INTRODUCTION

In addition to the twelve key issues addressed in the Policy Guide for the Pew Whales Commission, the Secretariat has reviewed the remaining 21 elements under discussion by the IWC as part of its deliberations on the Future.   

While important, their resolution will largely depend on how the first tier of priority issues is resolved in 2009. Moreover, there is a certain degree of overlap between some issues.

Advisory/Standing Committee or Bureau

The issue

Professor Calestous Juma has suggested establishing a Standing Bureau elected by the Commission to (1) assist the Chair in planning and running the meetings of the Commission and (2) serve as a communication link between the Chair and the rest of the Commissioners.[1]

The need for a standing Bureau is closely tied to the frequency of meetings:[2] if meetings are changed to a bi- or triennial schedule, there would be a greater need for a Standing Committee to act between meetings.

This is included as one of the 33 items, but has received little attention. The question really is (a) whether a standing political committee is required and (b) whether the Secretariat can carry out the function.  

Professor Juma suggested either to create a new organ that would have geographical as well as thematic representation or to reconstitute the current Advisory Committee to serve as a Bureau, with representation determined by the Commission.  The Advisory Committee, formally established in 1997,[3] is composed of five members: the Chair, Vice-Chair, the Chair of the Finance and Administration Committee and two other Commissioners representing the broad interests of the Commission, on a rotational basis.[4]  The Advisory Committee has been asked to address procedural issues such as development of the draft agenda, convenors for sub-groups, revisions of the Rules of Procedure, NGO accreditation criteria and fees, and procedures for election of a new Chair and Vice Chair.[5]  In Anchorage the Commission agreed to establish a Steering Group, comprising representatives of the Governments of Chile, Japan, New Zealand, Palau, and the United States, with the specific task of organizing the Commission’s March 2008 Intersessional Meeting on the Future of the IWC at Heathrow, London.[6]

Ambassador Raul Estrada-Oyuela, another special adviser present at the Heathrow Intersessional meeting[7] has suggested the creation of ‘non groups,’ not to negotiate but to advise the Chair on certain issues, and the appointment of co-ordinators or facilitators rather than Chairs. As he noted, the selection of participants of a small group is a sensitive matter and requires good knowledge of the various interests and positions.  Ambassador Estrada’s suggestion is more inclined toward an ad hoc group than Professor Juma’s. However what is common to both suggestions is the idea of a small political group which advises the Chair.  This, however, is a more political function than that of the existing Advisory Committee, which to date has had a far more restricted and procedural role.

Discussion

Regardless of meeting frequency, there is arguably a need for a small political committee to guide the IWC through the Intersessional meeting and IWC/61, given numerous sensitive political issues and the need for an ongoing line of communication between pro-moratorium and pro-whaling countries, for instance. The continuation of the Steering Group would be a straightforward option. However whether communications should come from such a group rather than from the Chair is a different question. Tasking the Secretariat with facilitating regular communications from the Chair and from the Steering Group may be a more sustainable and transparent option.

Policy Options:

Animal Welfare

The issue

For much of the Commission’s history animal welfare, until recently expressed as ‘humane killing,’ has been on the agenda and it remains an important matter for a number of Member States. The subject has been addressed through various IWC working groups and expert bodies, as well as through amendments to the Schedule to the 1946 ICRW[8] and in numerous resolutions. The IWC’s interest has focused primarily on times to death and the efficiency of various killing methods, although there are other aspects of the welfare issue that have not yet been addressed. The advent of large-scale scientific whaling programs has also involved the IWC in discussions of the standards for treatment of animals used in scientific experiments. Most recently the IWC, through its Working Group on Whale Killing Methods and Associated Welfare Issues, has been considering the question of provision of welfare-related data from whaling operations, and the UK  has proposed that the collection and provision of such data be required within the context of the Revised Management Scheme (RMS). In the context of discussions of an RMS ‘package’, the UK had also proposed in 2005 wording for an Annex to the Schedule, to set “minimum conditions under which whales could be killed.”

Japan played a leading role in the development of an alternative to the ’’ cold’ or non-explosive harpoon that was banned by two decisions in 1980 and 1981. Yet for the past several years, animal welfare has been one of the suite of issues that the Government of Japan has proposed for deletion from the Agenda of the annual meetings as “contrary to the objectives or outside the scope of the Convention and that discussion of these matters detracts from the time and resources available to address what in its view were more serious and substantive issues”.[9]  Although Japan and Norway continue to participate in the Working Group on Whale Killing Methods they no longer provide data to it.  

While the Commission’s attention to welfare issues has at times been controversial, all measures taken to date have been based on the ICRW, and specifically Article V(2) giving the Commission competence to “amend from time to time the provisions of the Schedule by adopting regulations with respect to the conservation and utilization of whale resources, fixing… (e) time, methods and intensity of whaling… (f) types and specifications of gear and apparatus and appliances which may be used”. In addition, Article VI of the ICRW states that the Commission may “make recommendations on any matters which relate to whales or whaling.”[10]

The IWC’s decision-making history on this issue was summarized as follows in the 2004 Report of the RMS Working Group:  “[The IWC’s] competence has […] been recognized through the adoption of 16 Resolutions related to the welfare aspects of whaling, including Resolution 2004-3 which specifically notes the Commission’s mandate and long-standing commitment to address welfare issues.”[11] The Commission has exercised this welfare mandate by agreeing to discontinue the use of certain killing methods such as carbon dioxide and electricity; banning the use of the cold harpoon; and establishing several technical fora to address welfare issues, including:

• A Working Party on “Humane and Expeditious Methods of Killing Whales”, which was convened to “examine the advantages and disadvantages of the various methods of killing whales… with a view to recommending a programme of research and development for the improvement of existing methods and the development of new ones” (1959);

• A Technical Committee Working Group on Humane Killing (1978);

• A Scientific Committee Sub Committee on humane killing techniques (1978);

• A Workshop with a remit to “consider methods of improving existing killing techniques or to suggest alternative more humane methods” that has met four times since 1980; and

• A Working Group on Whale Killing Methods and Associated Welfare Issues, which has met fifteen times since 1983.[12]

The IWC has considered welfare implications of whaling for half a century. As long ago as 1959 it established the expert Working Party to study the “humane and expeditious killing of whales,” looking in particular at experiments carried out by the British and Norwegian industries on the electrical harpoon, with a view to reducing time to death.  The humane killing issue was revived again in 1975 by the U.S. and has been on the IWC’s agenda ever since.  The Commission agreed to investigate possible new developments in chemicals and explosives suitable for killing whales and to examine ways of improving the efficiency of existing methods, including the killing of small whales where it was considered that explosives could not be used, and the training of gunners. This work was formalised by decision of the 1978 meeting, at which time the services of a veterinary expert were engaged, and resulted in the agreement of a Schedule Amendment, adding what is now Paragraph 25(a) in Chapter VI to collect information about secondary killing techniques.

The most important decision taken to date has been the prohibition on the use of the so-called cold grenade harpoon,[13] adopted in 1980 to apply to whaling operations for all species except minke whales (a compromise reached to ensure the support of Japan and other whaling countries). In 1981 the Commission decided to extend the provision to whaling for minke whales, with a delayed entry into force to allow time for an alternative to be developed.  The Governments of Brazil, Iceland, Japan, Norway and the USSR all filed objections as they were still using the cold grenade harpoon. Japan and Norway developed an alternative to the cold harpoon, the penthrite grenade harpoon.  With an alternative in place Norway withdrew its objection in 1985, and Brazil, by then no longer a whaling country, followed suit in 1992. Although Japan no longer uses the cold grenade harpoon it has never withdrawn its objection, nor has Russia, a country which for twenty years is no longer engaged in commercial whaling. Iceland withdrew from the IWC in 1992 effectively canceling its objection.

In 1995 the IWC adopted Resolution 1995:2 which, inter alia, urged Member States to suspend use of the electric lance as a method of killing whales.[14]  Although a Schedule Amendment to this effect had been foreseen, in the end it was never brought forward.

More recently, animal welfare has also featured in discussions of the RMS, including the conditions for submission of welfare-related data from whaling operations and whether this should be compulsory or voluntary.  The range of viewpoints among Commission members on this point are perhaps best summarised in the report from the RMS Working Group meeting (Borgholm, 2004) discussing the text of the Chairman’s Draft, which favoured voluntary not compulsory arrangements for submission of such data.[15]  In 2005 the UK submitted to the RMS Working Group meeting in Ulsan the wording of a draft Annex to the Schedule setting out minimum conditions under which whales could be killed[16]. It sets out two ‘generic principles’[17] as well as a list of criteria related to killing methods, conditions under which hunting (including pursuit) should take place, training of harpooners, observers and so on. In response to Japan’s on-going programs of whaling under special permit, several governments have also expressed concern over the welfare implications of ‘scientific whaling’ noting the existence of international and national standards for the use of animals in scientific experiments as well as standards for the humane slaughter of animals intended for human consumption. The UK has put forward the idea of establishing a possible working relationship between the IWC and the World Organisation for Animal Health (OIE), which promulgates international standards on humane slaughter. Recognising the existence of another area of concern regarding animal welfare, the IWC will convene a workshop in 2009 to review welfare issues concerning the entanglement of whales in fishing gear. 

Discussion

Concerns over the cruelty of whaling are central to the positions of a number of IWC Member States, and measures and recommendations seeking to better understand the various aspects of the problem and to improve welfare standards are consistently supported by the broad group of pro-moratorium States. Animal welfare was cited at the time by several delegations as a contributing factor in their decision to support adoption of the moratorium on commercial whaling in 1982. It is one of the aspects of whaling that has attracted, and continues to attract, great public attention in many countries. Several civil society organisations with long-term engagements with the IWC are animal welfare organisations and oppose whaling first and foremost on grounds of what they consider to be unacceptable suffering caused to animals.[18]  The whaling countries have contributed constructively in the past to certain aspects of the animal welfare debate, particularly in the case of the prohibition on the use of the cold harpoon. Their more recent reluctance to accept further IWC consideration of welfare issues, and particularly their resistance to any compulsory measures being adopted within the context of the RMS, is a test of how far the IWC is willing to go to further address animal welfare issues.

Policy options:

Civil society

The issue

Many IWC member States and NGOs appear to be unhappy about the arrangements for involving NGOs in the work of the IWC. Everyone is aware of the importance of maintaining distinctions between the formal role of voting parties, and the informal role of NGO observers (both pro- and anti-whaling groups). But current arrangements for NGO participation in the IWC are out of step with common practice in most intergovernmental bodies. How could civil society be better involved in the IWC?

Discussion

In 2007, the 59^th IWC annual meeting held in Anchorage[19] relaxed NGO accreditation requirements.[20]  The Rules of Procedure[21] now provide that any NGO which expresses an interest in matters covered by the Convention can attend IWC meetings.[22]  Any number of individual attendees from NGOs can be present in the Commission meeting room, and participants are charged a registration fee per attendee rather than per NGO.[23]  However NGOs still are not accorded speaking rights or the right to submit documents to the official record of the proceedings.[24]  Qualified representatives of NGOs may be invited to meetings of the Scientific Committee as invited participants (with the right to speak and to submit documents that enter into the record) or observers (which cannot).[25]  The Commission will review the effectiveness of the new rules after a two-year operating trial (i.e. at IWC 62, in 2010 unless the frequency of meetings is altered).[26] 

Until 1979, NGOs had been able to make brief statements at the IWC meeting Opening Session, but since 1980 NGO Opening Statements can only be made in writing.    At IWC/60 held in June, 2008 however, on a trial basis, three representatives from environmental NGOs and three representatives from pro-whaling NGOs were allowed to address the meeting for five minutes each before it concluded. However, this took place during an adjournment of the meeting; hence even this very limited opportunity was not recorded as part of the official proceedings.

A Code of Conduct for NGOs was adopted several years ago.[27]  It requires participants to refrain from verbal, written, or physical attacks designed to deter the exercise of the rights of others to hold and express different views.  The IWC is however still largely out of step with other international organizations.  As Professor Juma observed,[28] NGOs represent a diverse source of input into the work of IWC and participate in many of its activities in a number of ways.[29]  Ambassador de Soto stressed at the Heathrow Intersessional Meeting[30] that it is essential that civil society is involved in policy formulation to ensure that the outcome of any negotiations is acceptable to the public, but it was his view that civil society should not play the role, directly or indirectly, of negotiator.

Possible way forward:

Climate Change

The issue

Climate change is expected to have an impact on cetaceans and their food supplies, especially in the polar regions where the melting of the ice-cap may have far reaching consequences. In other regions where whales have been abundant, the impacts of climate change on ocean currents and ocean biomass, particularly for the prey species of both toothed and baleen whales, are also expected to be significant.[31]  This is a cause for concern to all Contracting Governments, whether whaling countries or not, and an issue that calls for the implementation of the precautionary principle in the light of the inherent uncertainties climate change raises as to the future of whale populations. A modernized IWC could dedicate considerable resources to this issue, which falls within its existing environmental and conservation agendas.

At its 2008 meeting the Scientific Committee noted that “Climate forecasting is now within the context of the 4^th IPCC Report, which provides both conclusive evidence of climate change and analyses at temporal and spatial scales of relevance to cetaceans.”[32]  Nevertheless, the IWC is far from being able to understand the possible consequences of climate change on cetaceans, and a commitment to long-term monitoring and research will be needed to understand various aspects, such as: how adaptable are different cetacean species in different regions of the world to climate change? Will there be consequences for their feeding habits and distribution? Will change be detrimental or beneficial to cetaceans? The IWC Scientific Committee hosted its first workshop on climate change and ozone depletion in 1996. A second, major workshop on climate change will take place in the spring of 2009, with a primary goal “to determine how climate change is/may be affecting cetaceans now and how it may be in the future and how best to determine these effects.”[33]  Experts in cetacean biology, modeling, marine ecosystems and climate change will be invited to help the IWC Scientific Committee review current understanding and seek ways “to improve conservation outcomes for cetaceans under climate change scenarios described in the IPCC 4^th report.”

Discussion

With climate change more pronounced in polar regions, which are the main feeding grounds of most baleen whale species, the IWC will need to find ways to focus efforts there.  Already in 1992, when the Government of France first proposed the establishment of the Southern Ocean Whales Sanctuary (SOWS),[34] understanding the effects of climate change on whales was a stated objective of that proposal and could be built upon in the context of, for example, the Government of Australia’s proposal for a long-term, international collaborative non-lethal research program (see below) in the Southern Ocean, the first planning meeting for which is expected to take place in early 2009 in Australia.

Another approach could be that first proposed by Australia at the March 2008 IWC Intersessional Meeting on the Future of the IWC calling for the creation of conservation management plans to address non-whaling threats to cetaceans. One specific example provided was that of a plan dedicated to “high-latitude whales and climate change,”[35] which Australia’s paper described as follows:

“An improved understanding of the population dynamics of unexploited whale populations in Arctic and some Antarctic ecosystems in the face of the rapid rate of climate-related change might provide valuable information about the nature and extent of ecological change, and thereby add power to forecasting and mitigation models that address management objectives.”

There is little doubt that the IWC should deal in a concerted way with the anticipated consequences of this greatest of international environmental threats. It would appear that there is general support for the IWC to address the question; differences arise perhaps about how best to do that, and obviously on the management implications of the uncertainties about the future status of whale populations raised by climate change. The other possible point of disagreement could be over the choice of methodologies to use, whether non-lethal only or including lethal as well (under nationally issued permits).

Australia’s proposal to organise under the auspices of the IWC a major collaborative, international research effort using non-lethal techniques would be a helpful way forward. Identifying sources of funding for any long-term effort, and prioritizing the issue on the agenda of, especially, the Scientific Committee, are other aspects with which the Commission would have to grapple. There would likely be a role for the Conservation Committee in any future work on this issue.

To some members of the IWC and many environmental NGOs, the threats posed to the survival of whales by climate change are potentially so great that they believe that (apart from aboriginal subsistence activities) no deliberate takes, including those for allegedly scientific purposes should be considered. But it is unlikely that this argument will hold sway with the proponents of whaling, notwithstanding their stated commitment to the precautionary principle in other areas of international environmental policy and law.

Policy Options:

 

Conservation Committee

The Issue

At its 2003 Annual Meeting the IWC established a Conservation Committee, through a resolution adopted by simple majority, the purpose of which is to allow the Commission to “effectively organise its future work in the pursuit of its objective by devising an appropriate agenda that places special emphasis on its benefits to conservation.”[36]  Proposed by the Government of Mexico, it was strongly backed by the pro-moratorium countries and just as strongly opposed by Japan and the countries supporting its views.

As described by the Government of Mexico when proposing the resolution, the aim of establishing the Conservation Committee  was ”to bring the IWC into the 21^st Century by transforming it from a traditional fishery management body to a modern conservation organisation with a comprehensive agenda covering all aspects of the conservation of whales including protection from environmental threats.” In addition to helping to address these other threats in their own right, it was hoped that the broadening of the IWC’s agenda would reduce the risk that its failure to achieve consensus on the regulation of exploitation would lead to the organization becoming dysfunctional to the detriment of whale conservation.

Mexico also argued that the establishment of the Conservation Committee was fully consistent with the first objective of the International Convention for the Regulation of Whaling, namely “the interest of the nations of the world in safeguarding for future generations the great natural resources represented by whale stocks,” as well as with the overwhelming part of the work devoted by the Commission to that objective during the previous 25 years.

There clearly is a need for a global forum to address the full range of threats to whales, other than hunting, and for countries to work collaboratively to ensure the long-term survival of whales.

It was noted in the Chair's report of the IWC meeting in 2004 that “Japan drew attention to the controversy surrounding the establishment of the Conservation Committee at the meeting in Berlin last year25 and continued to oppose it.  Along with many other Commission members, Japan believed that the current objectives of the Conservation Committee are not in line with the dual objectives of the Convention, i.e. the conservation and management of whale resources. It further noted that it will not attend any meetings of the Committee unless its name and objectives are changed to include sustainable use of whale stocks.”[37]  Discussion highlighted different interpretations and prioritization of Commission’s objectives. A number of governments pointed out that not all conservation issues are related to whaling.

Meetings of the Conservation Committee have been held annually since 2004 in the week of sub-committee and working group meetings immediately preceding the Annual Meetings. At its 2005 meeting the Committee agreed a Conservation Agenda.[38]  Two non-controversial though serious problems were chosen to be addressed initially: ship strikes and ‘stinky’ gray whales caught in Siberia. Significant progress has been achieved, particularly on the issue of ship strikes. The Committee has added sanctuaries and whale-watching to its agenda in the meantime and bycatch has been proposed as well. 

Discussion

A hallmark of how well the IWC faces its task to modernize and become a meaningful, functioning intergovernmental organisation will be how, beyond the regulation of whaling, it deals with the growing conservation agenda. Accepting that the IWC’s original mandate, spelled out in the preamble to the ICRW, is for conservation of whales and the management of whaling, it must be noted that the agenda was for decades heavily weighted to the second half, and that there is now a need for focus on the first half.

The non-consensual nature of the Committee’s establishment is frequently cited by the pro-whaling countries as an obstacle for their participation. Iceland and Norway now express an interest in the work of the Conservtion Committee and attend the meetings but do not participate substantially. Japan and a number of other pro-whaling countries have so far boycotted the meetings. However the Committee  has managed to work effectively, and it has made good progress on the items on its initial agenda, most recently setting up a global database on ship strikes, and engaging the International Maritime Organisation (IMO) on the issue. It is also considered by many as the obvious IWC body to consider the management of whale-watching, now a growing interest among member States.

There are many other important issues on the conservation agenda, from climate change to finding practical solutions to the problem of bycatch of cetaceans in fishing gear. Addressing conservation aspects fits within the IWC’s objectives as mandated in the ICRW, and reflects the reality of present day threats. “Almost half of all the literature published on cetaceans in 2007 dealt primarily with conservation-related issues.”[39]

The Conservation Committee has not yet addressed the establishment of the trust fund referred to in the 2003 resolution. This could be worth developing further, as further incentive for expanding the Commission’s mandate.

Policy Options:

Conservation Management Plans

 The issue

The Government of Australia proposed at the IWC’s Intersessional Meeting on the Future of the IWC in March 2008, and again at the IWC’s 60^th Annual Meeting in Chile, that the IWC develop Conservation Management Plans.[40] The purpose is described in the March 2008 document as follows:

“The Commission should develop conservation management plans to improve the conservation and management of whale populations. The objectives of such plans should address threats other than whaling, including through the mitigation of bycatch and the regulation of whale watching. They should be tailored to support the recovery of particular cetacean populations.

In order to be effective, the plans would need to link to, and augment, actions under other relevant international arrangements. Support from member governments in other relevant international bodies would also be required to manage effectively some threatening processes such as fisheries bycatch or ship strikes.

The Commission should adopt plans that focus on particular species and populations and on threats that affect multiple species. As the focus of these plans is beyond whaling, they could also legitimately be designed for small cetaceans that face a variety of threats already known to be unsustainable. In some cases, plans should take the form of an international ‘species recovery plan’ including an assessment process, and the development of actions to address identified threats. Such international plans can provide coordinated and enhanced support and leadership for national efforts.”

Discussion

Many IWC Contracting Parties have experience in the development and implementation of Conservation Management Plans (or similar exercises such as Recovery Plans) for cetaceans. There is also precedent in recent IWC history for this concept. IWC Resolution 1993/5, for example, recognized the importance of taking appropriate conservation measures for assisting the recovery of severely depleted populations, and adopted a proposal to develop a research program for Southern hemishere blue whales. IWC Resolution 1999/7 drew attention to Member States to the need to cooperate fully with the Scientific Committee as it turned its attention to the fate of “Small Populations of Highly Endangered Whales”[41] including blue whales in both hemispheres (various populations), Western North Pacific gray whales, Northern Hemisphere right whales and Okhotsk Sea, East Canadian Arctic, and Spitsbergen bowhead whales.

The Australian proposal offers a constructive way forward for the Commission, allowing IWC members to work cooperatively to address serious threats to cetaceans other than whaling and to further enhance the work of the Scientific and Conservation Committees.  It also addresses a real need, as the Commission needs to confront emerging serious threats such as climate change and the dire status of some cetacean populations (such as the Western North Pacific gray whale and the vaquita, the latter facing extinction in 5 years unless urgent action is taken).  These threats will not be addressed by a focus solely on the management of whaling. Although the proposal will need further discussion in the Commission and Scientific Committee, its initial consideration at IWC/60 in 2008 was generally positive, and it would appear to have the strong backing of many Member States as well as members of the Scientific Committee.

Possible way forward:

The Purpose of the Convention

The issue

The ICRW was adopted more than 60 years ago when the world (including the oceans) was a very different place. Post-World War II economies were desperately in need of food and oil and catching whales was perceived as a practical and acceptable option.  This was reflected in the preamble which “recognized that it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress”. Economic and nutritional needs were seen as a sine qua non.

The purpose of the Convention has been a touchstone issue for many years.  Whaling countries have argued that the central purpose of the ICRW is to regulate whaling, that the IWC has strayed from its purpose, and that the Convention should not be changed.[42]  Others note that the ICRW is “a convention to provide for the proper conservation of whale stocks.”

The current tension is between ‘modernizing’ the ICRW to bring it into line with contemporary developments in international law and ‘normalizing’ the treaty by “returning” to the core objectives upon which it is said that the IWC is based.  This idea of ‘normalization’ emerged after the 2005 IWC Annual Meeting concluded without having reached an agreement on an RMS, and a number of pro-whaling countries, led by Japan, responded by proposing normalization of the Convention.

In addition, controversy exists as to the scope of the Convention. Its applicability to small cetaceans, whale watching, broader environmental and conservation concerns and animal welfare has been challenged by various governments.

Amendment of the Convention is problematic since in essence this would require unanimity, but conclusion of a Protocol which could supplant the Convention is an option.

Discussion

The disagreement amongst Contracting Parties to the ICRW extends to the very purpose of the Convention.[43]  Some[44] argue that the ICRW’s objectives are a mixture, being to protect whales from over-exploitation, but at the same time being to ensure the orderly development of the whaling industry.[45]

 Based on the text of the ICRW, a more conservation minded approach, might aim at the following goals:[46]

Safeguard[ing] for future generations the great natural resources represented by the whale stocks;

Protect[ing] all species of whales from further over-fishing;

[Seeking] the optimum level of whale stocks;

[Providing] an interval for recovery for certain species of whales now seriously depleted in numbers;

[And] establishing a system of international regulation to ensure proper and effective conservation and development of whale stocks.

Iceland, arguing for the validity of its reservation when it rejoined the IWC,[47] cited the third[48] and seventh[49]  preambles as encapsulating the objectives of the Convention.  Norway argues,[50] citing the second paragraph,[51] that the objective of the Convention is to protect whale stocks from over-exploitation and to regulate them in a sustainable manner and that the purpose of regulation[52] is to manage whale stocks so they can be harvested  without being endangered.   The 2006 St Kitts and Nevis Declaration[53] recited the 7^th paragraph and concluded that the Convention “is therefore about managing whaling to ensure whale stocks are not over-harvested rather than protecting all whales irrespective of their abundance”. The minutes of the Japanese Government’s Normalization Conference held in Tokyo in February 2007[54] stated that “the objective and purpose of the ICRW is clearly set out in its preamble. This is the need for conserving whale stocks in order to ensure long term utilisation. The group considered that using modern terminology, the objective and purpose of the ICRW is the sustainable utilisation of whale stocks.”  The premise of the Conference is that “[n]ormalizing the IWC means bringing it back to its fundamental purpose as mandated by the ICRW so that current and future whaling would operate within a science-based, regulated, controlled and transparent management regime”[55] and that “the IWC has lost its purpose as an organization responsible for the conservation and management of whales”.

The modernization argument, on the other hand, holds that the ICRW needs to encourage Parties to co-operate in a spirit of global partnership to conserve, protect and restore the health and integrity of whale populations as part of the global oceans ecosystem.[56]  This is seen as part of a a modernized instrument that could replace the ICRW, incorporating  modern principles of international environmental governance including the precautionary principle, the ecosystem approach, robust decision making processes, no or restrained opt-out, dispute resolution procedures, effective compliance and enforcement procedures, amendment procedures and transparency.[57]

An amending Protocol is likely to be the best instrument to address fundamental issues such as the objectives of the ICRW and governance matters.  UN Depositary Practice[58] notes that amendments are in fact most often effected through an amending protocol.   The purpose of an amending protocol is to alter the wording of an earlier treaty.[59]  In 1956, for example, the IWC adopted an amending Protocol to agree on a new definition of whale catchers and to enable the eventual establishment of an international observer scheme.

A new Protocol would not bind any State already a party to the Convention which does not become a party to the Protocol.[60]  In such a case, as between a State which is party to the ICRW and the Protocol, and a State party to only the ICRW (or only to the Protocol), the treaty to which both States are parties governs their mutual rights and obligations.[61] In practical terms, that means that if a State does not join the new Protocol, its rights and duties are governed by the old Convention.[62]

The Secretariat has cited attempts from as early as 1977 to revise the Convention.[63]  The United States in 2006 advised on procedures to amend the Convention,[64] and while it suggested that the Parties could decide on a super-majority (such as ¾) to amend the Convention, it recognized that there is precedent for requiring all Parties to ratify or adhere to the proposed revision.  It is certainly the case that only Parties which ratify or accept the amendment are legally bound by it. 

A risk that the adoption of a Protocol would be ratified only by some of the IWC Parties, leading to two differentiated regimes should not be a cause for grave concern. While this may be the case for an interim period, the most recent instrument is likely to prevail, in time, especially if it enjoys broad participation, and to influence significantly even the IWC members who are not party to it. A good illustration is provided by the influence the Kyoto Protocol has had between 2001 and 2008 notwithstanding the opposition of the Bush Administration.

Policy Options:

Co-operative non-lethal research programs

The Issue

During IWC/60 in Santiago in 2008, Australia proposed redefining the IWC with a more conservation-oriented mandate using the example of co-operative non-lethal research as a basis for practical work:

Here, we propose the formalized development of regional, non-lethal cetacean research plans to coordinate and optimize the research programs of IWC members against agreed priorities and objectives. Such partnerships should enhance the delivery of the most relevant science into the management and policy environment, and thus improve conservation outcomes for cetaceans.[65]

The initiative was well received in general with particular support from other Southern hemisphere countries (and silence from many pro-whaling countries).

Discussion

For most of its existence, even since the adoption of moratorium the IWC and its Scientific Committee have devoted the majority of their time and energy to the establishment of catch limits. The Australian initiative on co-operative research has the merit of attempting to steer a good part of the IWC focus towards non-lethal science and management.  It also offers a non-lethal alternative use of the Japanese whaling fleet in the Southern Ocean,.

The development of concrete practical initiatives under the proposal will clearly require bilateral efforts, and further development will take place mainly outside the realm of IWC politics. It does not seem likely at present that the initiative would greatly influence the negotiation of a solution ‘package’. It could however help reinforce a conducive political environment, and constitutes one of the lower-risk elements to modernize and advance the work of the IWC Scientific and Conservation Committees.

Possible way forward:

Data provision

The issue

Full, accurate and timely data provision is fundamental to the successful implementation of any management regime, and the case of the IWC is no exception. This is an issue which cuts across many of the individual elements that have been discussed in the context of a Revised Management Scheme (RMS), including bycatch and infractions compliance and monitoring, science, RMP, and animal welfare. In the context of the RMP, the Scientific Committee has made considerable progress in developing workable rules for data availability.  Such rules are an essential component of any management procedure. However, these discussions have taken many years.

Discussion

There have been many problems associated with data provision. The denial of access to raw data[66] from the whaling countries (e.g. sightings data) for purposes of independent analysis is an important aspect of the issue that has long been under discussion within the IWC’s Scientific Committee. Discussions of the population structure of minke whales around Japan and the implications of bycatch have also been severely hampered by the unwillingness to provide data. It also impedes conservation work in general. The lack of data provision by whaling countries is an issue of concern for the RMS.

Under the terms of Article VIII of the ICRW, whaling under special permits is exempt from all regulations in the Schedule, including data provision.  Ironically, as a result fewer scientific data are being provided by scientific whaling operations than were provided from commercial whaling.  More recently there has been a debate regarding the need for a centralized database of DNA profiles of all whales killed (see the item Bycatch and Infractions for further discussion of DNA sampling). It has been proposed that such a database be held by the IWC.  Japan and Norway in particular insist that their own national arrangements for DNA sampling are sufficient, and that the matter falls outside the competence of the IWC in any case.  They do not provide open access to these databases for independent analysis.  

Nevertheless the Scientific Committee has agreed a data availability agreement, which is overseen by the Data Availability Group,  comprised of the Chair and Vice-Chair of the IWC’s Scientific Committee and the IWC’s Head of Science, from the Secretariat. There are two separate rules, one for data required for the RMP as well as for Aboriginal Subsistence Whaling, and the other for “data required for analyses deemed important in providing advice to the Commission other than catch limits (e.g. on the status of stocks not subject to IWC regulated whaling)”.

In the past, New Zealand has proposed the incorporation of catch certification data in the RMS[67] and has been supported by many like-minded countries, but has been opposed by the whaling countries, again on the grounds that this is beyond the remit of the ICRW.

The UK in particular has pressed for collection of data related to animal welfare aspects of whaling operations to be made compulsory in any agreed RMS and has drafted Schedule text to this effect;  the proposal has received support from like-minded countries but whaling countries have insisted that data can only be collected on a voluntary basis.

Possible way forward:

Ecosystem-based approach to management

The Issue

There is a growing momentum to complement species management and conservation-specific policies with the “ecosystem approach” as the driver of biodiversity conservation. At their meeting held in Nairobi, Kenya in May 2000 the Parties to the Convention on Biological Diversity (CBD) adopted Decision V/6 in which they endorsed the ecosystem approach to biodiversity conservation, including a definition, twelve principles and operational guidelines.[68]  Two years later, in September 2002 the ecosystem approach was also endorsed at the highest level as part of the Johannesburg Plan of implementation at the World Summit on Sustainable Development (WSSD) and its application by 2010 was “encouraged”.[69]  In response, in 2003, the FAO adopted its Guidelines on the ecosystem approach to marine capture fisheries.[70]  The CBD in its Decision V/6[71] in 2000 described the ecosystem approach as based on the application of appropriate scientific methodologies focused on levels of biological organization which encompass the essential processes, functions and interactions amongst organisms and their environment.  The ecosystem approach applied to fisheries is also referenced by several agreements of Regional Fisheries Management Organisations (RFMOs) and in the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem of 2001.[72]

With regard to whales there has long been a discussion as to whether any benefit to commercial fisheries yields can come from the culling of whales, and more recently whether culling is actually intended by the “ecosystem approach”. A number of scientific and technical studies and papers have investigated marine predator-prey relations over the years in various bodies but have generally not been able to transform these into practical management decisions because of the immense complexities of the ecosystems under study and the inconclusive and sometimes contradictory findings.

Japan’s Institute for Cetacean Research (ICR) which conducts the scientific whaling programs prepared two papers in 1999 and 2000 which have laid the basis for their claims that fish are consuming large quantities of marine species that would otherwise be available for human consumption. The ICR’s findings have been severely critized by members of the IWC Scientific Commmittee as flawed and too simplistic. Nevertheless “investigating the role of whales in the ecosystem” has become the main stated objective of both of Japan’s current scientific whaling programs and has been a main theme of Japan’s approaches to new developing country members of the IWC, argued in terms of “food security”. The issue also drives Norway’s whaling policy, as described in the 2004 White Paper of the Norwegian Parliament which stated that “ecosystem-based management shall use resource-ecological arguments as the basis for determining the size of marine mammal populations”.  The St. Kitts Declaration adopted by simple majority at the IWC annual meeting in June 2006 interpreted the ecosystem approach as meaning that whales may need to be culled.[73]  A Declaration adopted in February, 2008 by the Western African States member of the IWC gathered with representatives of the Japanese Government in Rabat, Morocco emphasized the “natural competition between whale species and the populations of developing countries in the use of living marine resources.”[74]

Discussion

Despite the apparent consensus on the need to implement the “ecosystem approach” as a new paradigm, there are conflicting views as to what is meant by an ecosystem approach and the appropriate hierarchy of action.  The prevailing view is that the ecosystem approach “reverses the order of management priorities so that the objective of sustaining ecosystem structure and function supercedes the objective of maximizing fisheries yields”.[75]  This is in contrast to an interpretation which “appears to maintain the traditional order of management priorities [in which] maximizing the yields from industrial fisheries has priority over maintaining ecosystem function”.[76]  The latter view is in effect shorthand for ecosysyem manipulation (i.e. the removal or deliberate reduction of predators by culling) in an attempt to increase fisheries yields. For example, in a non-paper circulated in the margins of the 60^th IWC Annual Meeting in Santiago, discussing the possibility of a new instrument for the management of cetaceans as a substitute to the IWC, the Japanese delegation referred to “the possible reduction of cetacean populations as part of ecosystem management aimed at increasing yields from other fisheries”, as one of the goals of this new instrument.[77]

In the context of international law, UNCLOS and Agenda 21 both contain important provisions regarding the conservation of whales and the management of whaling, whales being given special status as both Highly Migratory Species (Articles 64 and 119) and as marine mammals (Articles 65 and 120) under which a state or international organization may ‘prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part” (that is, more strictly than required to achieved “optimum utilization”). UNCLOS paragraphs 61(4) and 119(1)(b) require fisheries for prey species to be regulated “with a view to maintaining or restoring populations of such associated or dependent species [including predators] above levels at which their reproduction may become seriously threatened.” This principle is also strongly supported in several articles of the 1995 Code of Conduct for Responsible Fisheries of the FAO.[78] The removal or reduction of predators in the hope of increasing the yields of commercial fisheries would be contrary to these principles and has never been shown to be practicable.

Initially on the initiative of the Governments of Japan and the USA, although Japan later did not participate, the IWC convened a Scientific Committee workshop on this issue in June 2002. The conclusion of this Modelling Workshop on Cetacean-Fishjeries Competition was that “the reality is that for no system at present are we in a position, in terms of data availability and model development, to be abvle to provide quantitatively predictive management advice on the impact of cetaceans on fisheries or fisheries on cetaceans”.[79] At its 2008 annual meeting the Scientific Committee “reaffirmed” the conclusion of the 2002 Workshop and “agree[d] that it may be some time before this situation changes.”

The 4^tèh World Conservation Congress of the International Union for the Conservation of Nature and Natural Resources (IUCN) in October 2008 discussed this issue, leading to a motion on the Relationship of Fisheries and Great Whales in which it was acknowledged by the delegations from Japan and Norway, inter alia, “that the great whales play no significant role in the current crisis affecting global fisheries.” The resolution does not suggest that culling whales is an acceptable method of fisheries control; on the contrary, it:

“ Urges [IUCN] members that are engaged in fisheries management to improve the status of commercial fish stocks and marine biodiversity including great whale populations by: 

“a. Relieving excessive fishing effort;

“b. Controlling and preventing wasteful and destructive fishing methods;

“c. Improving gear selectivity and fishing exploitation patterns; 

“d. Protecting habitat and endangered species; and/or

“e. Designating and effectively managing new and additional Marine Protected Areas.”

Furthermore, it “encourage[s] the use of non-lethal research methods by members engaged in studies on the biology of whales, including their feeding habits.”

91.30% of the governments and government agencies members of the IUCN and 97.90% of the NGOs that voted on this resolution supported it, reflecting a very broad consensus.[80]

Policy Options:

Environmental Threats to Cetaceans

The Issue

The ICRW was adopted in 1946 at a time when there was very little awareness of environmental threats to humans and nature. As the impacts of human induced environmental threats (such as those arising from toxic discharges and emissions into the environment, underwater noise pollution from shipping and military activities, habitat loss, overfishing and destructive fishing techniques, etc.) have become more evident the IWC has progressively expanded its mandate to take these issues into consideration. This included the creation of the IWC’s Conservation Committee which met for the first time in 2004.

Discussion

The reluctance of some whaling countries to put more emphasis on, and devote more resources to, addressing environmental threats to cetaceans, may in part be due to concerns over a possible loss by the IWC of its specific mandate to regulate whaling. This can be summarized as a fear that the whaling commission becomes a mere whale commission. If not enough attention is paid to the survival of whaling, critics of expanding the environmental threats agenda say, this activity could be lost altogether.

However, one can also argue that paying more attention to environmental threats may help convince countries seeking the effective conservation of whales that the scale of efforts to maintain the moratorium on commercial whaling is perhaps out of proportion with other contemporary and possibly more threatening causes of damage to whale populations.

The collection of data that can help in assessing the quality of whale meat and its implications for consumers’ health is also an important service that can arise from a better consideration of environmental threats.

Finally, as is pointed out in the section on climate change, the assessment of environmental threats and their impact on whale populations is an important part of the work that needs to be done to ensure that whale conservation and management policies are in line with the precautionary principle. Whales can play a unique role as “sentinel species” to give an indication of the health of the oceans.This is in the best interest of both those who are seeking the non-lethal use of whales, and of those advocating whaling.

Policy Options:

Ethics

The Issue

The ethical debate over whaling is multi-faceted. Several of the ethical arguments that have been raised over the years include the following:

a) Should whales be primarily considered as food, or do they have special qualities, including intelligence, social behavior, that give them an intrinsic value to be cherished and preserved, above any economic considerations?

b) Does any group of countries have a right to impose its values on others, especially with regard to culinary habits? 

c) Who, if anyone, has a right to ownership of whales, the majority of which live in international or transboundary waters, and to kill those whales, removing them from use by others such as through whale watching?

d) What level of resilience should the IWC strive for? Can we at any given point consider that a species or population has sufficiently recovered from past overexploitation, bearing in mind that it is (at least in most cases) impossible to return to original levels?  

e) Is it it is ethically sound to kill whales for scientific purposes when the necessary information for management purposes under the RMP can be collected by non-lethal means; and who should make that judgement?

f) Fairness and double-standards.

g) Animal welfare considerations.

h) Inter-generational rights and obligations, and the price that future generations will pay for mismanagement by past and present generations.

Discussion

It is always very difficult to address ethical issues in a global forum, given that values are culturally determined, and that these values vary from society to society and may also change over time.

The IWC was established to safeguard for future generations the great natural resources represented by whale stocks. This is consistent with the widespread ethical belief that it is wrong to bring any species to or close to extinction for economic benefit.  Although 60 years later, the need to prevent species extinction is a universally accepted ethical principle, this was not the case at the time the ICRW was adopted in 1946, and the convention was a landmark partly for this reason. In the 1940s and early 1950s, IWC negotiators did not need to address other ethical issues, because the IWC was formed by a small group of countries which – regardless of other regional, cultural and political differences – came together to regulate the whale oil and meat market of which they  were all a part.

Countries seeking a moratorium on commercial whaling in the 1970s were the first to bring new ethical issues to the IWC discussions.  They considered whales to be part of the common heritage of humankind. After the moratorium was adopted in 1982, it was the turn of the pro-whaling countries to raise issues of cultural diversity and tolerance for different values.

The question of ownership of whale resources has become more complex in the last decades with the increasing economic importance, especially in developing countries, of the non-lethal uses of whales (especially whale watching), along with increased scientific understanding of the role of species at the top of the food chain. Some governments argue that whale watching and whaling are not mutually exclusive, but others disagree (see section on Whale Watching, above).

In relation to the continuation of aboriginal subsistence whaling in Alaska, Greenland, Russia and St. Vincent, the question of fairness and double-standards has been raised, in particular by the Japanese Government. Fairness and the avoidance of double-standards is described by Japan as the core of its proposal to recognize a new category of  Small Type Coastal Whaling which would apply to four Japanese coastal communities and which would not be subject to the moratorium on commercial whaling (see, also, the section on Coastal Whaling). Some consider that differentiating aboriginal subsistence whaling from commercial whaling reflects a patronizing or even a racist attitude while others say that, on the contrary, this is motivated by a desire to avoid discrimination and to respect indigenous peoples.

How some value megafauna and the imposition of values on others is an issue that requires time and tolerance on both sides. Whether the right to hunt whales or the obligation to protect them will prevail in the end, or how the balance is drawn, is still an open question. In any case a solution will not be achieved by imposition but by persuasion.

Policy Options:

Financial contribution scheme

The issue

There are ongoing discussions about whether the formula for financial contributions should be adjusted to bring the system into alignment with the UN and/or other Multilateral Environmental Agreements. 

IWC members’ contributions to the budget originally were proportional to the benefit (the number of whales caught) received from whaling. As increasing numbers of members stopped whaling, and eventually with the adoption of the moratorium, the IWC funding mechanism had to be adapted. Currently Contracting Government contributions amount to £1.66 million.[81]  Until 2002, dues consisted of whaling and meeting attendance shares.[82]  The total budget was then divided by the number of all shares.[83]  A proposal to revise the contributions formula was made by Antigua and Barbuda at IWC/51 in Grenada in 1999. The Commission established a Contributions Task Force (CTF) at IWC/52 in Adelaide in 2000 to develop a revised set of principles to guide the IWC in developing an alternative contributions formula. The CTF identified four guiding principles: openness, stability, fairness and user pays.[84]

An Interim Measure was adopted in 2002 at IWC/54,[85] which includes a capacity-to-pay grouping to alleviate the financial burden of developing countries.  The Measure takes the pre-2002 formula for calculating contributions (Stage 1) and modifies the amounts according to capacity to pay and an additional factor for involvement in whaling (Stage 2).[86]

At IWC/54 in 2002 the Commission requested that whale watching and small cetaceans use also be taken into account, but in 2005 the Task Force determined that the data available for whale watching and small cetaceans was insufficient or too inconsistent to include in a contributions formula.[87]  The Task Force could not reach agreement on the percentage of the total contribution that each of the four elements of membership – wealth, capacity to pay, use, and meeting attendance - should represent.  Development of an index to represent the capacity to pay was also left undecided by the Task Force.  The work of the CTF was put on hold after IWC/55 in 2003 until the implications on the RMS could be assessed. Since work on an RMS reached an impasse, no further work has been done on the contributions.[88]  At IWC/59 in 2007, the Chair of the Finance and Administration (F&A) Committee questioned whether the Interim Measure could be agreed upon, and there has been no further progress.[89]

Discussion

Resolution of this issue requires agreement on balancing the four elements - wealth/capacity to pay, use, and meeting attendance.  It is thought that taking into account whales killed under the ‘scientific whaling’ exception or on the basis of reservations to the Convention would be counterproductive given the risk of conflicts of interests. The inclusion of catches under special permit would also represent the recognition that products arising from such catches may be traded, a matter upon which there is no consensus.   The inclusion of whale watching also raises the question of whether the ‘use’ of whales is restricted to killing them or whether it includes non-consumptive uses such as whale-watching.[90] 

If the moratorium on commercial whaling continues and the IWC broadens its activities, it might be more appropriate to adopt a formula used by MEAs such as the CBD rather than the types used by RFMOs, which include a significant component based on use.

Since two obstacles to reaching agreement on a new contributions formula have been the weight given to whaling and the role of whale watching, it is clear that on-going divisions within the IWC are hindering the CTF and agreement of a new formula.

Possible way forward:

Frequency of meetings

The issue

Although it has been the practice of the IWC to hold Annual Meetings, there is nothing in the Convention that requires the Commission to do so. The Schedule,[91] Rules of Procedure and Financial Regulations for the Commission and the Rules of Procedure for the Scientific Committee could all easily be amended.

In Resolution 2004-7[92] adopted at IWC/56, the Commission agreed to establish a Working Group that would investigate the implications of less frequent meetings of the IWC.  The resolution expressed three concerns:

·         Other international Conventions dealing with fisheries, trade in various species, biodiversity and the environment organise their affairs very effectively on the basis of biennial or triennial meetings;

·         The costs of the annual meetings of the IWC are increasing from year to year; and

·         Many Contracting Parties, especially from developing countries, have difficulty in meeting the high costs of attending or hosting annual meetings of the Commission.

The mandate for the working group included the implications of less frequent meetings for the term of office of the Chair and Vice-Chair of the Commission (currently three years), and implications for the work of the other Committees of the IWC, particularly the Scientific Committee.  The resolution also said the IWC should avoid holding more frequent inter-sessional meetings as a counter-balancing measure.

The Finance and Administration Committee at IWC/58 in 2006 noted that many delegations had spoken in favour of biennial meetings.[93]  Potential practical difficulties included: the setting and review of aboriginal subsistence quotas, and possibly, in the future, commercial whaling quotas; the current heavy program of work of the Scientific Committee would be difficult to progress if the Committee no longer met annually; there would be  further delays in reaching agreement on an RMS; and lengthening the period between Commission and Scientific Committee meetings might increase the number of intersessional meetings which could create difficulties for some, particularly from developing countries, to participate fully.

Most delegations speaking in favour at IWC/58 cited cost savings.[94]  Norway, Monaco, Austria, Iceland, France, Sweden, the Netherlands and Germany supported biennial meetings, while Brazil, Australia, Chile, Spain, Czech Republic, UK, Russian Federation, Argentina, Belgium, South Africa, USA and Luxembourg were more cautious, while not opposing biennial meetings outright.[95]  Concerns included review of quotas, the composition of the bureau or committee, workload of the Scientific Committee.  Japan opposed a change, saying that the IWC is a resource-management organisation where its business should be conducted on an annual basis.

In Anchorage at IWC/59,[96] a special session of the F&A Committee took place, but no consensus was reached.[97] One expressed concern was that in the current climate, efforts to break the current deadlock may be hindered by a change in the meeting frequency. The same concern was repeated in Santiago, and more particularly, some delegations felt that such a move was premature given the ongoing discussions on the future of the IWC. Again no consensus was reached.[98]  Nor has a venue for a 2010 meeting been yet proposed, let alone agreed. 

In addition, as part of the on-going discussion on the Future of the IWC, several delegations have expressed support for the notion that the Scientific Committee should not meet back to back with the Commission’s meeting, in order to allow policy-makers in government offices to fully consider the Scientific Committee’s report before the Commission deliberates. Holding biennial or triennial IWC meetings would facilitate new scheduling arrangements for the Scientific Committee.

CITES, CBD, CMS and Ramsar Conference of Parties meet biennially or triennially[99] while CCAMLR, IATTC and ICCAT meet annually, reflecting the need for fisheries organizations to set or review quotas every year.

Discussion

As noted by Professor Juma in his paper there is concern that the current annual meeting schedule does not allow for sufficient intersessional work.  His proposal that the Commission moves to holding meetings every two years, to provide more time for preparation, including broader consultations and extended bilateral contacts among members, has widespread support, provided that agreement can be reached on the frequency and venue of Scientific Committee meetings and on ways to undertake essential intersessional work such as permit approvals or infractions.

There are various practical implications of changing the meeting schedule, such as the need to move to a two-year Scientific Committee work program and a two-year budget cycle. A Standing Committee or Bureau, potentially either the current Advisory Committee or another body, could be needed to guide implementation and provide guidance to the Secretariat during the intersessional period.[100]  The Chair and Vice-Chair might need to move to two or four year terms. In the absence of changes to scientific whaling permits, which are likely as part of ongoing discussions, it could mean that proposals for scientific whaling permits are only considered by the Commission every second year, although the Scientific Committee, if it met annually, could consider proposals.  

Cost savings to the Commission would not be enormous[101] but cost savings to delegates and observers would be significant.

Policy Options:

Marine Protected Areas (MPAs)

The Issue

The issue of Marine Protected Areas (MPAs) has never been assigned a high priority at the IWC (other than whale sanctuaries which do not necessarily qualify as typical MPAs). However, during the establishment of the priority issues list, Sweden requested that MPAs be included on the list.

Article V of the Convention contains express provision for amendment of the Schedule to allow for “open and closed waters, including the designation of sanctuary areas.”  In 2003, the Scientific Committee discussed a mechanism for introducing MPA concepts such as critical habitat into IWC Sanctuaries and Sanctuary Proposals.  It was also suggested that consideration should be given to co-operating with appropriate international organisations to consider ways to evaluate non-whaling threats to cetaceans included within appropriate sanctuary/MPA boundaries, such as by creating linkages to international organisations that have the expertise to address non-whaling threats to cetaceans in the area covered by the sanctuary.[102]  It was noted that evaluating effectiveness in terms of whale conservation is most likely to be best achieved by considering protected areas as a network.[103]  Management of noise pollution may also benefit from MPAs.[104]  However, it has been observed that the Commission is limited by the Convention to regulations concerning whaling, so broader threats to cetaceans would require co-operation with other bodies, such as the IMO for ship strikes.[105]

The WSSD Johannesburg Program of Action (JPOA) called for the development of representative networks of marine protected areas (MPAs) by 2012.[106]  There is progress within the CBD on MPAs on the high seas: the 9th Conference of Parties to the CBD (COP-9) met in Bonn, Germany 16-30 May 2008. Its decision IX/20 on marine and coastal biodiversity[107] adopted scientific criteria for identifying ecologically or biologically significant marine areas in need of protection in open ocean waters and deep-sea habitats.  It called for progress by applying the scientific criteria and guidance to implement conservation and management measures, including representative networks of MPAs in areas beyond national jurisdiction.  COP9 also decided to develop scientific guidance for environmental impact assessments and strategic environmental assessment of activities which may have a significant adverse impact on marine biodiversity beyond national jurisdiction. Internationally, there are small steps towards MPAs in areas beyond national jurisdiction, including a very recent agreement in Busan, Korea, of the Western and Central Pacific Fisheries Commission (WCPFC) in December 2008, to prohibit tuna fishing in several areas of the high seas bounded by EEZs in 2010.

With specific reference to marine mammals, a first International Congress on Marine Mammals and Protected Areas is scheduled for early 2009 in which technical aspects of marine mammal management vis-a-vis MPAs will be discussed.  It is too soon to tell whether IWC-related policy matters will be discussed there or whether the IWC political process would be directly impacted by the outcome of this meeting.

Discussion

Previous discussions of MPAs have taken place in the Scientific Committee during Sanctuary evaluation sessions, but there is a wide difference of views on whether MPA management issues apply to IWC sanctuaries and the matter has not been pursued further in relation to IWC work. Therefore, it is unclear what if any bearing on the current negotiating process the issue of MPAs would have.

While MPAs are of obvious importance for ocean and fisheries conservation and for cetaceans in particular, most policy and management issues related to their existence at present fall under individual State jurisdiction, although there is progress in establishing MPAs in the high seas.  As IWC sanctuaries do not have a typical MPA structure nor are intended to work as such, it remains to be seen whether MPAs per se can be treated as an IWC policy issue.  MPAs could play a role in relation to issues such as noise management, and as MPAs become established in the high seas, the implications for whale conservation will be increasingly important.

Policy Options:

Procedural issues

The Issue

At the IWC Intersessional meeting held in Heathrow in March 2008, the need for a number of procedural improvements was identified.[108]  These include: reaching decisions by consensus; ensuring adequate notice of matters to be considered by the Commission; mutual respect for all Contracting Governments; promoting dialogue between Commission meetings; reviewing the composition and function of the Scientific Committee; improving participation including through an improved financial scheme, reviewing the role of the media; and improving the relationship with other intergovernmental organizations.[109] 

At IWC/60 in Santiago, the Commission agreed to items 1 (consensus)[110], 2 (notice),[111]  6 (improving participation) and 7 (media)[112] The Commission also introduced a 30-day ‘cooling off period’ for new entrants[113] and agreed on adding Spanish and French as working languages.[114]

Discussion

The Secretariat has issued a paper on possible procedural improvements.[115] It addresses the following issues:

Reaching decisions by consensus: The Commission agreed at Santiago to make every effort to reach consensus on matters of substance and that voting would be a last resort. This will take the form of an amendment to Rule E, to take effect at IWC/61.[116]

The Commission may also appoint a conciliator to reconcile differences to achieve consensus.[117]  Another agreement, to include a new rule C.3 to allow the Chair to suspend a meeting for a brief time to allow informal discussions, was also agreed.[118]  It has been suggested that it would be beneficial to reduce surprises and allow time for adequate consultation.[119]  In 2008, the Commission agreed a requirement for circulation of the full draft text of Schedule amendments and Resolutions, as well as recommendations. 60 days before the meeting,[120] although there is provision for waiving the 60 days where there have been “important developments that warrant action, as long as the text is circulated to Commissioners before the opening of the meeting.”

Delay before Entry into Force:  In Santiago in 2008, the Commission agreed that reducing the uncertainty over the voting intentions of new Contracting Governments would improve the predictability of the Commission’s annual meetings. It therefore decided to amend its Rules of Procedure to provide for a 30 day-delay before a new Party can vote.[121]  The rationale is to help new Parties become acquainted with procedures and the political implications of their membership.

Promoting Dialogue between Meetings: Various suggestions have been made to improve dialogue, including:  arranging a series of bilateral meetings, taking advantage of other international meetings to have meetings about IWC matters; and arranging meetings in a more informal setting.The only practical outcome these suggestions seem to have is for the Chair to be active in arranging smaller group dialogue where possible.

Scientific Committee: The Commission established an International Correspondence Group to address the issues relating to the Scientific Committee.

Improving the negotiation process:  Suggestions given, particularly by outside experts at the Heathrow Intersessional meeting in March 2008, included giving an undertaking that ‘nothing is agreed until everything is agreed’; using a mixture of open and closed sessions and using smaller groups (‘miniaturization’); cooling off periods, for instance by delaying a vote; using outside experts or mediators; involving Ministers and better integrating civil society.

Other suggestions which were made at the 2^nd Pew Whale Symposium held in Tokyo in January 2008 include being inclusive and ensuring transparency and participation; changing the setting from business as usual and formality; to innovate and think outside the box; and to develop, stick to and communicate a roadmap.  Other important factors to consider are creating an enabling environment, support for developing country participation, having an openness and willingness to listen, having an active steering committee, and having a commitment to find common ground as well as a willingness to disagree harmoniously.

Policy Options:

Sanctions

(See, also, section on Compliance and Monitoring)

The Issue

Whether the Commission should be able to impose sanctions in the case of non-compliance with the provisions of the Convention and Schedule is a contentious issue at the IWC.  Sanctions get to the heart of issues of sovereignty which are deeply felt and held valuable by many States. The tension is between enforcement mechanisms that protect the environment on the one hand, and preservation of State sovereignty on the other. 

The UK at IWC/58 in St Kitts in 2006 submitted a paper on options for compliance mechanisms, including sanctions.[122]  At IWC/59 in Anchorage in 2007,[123] the Chair reported that France believed the Commission should, as a body, be able to impose sanctions when infractions to the provisions of the Convention and Schedule occur.

The UK agreed that a compliance procedure with sanctions was important, so that if catch limits are exceeded the Commission as a body can take action. For the Netherlands as well, sanctions (e.g. loss of quota, loss of permits) in cases of non-compliance was important.

Discussion

The priority should be to prevent breaches rather than to punish infractions. Financial assistance, capacity building, technical assistance and education or awareness programmes should be a priority for the IWC. These should be followed by inspections and monitoring and persuasion or moral argument, followed in turn by sanctions such as suspension or removal of quotas[124] or licences, and even of voting rights. 

It is also worth noting that compliance and sanctions may also need to be applicable to non-whaling situations, such as compliance with whale watching standards, anti-entanglement or ship strike measures or measures applicable to sanctuaries or marine protected areas.  Therefore sanctions may need to be more adaptable and broader than RFMO measures.

Policy Options:

Science –Role of Science and Functioning of the Scientific Committee

The Issue

The IWC Scientific Committee is widely recognised as the international community’s most important forum for discussion and consideration of major conservation problems facing whales and small cetaceans.  It convenes cetacean experts from around the world but its access to scientists from developing countries is somewhat restricted as there are only limited funds for invited participants, and Contracting Parties are expected to cover their own costs for the participation of government scientists.

A number of issues regarding the functioning of the Scientific Committee are now under consideration by the Intersessional Correspondence Group on Issues Related to the Scientific Committee, established by decision of the 2008 IWC Annual Meeting. One question often raised concerns the extent to which the Scientific Committee’s limited time should be devoted to examining  issues related to present and future commercial and ‘scientific’ whaling, especially with the commercial whaling moratorium still in force, to the detriment of addressing the many non-whaling threats to cetaceans.

Although there are some issues such as special permit whaling that occupy considerable resources of the Scientific Committee with little hope of progress, there are many issues where there is general agreement that the Committee is functioning effectively.

Discussion

Science is fundamental to the work of the Commission and the role and work of the Scientific Committee should be maintained and supported. In keeping with the general view expressed in this paper regarding the need to modernize the IWC, various proposals for strengthening the Scientific Committee’s ability to address a broader mandate – for example, through Australia’s proposals to develop and implement conservation management plans and cooperative, non-lethal, long-term research programs – should be supported. Sufficient funding would need to be allocated by the Commission to make this possible, and attention should be paid to providing support to scientists from developing country Member States.

Policy Options

Secretariat – implications for role of/expertise

The Issue

Professor Juma, in his paper Strengthening Ocean Diplomacy,[125] noted that some of the activities aimed at improving the work of the Commission may have implications for the work and expertise within the Secretariat. Cooperation with other international bodies and tracking international negotiations in other regimes may require greater investment in legal expertise in the Secretariat.

Discussion

The future work of the IWC is likely to be of a different nature than the past work of the IWC. It is also likely to have a broader mandate.   In both cases, there are likely to be staffing and resource implications, which should not be allowed to impede progress.

The issue of legal expertise has been on the Commission’s Agenda since 2002[126] but there does not seem to be consensus on the need for an in-house legal adviser.

While appreciating the work of the Secretariat based in Cambridge, UK, it has often been noted that the predominance of one nationality and culture among its staff does not reflect the current global nature of the membership of the IWC. Although this can be a complex issue, more diversity could be sought by inviting member states and NGOs with observer status to the IWC to offer interns who could join the secretariat on secondment for given periods of time. This could also help improve mutual understanding and cooperation.

Policy options:

 Small cetaceans

The Issue

When the 1946 Convention was negotiated, an initial list of 8 species was included in the first Schedule by the Contracting Governments, defining those species as subject to the management decisions then being taken. Over decades the numbers of species so listed has more than doubled and now stands at 20, partly as a result of improved species identification, partly as a result of management measures being extended to previously unlisted species, often as a result of recommendations originating within the Scientific Committee’s Small Cetaceans Sub-Committee. The main disagreement among IWC Member States regarding the IWC’s competence to manage the exploitation of small cetacean species has involved differing interpretations of an Annex to the Final Act of the 1946 Negotiating Conference, called the Table of Nomenclature, in which are listed the scientific names and the corresponding common names in several European languages, of a number of species of cetaceans. This list is cited by some IWC Member States (especially Denmark) as representing an exhaustive list of the species the catching of which can be regulated by the IWC.  Other members argue, instead, that the Table of Nomenclature has no legally binding character and was included in the Final Act merely as an attempt to secure consistency of terminology in references to whales, and that this was borne out by the Verbatim Record of the 1946 Conference. Paragraphs 1(a) and (b) of the Schedule include some species not listed in the Annex to the Final Act, but exclude others that are so listed.[127] The killer whale, included in the 1980 moratorium on pelagic whaling (paragraph 10(d)), was cited as one such example but the Commission was unable to reach consensus as to whether this represented a precedent or not. The consequence of this disagreement, and because the ICRW contains no provision for securing independent legal advice or adjudication, is that the IWC in practice only adopts regulations applying to species on which there is a consensus of participants in meetings, if not of Parties.

In 1946, the primary mandate of ICRW negotiators was to preempt conflicts between whaling countries with regard to the distribution of the great whale resources – at the time a strategic commodity – and small cetaceans clearly did not fall into that category of concern at the time. Later, however, concerns over the fate of small cetaceans increased: some of the largest direct kills of cetaceans worldwide affect small cetaceans, such as Dall’s porpoise in Japan, and the use of fishing gear such as driftnets and purse seines,  and overfishing of fish stocks have caused significant adverse impacts on several small cetacean species.

Discussion

Due to the difference in opinion as to whether the list in the Table of Nomenclature is exhaustive or descriptive, the competence of the IWC with regard to small cetaceans has been debated since the Scientific Committee formed its Small Cetaceans Sub-Committee and began to discuss small cetaceans in the mid 1970s.[128]  In 1980, an IWC resolution recommended that the Scientific Committee continue to study the status of small cetaceans, with particular refence to beluga and narwhal stocks.[129]  Since then the IWC has been unable to fully address the issue of small cetaceans, which currently include not only dolphins and porpoises but also many large toothed whales subject to significant catches (such as Baird’s beaked whale, which is bigger than a minke whale).

A Working Group was established in 1993[130] to consider a mechanism to address small cetaceans, but could not reach consensus on the question of competence.  A 1994 resolution on Small Cetaceans[131] recommended that work on small cetaceans be continued, and that the Scientific Committee of the IWC could consider the scientific evidence and make recommendations on the management of all cetaceans, including ‘small’ ones to Contracting Parties, without prejudice to the rights of coastal states. The question is therefore whether the IWC can accept competence for regulating catches of all cetacean species.

For a number of years, many Latin American countries, including some historically conservationist ones such as Mexico, have adhered to the view that ‘small’ cetaceans were a matter of sovereignty (under the disputed assumption that they comprise mostly coastal species and populations, hence living in EEZ and territorial waters, subject to national jurisdiction only). These views were revisited during the 1990s and currently no Latin American country subscribes to it, although some (like Peru) have discrete reservations regarding management advice for dolphins as they face illegal, but hard to curtail, directed hunts for dolphins in their waters.

While a small majority of IWC members currently appear to subscribe to the understanding that the ICRW extends to all cetaceans, no formal action, other than the passage of non-binding resolutions, has been taken to assert this authority or to compel those taking ‘small’ cetaceans to subject their catches to IWC regulation.

While controversies over small cetaceans are a source of continued political tension at the IWC and indeed have serious conservation consequences for the unregulated species, they do not have the same political standing as large whales in the current discussions on the future of the IWC.

As part of a ‘package’ whereby the whaling countries would benefit from some level of agreement for limited, coastal whaling, IWC competence over all cetacean species should be discussed. In this case, the IWC would have to be prepared to regulate and set catch limits for several species not currently considered, and this may pose additional problems for some countries advocating full protection of cetaceans. It would only be an option if the IWC were modernized to function as a modern MEA and could thus gain the mandate and authority to address cetaceans across the board, applying modern environmental management techniques and policies.

Policy Options:

Socio-economic implications (of the moratorium)

The Issue

When the moratorium on commercial whaling was adopted in 1982, concerns about the  ‘socio-economic implications’ of the decision on whaling countries were raised, mainly by Japan and  developing countries with joint-venture coastal whaling operations controlled by Japan, namely Brazil, Chile and Peru. They argued that the decision would cause undue economic hardship on coastal communities. To address this problem, Brazil proposed the establishment of a specific Working Group that met until IWC/47 in 1995. In due course, Latin American countries abandoned whaling and turned strongly pro-moratorium, and the issue lost political importance.

Japan, however, has for many years attempted to obtain recognition for ‘small-type coastal whaling’ as a new category of whaling that could be exempted from the moratorium. This has been done through a plenary agenda item called ’Socio-Economic Implications and Small-Type Whaling’, under which Japan has sought the approval of an ‘interim relief quota’ for the four whaling towns that were the home of Japan’s Small-Type Coastal Whaling operations, which it claims are suffering from great distress as a result of the moratorium. Indeed the subject of ‘relief quotas’ has dominated discussions under this item and broader socio-economic issues in relation to whaling or whale resource use are no longer addressed. While Japan has made its case through government and academic papers[132] submitted to the Working Group,[133] until now it has failed to significantly advance its claims. 

Discussion

It is unclear whether any proposal will be made to address this issue as part of the negotiating process on the future of the IWC.  There seems to be, for the reasons outlined above, no “socio-economic implications” issue in isolation from the Japanese coastal whaling interests.  There is thus no need to discuss this issue as an item separate from the discussion on coastal whaling above.

Possible way forward: