CRE Special Studies

Critique of the study (December, 2007) by Professor Luiz Guilherme Arcaro, André Jerusalmy and Fernanda Oliveira Conci, Pontifícia Universidade Católica de São Paulo Law School – PUC/SP on Brazil’s position at the International Whaling Commission.

By: Dan Goodman, Councillor, The Institute of Cetacean Research, Tokyo

The report presents a brief history of whaling and management of whaling together with a short statement of the pro-whaling and anti-whaling positions. It then reviews the [anti-whaling] position of Brazil within the International Whaling Commission (IWC) since 1998 with emphasis on their proposal for a South Atlantic Whale Sanctuary. Finally, the authors conclude that purpose of the International Convention for the Regulation of Whaling (ICRW) as stated in the preamble; “…to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry;” has been used by both pro and anti-whaling members of the IWC to support their positions.

I believe that there is much more that could have been presented to clearly demonstrate that Brazil’s position is strongly anti-whaling and that it has not acted in good faith in interpreting its treaty obligations. The ICRW is about properly managing whaling not prohibiting it irrespective of the status of whale stocks.

For example, Brazil supported the adoption of the moratorium on commercial whaling in 1982 and was a co-sponsor of the Southern Ocean Sanctuary in 1994 despite the fact that neither was recommended as a necessary conservation measure by the IWC’s Scientific Committee. Further, in its opening statement to the 50th Annual Meeting (1998) Brazil said: “… whales are special creatures that should not be harvested for commercial purposes.” This statement is clearly not reconcilable with the objective of the ICRW.

At the same meeting, Brazil co-sponsored a resolution (with Australia, Italy, Monaco, New Zealand, UK and US) that instructed the Scientific Committee to suspend development of implementation simulation trials of the RMP for the Western North Pacific Bryde’s whales. The proposed resolution was not adopted however; the draft resolution also clearly contradicts the object and purpose of the ICRW.

With regard to the voting record for the past 10 years it is important to note that since the moratorium was adopted in 1982, there have been no votes for commercial whaling quotas except for Japan’s proposals for its small-type coastal whaling operations in the North Pacific. These proposals have been for a small number of minke whales (100-150) each year and for a small number of Bryde’s whales (150) in 1998 and 2004.
The IWC’s Scientific Committee has agreed abundance estimates for both of these stocks which clearly shows that these takes would be sustainable yet Brazil has voted against these proposals every year. The voting record also shows that Brazil has supported all of the anti-whaling (non-binding) resolutions adopted by the IWC during the past 10 years.

In addition, the voting record shows that Brazil opposed the St. Kitts and Nevis declaration adopted at the 58th Annual Meeting in 2006. The St. Kitts and Nevis declaration expressed the concern of Commissioners that “…the IWC has failed to meet its obligations under the terms of the ICRW” and declared their “…commitment to normalizing the functions of the IWC based on the terms of the ICRW and other relevant international law, respect for cultural diversity and traditions of coastal peoples and the fundamental principles of sustainable use of resources, and the need for science-based policy and rulemaking that are accepted as the world standard for the management of marine resources.” The verbatim record of this meeting shows that Brazil made a strongly worded intervention dissociating itself from the declaration.

Since the 54th Annual Meeting (see Brazil’s opening statement to the 2002 annual meeting) Brazil has insisted that further sanctuaries in the southern hemisphere and cessation of scientific permit whaling must be the basis for future negotiations on completion of the Revised Management System (RMS) and the lifting of the moratorium which would allow the resumption of commercial whaling. Given the terms of the ICRW and its purpose, Brazil’s insistence on additional sanctuaries that do not meet the legal requirements of Article V. 2 (must be based on scientific advice) and the abrogation of the fundamental right (Article VIII) of all signatory States to conduct lethal research as a basis for negotiations is an unacceptable absurdity.

With regards to South Atlantic Sanctuary proposal, it should have been quite easy for the authors of the study conclude that Brazil’s proposal for the establishment of a sanctuary in the South Atlantic does not meet the requirements of Article V 2. of the ICRW (“…shall be such as necessary to carry out the objectives and purposes of this Convention and to provide for the conservation, development, and optimum utilization of the whale resources; shall be based on scientific findings; …shall take into consideration the interests of the consumers of whale products and the whaling industry.”) and that therefore, the proposal has no legal basis and its adoption would be illegal. Yet Brazil persists and insists that its right to use whales in non-lethal means be recognized. Brazil has that right, it is recognized in international law (UNCLOS) and no one is denying that right.

Further, at the 56th Annual Meeting (2004), the Scientific Committee invited outside experts to evaluate IWC sanctuaries. These “outside experts” concluded that: (1) the Southern Ocean Sanctuary (SOS) and IWC sanctuaries in general are not ecologically justified. (2) The SOS is based on vague goals and objectives that are difficult to measure, (3) SOS lacks a rigorous approach to its design and operation and does not have an effective monitoring framework to determine if its objectives are being met. (4) The SOS represents a “shotgun approach” to conservation, whereby a large area is protected with little apparent rationale for boundary selection and management prescriptions within the sanctuary. (5) The sanctuary is more prohibitive and precautionary.

While these conclusions were mostly directed at the IWC’s Southern Ocean Sanctuary rather than Brazil’s proposal for a South Atlantic sanctuary proposal the conclusions of the external reviewers highlight major flaws in the IWC’s approach to sanctuaries that apply equally to Brazil’s proposal.

Brazil’s use of the “precautionary principle” in support of its sanctuary proposal is an abuse of the principle. It is abusive of the precautionary principle to establish a sanctuary when there are already mechanisms in place to ensure that any whales that would be harvested would be done so according to a precautionary, risk-averse RMP. We simply do not need 3 levels of protection - the moratorium, a sanctuary, and a precautionary RMP.

Chapter 7 of the report is particularly weak using primarily quotes from Greenpeace, the Humane Society and an economic analysis of whaling that is 30 years old and not applicable to current and proposed sustainable whaling.

The study notes that whales are not fish and that modern scientific methods cannot count whales accurately. Both of these statements by themselves are true however, the authors fail to note that the RMP developed by the Scientific Committee as a risk-averse means to set quotas for whaling that would clearly be sustainable was developed explicitly for whales (not fish) and explicitly takes account of uncertainty related to population estimates and other factors including environmental change and unexpected catastrophic population reductions.

Chapter 7 of the report also quotes a study by Colin Clark, which states that exploitation of slow growing populations will naturally lead to their severe depletion because the profit to be had from catching the entire population of animals at once is greater than the profit that could be made by conserving the population and taking only a certain quantity each year. This study is more than 30 years old and is not applicable to the current situation where the primary product of whaling (food) is for a limited market and where sustainable use of resources has become the standard paradigm.

Chapter 7 of the report finally notes that Japan has used the argument that whales eat fish but that “there is not a single case world wide where it has been demonstrated that a catch of whales has increased the take of commercially valuable fish.” This statement is contrary to fact. Norwegian studies published in the scientific literature have clearly demonstrated that that an increased catch of minke whales in the North Atlantic would increase the catch of commercially valuable fish.

In summary, I believe that the PUC study should, on the basis of available evidence, have come to more highly focused conclusions that: Brazil’s position in the IWC has been strongly anti-whaling; that its proposal for a South Atlantic Sanctuary is contrary to the objectives and terms of the ICRW; that it has not participated in good faith negotiations for the completion of the RMS; and that it has not participated in the IWC in a manner consistent with its obligations under the Convention.

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