Chair´s Report of the Pew Whales Commission Lisbon, 9-10 February 2009
Dr Peter Bridgewater, Chairman
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Contents
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Introduction and
Background
The
Commission meeting was the third such event organized by the Pew Environment
Group. Previous meetings in
There are moments in
history when solutions are seen to be within reach. From this symposium I believe there is just
cause for me to suggest that we may be at that point now for whales. Certainly, a door may be opening.
The purpose
of the Pew Whales Commission was to take some steps through that door.
The
This report
presents my summary as Chairman of the discussions and of the resulting areas
of agreement. The Earth Negotiations
Bulletin, whose reporting team was present in
The list of participants and observers, the
agenda and background materials available in
The list of expert presentations made to the Lisbon meeting, and links to each one, can be found in Annex 2 of this report.
As a group,
the Pew Whales Commission properly reflected a broad spectrum of views. There
was widespread agreement on most issues and perspectives, as well as on the
means of reaching a workable agreement in the future. It was only in a few
cases that full consensus on a single way forward addressing all participants’
concerns could not be reached. The meeting proceeded in
excellent spirit and with a very positive ambiance and approach from both Pew
Commissioners and observers.
Summary of the Discussions
The
Commission’s meeting was opened by the Honourable Humberto Rosa, Secretary of
State for the Environment of the Government of Portugal. As host of the next IWC Annual Meeting in
I believe that the way
ahead for the IWC will need the increased involvement of politicians -
politicians at ministerial level. To tell you of my own experience on climate
change negotiations, when I acted as leading EU's negotiator in the Bali
Conference in December 2007, when Portugal was holding EU's Presidency, I have
seen how those countries represented at senior negotiator level, after a point
could not bring any further contribution to the way forward. Senior negotiators
are well trained to defend their position and counteract the positions of
others. In doing so, they tend to act as 'spoilers' of whatever approach can
emerge that does not match their mandate. In contrast, countries represented at
ministerial level could more easily, at a point, grasp the political
way-in-between and contribute to success. I anticipate that the same is likely to happen in the IWC. Thus, we
encourage our ministerial colleagues of IWC countries to give it a try by
coming to Funchal next June, to open up chances for consensus and success.
My
observations of the key points arising from the ensuing discussion are set out
here:
The whaling issue, like other complex issues, may well have reached the point at which senior negotiators have difficulty making further progress without political involvement. The involvement of high-level policy-makers was identified by many participants as necessary for moving the IWC negotiations forward to successful conclusion. It was proposed, in keeping with State Secretary Rosa’s statement at the opening of the meeting, that there be full ministerial involvement at the IWC Annual Meeting in June 2009. Ideally ministers might meet before the IWC meeting, and/or convene in parallel session to it during that week. With reference to facilitating the success of a
ministerial process, various participants in the meeting offered suggestions.
One proposed that “emissaries” be sent to IWC member states in advance of the
March and June 2009 IWC meetings to engage in direct dialogue with the
political directorate of those countries to ensure their full and informed
involvement since final decision-making would fall to them. Another participant
noted that States will collaborate to solve a problem collectively only when
they cannot solve it unilaterally. It would appear that at the present time
many IWC Member States, both whaling and non-whaling, are seeking unilateral
solutions to whaling-related problems rather than cooperative, multilateral
ones because the incentives for their actions are political in nature and
relate to domestic constituencies; in many cases, the status quo, while not beneficial for conservation, is comfortable
domestically. It could be a task for the members of the Pew Whales Commission instead
to work to help change State perceptions of the incentives for a collaborative,
international solution to the current impasse, for example by putting whaling
in the broader context of international ocean governance and environmental
protection. Without incentives for States to cooperate internationally to find
solutions a Ministerial-level initiative is likely to fail. It was also
suggested that more progress may be made with the engagement of Foreign Ministers,
as well as Ministers of the Environment rather than Ministers of Fisheries, as
is the case for many IWC member states.
In a similar vein, it was argued that a Ministerial-level engagement could also be used in parallel to try to place the IWC reform within the broader context of readjustment of institutions dealing with ocean governance. A number of participants stressed that the IWC, which dates to 1949, has been living in a world of its own and that it needs to be exposed more fully to modern ocean conservation institutions and policies. The U.N. Convention on the Law of the Sea (UNCLOS) now provides the agreed legal framework for regulating the conservation and management of all forms of marine life, including whales and other cetaceans. Other international organizations have recently reviewed their operations in the light of the principles laid down in the Convention, as implemented in the Fish Stocks Agreement of 1995. The IWC faces many problems that are of an
institutional nature, some of which are rooted in the 1946 Convention (and its
limitations) and others of which are a product of its polarized debates. Paradoxically, though, given the high public
interest in the question of whales and whaling, successful resolution of those
problems can lead the IWC to become a model for the development of responsible
ocean governance, with an emphasis on ensuring greater transparency and public
participation. It was also stressed that
the science of conservation did not exist in 1946, and that it is highly appropriate to move the IWC from a
focus exclusively on whaling, to that of whale conservation in the 21st century.
Socio-economic, cultural and ethical considerations must be a part of any discussions seeking to find solutions to the whaling issue, in addition to conservation issues. Pew Commission members asked questions about the economics of whaling, such as: who benefits and how much? How relevant is whaling to a nation’s economy? How does this compare to the economics and benefits of non-lethal utilization, such as whale-watching? To what extent is the whaling industry in the three countries that are currently whaling subsidized by the governments of those countries (other than those conducting aboriginal subsistence operations)? There was a widely supported recommendation to remove direct and indirect subsidies to the whaling industry. In the course of discussions on whale-watching, it was noted that the IWC has made good progress with this issue. This is helpful especially for developing countries where whale-watching is a growing industry, making a valuable contribution to sustainable development efforts. However, Latin American countries and other stakeholders still seek to have the IWC officially recognise non-lethal use of cetaceans as a valid management option, with the subsequent allocation of time and resources to the issue that such recognition would entail. This was described as an issue on which there should be no irreconcilable legal difficulty for the IWC to reach consensus and it was recommended that those countries that until now have opposed the full treatment of whale-watching in the IWC work to an effective resolution of this issue. During the discussion of conservation tools, whale-watching was furthermore identified as an important incentive for conservation. As an activity worth an estimated USD 1 billion worldwide, existing in both hemispheres, and providing in many coastal communities significant “livelihood benefits” in the spirit of the UN Millennium Development Goals, it was acknowledged that if managed properly whale-watching can provide significant income for coastal communities as well as conservation benefits for whales. In the same discussion, national, regional and international policy and legislation were identified as important tools for species conservation, aimed at facilitating species recovery and reducing conservation threats. There was widespread support for the need to remove the threat to whale conservation posed by international trade in whale meat and other products, with the main focus being on decisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Pew Commission members raised the questions: Does the Scientific Committee have all of
the tools and information it needs to do its work, and is its work understood by policy-makers? Some participants
identified a lack of trust in the workings of the Scientific Committee, and noted
that present arrangements did not always permit full access to data that would
otherwise facilitate the Committee’s work. The current practice whereby the
Scientific Committee’s report is made available to IWC Commissioners a day or
two before the Plenary for review and
assimilation of its often complicated contents was identified as an obstacle to
decision-makers taking fully informed policy decisions. It was also seen in particular as an obstacle
for developing countries that may not be able to send a full scientific
delegation, and as contributing to the polarized climate. It was argued that if the two sessions could
be decoupled in time (by at least several months), decision-makers back in the capitals would be better able to fully analyse the
Scientific Committee’s report and develop more nuanced and fully informed
policies.
Pew
Commission members received presentations on the Revised Management Procedure
(RMP) and its Catch Limit Algorithm (CLA), developed within the Scientific
Committee after years of extensive computer simulation testing. The CLA is a complex mathematical procedure that establishes how many whales can
be taken from a “stock”. It is based on a minimum amount of information that
can be reliably available, e.g. stock surveys and catch data, and was developed
in response to the failures of previous IWC management regimes that were unable
to protect exploited whale stocks from depletion. The RMP as specified in a 1994 IWC resolution
has not been formally adopted into the IWC’s Schedule, which allows some
countries to opt-out of its safeguards.
The Pew Commission considered several options related to management and the RMP:
The meeting agreed that Option 3 was not acceptable. It was largely acknowledged that the RMP as specified in 1994 would provide a robust way of managing whaling IF ever the IWC takes the decision that commercial whaling should be authorized under some circumstances, and wide support was expressed for Option 1. With regard to Option 2, one participant argued that acceptance of Option 2 could not be an immediate consequence of Option 1, but would have to be preceded by the IWC taking formal policy decisions to adopt a regime for regulating any such activity (i.e. a Revised Management Scheme) and to agree to an exemption to, or the lifting of, the current moratorium on commercial whaling, at least in respect of coastal whaling.
Pew Commissioners identified bycatch as an important issue, acknowledging a pressing need to know, with greater accuracy the numbers and species of cetaceans being affected, and to make recommendations for actions to mitigate cetacean bycatch. One speaker explained the importance of domestic regulations being designed so as to remove the incentive for bycatch to occur. Where such regulations instead provide an incentive for bycatch, such as by allowing bycaught whales to be sold on the market, the Pew Commission heard that there has been a marked increase in the numbers of animals killed in this way.
From the scientific point of view, there is a
need to take a precautionary approach to
the distribution of whaling and of survey areas in relation to our knowledge of
stock identity and mixing. An
example was given concerning the stocks of minke whales in the Western North
Pacific, including the depleted “J” stock. These stocks would be likely to be affected by the Small Type Coastal
Whaling (STCW) operations contemplated in the SWG proposals, and it is clear that
any adoption of such proposals should seek the best science-based solution. One
suggested approach was presented to the meeting.
[4]
Pew
Commissioners were informed about the importance of compliance and enforcement measures, and concluded that it would be
wise to consider adopting in the IWC the best practices
and precedents currently followed in other organizations. This could entail costs-sharing
mechanisms among all members of the IWC to help promote their adoption and
implementation.
Pew Commissioners
were made aware of a paper (“Building a Safety Net”) from Japan's Institute for
Cetacean Research, describing an alternative convention now under development
in Japan to regulate whaling in the event that IWC negotiations break down.
[5]
Pew Commissioners conveyed a general consensus
that collective efforts should be devoted to making the IWC more effective, for which the group underlined its support of the
SWG process, and that the IWC remains the appropriate international
organization for the conservation of whales and the management of whaling.
There was
agreement from all participants that the “old days” of whaling were destructive,
irresponsible and never to be repeated. Various options regarding changes to the International Convention on
the Regulation of Whaling (ICRW) were reviewed. They ranged from proposals
to re-write the Convention to updating it through adoption of one or more
protocols when changes could not be achieved through Schedule amendments. Examples were given of other conventions that
had been developed around the same time as the ICRW and had subsequently been
updated in this way, such as the Northwest Atlantic Fisheries Organization
(NAFO) agreement.
A list of
possible IWC reforms was discussed during a round robin session on the second
day:
Regarding
any amendment to Article VIII (Whaling under Special permit), the Pew Commission heard that existing treaty
rights could not be removed without changing the Convention. Pew Commissioners
considered alternative suggestions that included: (1) individual States
maintaining their rights but declaring for a particular period that they will
not exercise them, (2) requiring Scientific Committee approval at the request
of the Commission before whaling under Article VIII could go ahead or (3)
addressing Article VIII as part of a wider review of the Convention.
The issue
of most contention among some Pew Commissioners was the question of whether a
trade-off could or should be made between phasing-out whaling in the Southern
Ocean Sanctuary in return for a limited quota for Small Type Coastal Whaling
(STCW), as noted in the SWG report. While there was support for a solution in
this vein it was not unanimous and remains a key issue of contention that
emphasizes the need for ministerial consideration. There was some support for
pursuing such an approach, but serious reservations regarding the regulation of
coastal whaling, as well as the concept of a “phase out,” were expressed.
Several
participants also addressed various aspects of the 5-year period for resolution of issues proposed in some elements of
the SWG paper. Pew Commissioners expressed acceptance that the IWC might be
able to achieve significant accomplishments over a five-year period. However, it
was argued that utmost care should be taken to ensuring that decisions were not
taken in the short-term, especially under interim arrangements, with possible
negative long-term consequences for whale conservation. It was stressed by several participants that
five years could be too long to wait, and several issues required more
immediate resolution. Another participant pointed out that the IWC had not
successfully concluded any of its current or recent long-term negotiations
(e.g. the now suspended 12-year negotiation for a Revised Management Scheme)
and therefore expressed some caution about specifying a five-year period for
resolving any outstanding issues. It was argued that a significant change in
the IWC’s present negotiation dynamic would be required if that is to be
successful.
Pew
Commissioners noted, too, that this time period coincides with opportunities to
improve ocean governance. Participants
were informed that the UN Commission on Sustainable Development (CSD) would be dedicating
its 2014-2015 cycle to an examination of ocean affairs. This convergence could
provide a further incentive for the IWC to re-examine its role in improved
ocean governance, including more transparency in its procedures and more
involvement of non-State actors by that deadline.
Areas of agreement
The following conclusions reflect the views of a significant majority of the group. Where noted, some individuals held different views on matters that could not be comfortably reconciled in a framework of full consensus.
Aware that all international negotiations require a
spirit of give and take on all sides, we look forward to the June 2009 IWC
Annual Meeting in Madeira as a
long-awaited opportunity to address these topics, noting that it could serve as
a test case for the international community to address and improve
international ocean governance.
Critically,
we urge that the capacity of delegations
to make decisions in
We note the suggestion of the SWG to limit whale products from Japanese small type coastal whaling to local consumption as this could contribute to the prevention of international trade in whale products. Most participants expressed the need to prevent all international trade in whale products, and to ensure and maintain linkage with CITES, including by a removal of all reservations by contracting Parties to CITES Appendix 1 listings for whales. One participant expressed a different view, arguing that there is no need to prevent trade in whale products for conservation reasons, citing his belief that all whaling currently taking place is legal and sustainable and arguing that those countries that have reservations on such CITES Appendix I listings maintain national DNA registers that can detect illegal trade.The Pew Whales Commission identified a number of steps that could improve the functionality of the ICRW and harmonise it with current international standards and other global and regional conventions concerning the conservation and management of living resources There are some institutional gaps in the IWC that need to be filled, including by the incorporation of a dispute resolution mechanism and by improvement of the objection procedure. We welcomed the SWG suggestion of considering whether the Convention requires amendment to reflect the changes in priorities, dispute mechanisms and approaches to whale conservation and ocean governance that have occurred since the Convention came into force. Some of these proposals would require the negotiation at a diplomatic conference of a Protocol to the ICRW.
It would be beneficial to make improvements in the provision of scientific advice to policy-makers. Possible solutions would be the decoupling of the back-to-back meetings of the Scientific Committee and the Commission ensuring that Scientific Committee findings are available to the Commissioners in a timely and coherent manner.
There is a need to increase transparency and clarity of the Scientific Committee process and to review current confidentiality provisions.
Decisions must be based on the best scientific information, taking into account the precautionary approach and socio-economic, cultural and ethical considerations.The IWC should continue to address whale-watching inter alia to give greater emphasis to non-lethal uses of whales as a valid whale management option and to identify relevant best international practices.
We noted the importance of whale sanctuaries worldwide and welcomed the proposal to establish a South Atlantic Whale Sanctuary as part of the SWG approach towards reaching broad agreement in the IWC, although some questions were raised regarding the 5-year time limit proposed in the SWG paper.
Almost all of the members of the Pew Commission recommended seeking if and how the elimination of whaling under special permit in the Southern Ocean can be realized as rapidly as possible. One option could be that, while retaining treaty rights, at least in the short term, Contracting Governments could choose not to exercise their special permit rights for research purposes, or could choose not to do so in the absence of the IWC’s approval. Treaty rights might be separately addressed in a Protocol arising from any diplomatic conference. One participant did not support this recommendation, arguing that whaling under special permit is providing valuable scientific findings necessary for the management of whale resources and that the right of the Parties to issue special permits is a fundamental right under Article VIII of the ICRW. While these points need to be taken into account, the participant proposed that negotiations on the matter of research whaling in the Southern Ocean could consider voluntary measures and a possible reduction in the number of whales taken.
Likewise, there was some support for the consideration by the IWC of proposals for Small-Type Coastal Whaling in Japan provided that such activity is in keeping with advice from the IWC Scientific Committee that the risks to whale populations would not be greater than under the RMP—and indeed were fully in accordance with the RMP, protects threatened and endangered whale populations, allows the recovery of depleted populations, and is managed so as to reduce by-catch and infractions with a view to their elimination and to ensure that the products of the catch do not enter international trade.
We emphasised the need to strengthen substantially monitoring, control, surveillance, compliance and enforcement mechanisms.There was widespread support that these mechanisms could be supplemented by wildlife management tools including adequately controlled DNA testing and monitoring.Conclusion The meeting
concluded convinced that with goodwill, full understanding of all positions,
and the give-and-take necessary in international
discussions, a solution to the vexed nature of whaling and whale conservation
matters can be developed in Rome on the way to Madeira. The Pew Commission again gives full support
to the initiative being undertaken by
Annex 1: Members of the Pew Whales Commission (in alphabetic order)
Judge David Anderson (
Dr. Peter Bridgewater (
Hon. Barry
Cohen (
Mr. Modou
Diagne Fada (
Governor Parris
Glendening (
Ms. Madeleine de
Grandmaison (France/Martinique)
Dr. Yolanda Kakabadse (Ecuador)
Mr. Juan Mayr (Colombia)
Hon. Jim McLay (
Senator Ngoné Ndoye (Senegal)
Professor Mario Ruivo (Portugal)
Mr. Kaliopate Tavola (Fiji)
Senator Elizabeth Thompson (Barbados)
Annex 2: Expert presentations made to the Pew Whales Commission.
Science and Precautionary Management, presented by Dr William de
http://www.pewwhales.org/documents/CLUSTER%201%20-%20Bill%20de%20la%20Mare.pdf
Special Permit and Coastal Whaling, presented by Dr Russell Leaper.
http://www.pewwhales.org/documents/CLUSTER%202%20-%20Russell%20Leaper.pdf
Compliance and Enforcement, Compliance and
Monitoring, Objections and Reservations, Bycatch and Infractions, presented by Prof. Al Gillespie.
http://www.pewwhales.org/documents/CLUSTER%203%20-%20Al%20Gillespie.pdf
Conservation Tools: Whales and the IWC, presented by Dr Susan Lieberman.
http://www.pewwhales.org/documents/CLUSTER%204%20-%20Sue%20Lieberman.pdf
Developments in Ocean Governance, presented by Mr Duncan Currie, Esq. http://www.pewwhales.org/documents/CLUSTER%205%20-%20Duncan%20Currie.pdf
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[3] The ENB report will also be available shortly in French, Japanese and Spanish at the same URL.
[4]
The proposal was to
survey the “J” stock and determine a catch limit under the CLA, survey the “O”
stock and determine a CLA catch limit in the overlap area, conduct DNA testing
of each whale at the moment of landing in order to determine stock origin, and
close the whaling season when the first of the two catch limits has been
reached. Bycatch would be included in the allowable catch limit. If the catch
limit for “J” stock is already zero, whaling would have to be relocated or
conducted at another time to avoid “J” stock.
[5] The ICR “Safety Net” paper is available at: http://www.pewwhales.org/pewwhalescommission/submissions/ICT%20submission%20to%20Pew%20Whales%20Commission%20-%20Jan,%202009.pdf.
[6]
Although the IWC cannot address all issues related to
bycatch, measures available to IWC related to bycatch might include removing
marketing incentives or requesting the Scientific Committee for advice on ways
to reduce bycatch, particularly for stocks which may also be subject to direct
takes
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