IWMC.org - 2nd Symposium - Aquatic Resources

Sustainable Use and the Law Stephen S. Boynton (biography) President, International Foundation for the Conservation of Natural Resources

Many nations have formally established commitments to the sustainable use of renewable wildlife and marine resources by becoming a Contracting Party to various bilateral and multilateral treaties, agreements and conventions that have sustainable use principles contained in their respective preambles and articles¹. However, far too often adherence to those legal obligations is observed in the breach rather than in the observance. There may be many reasons for this circumstance but one primary and significant cause is the political pressure placed on governments by those elements of society that oppose the consumptive use of renewable marine and wildlife resources for any purpose or management reasons. Sadly, such policies cause adverse impacts on appropriate resource management, traditional dietary and cultural needs of people, and have resulted in severe and unnecessary economic hardships.

There are several examples of this illegal posturing but one of the most dramatic is under the International Convention for the Regulation of Whaling (ICRW) established in 1946². The ICRW has as its basic convent, "properly regulated" whaling to achieve "the optimum level of whale stocks" that "permit increases in the number that may be captured without endangering [the] natural resources" in order "to provide for the orderly conservation and development of the whaling industry...."³. Thus, the ICRW has as equal objectives the conservation and utilization of whales resources. As conservation of a renewable resource does not permit over exploitation, it certainly does not contemplate total protection. But that is precisely what has happened under the ICRW.

In 1982, the protectionist community worked its will on the current direction of the ICRW by successfully lobbying to prohibit all commercial whaling over a phase out period to l986⁴. Although the amendment to the Schedule of the ICRW specifically made such prohibition subject to "review based upon the best scientific advice," thereby acknowledging the certainty that whaling would be resumed when a reassessment of the stocks "indicated sustained catches by 1990", it was not to be. Although the Scientific Committee established by the International Whaling Commission (IWC), the governing body of the ICRW, issued a report that the resumption of limited taking of minke whales (Balenoptera acutorostrata) would have no adverse impact of population stocks, the majority of the IWC, has continued to prohibit any resumption of limited whaling of this species⁵.

Article V of the ICRW states that decisions of the IWC "shall be based on scientific findings," "shall take into consideration the interests of the consumers of whale products and the whaling industry," and "shall be such as 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"⁶. [Emphasis added]. Obviously, by the use of the word "shall," the Contracting Parties have committed to a mandated directive and not a discretionary one where the word "may" could have been used as it was in other articles⁷. Since that report was issued in 1993, the IWC has consistently opposed any resumption of limited whaling of this species regardless of the science or the clear legal violation of the tenets of the ICRW.

Similarly, without any scientific justification, the majority of the IWC established a Southern Ocean Sanctuary (SOS) to prohibit harvest of any species of cetaceans, ignoring, again, the recommendations of the Scientific Committee⁸. The majority of the IWC has taken the "legal" position that justification for the SOS is supported by the "precautionary principle" advanced in the Rio Declaration and Agenda 21 of the United Nations Conference on Environment and Development (UNCED)⁹. The argument maintains (1) that the phrase "scientific findings" as used in Article V(2)(b) of the ICRW is ambiguous, and therefore, the IWC can adopt "an interpretation that fulfills the ICRW’s perambulator objectives," and, (2) that Contracting Parties are now required to take into account in "good faith" the application of the precautionary principle or approach and emphasize the rights and needs of future generations"¹⁰.

IWMC World Conservation Trust