Subject: IWC: U.S. legal expert finds IWC's (fwd)

Mike Williamson (pita@www1.wheelock.edu)
Fri, 17 Oct 1997 13:47:30 -0400 (EDT)

---------- Forwarded message ----------
Date: Fri, 17 Oct 97 13:33:00 GMT 
From: r.mallon1@genie.com
To: marmam@uvvm.uvic.ca, pita@whale.simmons.edu
Subject: U.S. legal expert finds IWC's

U.S. legal expert finds IWC's whale sanctuary measure illegal

FROM: Alan Macnow
      Consultant
      Japan Whaling Association
      Tel: 212-688-5580   Fax: 212-688-5857
      email: amacnow@igc.apc.org

 The International Whaling Commission's (IWC) designation of the
Southern Ocean around Antarctica as a whale sanctuary is illegal and
does not have to be honored, according to a noted U.S. legal expert.

 The legal expert, Prof. William T. Burke of the University of Wash-
ington in Seattle, stated that the IWC has no authority under its
charter, the International Convention for the Regulation of Whaling
(ICRW) to establish the sanctuary.  Under international law, when an
international institution such as the IWC takes an action which ex-
ceeds the scope of its powers, such an action is void, he explained

 The IWC's sanctuary provision, established in 1994, prohibits commer-
cial whaling in an area encompassing 13 million square miles.  It does
not prohibit the take of whalesby aboriginal whalers or for research
purposes.

 Currently, commercial whaling is prohibited world-wide under an IWC
measure which went into effect in 1988.  The moratorium was estab-
lished to allow for a comprehensive assessment of whale stocks and the
development of a revised management procedure that would guard against
the depletion of stocks.  The assessments and revised management pro-
cedure were completed by 1992, but anti-whaling proponents in the IWC
have delayed the lifting of the moratorium for ideological reasons.
Norway, which had filed an objection to the moratorium, legally
resumed commercial whaling in 1993 after the IWC failed to implement
the revised management procedure.

 Prof.  Burke criticized the IWC for violating the objective and pur-
pose of the international whaling convention.  "The essential objec-
tive 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 Southern Ocean, despite the known
abundance of particular stocks, is inconsistent with and violates this
purpose.  A sanctuary which simply prevents catching whales that can
be taken safely frustrates, rather than fulfills or seeks, the
treaty's purpose," he said.

 "Article V (of the Convention) also requires that Schedule amendments
must be necessary for optimum utilization of the whale resources.  It
is the fundamental purpose of the ICRW to provide a regulatory regime
that facilitates sustainable harvests of whales.  Since there are
stocks of whales in the Southern Ocean that could sustain such a regu-
lated harvest, the Commission's duty under the treaty was and is to
determine a level of harvest that would be optimum under prevailing
conditions.  This approach to achieving the basic goal of the ICRW is
effectively abandoned when the Commission adopts a policy that forbids
any take that wouldbe sustainable and optimum under the ICRW," he
added.

 Prof.  Burke and other legal experts have pointed out in the past
that the IWC sanctuary action lacked scientific justification, as re-
quired by the international whaling convention.  It was never recom-
mended by the IWC's Scientific Committee and no international
scientific body has ever concluded that it would help restore depleted
stocks or return whale populations to pre- exploitation proportions.
Some scientists felt that it would prevent the recovery of the highly
depleted blue whales because they could not compete with the fast-
reproducing minke whale species for the available food resources un-
less the minke whale populations were culled back.

 Minke whales in the Southern Ocean waters now number more than
760,000, according to the IWC, continuing a population explosion that
began when the blue whales were over-hunted in the 1950's and 1960's.