stock as a matter of priority which it will decide.
Japan stated that it would continue to limit under its national regulations the catch of this species to no more than 40.
_