Correspondence
2
Sidney J. Holt is wrong. Contrary to his statements (Whaling and International Law and Order, Vol. 38, No. 7.) the United Nations Convention on the Law of the Sea (UNCLOS) does not pass responsibility for the management of whaling and the conservation of whale resources to the International Whaling Commission (IWC). In fact, the UNCLOS does not even mention the International Convention for the Regulation of Whaling (ICRW) or the IWC but rather, it establishes that coastal States have sovereign rights over marine mam- mals within their 200 mile EEZs and reiterates the long- standing principle that freedom of fishing (including whaling) applies on the high seas (subject to other in- ternational agreements to which States are party). Since the majority of States are not party to the ICRW or other specific restrictions on whaling, customary law and the conventional law represented by UNCLOS provide the regime regarding cetaceans for the majority of States. Although it has been argued that Article 65 of UNCLOS, which requires States to ‘work through the appropriate international organizations (note the plural – organizations not organization)’ for the conservation, management and study of cetaceans, supports the in- terpretation put forward by Holt and others, it should be noted that this is not a jurisdiction or competency clause and it does not explicitly require cooperation with the IWC. Neither does Chapter 17 of Agenda 21 from the 1992 UN Conference on Environment and Devel- opment support the view that the IWC is ‘uniquely re- sponsible’ for whaling matters as Holt claims. In fact, while Chapter 17 adopts verbatim the above noted portion of Article 65 of the UNCLOS and provides that States ‘recognize’ the conservation and management responsibilities of the IWC with respect to ‘whale stocks’ and the work of the IWCÕs Scientific Committee in carrying out studies it in no way implies that such re- sponsibilities are exclusive. HoltÕs misrepresentations clearly qualify as part of what a former director of Greenpeace International described as the ‘hype, half-truths and posturing of the environmental protest groups (Nature Vol. 396, De- cember 10/98)’. These tactics have been successfully used by the environmental groups to manipulate public opinion and government policy on whaling issues since the early 1970s and while their campaigns have raised millions of dollars from public donations, most of the widely held beliefs concerning whales promoted by these organizations are untrue. Pressure from the environ- mental groups has also convinced governments to dis- miss the well-documented cultural, socio-economic and dietary needs of coastal communities and to ignore the object and purpose of the ICRW and their legal obli- gations thereunder in relation to the sustainable utili- zation of whale resources. This has seriously compromised the institutional and scientific credibility of the International Whaling Commission. In fact, since most current whaling, including the commercial whaling in Norway and the research whaling by Japan, occurs outside of the IWCÕs control, the IWC is becoming in- creasingly irrelevant and is moving increasingly away from being an ‘eective international organization(s) for management, conservation and research’ that Holt states are required to assure future sustainable supplies of food from the sea. Indeed, there is an urgent need to improve manage- ment of the worldÕs fisheries resources and rising con- cerns about the status of world fisheries and the capacity of our food production systems, including fisheries, to meet the demands of an increasing human population in the next century must be addressed. While the FAO has called for a reduction of 30% in the number of fishing vessels or fishing eort as part of improved fisheries management, there is also an increasing awareness of the need to manage resources with an integrated eco- system or multi-species management approach. For these reasons, the total protection of whales for emo- tional reasons is inappropriate. Rather, it should be recognized for example, that up to 500 million tons of marine resources are consumed annually by cetaceans and that this means that whales are consuming 3–6 times more fisheries resources than the total worldwide marine commercial fisheries catch. Holt notes that Japan and Norway will likely propose the downlisting of some whale species from Appendix I (species threatened with extinction, no trade allowed) to Appendix II (not threatened with extinction but may become so if trade not regulated) at the next meeting of the Parties to the Convention on International Trade in Endangered Species (CITES) which will take place in April 2000. Just as the ICRW prescribes certain criteria for IWC regulations related to whaling, CITES contains specific criteria for the listing of species on its Appen- dices. The fact is that several species of whale, including minke whales (except the stock referred to as the Yellow Sea–East China Sea–Japan Sea stock), BrydeÕs whales and the eastern north Pacific stock of gray whales do not meet the biological criteria for listing on Appendix I. Further, all of the precautionary measures specified by CITES for consideration in amending the appendices can be met for these species. Clearly it is in the interests of proper resource management and good governance that the downlisting proposals from Norway and Japan be adopted by the Parties to CITES notwithstanding the PII: S0025-326X(99)00191-5 Marine Pollution Bulletin Vol. 40, No. 1, pp. 89–90, 2000 Ó 2000 Elsevier Science Ltd. All rights reserved Printed in Great Britain 0025-326X/00 $ - see front matter 89
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Transcript of Correspondence
Sidney J. Holt is wrong. Contrary to his statements(Whaling and International Law and Order, Vol. 38,No. 7.) the United Nations Convention on the Law ofthe Sea (UNCLOS) does not pass responsibility for themanagement of whaling and the conservation of whaleresources to the International Whaling Commission(IWC). In fact, the UNCLOS does not even mention theInternational Convention for the Regulation of Whaling(ICRW) or the IWC but rather, it establishes thatcoastal States have sovereign rights over marine mam-mals within their 200 mile EEZs and reiterates the long-standing principle that freedom of ®shing (includingwhaling) applies on the high seas (subject to other in-ternational agreements to which States are party). Sincethe majority of States are not party to the ICRW orother speci®c restrictions on whaling, customary lawand the conventional law represented by UNCLOSprovide the regime regarding cetaceans for the majorityof States.
Although it has been argued that Article 65 ofUNCLOS, which requires States to `work through theappropriate international organizations (note the plural± organizations not organization)' for the conservation,management and study of cetaceans, supports the in-terpretation put forward by Holt and others, it shouldbe noted that this is not a jurisdiction or competencyclause and it does not explicitly require cooperation withthe IWC. Neither does Chapter 17 of Agenda 21 fromthe 1992 UN Conference on Environment and Devel-opment support the view that the IWC is `uniquely re-sponsible' for whaling matters as Holt claims. In fact,while Chapter 17 adopts verbatim the above notedportion of Article 65 of the UNCLOS and provides thatStates `recognize' the conservation and managementresponsibilities of the IWC with respect to `whale stocks'and the work of the IWCÕs Scienti®c Committee incarrying out studies it in no way implies that such re-sponsibilities are exclusive.
HoltÕs misrepresentations clearly qualify as part ofwhat a former director of Greenpeace Internationaldescribed as the `hype, half-truths and posturing of theenvironmental protest groups (Nature Vol. 396, De-cember 10/98)'. These tactics have been successfully usedby the environmental groups to manipulate publicopinion and government policy on whaling issues sincethe early 1970s and while their campaigns have raisedmillions of dollars from public donations, most of thewidely held beliefs concerning whales promoted by theseorganizations are untrue. Pressure from the environ-mental groups has also convinced governments to dis-miss the well-documented cultural, socio-economic anddietary needs of coastal communities and to ignore the
object and purpose of the ICRW and their legal obli-gations thereunder in relation to the sustainable utili-zation of whale resources. This has seriouslycompromised the institutional and scienti®c credibilityof the International Whaling Commission. In fact, sincemost current whaling, including the commercial whalingin Norway and the research whaling by Japan, occursoutside of the IWCÕs control, the IWC is becoming in-creasingly irrelevant and is moving increasingly awayfrom being an `e�ective international organization(s) formanagement, conservation and research' that Holtstates are required to assure future sustainable suppliesof food from the sea.
Indeed, there is an urgent need to improve manage-ment of the worldÕs ®sheries resources and rising con-cerns about the status of world ®sheries and the capacityof our food production systems, including ®sheries, tomeet the demands of an increasing human population inthe next century must be addressed. While the FAO hascalled for a reduction of 30% in the number of ®shingvessels or ®shing e�ort as part of improved ®sheriesmanagement, there is also an increasing awareness ofthe need to manage resources with an integrated eco-system or multi-species management approach. Forthese reasons, the total protection of whales for emo-tional reasons is inappropriate. Rather, it should berecognized for example, that up to 500 million tons ofmarine resources are consumed annually by cetaceansand that this means that whales are consuming 3±6 timesmore ®sheries resources than the total worldwide marinecommercial ®sheries catch.
Holt notes that Japan and Norway will likely proposethe downlisting of some whale species from Appendix I(species threatened with extinction, no trade allowed) toAppendix II (not threatened with extinction but maybecome so if trade not regulated) at the next meeting ofthe Parties to the Convention on International Trade inEndangered Species (CITES) which will take place inApril 2000. Just as the ICRW prescribes certain criteriafor IWC regulations related to whaling, CITES containsspeci®c criteria for the listing of species on its Appen-dices. The fact is that several species of whale, includingminke whales (except the stock referred to as the YellowSea±East China Sea±Japan Sea stock), BrydeÕs whalesand the eastern north Paci®c stock of gray whales do notmeet the biological criteria for listing on Appendix I.Further, all of the precautionary measures speci®ed byCITES for consideration in amending the appendicescan be met for these species. Clearly it is in the interestsof proper resource management and good governancethat the downlisting proposals from Norway and Japanbe adopted by the Parties to CITES notwithstanding the
PII: S0025-326X(99)00191-5
Marine Pollution Bulletin Vol. 40, No. 1, pp. 89±90, 2000
Ó 2000 Elsevier Science Ltd. All rights reserved
Printed in Great Britain
0025-326X/00 $ - see front matter
89
request from the IWC that CITES retain all whalespecies on Appendix I while the moratorium remains inplace. One would hope that the emotional rather thanscienti®c basis for IWCÕs decisions which have renderedit dysfunctional will not become the norm for CITES.
Based on historical events within the IWC in the1960s and 1970s Holt opines that the IWC is `moreadvanced than other bodies in seeking to apply rigor-ously the principles of sustainability and precaution' buthe ends his discussion of events within the IWC at 1980,just at the time when the IWC began to disregard theseprinciples in favour of a policy of total protection.Neither the moratorium on commercial whalingadopted in 1982 nor the Southern Ocean Sanctuaryadopted in 1994 re¯ect the principles of sustainable useof resources or any reasonable de®nition of the pre-cautionary approach. Both were adopted without arecommendation from the CommissionÕs Scienti®cCommittee that they were required for conservationpurposes. Further, they were adopted in contraventionof the requirements of the ICRW which prescribe thatregulations shall be necessary to carry out the objectivesof the treaty, be based on scienti®c ®ndings and takeinto consideration the interests of the consumers ofwhale products and the whaling industry. A look at thewording of the IWC regulation establishing the South-ern Ocean Sanctuary provides an instructive example ofthe style of recent IWC decisions. This wording says inpart, `... This prohibition applies irrespective of theconservation status of baleen and toothed whale stocksin this Sanctuary, ...' Clearly this does not re¯ect anapplication of the principles of sustainability or pre-caution or the use of scienti®c advice to manage re-sources.
Holt also fails to inform his readers of three otherimportant facts namely that; (i) the clearly stated pur-pose of the treaty was to provide for the proper con-servation of whales in order to make possible the orderlydevelopment of the whaling industry, (ii) the IWCÕsScienti®c Committee has agreed that some whale stockscould sustain a harvest and, (iii) the IWCÕs Scienti®cCommittee has developed, tested and recommended arisk averse method for calculating catch quotas (calledthe Revised Management Procedure or RMP) evenunder conditions that may include biases in estimates ofabundance, errors in assumed stock boundaries andchanges in carrying capacity due to environmentalchanges. Application of the RMP to those stocks whichthe Scienti®c Committee has agreed could sustain aharvest would not lead to a return of the over-harvestingwhich is part of the history of commercial whaling butrather to limited, controlled and sustainable whaling forfood on a relatively small number of stocks includingminke whales in the Antarctic where the Scienti®cCommittee has estimated a population in excess of760 000 animals.
Since 1980 membership in the IWC has increased toalmost 40 members and, for the majority of this mem-
bership, the original purpose of the treaty, the sustain-able use of whales, is no longer acceptable. Indeed, incontradiction to the treaty, the current majority viewwithin the IWC is that all whales should be protectedfrom commercial whaling. This is the setting in whichthe majority within the IWC use bullying, coercion andthreats of economic sanctions to impose their anti-whaling views on those few member countries, namelyJapan and Norway, who wish to resume a sustainableand regulated commercial harvest of now abundantstocks of whales.
Unfortunately, the current situation within the IWC isthat the majority of members contemptuously reject therecommendations of its own Scienti®c Committee re-lated to the management of whales (in 1993, theChairman of the Scienti®c Committee made this com-ment in his letter of resignation), purposely redirect thework of the Commission and its Scienti®c Committeeaway from their primary purposes and interpret theIWCÕs constitutive treaty, the ICRW, in a mannercontrary to the purpose of that treaty in clear violationof customary international law. This sets a very badexample for much needed international cooperation inenvironmental and resource management issues. Clearlyit is not Norway and Japan that are `bringing the IWCinto disrepute' as Holt accuses. Their actions are con-sistent with international law and their obligations un-der the IWC as well the principles of sustainable use andthe precautionary approach. Rather, it is the anti-whaling majority member Governments and NGOs,both of which Holt has represented in the past, whichhave made the IWC dysfunctional and brought it intodisrepute. Their actions ®t well the description which aphilosophy professor at Howard University (CharlesGriswold) recently attributed to the animal rightsmovement: `... the incoherent nature of a moral passionbecome immoral by virtue of its extremism'.
DAN GOODMAN 1
Councillor,The Institute of Cetacean Research, Tokyo Suisan
Building, 4-18 Toyomi-Cho, Chuo-Ku,Tokyo 104-0055, Japan
E-mail: [email protected]
1 Dan Goodman is a former Senior Advisor in the Government ofCanadaÕs, Department of Fisheries and Oceans. He attended meetingsof the IWC from 1979 to 1996 as a representative of the Governmentof Canada.
Marine Pollution Bulletin
90
