Originally published as [2001] International Fisheries Bulletin No. 14

Proposed South Pacific Whale Sanctuary

In July the IWC will meet in London for it's 53rd Annual Meeting. Among the items to be considered is a proposal by Australia and New Zealand to establish a vast whale sanctuary in the South Pacific. A similar proposal was tabled last year, but failed to gain the necessary three-quarters vote. In this article, a leading writer on marine issues and the law of the sea expresses some personal comments on the legal issues concerning the controversial proposal.   

The 53d meeting of the International Whaling Commission (IWC) will again raise, but certainly not resolve, the issue of the Commission’s failure to comply with its basic charter, the International Convention for the Regulation of Whaling, when it addresses the proposal by Australia and New Zealand to establish a South Pacific whale sanctuary (SPS). In 1994, the IWC approved a Southern Ocean Sanctuary (SOS) without the support or recommendation of its Scientific Committee and without even getting answers to the ecological questions raised by its own Working Group on this sanctuary. There being no other evident source of scientific findings, and none being referenced, the SOS decision thus did not comply with the requirement for such findings in Article V(2) of the Convention.

In 1996 Japan raised the question of the Commission’s lack of authority under the ICRW to make the SOS decision, citing several violations of treaty requirements. In considering this question, the Commission compounded its original error when, in responding to the claim its action was ultra vires, a majority of Commission members decided that the original decision to establish the sanctuary was also a decision that the Commission acted within its authority. Such a position has no support in the law pertaining to issues of ultra vires actions by an international organization such as the IWC. Under the relevant law of international organizations, a challenge of excess of power is a separate issue and needs to be dealt with as such. If the original decision is to be properly treated as void, which is the issue involved, it cannot be cited as proof of its own validity. Of course, the IWC could act to affirm the validity of its original action, but this would require addressing and deciding upon the bases for the charge.

Unfortunately, all this is probably irrelevant since no member State in the IWC appears willing to challenge such an action by seeking outside review, as by invoking the dispute settlement procedure potentially available under Part XV of the United Nations Convention on the Law of the Sea.

As matters stand, therefore, the Whaling Commission is pretty much free to violate its own charter without fear of review by any outside body, leaving it to aggrieved members either to use the objection procedure in the ICRW or to terminate their adherence to the treaty. Both routes have been chosen by some IWC members, but these remedies leave the initial treaty violation unremedied.

The South Pacific Sanctuary proposal has already been rejected once by the Commission when it failed to receive the necessary ¾ majority vote at the 52nd IWC meeting in Adelaide, Australia. In considering it again, the Commission could face a reprise of the SOS debate since Australia/New Zealand now contend that the same arguments that justified the SOS decision also justify approval of the SPS. While this conclusion is tenuous at best, the shortcomings of the SOS proposal and the decision-making process concerning it, certainly apply to the new proposal, in conjunction with other considerations that should strengthen opposition to the proposal.

The following briefly summarizes the defects in the new proposal, and adds some observations about the disrespect that would be shown to the IWC and especially to the Scientific Committee if the SPS were approved based on the arguments presented by Australia and New Zealand.

The ICRW specifically provides for the amendment of the Schedule to the Convention in accordance with Article V. The proposed South Pacific sanctuary does not meet Article V requirements that amendments shall (a) “be such as are necessary to carry out the objectives and purposes of the Convention and to provide for the conservation, development and optimum utilization of the whale resources; (b) be based on scientific findings” and (d) “take into consideration the interests of the consumers of whale products and the whaling industry.”

The major deficiencies of the A/NZ proposal are also evident in the paper (IWC 51/21) attempting to identify its need and benefits.

A. The South Pacific sanctuary fails to carry out the objectives and purposes of the ICRW

The essential objective and purpose of the ICRW is to provide for the conservation of whales in order to permit continued harvests, a goal now called sustainable harvesting. The adoption of an indefinite prohibition of all commercial whaling in the South Pacific, despite the known abundance of particular stocks, is inconsistent with and violative of this objective and purpose. A sanctuary, which simply prevents catching whales that can be taken safely, frustrates, rather than fulfills or seeks, the treaty’s purpose. The Commission has no authority under Article V to take such an action.

B. The sanctuary is unnecessary to carry out the treaty’s purposes

Even if the South Pacific sanctuary sought to carry out the treaty’s purpose, rather than to defeat it, the A/NZ proposal is not necessary to carry out the objectives and purposes of the Convention. There are two reasons why it is unnecessary. The first is that the Commission already has in place a moratorium on the commercial harvest of whales that applies in the South Pacific as well as elsewhere. If member states are inclined to pursue them, the conservation actions allegedly enabled by the proposed sanctuary are achievable within the context of the moratorium.

The second reason a South Pacific sanctuary is unnecessary is that when the moratorium is terminated, it would be because the Commission has already approved and will have implemented a Revised Management Scheme and Procedure that will satisfactorily protect all whale stocks in the South Pacific without exception. The Revised Management Procedure, as is well known, is the product of several years of intensive inquiry and creative scientific effort by the Scientific Committee. The Scientific Committee declared that the RMP “represented the culmination of several years of extensive development and had been tested against uncertainty with a rigor unparalleled in the management of any biological resource.”

The IWC Secretariat’s own characterization of the RMP is revealing: “In summary, the culmination of eight years’ work by the Scientific Committee has been the most rigorously tested management procedure for a natural resource yet developed. It sets a standard for the management of all marine and other living resources.” (Emphasis added)

Given the availability of such a carefully prepared and conservatively oriented management arrangement, the South Pacific sanctuary can hardly be thought necessary in any normal or meaningful sense of the term. For this reason too, a proposal to adopt a South Pacific sanctuary cannot be squared with the purposes and objectives of the ICRW.

C. The proposed South Pacific sanctuary does not provide for optimum utilization and gives no consideration to the interests of consumers of whale products and the whaling industry

Article V also requires that Schedule amendments must also be necessary for optimum utilization of the whale resources. It is the fundamental purpose of the ICRW to provide a regulatory regime that facilitates the sustainable harvest of whales. This means that the members’ efforts should be devoted to conserving whale for this purpose, and not aimed at preventing realization of that purpose. Since there are stocks of whales in the South Pacific that are not depleted and could sustain a regulated harvest in accordance with a most conservative and precautionary management regime, a proposal that prevents any harvest at all cannot satisfy the objective of optimum utilization. If this proposal were adopted, the achievement of this basic goal of the treaty would be effectively abandoned in the South Pacific region of the world.

In ignoring the requirement of providing for the optimum utilization of the whale resources, the A/NZ proposal manifestly fails to give any consideration to consumers or to the whaling industry.

D. Alleged scientific conclusions advanced to support a sanctuary designations are contrary to determinations already made by the Scientific Committee and the Commission

Australia and New Zealand allege that any commercial whaling in the South Pacific is likely to cause irreversible damage to whale populations (IWC/51/21 Summary p. iii). This allegation completely contradicts the Commission’s decision in adopting the Revised Management Procedure that is designed to guard against the risk of extinction in a whale population by assuring that its abundance is well above even the minimum level for a safe harvest. If the Commission were to accept this allegation that irreversible damage was likely to occur from “any commercial whaling”, it would necessarily repudiate its own actions in adopting and planning to implement the Revised Management Scheme and RMP. This outlandish assertion by Australia and New Zealand attempts to cast doubt on the competence of a Commission which has approved a management scheme by alleging that the scheme is so misconceived, and its regulations so completely ineffective, that whaling in accordance therewith would cause irreversible damage. Needless to say, the proposing states identify no basis for this implication and for its presumption of the incompetence of the IWC’s Scientific Committee.

Actually the A/NZ paper supporting their proposal repeats this low assessment of previous IWC decisions and conservation actions. It declares that “At present there are not very high catches from whaling of any kind in the Southern Hemisphere, but there is no assurance that this would remain the case, should the IWC moratorium be revoked.” Again, the suggestion is that the implementation of the Revised Management Scheme, which would be necessary before the moratorium would be terminated, is so defective in conception or implementation that it would not be “assurance” against excessive catches in the southern hemisphere.

These various statements impugning the scientific merit of the RMP are by themselves striking evidence of the scientific fragility of the case for the proposed sanctuary, but they stand out all the more because the A/NZ paper makes no effort whatsoever to support them. Indeed the paper does not even mention or make reference to the existence of the RMP or the pending completion of the RMS. All that is offered is innuendo and negative implication. But whether or not acknowledged, there can be no doubt that this proposal is another effort to subvert the RMS/RMP and undermine the consequence of ending the moratorium, i.e., to prevent the sustainable harvesting of whales on the pretence of a need for sanctuary.

E. Disregard for Sanctuary guidelines

In addition to violation of the ICRW, this proposal for a South Pacific sanctuary also without explanation disregards Guidelines previously prepared for the Commission for use in considering establishment of a sanctuary.

1. The A/NZ proposal makes no effort to justify another sanctuary as an action distinct from using the regulatory measures currently followed by the Commission. But if the Guidelines are heeded, the proponents must justify it in the face of the moratorium and the Revised Management Procedure. “Sanctuaries should be established to provide necessary and desirable protective measures which are not available to conserve whales under other regulatory measures of the Convention.” (IWC/34/14). Entirely apart from the fact that the A/NZ proposal is not aimed at conservation in the first place, it ignores the impact both of the current moratorium and of the pending RMS/RMP that would fully protect whale stocks from any excessive harvest.

2. Australia and New Zealand offer no evidence whatsoever to support the allegation that “any commercial whaling will likely cause irreversible damage to whale populations.” In ignoring previous decisions by the IWC that both now and in the future provide for complete protection of depleted species and for rigid safeguards for those stocks permitting a sustainable catch, A/NZ offer no reasons for believing the moratorium will be breached or for assuming that the RMP will not effectively prevent any whaling that would cause irreversible damage. The several statements suggesting this is likely are simply hokum. A paper purporting to advance a reasoned case for a new sanctuary in the South Pacific but which does not take account of an already approved and highly precautionary RMP should hardly be taken seriously.

3. Australia and New Zealand offer no new information on the need for a sanctuary to protect particular species, as called for by the Guidelines. The A/NZ paper states: “Basic information on the status, breeding distribution and migratory pathways of rorqual species other than humpbacks is not available.” It is already known and generally accepted that many species in the global ocean are too depleted to allow exploitation, but this is the basis for the current moratorium and for the carefully designed RMS/RMP, which the A/NZ proposal ignores. Citing the lack of information about such species, except one, hardly merits a redundant sanctuary and does not justify ignoring Sanctuary Guidelines.

4. The Sanctuary Guidelines ask for information on the effects of the sanctuary area on current exploitation, which suggests that the sanctuary should be aimed at conserving whales in the context of existing whaling effort. Of course there is no such effort, but the A/NZ view is that there is no assurance that “not very high catches” will “remain the case.” Having wholly disregarded the existing and pending conservatory actions of the IWC, it is perhaps possible to understand this view. But the Guidelines call for paying attention to current measures which will make it clear that the Commission’s actions do offer assurance against excessive catches in the South Pacific region, as well as elsewhere.

5. In responding to the Sanctuary Guideline applying to information about the proposed contribution of the new sanctuary, A/NZ suggest that the South Pacific sanctuary is needed to supplement the Southern Ocean Sanctuary because the same whales protected there can be taken outside that sanctuary. This view might be warranted, of course, if these whales were not already protected by a current moratorium (which A/NZ concede is now effective) that can only be terminated by a new management system that is considered the most rigorous conservation procedure ever adopted for a living marine resource. In adopting the RMP, the Commission has already approved a highly precautionary approach to whaling management. To adopt another sanctuary as a precaution in case the original precautionary measure might somehow be defective, when there is no evidence to suggest this has any prospect of occurring, is to elevate precaution beyond any conception of the term in normal or acceptable usage.

6. On the desirability of reporting on levels of current research, as provided by the Guidelines, the A/NZ proposal has little to say. The message in the supporting paper is that little is being done. The Guidelines ask that the proponent of a new sanctuary provide specific estimates for the research required and an assessment of the cost of research needed to establish trends in population numbers. No such information is found in the A/NZ supporting paper. There is a similar dearth of information on manpower requirements, existing or proposed facilities and possible sources of funds.

7. The Guidelines also declare that all possible measures should be taken to ensure that no member nation is thereby unduly disadvantaged and that the Commission should seek the cooperation of nonmember nations. According to their paper, Australia and New Zealand have communicated with members of the South Pacific Forum who in response noted “the need to protect Forum members’ traditional and cultural practices and the sustainable use of their marine resources.” An unstated, but nonetheless evident, message here is the relationship between protected whale populations and fishery resources of great importance to developing Pacific island states whose economies are heavily dependent on such resources. Only the Solomon Islands, as a party to the ICRW, would be protected from undue disadvantage if in fact any were threatened. The Commission should therefore give serious consideration to the cultural, traditional and economic needs and possible harms to Pacific island states following on the creation of a sanctuary that is unnecessary for achieving the objectives of the ICRW and actually defeats them.

8. It might also be noted and considered that the proponents of this sanctuary, Australia and New Zealand, have long had strong and influential relationships with the numerous small island communities in the South Pacific region whose political life, economies, and culture are unavoidably involved in the process of considering this proposal. By reason of these considerations these communities are potentially influenced by the outcome of the Commission’s decisions even if they remain outside the IWC and have no representation within it.

Conclusion

The recent outburst of sanctuary proposals must be seen in the context of their advocates’ adamant view that commercial whaling shall never occur again, whatever the Whaling Convention may say. This is the openly stated position of Australia and New Zealand as well as of the United States and United Kingdom and some other IWC members. It is transparently obvious that a complete prohibition of commercial whaling is not consistent with the Whaling Convention or even with the moratorium resolution adopted by the IWC in 1982, which certainly implied the resumption of such whaling on sufficiently abundant stocks.

Although the states concerned make no apology for official positions that flagrantly contradict their treaty obligations, it is apparent that they see the sanctuary concept as a potential way to obscure the label of treaty violator. Having agreed to the Revised Management Procedure, but not yet its application, the problem is how to escape that eventual result since that would entail very limited catches of some whale stocks. The approach chosen is to create sanctuaries that are applicable no matter what the conservation status of stocks in the sanctuary may be and no matter what the Convention may require to the contrary.

Application of the RMP to a particular sanctuary stock to provide for a sustainable catch would be prohibited under a sanctuary that applies to all whales therein whatever their conservation status may be. In its opinion, the Commission has already established, as noted above, that such sanctuaries do not violate the Whaling Convention. Ergo, according to the IWC, all the legalities restricting its actions have been observed.

These consequences will follow as more sanctuaries will be added to those for the Southern Ocean and the South Pacific. As these additions occur, still others may be added so that all ocean areas will eventually be covered. At some stage, probably sooner rather than later, the necessity for a global sanctuary will seem logical and natural, however unjustified under any reasonable interpretation of the Whaling Convention.

While one cannot point to any single document spelling out this strategy, the sequence of events and explanations makes it manifest. A principal basis for this conclusion is that the latest document by Australia and New Zealand arguing for a South Pacific sanctuary makes several allegations about whaling in this region without even once acknowledging that the current moratorium protects the stocks concerned and that this protection will continue until the Revised Management Procedure offers complete protection of all whale stocks and sets a new extraordinarily high standard for international management of living marine resources. The effrontery extends to invoking the precautionary principle to prohibit takes from stocks already subject to the most rigorous and precautionary conservation program ever devised for a living marine resource.

Perhaps the most fascinating part of this spectacle is that the flouting of treaty commitments is so blatant yet so beyond effective challenge or remedy within the existing regime. Currently the Whaling Convention means only what its members say it means, no matter how manifestly inconsistent with the treaty. This is the majority position of IWC members.

It would be tempting to fall back on the idea that this course of action courts the destruction of the IWC and the hypocritical regime it has come to represent. But by now the cynicism and moral fatigue appear to be so pervasive that even a soiled treaty such as the ICRW may persist, leaving the management of whales to other agencies. Meanwhile, the majority of its members can overlook their loss of credibility while fondling their enhanced but phony environmental credentials and the few whaling members limp along on catches supported by treaty-allowed objections and kills in the name of scientific research permitted by the Whaling Convention. While these catches are in full compliance with the Convention, in the upside down world of the IWC the states concerned (Norway and Japan) court denunciation from other members and threats of economic sanctions from the United States.

The whale is often said to be the icon of the environmental movement. One hopes that vastly more important global environmental issues, such as global warming, are not besmirched by the hypocrisy, self-righteousness, cultural myopia, and over-weening arrogance so prominently displayed in the campaign against whaling operations that are currently practiced in full accordance with the treaty regulating that activity. Loss of respect for international law and for legal process is a very high, and wholly unnecessary, price to pay for dealing effectively with environmental challenges. Perhaps of more practical significance, a similar pattern of disregard for scientific information could cripple genuine and essential international cooperation.
    

William T Burke
Emeritus Professor of Public International Law and Ocean Affairs
School of Marine Affairs, University of Washington

Further links

International Whaling Commission website

South Pacific Regional Environment Program Statement on the South Pacific Whale Sanctuary, 21 April 2001

New Zealand Ministry of Fisheries Media Statement, 21 April 2001

Papers on the Southern Ocean whale sanctuary

Memorandum of Opinion on the Legality of the Southern Ocean Whale Sanctuary by the International Whaling Commission
William Burke (1995)