[2001] International Fisheries Bulletin No.
7
IWC inter-sessional meeting: major differences remain
On
6-8 February, in Monaco, the International Whaling Commission
(IWC) held an inter-sessional meeting of the Revised Management
Scheme (RMS) working group. The purpose of the meeting was to
make progress towards the completion of the RMS in order to
allow commercial whaling to resume. However, despite an
apparently useful exchange of views, and at least indications of
compromise amongst some members, it is clear that some IWC
members remain as far apart as ever on a number of key issues.
As a result, little real progress was made at the meeting.
Background
The
International Whaling Commission's Revised Management Scheme
(RMS) is a system designed to allow the resumption of commercial
whaling on a sustainable basis, which combines a scientific
method of setting safe catch limits for certain stocks when
conditions allow (the Revised Management Procedure or RMP) with
inspection, observation and control elements designed to ensure
that the catch limits are observed. The scientific element (the
RMP) was developed some years ago but so far IWC members have
not been able to agree on the additional elements of the RMS,
despite the establishment of the Working Group in 1994. In
practice, the main obstacles have been political rather than
technical or legal, with a large number of States - notably,
Australia, New Zealand, the United Kingdom and the United States
- opposed in principle to any lifting of the moratorium on
commercial whaling. In some instances, these States have refused
to participate in the RMS process and in other cases these
States have argued that additional elements, such as measures to
ensure the humane killing of whales, should be incorporated into
the Scheme. This has led to lengthy arguments and debate as to
whether or not such measures fall within the competence or scope
of the IWC and the RMS. The situation has intensified in recent
years, following the resumption, in 1993, of limited commercial
whaling by Norway (exercising its right under the IWC Convention
to opt out of management measures). The result, after many years
of largely unproductive argument and debate, is that the IWC is
locked in a position of stalemate, with many commentators
warning that the organization will collapse if a compromise is
not negotiated soon.
At its 52nd Annual
Meeting, in July last year, the IWC, reflecting the above
concerns, adopted a Resolution (No.
2000-3) recognizing that it was important for the future of the
Commission that the process to complete the Revised Management
Scheme (RMS) proceeded expeditiously, and inter alia,
agreeing to reconvene the RMS Working Group before the end of
February 2001. That meeting took place in Monaco in early
February and was attended by 29 of the 40 IWC member nations, as
well as by observers from a large number of NGOs. The purpose of
the meeting, as set out in Resolution 2000-3, was:
(1) to make further progress on revising Chapter V of the Schedule that deals with supervision and control;
and
(2) to develop a text to incorporate the structure and elements of the RMS, including the RMP, into the Schedule based on the draft prepared by the Secretary in consultation with the Chairman.
Opening statements
Prior
to the start of the meeting, a number of preliminary exchanges
took place between some of the main players, highlighting the
difficult task faced by the IWC in trying to broker an
agreement. For example, 14 countries (Austria, Brazil, Finland, Germany, Greece, Italy, Luxembourg, Monaco, The Netherlands, New Zealand, Spain, Sweden and the United Kingdom) made an official approach to the Japanese Foreign Ministry calling on Japan to reconsider its policy in the domain of commercial whaling.
Japan had also made a pre-emptive strike, however, by sending a letter to the IWC complaining that New Zealand and the United Kingdom were attempting simply to stall any resumption of commercial whaling by introducing additional elements such as DNA sampling for consideration. The letter also stated Japan’s belief that these matters were beyond the scope of the IWC.
Also of note, although the issue was not discussed in detail during the formal sessions of the Working Group,
was the attempt of Australia and New Zealand to gain support for its proposals for a South Pacific whale sanctuary through an informal information seminar
prior to the meeting. The idea, supported by a number of other IWC members, fell short of gaining the required 75 per cent support at the IWC Annual Meeting last year. At the seminar a range of views were heard and the two countries have resolved to push the matter forward at the Annual Meeting in July.
The
divergent positions of member governments were also reflected in a number of
statements made by delegations at the start of the meeting which
indicated not only widely differing views on key issues, but
also a significant degree of ill-feeling between members.
Norway, for example, complained that although it did not agree
on the need for the RMS (which, it argued, blatantly contravened previous decisions and commitments made by the
IWC), it had
accepted, in the spirit of good cooperation, to be a part of the
negotiation process and had gone to considerable lengths to accommodate the concerns of others, despite “the relentless attempts by
[their] opponents to ‘move the goal-posts’ by introducing new and obstructive elements into the process.”
It recalled the duty to negotiate in good faith, and accused some member
countries - Australia, New Zealand and the United Kingdom being singled
out - of making statements in the past that seemed to run counter to this understanding. Whilst stopping short of directly accusing these countries of failing to negotiate in good faith, the Norwegian delegation did suggest that they might like to avail themselves of this opportunity to retract
the "categorical and counter-productive statements"
they had made in the past.
Similarly, Japan emphasized that the RMS process could not be delayed any longer if the IWC was to regain its credibility as an international
organization and expressed concern regarding some decisions and proposals which
had deliberately delayed the completion of the RMS. Japan stated
its view that certain proposals presented, such as those concerning animal welfare aspects, DNA registration and whale products market monitoring, were outside the competence of the
IWC and that it considered that these attempts to introduce additional substantive elements into the RMS at the final stages of the process
had to be seen solely as an attempt to further delay the completion of the RMS. Denmark
also expressed its concern that the credibility and future of the IWC
could be threatened if the RMS was not completed within a few
years.
Other
States - including Brazil, India, Ireland, Italy, New Zealand,
the United Kingdom and the United States - formally expressed
their opposition to commercial whaling but indicated, nevertheless, their support for the elaboration of the RMS.
Within this group, however, there were differences of opinion as
to what should be included in the RMS, highlighting the
differing points at which many members currently stand. Only
one country, Australia, stated outright opposition to the
resumption of commercial whaling and the development
of the RMS. The arguments advanced in favour of its position
included the belief that commercial whaling is not required to meet essential human needs; that it is inevitably accompanied by an unacceptable level of cruelty; that history, in both whaling and fisheries management regimes, has shown that once commercial activity commences, the pressures to service capital and provide profits too often result in over exploitation of the resource; and that there was still some scientific uncertainty regarding the impacts of hunting and other threats to cetaceans.
According to Australia, the future of the IWC lay in regulating
non-consumptive uses, such as whale-watching, which has brought much economic benefit
in Australia.
Discussion
of revisions to Chapter V on supervision and control
The
key part of the meeting centred around the discussions for the
supervision and control measures to be included in the RMS. From
previous discussions it is clear that a large number of
outstanding issues remain, including: (1) the level
of international observer coverage required; (2) the type and
level of tracking of whaling vessels required; (3) the frequency
with which reporting information must be provided; (4) the maintenance and availability of a register of
DNA profiles of all whales killed; (5) procedures to monitor the
origins of whale products on the market; (6) oversight and
review of the operation of the Scheme; and (7) the funding of
the Scheme. (There are also, of course, additional problems to be
resolved, such as whether welfare issues should be included
within the RMS). Following initial discussions in the Working Group, a small drafting group, composed of representatives from the IWC Secretariat, Antigua and Barbuda, New Zealand, Norway and the United States, was convened to prepare a revised text for consideration by the Working
Group. All the above issues received some consideration,
although the drafting group drew attention to two particular issues: DNA profiles and verification of catch data by genetic
monitoring; and oversight.
DNA profiles and verification of catch data by genetic monitoring
Revised
texts were presented by New Zealand and Sweden regarding a
diagnostic register of DNA profiles and the verification of
catch data by genetic monitoring and New Zealand also
presented a proposal to incorporate catch certification data
into the RMS, as has been done in a number of fishery
agreements. Although it was clear that there was agreement on the importance of a register of DNA profiles of all whales killed, there was no consensus on either the need for a central (IWC) register or centralized genetic monitoring. In it’s opening statement, for example, Japan emphasized that it had already made substantial progress on the implementation of its own system for DNA sampling, that would satisfy international standards, but that this matter fell outside IWC competence.
Norway has also established a system for DNA sampling. Similar differences were encountered in relation to the incorporation of catch certification data into the RMS, with many countries in favour
while others saw no need for such provisions, on the grounds that they were both excessive and beyond the scope of the Convention.
Revised provisions on these matters, based on
the proposals by New Zealand and Sweden, were nevertheless included in the draft text for consideration at the Annual Meeting in July.
According to the current draft text, only those perishable whale
products derived exclusively from whales whose DNA profile had
been submitted, in accordance with the required procedures, to a
central diagnostic register of DNA profiles could be traded
domestically or internationally after 1 January 2004. In order
to implement this measure, member governments would have to
maintain a tissue sample from each whale killed or otherwise
obtained within its jurisdiction and that were destined for the
market and would have to arrange for genetic analysis of each such
sample so that individual and species identity could be determined
with a high degree of probability. A copy of the resulting DNA
profile would have to be forwarded to the Commission within six months
of the date of sampling for inclusion in the central register. A
sub-sample of the tissue would also have to be forwarded to the
Commission for storage in a central archive of tissue samples,
on which the Scientific Committee could conduct further genetic
analysis. The Commission would have to establish procedures to
monitor the origins of perishable whale products sold and/or
offered for sale in member countries in order to confirm whether
the whale products were derived only from individual animals
that had been caught in accordance with the provisions of the Schedule, from
individual animals that had died as a result of by-catch, from
strandings or from stockpiles of frozen meat. The overall
purpose would be to confirm that whaling only takes place in
accordance with the provisions of the Schedule and that total
human-caused mortalities are accounted for in the calculation of
quotas under the RMP.
Oversight
At the meeting of the Working Group in Adelaide in June 2000, the United States presented a proposal to establish a Review Committee to review and report on the compliance of all whaling operations. According to the proposal, such a Committee would replace the current Infractions Sub-Committee, which
the United States argued would not be sufficient (for example, in being able to respond quickly to infractions) should commercial whaling resume.
Such a Committee would, inter alia, review alleged infractions reported by observers; identify those alleged infractions which
were
actual violations
of agreed conservation measures; review available information on other cases where
catches from commercial whaling appeared to have exceeded
established catch limits; review the operation of the DNA register and tissue
archives; review the actions which affected member governments
had taken in response to identified violations; and
recommend to the Commission actions to be taken in
order to ensure compliance with conservation measures.
Following some suggested changes proposed by Sweden, the idea was again discussed, although, as may be expected, there was a wide exchange of views but little concrete progress. A number of delegations questioned the need to replace the existing Infractions Sub-committee, which could provide the necessary oversight, although perhaps with revised terms of reference if necessary. There was also some uncertainty as to how the observers would be selected under the new proposal and some concern, on the part of Norway, that the proposed Review Committee might result in unfair
judgments. In response, New Zealand proposed adding to the text of the oversight paragraph a requirement that the Review Committee should “act in accordance with the principles of natural justice in making any final decision in relation to any alleged infraction, breach of the RMS or other relevant requirements of the Commission.”
It is not clear precisely what this additional clause means, which could be
open to differing interpretations. Nevertheless, Norway apparently considered the proposal to be helpful
although it still had doubts regarding the need for a Review Committee. It also questioned whether the intention would be that the Review Committee would consider aboriginal subsistence whaling infractions and bycatches. The United States confirmed that this was the intention. Regarding aboriginal subsistence whaling, Denmark
also stressed that the RMS was not relevant to such catches, although these would of course be taken into consideration within the
RMP.
Incorporation
of the structure and elements of the RMS into the Schedule
The
other main objective of the February meeting, set out in
Resolution 2000-3, was
to develop a text to incorporate the structure and elements of the RMS, including the RMP, into the Schedule.
The Working Group briefly discussed the draft of the Schedule provided by the Chair of the Working Group and the
Secretariat, which suggested how the RMS might be incorporated into the Schedule and indicated other parts of the Schedule that might benefit from review. A number of issues were discussed including: the possible deletion of Paragraphs 10(d) and
10(e) (which deal with the moratorium); clarification that whaling under the RMS could not occur in Sanctuary areas; and the possible limiting of commercial whaling to coastal waters for the purposes of local use. A range of views was expressed as to whether these topics were within the terms of reference of
the Working Group and some general and specific suggestions for modifications were made.
The UK proposal to include data on animal welfare issues into Chapter
VI (Information Required) was also discussed. Several countries expressed support for this proposal, believing that it would bring the Schedule in line with many countries’ domestic legislation and other international Conventions that now
recognize the increasing importance of animal welfare. Other countries, while acknowledging the importance of animal welfare issues, considered the proposal to be outside the scope of the Convention and believed that such issues
were adequately covered by their own national legislation. They also considered the proposed requirements to be excessive and impractical. Following discussion, the UK indicated that it would also forward a modified proposal for the details to be considered by the Working Group on Whale Killing Methods and Associated Welfare Issues at the 53rd Annual Meeting in London.
Commentary
According to the IWC, in a statement issued following the meeting,
there was a "valuable exchange of views and
ideas" at the meeting but some "fundamental differences"
remained. This is probably a reasonable assessment of the
meeting, since although there are signs of one or two areas of
compromise in marginal areas, the reality is that
in many key
areas the main players seem to be as far apart as ever.
Consequently, little real progress was made at this meeting.
This, again, left the two main whaling countries, Japan and
Norway, frustrated and bitter, and accusing the opponents of whaling of delaying the
work on the RMS. The Japanese and Norwegian Commissioners issued
a joint statement at the conclusion of the meeting, stating that
they were disappointed but not surprised at the lack of progress
at the meeting. Furthermore, they suggested that their continuing tactic of insisting on the inclusion of excessive demands that will make the system impractical and unworkable,
did not represent good faith negotiation. The recommendations from the Monaco meeting will be
discussed further at the IWC Annual Meeting in July this year,
but it is likely to be some time yet before the RMS can be completed.
Further
links
IWC
Schedule
Environment
News Service, 8 February 2001
Greenpeace
Press Release, 8 February 2001
High
North Alliance Press Release, 9 February 2001