Memorandum of opinion on the legality of the designation of the southern ocean sanctuary by the IWC

Abstract

The 1994 decision of the International Whaling Commission (IWC) to designate the Southern Ocean Sanctuary is examined in light of the requirement for such action under Articles I and V of the International Convention for the Regulation of Whaling (ICRW). Article V requires that changes in the Schedule to the Convention shall be necessary for carrying out the objectives and purposes of the ICRW and that the change be based upon scientific finding. It is concluded that the sanctuary is not necessary for carrying out the objectives and purposes found in the preamble to the ICRW. It is also concluded, for several reasons, that the decision was not based on scientific findings. No such findings were ever made by the IWC Scientific Committee. The proposal for the sanctuary and the decision to establish it were not consistent with the Commission's own guidelines. The conclusion is that the Commission's decision is unlawful under the ICRW and ultra vires.