Can iwc create international maritime laws

Dissatisfied with the failure of the President to impose sanctions in the situations mentioned above, Congress was forced to reevaluate the effectiveness of the Pelly Amendment in regard to international whaling operations.

Legislators pointed to the level of presidential discretion as the major deficiency of the Pelly Amendment and proposed to rectify this deficiency by allowing some form of sanction upon certification.

American Cetacean Society. In a series of secret negotiations, Japan agreed to comply with the moratorium and avoid trade sanctions that might have cost the country hundreds of millions of dollars in damages. Difficulty arises when an individual state attempts to enforce an international regulatory regime through domestic measures. In a few cases, threat of unilateral sanctions may result in a token effort toward correcting the offense.

The executive branch has indicated a concern that an embargo on fish would inevitably result in a retaliatory embargo on American fish exports. Pro-whaling nations are prone to base their decisions on whether or not to observe IWC regulations on their assessment of U. More importantly, utilization of fishery import prohibitions under the Pelly and Packwood-Magnuson Amendments raises serious questions about the consistency of such action with United States obligations under GATT.

The vagueness of these provisions and the lack of authoritative rulings make it nearly impossible to predict the outcome of future conflict. In response to Japan's decision to expand its whaling operations to include protected Bryde's and sperm whales, the U. Increased concern for the global environment creates the necessity for effective international agreements focused on the preservation of common resources that transcend territorial boundaries.

Accordingly, consenting nations have engaged in multilateral treaties establishing cooperative legal obligations to achieve an environmentally conscious result. Implicit in these treaties is the notion of national sovereignty - a concept that often leads directly to the ineffectiveness of the treaty.

While allowing states to bind themselves to international agreements that preserve their national sovereignty tends to increase the likelihood that a state will agree to the norm, it will also increase the possibility of seriously undermining the norm's enforcement.

National sovereignty is carefully guarded by individual states and is rarely compromised. Historically, customary international law stipulated that a sovereign state has jurisdiction to prescribe and enforce laws only within its territorial boundaries. Recent progress in the field of international environmental law may shed some light on the current whaling controversy by providing alternatives to strengthen conservation efforts.

One commentator has argued that nearly nine hundred multilateral legal instruments addressing environmental concerns have played an integral role in "setting the pace for cooperation in the international community in the development of international law. Accordingly, early treaties like the ICRW were almost entirely concerned with limiting the excessive killing of animals in danger of becoming seriously depleted through human exploitation.

Closely related to this issue is the necessity for improved scientific research conducted by an international body. Second, a system designed to increase compliance among member nations at the international and domestic level must be introduced. Third, improved monitoring with the assistance of non-governmental organizations "NGOs" is also required. Finally, an effective dispute resolution system should be implemented. The signatories of the ICRW entered into the treaty to ensure the sustainable development of whale species that would provide for economically prosperous future harvests.

As the environmental climate of the world changed in the mid's, the IWC demonstrated a shift toward conservation of whales that culminated in the establishment of an indefinite moratorium on commercial whaling.

Japan, a country intent on exploiting the popularity of whale in the marketplace, has continued the practice of commercial whaling utilizing the scientific research exception.

Whales play a crucial part in maintaining the equilibrium of the ecosystem. Thus, "the killing of one whale amounts to harvesting from three hundred to five hundred square kilometers of ocean area.

Scientific uncertainty is deeply imbedded in international environmental law. Whaling nations have often capitalized on this dependence by refusing to supply the IWC with crucial data or by severely under-reporting catch statistics over the years. The need for an independent organization to supply the IWC with accurate and current information is apparent. Proponents of whale preservation tend to base their arguments on scientific knowledge of whales indicating that the animals are intelligent, sentient beings capable of communication.

This deficiency in knowledge can be remedied through use of non-lethal scientific research. To serve both the consumer and conservation interests, the proposed scientific organization must be deemed legitimate in the eyes of pro-whaling and anti-whaling nations. To ensure legitimacy, this supranational organization should be established outside the framework of the IWC and should be empowered, by amendment, to issue binding decisions regarding the efficacy of proposed scientific research catches by member nations.

The agency should be instructed to certify only non-lethal research programs focused on the comprehensive study of marine mammals and their ecosystem and food supply. The organization should also encourage research aimed at uncovering the relationship between whale populations and environmental degradation such as marine pollution and depletion of the ozone layer. Member countries would be required to make defined contributions to the agency, which should be comprised of scientists nominated by the nations subject to approval by the Commission.

Inevitably, recommendations by the agency would rarely be the result of unanimity. Nevertheless, the agency should be allowed to issue determinations based on a majority vote. The history of the IWC has been marked by a series of infractions committed by whaling nations in the interest of profit.

Given the large jurisdictional area under the IWC's control, independent monitoring is critical to identify and prevent violations that no state can easily uncover. Abundance of these violations also seems to indicate that states are cognizant of the inability of the IWC to punish infractions.

Under the current scheme, whaling nations are required to maintain at least two inspectors on each ship "for the purpose of maintaining twenty-four hour inspection" and adequate inspection at each land station. The Commission would then assign inspectors to various locations on a six-month rotation. Inspectors would be responsible to ensure the application of IWC mandates and to report any abuses directly to the Commission. Nations determined to be in violation of IWC regulations would be required to respond to the allegations in a hearing held by the Commission.

The information would be disseminated among the member states, and if egregious enough, to non-member states and NGOs as well. NGOs may also be effectively utilized in the monitoring scheme. Unlike member states who may be concerned with retaliation, NGOs are politically independent and, as a result, more aggressive enforcers of international norms.

At present, the ICRW provides no mechanism by which states may effectively resolve disputes regarding whaling activities. The United States has attempted to respond to this deficiency by enacting domestic legislation to impose trade sanctions on nations who undermine IWC's authority. Where state parties are unable to resolve a dispute "concerning the interpretation or application of an international agreement related to the purposes of UNCLOS ," [FN] the Convention provides that a state party may bring a claim against another state in any of the following fora: 1 the International Tribunal for the Law of the Sea in accordance with Annex VI; 2 the International Court of Justice; 3 an arbitral tribunal in accordance with Annex VII; or 4 a special arbitral tribunal in accordance with Annex VIII.

Specifically, Article 65 states:. Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.

Despite historic overexploitation, whales are now afforded protection from all but a few states. Activities of these states, most notably Japan, have prevented the protection of whales from achieving the status of customary law binding on all nations. If pro-whaling states determine that continuous international objection to their whaling activities outweighs the potential economic benefit of harvesting the animals, they may likely abandon their current practices.

In the meantime, the IWC will have to reform its policies to ensure greater monitoring and reliable scientific data while maintaining its legitimacy in the eyes of pro-whaling and anti-whaling nations alike. Individual states should be encouraged to continue the protest against Japan's whaling activities without incurring GATT-related liability. Further, the efforts of non-governmental organizations to publicize Japanese whaling hunts should be applauded.

The pressure of public opinion may eventually devastate the already controversial whaling industry. The author is a student at Brooklyn Law School and will be receiving her J. She would like to thank her parents for their unending love, support and sacrifice throughout her education. There are seventy-six species of whales, dolphins and porpoises that belong to the order Cetacea. Whales are generally divided into two categories: 1 the Odontoceti, the toothed whales; and 2 the Mysticeti, also known as Baleen whales, so named for a filter like structure hanging from their upper jaws.

Minke whales, the smallest of the Baleen whales, range up to thirty-three feet. Bryde's whales can yield as much meat in the Japanese market as five minke whales and adult sperm whales, the largest of the toothed whales, can reach lengths of sixty feet and weigh up to forty-five tons. This is the first time Japan has included sperm whales and Bryde's whales in its research program since and , respectively.

Both species are protected under the U. Times, Aug. Berger-Eforo, supra note 6, at Today, the pro-whaling nations still consider whales a viable resource for food, oil, leather and medicine. International Convention for the Regulation of Whaling, Dec. The first sentence frees coastal States from the objective of optimum utilization which is otherwise applicable in the EEZ; this objective means that coastal States must utilize marine living resources in their EEZs to their full potential by catching as much as is sustainably possible—and grant access to third States if they cannot catch all of it themselves.

Hence, while Japan can catch whales in its EEZ, it must manage the stocks on a scientific basis, with conservation in mind. Moreover, Japan remains under the general obligation to cooperate with other States of relevance when dealing with highly migratory species Article 64 , which most whales are. Hence, Japan remains under an obligation to cooperate for conservation purposes with other States through the forum it just left.

Species that are granted protection under CITES are to be accompanied, when traded internationally, by a permit certifying, inter alia , that the trade of that specimen is not detrimental to the survival of the species and that the catches are legal. For listed species, commercial trade between countries is restricted for species on Appendix II , or forbidden for species on Appendix I , by an international system of permits issued at the national level. Permits are also required when protected species are caught in areas beyond national jurisdiction, i.

Japan catches some of these whales, in particular the Appendix I sei whale on the high seas of the North Pacific Balaenoptera borealis , under the justification of scientific whaling. The only scenario under which Japan would have to provide similar documents as those required under the treaty is if it traded these species with other States bound by the permitting system.

However, it remains to be seen whether Japan would want to export its catches. Moreover, the States still interested in commercial whaling mainly Iceland and Norway —and consequently in buying whale products—have also entered into reservations under CITES.

Hence, while Japan could in theory be required to apply CITES-type procedures if it traded whales with other CITES parties, it is more likely, in practice, that its intended resumed whaling in the EEZ will not be subject by the rules applicable under this treaty. Beyond these legal questions, it remains to be seen what the policy response of the international community will be.

As mentioned in the introduction, the threat of economic sanctions was used, in the past, to strong-arm Japan into accepting the moratorium on whaling. The legal basis of such threat by the USA still exists; should the USA decide to suspend trade in fishery products with Japan, this would trigger some additional legal questions, mainly as to whether such action is authorized under international trade i.

WTO law. While withdrawal from the IWC is a move with numerous legal and political consequences, it may also not be a permanent situation; both Iceland and Ecuador left the IWC in the s, only to rejoin the regime in the following decade. Good faith negotiations, which all States are obliged to undertake, will be the first step towards effective cooperation, but the ideological and cultural gap that led to the current stalemate will not easily be solved.

In the meanwhile, one can only hope that the obligation under the United Nations Convention on the Law of the Sea to manage stocks sustainably will protect whales from over-exploitation and the threat of extinction.

Her paper examines projects related to fisheries which are financed by the four multilateral funds created within the climate change regime. November 27, Climate Change Fisheries. With the development of new technology, land stations lost their importance. Whales were processed entirely on-board factory ships, which resulted in States expanding their operations beyond territorial waters.

New technology also contributed to the increase of caught whales. These included shell harpoons with an explosive head detonating inside the whale, which shortened the time of dying for a whale, and sonar devices and helicopter tracking on modern history of whaling see: J. Christophersen trans. Unlimited and unregulated whaling commenced in and lasted for 21 years, which proved more than stocks of whales could sustainably stand.

Until , there is no reliable data on the number and type of species caught. Pelagic whaling technologies allowed the mass exploitation of whales, and thousands of whales were caught every year, particularly in the Antarctic. Antarctic pelagic whaling quadrupled in the course of three successive periods between the years However, over-production and over-expansion coincided with the world economic crisis and a decrease in the price of all raw materials, which resulted in the collapse of the whaling industry.

Overexploitation of whales during the period between the two World Wars lead to the conclusion of two international conventions on the protection of whales: the Geneva Convention for Regulation of Whaling L. The and the Whaling Conventions did not prove to be particularly effective, but they provided a legal framework for the future regulation of whaling, which, although not perfect, continues at present and is regulated by the International Convention for the Regulation of Whaling ICRW.

In , states gathered to regulate whaling, establishing a new institution that was at the same time very conservative and radical to a certain degree on history of the negotiations of ICRW see Kurkpatrick Dorsey, Whales and Nations.

Relying on scientific expertise, the drafters of the Convention followed the more progressive tradition of the United States in trying to reconcile the needs of industry with those of the conservation of whale stocks as exemplified in the Preamble to the Convention by the reference to sustainable use.

This attitude was by and large dictated by the postwar conditions prevailing in United Kingdom, namely, scarcity, hunger, and want. It is also worth mentioning a remark made by C. Delegates agreed to two clauses from the United States progressive-era laws: protection of aboriginal whaling, and authorisation for collecting whales for scientific purposes, with both of these grounds for whaling being outside the stipulated quotas. There were some unexpected events concerning the arrival of the Soviet delegation, which, to ensure their participation in the Convention, gained some concessions from the other delegates, such as an extended season — Two issues in particular caused a certain degree of disagreement amongst the delegates: the tacit acceptance system of operation of the Convention which involved an opting-out procedure , and the two-thirds voting procedure for any amendment to the agreed schedule of regulations.

The former survived; while the latter was changed to three-quarters of the parties to the Convention in order to make an amendment, thus ensuring that a greater portion of the contracting parties was necessary to effect any change.

The Norwegian delegation advocated that the IWC be afforded competence to adopt binding decisions. However, there were delegations which were fully satisfied with the IWC not being granted the competence to take binding decisions, such as the French and Dutch delegations, both of which were against a stronger IWC given that such a development would have been to the detriment of their own interests, which were best served by their governments.

The opting-out system was considered necessary as the proposed model of the IWC created a new agency that would have curtailed the freedom of action of states on the high seas and therefore, would have had negative implications on the ability of states to pursue their particular economic benefit unfettered.

Dorsey has observed that, in retrospect, the failure to reject the opting-out system had been the greatest mistake of the meeting. It is not a surprise to note how opting-out mechanisms often led to the undermining of the collective efforts of a group of states. For instance, it is not unknown for states to resort to the opting-out mechanism in order to avoid implementing decisions detrimental to their interests.

The Norwegian and the British had not foreseen the expansion of Soviet whaling; and were of the view that Japan would not be admitted to whaling on a permanent basis. Having miscalculated in their outlook, they adhered to a vision of the future of the whaling industry in which Norway and the United Kingdom dominated, to the exclusion of other serious whaling nations.

The delegates broke the negotiations into two parts: the first part was agreeing on a new Protocol modelled on the Protocol to regulate the whaling season between —48; and the second part was to negotiate a more complex convention — namely, the ICRW— to establish the International Whaling Commission.

Such an approach would give more time to the signatories of the ICRW to ratify it. The United States, Norwegian and United Kingdom delegates were of the view that such quota should be based on continuity, so that they could establish a statistical basis on which to be able to determine the number of whales. In addition, Remington Kellogg, the United States delegate, argued that the quota of 16, BWU was meant to set the limit that constituted two-thirds of the annual catch in the last seven peaceful seasons, which had been too intensive.