[2001] International Fisheries Bulletin No. 20

Report on the 53rd Annual Meeting of the International Whaling Commission

Contents
Introduction
Icelandic membership
Whale sanctuaries
Revised Management Scheme
Catch limits for commercial whaling
Catch limits for aboriginal subsistence whaling
Scientific permits
Whale killing methods and associated welfare issues
Critically endangered whale stocks
Incidental capture of cetaceans
Interactions with fish stocks
Environmental concerns
Small cetaceans
Transparency and "vote buying"

Introduction

For a number of reasons, this year's Annual Meeting of the International Whaling Commission (IWC) has attracted a greater degree of attention than usual. This was due to a number of factors, although most notably the decision, shortly before the meeting, of Iceland to rejoin the Commission. As might be expected, this created widely differing reactions from existing IWC members as well as raising difficult legal questions. Other recent events which have served to heat up the whaling debate include: the Australia/ New Zealand proposal to establish a whale sanctuary in the South Pacific; the February intersessional meeting on the Revised Management Scheme; the decision by Norway in January to resume the export of whale products from its commercial whale hunts; and the recent expansion of the Japanese research whaling programme. In addition, the meeting contained many of the elements which have now become regular items at the whaling meetings, such as discussion of commercial whaling, research whaling and aboriginal whaling, whale killing methods and environmental concerns.

Icelandic membership

The decision of Iceland to rejoin the Commission but with a reservation to Paragraph 10(e) of the Schedule (the moratorium) was possibly the most controversial issue of the entire meeting. Occupying a substantial portion of the discussion on the first day, members - unsurprisingly - displayed considerable differences of opinion, not only on whether the reservation should be allowed but also on whether the Commission in fact had any competence to decide. Given their importance and controversial nature, these issues were pushed forward to the beginning of the meeting. The question of competence had to be discussed first and the voting could not have been closer. After a heated exchange of views, it was determined by just 19 votes to 18, with one country (Austria) abstaining, that the Commission did in fact have competency to determine the legal status of Iceland's reservation (see Voting Summary for details). 

This was followed by a second vote on a motion proposed by Australia and the United States that: "The Commission does not accept Iceland’s reservation regarding paragraph 10(e) of the Schedule . . ." On the basis that they did not accept the Commission's competence to decide on this matter, sixteen countries refused to participate in the vote. This appeared to be a tactical move as much as an ideological one since - with so many countries not participating - it raised the possibility that the vote would be rendered non-quorate, as IWC rules require a majority of countries (i.e. 22) to participate in a vote. This possibility was defeated by Austria, France and Switzerland, which, although seemingly sympathetic to the Icelandic position, decided to abstain in the vote rather than to not participate. The vote therefore went through, by 19 votes to zero, with 3 countries abstaining and 16 not-participating. The final stage in these proceedings addressed the status of Iceland in the Commission, taking into account the results of the votes already taken. The Chair originally ruled that Iceland could continue to participate in the meeting but that it did not have the right to vote. However, after consultation with Commissioners, the Chairman clarified this by ruling that  Iceland should "assist in the meeting as an observer." This ruling was challenged by the Iceland and its sympathizers, but the ruling was upheld by 18 votes to 16 votes with 3 abstentions (1 country was absent for the vote). This meant that effectively from this point Iceland had the same rights it had before as an observer government. Iceland continued to protest this decision throughout the meeting and insisted its vote be counted, but its vote was never officially recorded.

As might be expected, the legal arguments relating to the actions of the Commission are rather complex and a detailed analysis is beyond the scope of this report. Nevertheless, a few observations will be made:

1. The Commission was probably right in deciding it had competence to determine the status of Iceland's reservation. The general rule relating to reservations in international treaties is that a State may formulate a reservation when signing, ratifying or acceding to a treaty unless (subject to stipulations in the treaty itself) the reservation is incompatible with the object and purpose of the treaty. However, Article 20(3) of the Vienna Convention on the Law of Treaties provides that when a treaty is a constituent instrument of an international organization, a reservation requires the acceptance of the competent organ of that organization. There was some debate in the meeting concerning the applicability of the Vienna Convention, the position at customary international law and whether Iceland's reservation (being part of the Schedule rather than the Convention proper) fell, in any case, within the ambit of Article 20(3). Despite these possible objections, it is strongly arguable that the Commission was justified in taking this vote.

2. Having taken a decision on the competence of the Commission, the members were entitled not to accept the reservation.

3. The decision to accord Iceland observer status is more problematic since it effectively relegates Iceland to the position it was prior to its attempted accession. As a matter of law this may be permissible (as regards reservations to constitutive treaties of international organizations, the Vienna Convention is silent on the effects of non-acceptance, although in relation to other reservations it does provide that a State may preclude the entry into force of a treaty as between itself and the reserving State, by means of a definitely expressed intention to that effect). However, as a matter of practice it is highly undesirable, because it has resulted in a situation whereby a State with an interest in whaling has been precluded from joining the very organization established to regulate that activity. 

Whale sanctuaries

Leading up to the meeting - and certainly before the dramatic re-entry of Iceland into the Commission - the proposal by Australia and New Zealand to establish an extensive sanctuary in the South Pacific Ocean was the most hotly debated issues. The proposal is to establish an area in the South Pacific where whaling is prohibited. The proposed area stretches approximately 2 million square kilometres and covers a region known to be inhabited by more than half a dozen great whale species. Australia and New Zealand argue that a sanctuary is necessary because any commercial whaling in the South Pacific is likely to cause irreversible damage to whale populations. Having narrowly failed to obtain the necessary three-quarters majority for their proposal at the 2000 meeting, both sponsor countries had apportioned considerable diplomatic effort in trying to develop support for a revised sanctuary proposal. This involved seeking the support of both the South Pacific countries themselves (which are not, on the whole, members of the IWC) and potentially sympathetic members of the Commission. At the same time, Japan was exerting diplomatic pressure from the other side, seeking to consolidate support against the proposal.

The issue of whale sanctuaries is, of course, not new to the Commission but is controversial because there are legal questions - carrying some weight - concerning whether they can be justified under the IWC Convention and, indeed, whether such sanctuaries are consistent with the objectives of the Convention. Pro-whaling countries argue, with some justification, that such sanctuaries are merely an attempt to put an end to whaling indefinitely. (This is, for example, the openly admitted position of Australia and New Zealand). On the other hand, a number of other States - notably Ireland - see a role for whale sanctuaries as part of a compromise which would allow limited coastal whaling by countries which have traditional whaling interests. (A discussion of the legal merits of the proposal is beyond the scope of this report, but for one view, see [2001] International Fisheries Bulletin No. 14).

Ultimately, the vote at this year's Annual Meeting was not as close as it might have been, with a number of States (Antigua and Barbuda, PR China, Denmark, Dominica, Grenada, Guinea, Japan, Korea, Norway, Panama, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines) voting against the proposal. Four States also abstained, including Ireland, which stated that whilst it was sympathetic to the issue of establishing a sanctuary, there should be discussion to obtain a consensus, and the Solomon Islands, which is the only South Pacific island State in the IWC. Consequently, the proposal failed by a significant margin to obtain the necessary three-quarters majority.

In addition to the discussions on the proposed South Pacific Sanctuary, a series of proposals were also presented by Brazil in favour of a whale sanctuary in the South Atlantic. This met from similar opposition from the pro-whaling bloc, which proved sufficient to defeat the proposal on the three-quarters majority rule (19 votes in favour, 13 votes against, 5 abstentions). Japan, Norway and Antigua and Barbuda also presented a proposal to remove the Southern Ocean Sanctuary, but this was defeated by 13 votes to 23, with one abstention.

Revised Management Scheme

The long history of the Commission's Revised Management Scheme (RMS) is well-known. Thus, although the Commission accepted and endorsed the Revised Management Procedure (RMP) for commercial whaling many years ago, a majority of its members have insisted that work on a number of issues, including specification of an inspection and observer system, must be completed before the Commission will consider establishing catch limits other than zero. The work on these additional areas, which make up the so-called Revised Management Scheme, is on-going and although some areas of compromise between the different factions can be noted, in truth members remain as opposed as ever on a number of key issues. An intersessional Working Group meeting took place in February 2001, in which little real progress was made (see [2001] International Fisheries Bulletin No. 7) and there was never any real prospect of significant advancements being achieved at the Annual Meeting. Nevertheless, it was agreed to establish an intersessional 'Expert Drafting Group' of eight countries that will try to develop a final text for the inspection and observation aspects of the RMS in an attempt to make some real progress on the Scheme. However, unless there is a willingness from both the pro- and anti-whaling camps to make some significant compromises, the prospects of such progress remain limited.

Catch limits for commercial whaling

As work is not yet complete on the RMS, there was never any real prospect of a lifting of the commercial whaling moratorium, which has been in place since 1986. In this regard, therefore, the 2001 meeting followed what is now a rather familiar pattern. Norway, which lodged an objection to the moratorium and for a number of years recently has exercised its right pursuant to this objection to set national catch limits for its coastal whaling operations for minke whales, was urged by the Commission, in a Resolution adopted by 21 votes to 15, to reconsider its commercial whaling operations. The issue of Norwegian commercial whaling had added spice this year, however, following its decision in January to allow the export of whale products (see [2001] International Fish Bulletin No. 3). Such exports have not yet taken place, mainly because of concerns over the level of contaminants in the blubber to be exported and because of bureaucratic delays relating, amongst other things, to the establishment of a DNA register of genetic material from each whale sold in order to trace exports. Nevertheless, in anticipation of future exports, the Commission's Resolution also "requested" Norway to refrain from issuing export permits for whale products. Coming in the form of a Resolution, such a request has, of course, no binding force and, in any case, it is unlikely that Norway will be deterred from proceeding with its export plans because of this Resolution.

Also following a similar pattern to previous years, the Commission did not accept a proposal by Japan to allow a small-type coastal whaling quota - of 50 minke whales - for its whaling-dependent communities. The proposal was defeated by 15 votes to 20. However, with the help of a number of "moderate" European countries (Denmark, Finland, Spain, Sweden, Switzerland), the Commission was able to adopt a Resolution (similar to one adopted at the previous Annual Meeting) reaffirming it’s commitment to work expeditiously to alleviate the distress caused by the cessation of minke whaling to the four coastal communities.

Catch limits for aboriginal subsistence whaling

The catch limits for aboriginal subsistence whaling remained unchanged at this year's Annual Meeting. Thus, quotas continued to be set for a number of aboriginal/indigenous subsistence groups, mostly in accordance with a five-year programme. The quotas are as follows:

i) Bering-Chukchi-Beaufort Seas stock of bowhead whales (taken by Alaskan Eskimos and native peoples of Chukotka): the total number of landed whales for the years 1998 to 2002 shall not exceed 280 whales, with no more than 67 whales struck in any year (up to 15 unused strikes may be carried over each year);

ii) Eastern North Pacific gray whales (taken by those whose "traditional, aboriginal and subsistence needs have been recognized"): a total catch of 620 whales is allowed for the years 1998 to 2002 with a maximum of 140 in any one year;

iii) West Greenland fin whales (taken by Greenlanders): an annual catch of 19 whales is allowed for the years 1998 to 2002;

iv) West Greenland minke whales (taken by Greenlanders): the annual number of whales struck for the years 1998 to 2002 shall not exceed 175 (up to 15 unused strikes may be carried over each year);

v) East Greenland minke whales (taken by Greenlanders): an annual catch of 12 whales is allowed for the years 1998 to 2002 (up to 3 unused strikes may be carried over each year);

vi) Humpback whales (taken by St Vincent and The Grenadines): for the seasons 2000 to 2002, the annual catch shall not exceed two whales. 

As in previous years, the taking of calves or females accompanied by calves is forbidden. 

Scientific permits

The issue of Japanese scientific whaling is another issue that has been the subject of long-running controversy in the Commission but which has attracted increasing attention in recent years. This is principally because of a an expansion of the North Pacific research whaling programme in 2000 to include the taking of a 10 sperm and 50 Bryde's whales in addition to its annual catch of 100 minke whales. The apparent purpose of the programme is to study the feeding ecology of the whales, in the context of contributing to the conservation and sustainable use of marine living resources in the western North Pacific, especially within Japan’s EEZ. At the Annual Meeting, Japan proposed the continuation of this study, which is a two-year project, and the continuation of its programme in the Southern Hemisphere, which involves the taking of approximately 400 minke whales each year. (The issuance of such permits is a sovereign right under the Convention, but in recent years - because of concerns that scientific permits have been issued merely as a way around the moratorium decision - all proposed permits have had to be submitted for review by the Scientific Committee). In accordance with what is now the normal pattern, the Commission passed, by majority, Resolutions (on minke whales and special permit whaling and on expansion of JARPN II whaling) calling on the Government of Japan to refrain from issuing such  permits and reiterated that in reviewing scientific permits, the Scientific Committee should examine whether the research is required for management or could be carried out using non-lethal means.

Whale killing methods and associated welfare issues

In 1998, the Commission adopted a Resolution which called on member countries to supply relevant data on killing times and related issues in future years and also to provide technical assistance to reduce time to unconsciousness and death in aboriginal subsistence hunts. Some of this information was presented at this year's Annual Meeting, through the Whale Killing Methods and Associated Welfare Issues Working Group. Attention focussed on the introduction of a new data submission form - which included information on the type of hunt, the species hunted, the hunt season, the criteria used to establish death, data on the killing methods employed, times to death and information on the providers of data (i.e. inspectors, scientist, hunters, etc.) - and data that showed some large discrepancies between the times to death in the minke whale hunts of Japan and Norway. In particular, the figures showed that instantaneous death was recorded in 78.2% of the minke whales during the Norwegian hunt, but only 36.1% during the Japanese hunt. No information was provided by Japan on its sperm and Bryde's whale hunts.

Although not all members (notably Japan) agree that the IWC has competence to deal with whale killing and welfare issues, the Commission nevertheless agreed to continue work on this issue and adopted, by consensus, a Resolution detailing plans to hold an expert workshop on this issue in 2003 and encouraging member countries to submit relevant data and expertise to help reduce times to unconsciousness and death in all whaling operations. Consensus on the Resolution was possible partly because of the insertion - at Japan's request - of a provision encouraging member countries to provide also relevant comparative data from killing of other large mammals.

Critically endangered whale stocks

Despite many years of protection, several populations of whales remain highly endangered and number 500 or less, including: all bowhead whale stocks apart from the Bering-Chukchi-Beaufort Seas stock (which numbers over 7,000); all stocks of northern right whales; and various stocks of blue whales. Some of these stocks, such as small Arctic bowhead populations, are subjected to direct catches outside IWC regulations (a bowhead was taken in 2000 by Canadian eskimos), or are killed by ship strikes or are caught incidentally in fishing gear (as to which, see below). Of particular concern, however, are the Western North Pacific gray whales which, according to the 2001 report of the IWC Scientific Committee, number less than 100, with a lower than expected number of calves in 2000 and only 12 adult females currently known to be bearing calves. It is believed that any non-natural mortality could have a serious impact on the population. Reflecting these concerns, the Commission adopted a Resolution on Western North Pacific gray whales which urges member countries to actively pursue all practicable actions to eliminate anthropogenic mortality in this stock and to minimize anthropogenic disturbances. The Resolution was not particularly controversial and was adopted by a show of hands, although Japan refused to vote in favour of the Resolution on the ground that the correct procedure had not been followed to get the proposal to the IWC. 

Incidental capture of cetaceans

The issue of the incidental capture of whales in fishing gear was another issue which was the subject of heightened controversy because of recent developments. The controversy does not relate to the issue of reducing incidental cetacean mortality - which all parties appear to agree is a desirable goal - but rather to the use which is made of incidentally killed whales. It is currently envisaged, at least by the majority in the Commission, that - should commercial whaling ever resume - the RMP would take into account all human-induced removals from a whale population and incidentally killed whales would therefore be included in the RMP calculations. Reflecting this approach, a Resolution was adopted, by 22 votes to 14, recommending that: (i) the commercial exchange of incidentally caught whales should not be permitted unless a catch limit had been set by the Commission; and (ii) if an incidentally caught whale was subject to a catch limit awarded under the RMP, then it could only be traded if a DNA sample was forwarded to the appropriate diagnostic register. The logical consequence of this approach, of course, is that there can be no commercial exchange of incidentally-killed whales under the RMP and (therefore) the RMS have been finalized and put into place. Such an approach is, of course, unacceptable to Japan which, approximately a month before the Annual Meeting, announced that it was going to allow the sale of meat from whales that are incidentally caught and killed in shore nets, provided that a DNA sample is provided to the Fisheries Agency. Such sales had been prohibited since 1990 under a Government directive which required whales caught in shore nets to be freed if they were alive and buried or consumed locally if they were dead. Not surprisingly, therefore, Japan - along with the rest of the pro-whaling bloc - voted against the Resolution.

Interactions with fish stocks

In recent months, Japan has been attempting to promote its own research which suggests that whales contribute to declining fish populations because of their massive consumption of, sometimes commercially important, species. These studies were advanced at the Annual Meeting in a lengthy presentation by the Japanese delegation. Anti-whaling countries and groups have attempted to cast doubt on the claims of the Japanese Government but there is a common recognition that this is an area in which further research is required. Consequently, after a lengthy debate, it was decided to establish a working group on interactions between whales and fish stocks to research the issue further, where necessary in cooperation with other relevant international organizations (see Resolution 2001-9, adopted by consensus).

Environmental concerns

In recent years, the IWC has paid greater attention to research on environmental changes and the effects on cetaceans.  In particular, last year, it provided some ‘seed funding’ for two major collaborative research initiatives by the Scientific Committee with respect to chemical pollutants (POLLUTION 2000+) and baleen whale habitat and prey studies in cooperation with international organizations in the Southern Ocean (SOWER 2000). However, during the meeting attention was drawn to the fact that these programmes require considerably more funding if they are to succeed and calling on member Governments and other bodies to provide additional funding. 

The Commission also adopted two Resolutions relating to more general environmental matters. The first Resolution (adopted by consensus but with some reservations) recognized the potential negative effects of Persistent Organic Pollutants (POPs) upon cetaceans and encourages governments to sign, ratify and adhere to the 2001 Stockholm Convention on Persistent Organic Pollutants. The second Resolution (also adopted by consensus) recognized that the destruction of coastal habitat may have a detrimental impact upon cetaceans and commended member Governments which were party to international agreements designed to better achieve coastal habitat protection and integrated coastal zone management.

Small cetaceans

Despite differences of opinion between Commission members over the legal competence of the IWC to manage small cetaceans, the IWC continues to discuss small cetacean issues. This year the Commission adopted two resolutions: one a generic Resolution calling on members to provide information to the IWC’s Scientific Committee and to take such steps as are required to protect small cetaceans in their waters. The second, a more specific Resolution calling on Japan to stop the take of Dall’s porpoise in their waters. This hunt is now the largest in the world for cetaceans with almost 15,000 individuals reported to be killed in 1999 (and also some evidence of under-reporting).

Transparency and "vote buying"

The issue of transparency within the Commission was raised on the second day of the meeting and led to the adoption of a Resolution on transparency. At first sight, this Resolution, which was proposed by New Zealand and adopted by consensus, does not seem particularly controversial, but in fact it is a rather interesting text which masks a number of underlying issues. The basic thrust of the Resolution is a recognition of the importance of adhering to the general requirements of good faith and transparency in international law. Reference is made to a number of international instruments, including the United Nations Charter, the United Nations Convention on the Law of the Sea and the Vienna Convention on the Law of Treaties, which enunciate these and related principles. The reference to good faith itself is interesting because it is the pro-whaling countries - principally Japan and Norway - which have been arguing recently that it is the anti-whaling nations that not have been exercising good faith in their relations within the Commission. On the other hand, as regards transparency, the pro-whaling States have sought to promote initiatives which undermine transparency. In particular, two proposals were made: a proposal by Japan to use secret ballots (defeated by 14 votes to 21) and a proposal from the Caribbean countries on he conduct of non-governmental organizations (NGOs) in which they stated that they were disturbed by the activities of some "irresponsible" NGOs which threatened some member countries with violence and economic boycotts and proposing that the rules relating to their participation were addressed. This Resolution failed by 12 votes to 21.

Possibly the most interesting issue, however, is the so-called "vote buying" controversy. This is addressed in the Resolution on transparency by a reference to the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the United Nations Charter, which stipulates that: “No state may use or encourage the use of economic, political, or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind” and an endorsement and affirmation of the complete independence of sovereign countries to decide their own policies and freely participate in the IWC (and other international forums) without undue interference or coercion from other sovereign countries.

The reason behind these statements were allegations leading up to the meeting and raised during the meeting by New Zealand, supported by Argentina, Australia, Germany, Italy, Monaco, the Netherlands, the United Kingdom and the United States, that Japan had been seeking to gain support at the meeting by linking economic and financial assistance to certain developing countries with support for Japanese positions at the IWC meeting: the so-called "vote buying" issue. These allegations appeared to be admitted during the meeting by an official of the Fisheries Agency of Japan, although those comments were later denied. Nevertheless, this does in fact appear to have been the policy as the six Eastern Caribbean States (Antigua and Barbuda, Dominica, Grenada, St Lucia, St Vincent and the Grenadines, St Kitts and Nevis), along with Morocco (with which there has been increased dialogue with Japan in recent years on the whaling issue) voted with Japan on the vast majority of issues, even though it may be thought that they had little common interest in many of the issues. Whether this amounts to "coercion" or contravenes any other principle of international law would, of course, be difficult to assert. It should also be pointed out that the anti-whaling group has also at times used "coercive methods" (and, for example, went through a period of recruitment of sympathetic States in the 1970s to gain support for the moratorium decision).