Commissioner to the International Whaling Commission (IWC), Jim McLay (NZ
Herald, Feb.1) misrepresents both the legal and scientific issues related
to Japan’s whale research program in the Antarctic.
At the outset, it
is important to understand that the IWC has become dysfunctional because
the majority of its members choose to ignore the object and purpose of the
treaty and are attempting to change its intent from a treaty for the
conservation and sustainable utilization of whales into a treaty solely for
the protection of whales irrespective of their status. The IWC is
also dysfunctional since it blatantly disregards the recommendations and
conclusions of its Scientific Committee and because the majority of members
seek an end to research that is providing valuable information for the
management of whale stocks.
In 1993, the
Chairman of the Scientific Committee resigned. In his letter of
resignation to the IWC he says in part: “what is the point of having a
Scientific Committee if its unanimous recommendations on a matter of
primary importance are treated with such contempt”. In a recent
article published in The Atlantic Monthly, a former IWC Commissioner from
the United States and two renowned scholars note that the actions of the
ant-whaling majority within the IWC “…violates international law,
fosters tensions between otherwise friendly nations, and undermines
use of the IWC’s majority opinion as the basis of his presentation of the
“facts” is therefore inappropriate.
Southern Ocean Sanctuary, by its own terms does not apply to the research
take of whales. His comments that it is regrettable that Japan’s
whale research program takes place in the sanctuary and that Japan should
honour the sanctuary are therefore disingenuous. Indeed, the title
“spurious legalese” you used for the article applies more aptly to
McLay’s arguments than to the justification for Japan’s whale research
look at the facts” is deficient. He should have informed readers
that Japan’s whale research program is perfectly legal under Article VIII
of the International Convention for the Regulation of Whaling (ICRW) and
that the politically motivated non-binding resolutions adopted by the IWC
to which he refers, in no way diminish the legal rights of Parties to the
Convention to issue permits for the taking of whales for research
purposes. He should also have informed readers that the ICRW requires
that regulations related to whaling be based on scientific findings.
It is obligatory.
This fact is
relevant to two of McLay’s arguments. Firstly, since regulations
must be based on scientific findings, it argues strongly for continuation
of Japan’s research program. In fact other members of the IWC
should be encouraged to undertake similar programs. Japan’s whale
research program is the only long-term study that will help in
understanding the role of whales in the Antarctic ecosystem and the effects
of environmental changes on whales. Secondly, it is precisely because
the ICRW requires that regulations be based on scientific findings that the
IWC exceeded its mandate in establishing the Southern Ocean
Sanctuary. This is what makes the sanctuary illegal. Contrary
to McLay’s statement, this position has not been “comprehensively
rebutted by international law experts”. There is only one published
opinion counter to the position that the sanctuary is illegal. The
basis of the argument is that what is called “soft law” or “emerging
opinion” overrides the terms of an international treaty. McLay can
accept this argument if he chooses but as a lawyer he should recognize it
for what it is - spurious legalese.
that the IWC is recognized as the international body with global legal
competence for all cetaceans is wishful thinking on his part but it is
contrary to fact. Nothing in the ICRW or other international law
gives the IWC such powers. The Government of New Zealand can, as he
says, “insist that that it (the ICRW) applies to all cetaceans”
however, such insistence is contrary to both fact and practice.
McLay is correct
when he says that “the IWC was established under an international treaty
to which both Japan and New Zealand are Parties” but he neglects to add
that the purpose of the treaty as clearly stated in the treaty’s preamble
is “ to provide for the proper conservation of whale stocks and thus make
possible the orderly development of the whaling industry”.
The Government of New Zealand’s opposition to the resumption of whaling
irrespective of the status of whale stocks subverts the purpose of the
treaty to which it is a Party. In 1992, the Government of New Zealand
acknowledged, in a formal position paper submitted to an intergovernmental
meeting in preparation for the United Nations Conference on Environment and
Development (Rio Conference), that it is impossible under the ICRW to
prevent a resumption of commercial whaling on abundant stocks. Yet
New Zealand continues to ignore its legal obligations under the ICRW in a
manner that invites serious accusations of “bad faith” interpretation
of the Convention. Clearly, this sets a bad example for much needed
international cooperation in the management of the world’s natural
I would also like
to correct McLay’s misrepresentations of the scientific matters related
to Japan’s whale research program.
McLay is correct
that scientific review of Japan’s whale research program in 1997
identified 10 items that needed adjustment or further consideration.
This should not be surprising for such a major research program and many of
these items could only have been identified after several years of results
were obtained. But McLay’s offence here is that he failed to note
that each year since 1997, Japan has provided detailed information to the
IWC’s Scientific Committee on program adjustments to address these 10
items. Indeed all ten items have been, or will shortly be, addressed.
lists benign research methods including photo-identification, biopsy
sampling, acoustic studies, DNA analyses and sighting surveys to support
his statement that it is not necessary to kill whales for research
purposes. However, the IWC’s Scientific Committee has noted that
non-lethal means to collect some information are unlikely to be successful
in the Antarctic. Perhaps McLay also forgot that a significant part
of Japan’s whale research program involves non-lethal methods including
The Government of
New Zealand has made its position on whaling clear. It is against the
resumption of whaling irrespective of the status of whale stocks.
This position is contrary to its obligations as a signatory to an
international treaty. Since New Zealand is opposed to the
object of the treaty it should withdraw from the IWC rather than continue
its attempts to subvert it. McLay’s misrepresentations will not
deter Japan from continuing to exercise its legal rights.