(from "Chairman's Report of the Forty-Ninth Annual Meeting")

13.2 Legal issues
Japan introduced an analysis of the legal aspects of the Commission's designation of the Southern Ocean Sanctuary prepared by Prof. W.T. Burke of the University of Washington, USA.

Japan has previously attempted to initiate discussion within the Commission on the legality of the Southern Ocean Sanctuary. It voted against the proposal and lodged an objection because of its strongly held view that the designation is contrary to the terms of the International Convention for the Regulation of Whaling and could not be justified on scientific grounds.

Prof. Burke concluded that the Commission exceeded its authority under the Convention and violated the treaty since it does not conform with Article V. Specifically, the Southern Ocean Sanctuary is not necessary to carry out the objectives and purposes of the Convention, is not based on scientific findings and does not take into account the interests of the consumers of whale products and the whaling industry.

Japan spoke of the need for such matters to be addressed by the Commission in good faith to restore some of the IWC's credibility as a resource management organisation. It commented on what it saw as the disfunction of the Commission - shown also by requesting Japan to refrain from issuing Special Permits, and not instructing the Scientific Committee to consider the Southern Ocean Sanctuary and the preparation for implementing the RMP for Southern Hemisphere minke whales. It concluded that the Sanctuary decision does not conform with the Convention and is therefore void, and noted that CITES downlisted the African elephant on the basis of scientific findings and the acceptance of the principles of sustainable utilisation.

The UK commented that there was no improvement from last year in the repeated consideration of this issue. It believes Prof. Burke has not understood the issues, nor the role of the Scientific Committee, and that the Sanctuary is a management measure for the protection of stocks. Its own expert. Prof. Birnie, refutes the argument that the matter is ultra vires.

France, Chile, Netherlands, USA, Austria, Brazil, Spain and New Zealand all held the view that the establishment of the Sanctuary was perfectly legal as the will of the countries in conference for the protection of the whales and the ecosystem.

St Vincent and The Grenadines recalled its concern that there is no mechanism for resolving disputes where there are opposing opinions and the majority judges. It thought that an objective legal opinion is needed, a position shared by St Lucia, who asked that the Item be kept on the Agenda. Japan reserved its right to return to the issue as the one nation to lodge an objection.

13.3 Other matters
South Africa, on behalf of the Valdivia Group of Southern Hemisphere countries, introduced a statement stressing their support for the continuation and further development of cooperative initiatives aimed at addressing research and conservation issues relating to cetaceans in the Southern Ocean region. Mention was made of monitoring of whale populations, environmental studies and the development of responsible whalewatching. The Group welcomed the initiative of South Africa in offering to host the Right Whale Workshop in Cape Town in March 1998. Cooperation between the IWC, CMS and CCAMLR is commended, but deep concern was expressed at continued whaling under scientific permit.

13.4 Action arising
The Commission agreed to retain this Item on its Agenda.

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