CRE Special Studies


Introduction

The Center for Regulatory Effectiveness (CRE) requested that Pontificia Universidade Catolica of San Paulo Law School review the actions of the Brazilian Government on Marine Mammals. Of particular interest are actions taken by the Brazilian government pursuant to the 1946 International Convention for the Regulation of Whaling.

The 1946 International Convention for the Regulation of Whaling (ICRW) was established to provide for the proper conversation of the whale stocks and thus make possible the orderly development of the whaling industry. This appears to indicate that for abundant species, whaling should be permitted if it is sustainable.

The particular tasks to addressed are as follows:

Task I: Part I Review the Brazilian documents which lead to their signing of the 1946 ICRW in 1974 and confirm that the aforementioned statement is correct.

Task I: Part II Review Brazilian statements at the IWC over the last 10 years and determinate if such statements are in compliance with the ICRW and Brazil's acceptance of ICRW's purpose upon its adherence.

PUC FINDINGS

The views of Brazil on whaling were identified by an exhaustive review of Brazil's statements at the annual meetings of the International Whaling Commission, IWC.

Prior to 1998, the year in which Brazil proposed the creation of the South Atlantic Whale Sanctuary (SAWS), it is not clear whether Brazil expressed explicit views on whaling at the IWC. However, with the initiation of the SAWS proposal, Brazil became a very active participant in the IWC.

The Report, in describing the views of the pro-whaling nations, states:

Beyond the pressure from anti-whaling countries to deter scientific research whaling, the largest and most serious example of disregard for the ICRW is definitely the commercial whaling moratorium.

The preamble of the Convention states that one of its objectives is to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry. So, the Convention is not for the total protection of whales, but in fact it is a pact which purposes to ensure the sustainable use of whale resources. In other words, the maintenance of whale resources and concomitantly the development of the whaling industry are two main pillars of the whaling pact.

Conclusion

The report ends with an enumeration of the uncertainties in estimating sustainable population levels and concludes: However, it can be said that notably, with the moratorium adoption and the maintenance of it, the IWC assumed a position more anti-whaling than pro-whaling.

CRE BRASIL COMMENTARY

CRE Brasil appreciates Pontificia Universidade Católica de São Paulo Law School (PUC/SP) in-depth review of a complex and lengthy proceeding with limited resources.

A detailed review of the Report's analysis of Brazilian positions at the IWC could result in different conclusions by different readers. More specifically, is the Brasilian proposal to create the South Atlantic Whale Sanctuary based upon concrete findings that that certain species of whales were below sustainable levels or was the proposal based upon Brasil's value judgment that a sanctuary is justified on some other basis?

As of this date the IWC, and its scientific committee, has vetoed numerous proposals made by Brasil to establish the South Atlantic Whale Sanctuary (SAWS), which would prohibit the harvesting of marine mammals.

Since the PUC report clearly states that harvesting is permitted under the ICRW once sustainable levels are achieved; it appears that the validity of the SAWS proposal is dependent upon supporting data, if in existence, which would demonstrate the absence of sustainable population levels in the proposed SAWS. (The IWC vetoed numerous proposals made by Brazil to establish the SAWS sanctuary.

With respect to the statements related to the determination of sustainable population levels and whether such levels are in existence in the proposed South Atlantic Whale Sanctuary, the statements are essentially hypotheses which should be assessed by an agreed upon metric. IWC member countries would do well by adopting a neutral metric similar to the one contained in the US Data Quality Act for analyzing such statements, described at http://thecre.com/quality/index.html.

In the absence of population data the implications of existing conservation measures including the moratorium and the RMP and how it would be applied should be examined in order to assess whether the sanctuary is required.

Since CRE Brasil will be introducing the PUC report and CRE Brasil's comments into national and international regulatory proceedings, CRE Brasil would appreciate the views of the public, government officials, other NGO's and interested parties on both documents. Of particular interest to CRE Brasil is data suggesting the existence, or non-existence, of a sustainable marine mammal population in the area covered by the proposed South Atlantic Whale Sanctuary.

Comments, which could be published on the CRE Brasil website, should be forwarded to contact@cre.org.br. Please furnish your email address and organization if applicable.

The PUC/SP report is available at puc-report.pdf.

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