Útskyring á fyrirvara. 24.07.01
21 July 2001
International Convention for the Regulation of Whaling
Iceland}s Reservation
Iceland}s Reservation
1. The Vienna Convention on the Law of Treaties (VCLT) does not apply to the International Convention for the Regulation of Whaling (ICRW) according to the VCLT Art. 4. Furthermore, it should be noted that the following Contracting Parties to the ICRW are not parties to the VCLT: Antigua and Barbuda, Brazil, Dominica, France, Grenada, Guinea, Iceland, India, Ireland, Kenya, Monaco, Norway, Saint Kitts and Nevis, Saint Lucia, South Africa and the United States of America. Consequently, the rules set out in the VCLT can only be applied to Iceland}s reservation to the extent they represent customary international law.
2. The general principle of customary international law is that a reservation with respect to an international agreement is subject to the explicit or implicit acceptance by individual contracting parties to such agreement. An instrument of adherence containing a reservation is effective when at least one other contracting party has accepted the reservation. This general principle applies in the current case as the exceptions from that principle are not applicable. The exception regarding a constituent instrument of an international organization is based on the rationale of maintaining the integrety of such instrument. Therefore it does not apply to provisions such as paragraph 10 (e) of the Schedule attached to the ICRW which are subject to objections by individual Contracting Parties and thus not necessarily binding for all Contracting Parties. Consequently, there is no legal basis for a vote within the International Whaling Commission (IWC) on Iceland}s reservation.
3. The practice with respect to other reservations regarding the ICRW supports the above conclusion. The reservations made by Chile and Peru in 1979, and by Equador in 1991, were not addressed by the IWC but were subject to acceptance by individual Contracting Parties. Thus the United Kingdom and the Federal Republic of Germany objected formally to Peru}s reservation.
4. This same practice is now being applied by a number of ICRW Contracting Parties with respect to the reservation of Iceland. Individual notifications of position on Iceland}s reservation have been received from the following Contracting Parties: Antigua and Barbuda, Dominica, the Federal Republic of Germany, Japan, Mexico, Norway, Saint Kitts and Nevis, Saint Lucia, Solomon Islands, the United Kingdom and the United States of America.
5. When individual parties take position on the validity of a reservation with respect to an international agreement they must do so on the basis of the compatibility test, i.e. whether the reservation is compatible with the object and purpose of the agreement in question. According to paragraph 10 (e) of the Schedule attached to the ICRW the so-called moratorium on commercial whaling provided therein was to be ended in 1990 at the latest. It is obvious that Iceland}s reservation with respect to that paragraph is compatible with the object and purpose of the Convention. In this context it suffices to refer to the ICRW}s preambular paragraphs 3 and 7: Recognizing that the whale stocks are susceptible of natural increases if whaling is properly regulated, and that increases in the size of whale stocks will permit increases in the number of whales which may be captured without endangering these natural resources … Having decided to conclude a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry …The ICRW is a convention to regulate whaling but not to prevent whaling regardless of the status of different whale stocks. Therefore there is no legal basis for rejecting Iceland}s reservation.