INTRODUCTION

This Policy Guide aims to address twelve key issues under discussion by the International Whaling Commission (IWC) as a means of breaking the current impasse over commercial whaling.  The IWC has been engaged in discussions about the future of the organization since 2007, slated to continue until at least June 2009.

Document IWC/60/24, the “Chair’s summary of the outcome of discussions on the future of the IWC” (60th annual meeting, June 2008, Santiago, Chile) constitutes a road map for these discussions.^[1] A Small Working Group (SWG) comprising 24 countries was formed to examine 33 issues “identified as being of importance to one or more Contracting Governments in relation to the future of the IWC.” The SWG held its first meeting in Tampa, USA in September, 2008, and its second meeting in Cambridge, UK in December, 2008. A third meeting is scheduled in Honolulu, USA on 23-24 January, 2009. The progress of the SWG will be reported to an Intersessional Meeting of the IWC, to be held in Rome 9-11 March, 2009.  A fourth meeting of the SWG is scheduled immediately afterwards, on 12-13 March also in Rome. The next annual meeting of the IWC, coinciding with the 60^th anniversary of its first meeting, will take place in Madeira, Portugal on 22-26 June, 2009.

The Pew Environment Group has contributed to discussions on the future of the IWC by holding two special Symposia bringing together a broad array of interests and expertise to examine possible ways forward.  This effort is culminating with the creation of a special commission of international dignitaries meeting in Lisbon, Portugal 9-10 February, 2009. 

The membership of the Pew Whales Commission is made up largely of individuals who are not full time experts on whale conservation policy and/or science. This was a deliberate choice based on the success of this approach at the New York and Tokyo Symposia. For the process on its future, the IWC adopted a similar approach, and asked several outside facilitators to be involved. The SWG is now being facilitated by Alvaro de Soto, a former senior UN negotiator with no specialization on whaling. Mindful of the rich knowledge and experience of whale conservation experts, several – representing different sensibilities and interests – have been asked to participate in Lisbon as observers.

84 countries are currently members of the IWC.^[2] Little more than a quarter of them are members of the SWG, representing a balance between regions and views on the whaling issue: Antigua & Barbuda, Argentina, Australia, Brazil, Cameroon, Chile, China, Costa Rica, Côte d’Ivoire, Czech Republic, Denmark, France, Germany, Guinea, Iceland, Italy, Japan, Republic of Korea, Mexico, Netherlands, New Zealand, Norway, Palau, Panama, Peru, St Kitts & Nevis, St Lucia, South Africa, Sweden, UK and USA.

The 33 elements or issues are listed (in alphabetic order) below.  The Pew Whales Commission will focus on 12 of these, identified in bold and underlined:  

 

·         Advisory/Standing Committee or Bureau (need for) ·         Animal welfare ·         Bycatch and infractions ·         Civil society (involvement of) ·         Climate change ·         Coastal whaling (i.e. within EEZ) ·         Commercial whaling moratorium ·         Compliance and monitoring ·         Conservation Committee ·         Conservation management plans ·         Convention (purpose of) ·         Co-operative non-lethal research programmes ·         Data provision ·         Developments in ocean governance ·         Ecosystem-based approach to management ·         Environmental threats to cetaceans ·         Ethics ·         Financial contribution scheme ·         Frequency of meetings

·         Marine Protected Areas (MPAs) ·         Objections and reservations ·         Procedural issues (improvements to) ·         Research under special permit ·         Revised Management Procedure (RMP) ·         Revised Management Scheme (RMS) ·         Sanctions ·         Sanctuaries ·         Science (role of science and functioning of Scientific Committee) ·         Secretariat (implications for role of/expertise)Small cetaceans ·         Socio-economic implications  ·         Trade restrictions ·         Whale watching/Non-lethal use.

 

By way of background, the Pew Environment Group has reviewed all 33 elements. This comprehensive review is available in two parts: in this Policy Guide for the Pew Whales Commission covering the 12 key issues that need to be resolved to break the IWC impasse, and in a second document covering the other 21 issues identified by the IWC. Both documents are available on the website of the Pew Whales Commission.

For the purpose of the meeting of the Pew Whales Commission, 12 key issues are highlighted for action in 2009 as part of the way forward for the IWC. For each issue, some possible policy options (which may or may not be mutually exclusive) are presented.  In some cases, a single option is presented as a possible way forward.

What is most important, of course, is how individual options could be combined to resolve the impasse that characterizes the whaling issue. Not all are necessarily desirable or politically possible though all are theoretically feasible.^[3]  And the options presented in this paper are not an exhaustive list. We invite interested stakeholders to consider the options listed herein, comment on them, and/or propose additional ideas. We would suggest that they be considered in the context of three possible ways forward described below, although they are most relevant to consideration of the third item:

 

1. "Status quo" maintained: but that status quo is not static and therefore would have to be held at its current state or some other agreed state by an  appropriate agreement among all parties;
2. Commercial whaling brought to an end (including “scientific whaling” from which the products enter commerce), either by the whaling countries deciding, for their own political, operational, economic and/or diplomatic reasons, or as part of a negotiation or 'trade-off' for a domestic gain not related to whaling, to cease or phase-out all current whaling activities and to renounce future ones.
3. Negotiated IWC authorization of limited commercial whaling: under strict rules for catch limits and for compliance with IWC decisions limiting it by geographical/regional  limits (e.g. through the creation of additional sanctuaries, or by closure of an entire hemisphere), by species (e.g. selected or types of whales), by zone (e.g. high seas or EEZs or other boundaries of national jurisdictions) or by type (e.g. prohibition of pelagic whaling, defined as whaling in which carcasses are processed at sea on vessels), or by a combination of any or all of these.

TWELVE ISSUES FOR THE PEW WHALES COMMISSION

Bycatch and infractions

The Issue

This is a complex issue, touching upon several of the key elements that are generally perceived to be the basis of any eventual solution. “Bycatch” is the name given to the unintentional catch of non-target species, including cetaceans in fishing gear. Hundreds of thousands of large and small cetaceans are estimated to be killed as bycatch each year, making this a major conservation threat for cetaceans worldwide and one that is not yet being fully addressed by the IWC.

Not all bycatch is thought to be accidental, however. Domestic legislation in Japan and the Republic of Korea, allowing the meat and products from whales killed by entanglement in fishing gear to be put on the commercial market, has resulted in significant increases in the numbers of whales reported killed - some allege intentionally - using nets. DNA analysis of whale meat bought in local markets has given an indication of the scale of the problem and of the species involved. It involves one or more stocks of minke whales that would be the focus of proposals for “coastal whaling” by Japan and the Republic of Korea.

 As determined by Article IX of the International Convention for the Regulation of Whaling (ICRW), each Contracting Government is obliged to report infractions and any penalties levied under domestic legislation to the IWC.  If the whaling is not intentional and the whales are retained and sold, this would represent a breach of the IWC’s 2001 resolution, which recommends that if the whale cannot be released alive, there shall be no commercial exchange of incidentally-captured whales for which no catch limit has been set by the Commission.

The IWC itself, however, has no power to impose penalties for infractions to the rules. This is widely considered to be a weakness in the IWC’s ability to enforce its decisions, and options to remedy the problem are considered in this document in the section on Compliance and Monitoring.  There is a long history of infractions of IWC rules, and this has contributed to the widely held lack of confidence in catch histories reported by the whaling industry. 

Discussion

The bycatch of cetaceans in fishing gear is known to be a major conservation problem with an estimate of more than 300,000 cetaceans (large and small) killed each year.^[4] The problem occurs principally with gillnets although cetacean deaths also occur in trawl nets, purse and beach seines and longline gear.^[5] Entanglement in gillnets has brought the vaquita, the world’s smallest cetacean, found only in the northern Gulf of California, to the point of  imminent extinction;  mortality in fishing gear also threatens the extremely rare Western North Pacific gray whale.  Bycatch occurs in fishing operations of many IWC Member States and is not a problem associated only with the whaling countries.

The IWC’s Scientific Committee has a sub-committee on Estimation of Bycatch and Other Human-Induced Mortality. This provides an international forum for collating and analyzing data on bycatch, with emphasis on baleen whales. It was created in part to allow the IWC to meet the “total catches over time” provision of the Revised Management Procedure (RMP), ensuring that all human-induced mortalities are included in any catch limit calculations under the RMP.  Countries are asked to present bycatch information in their “Progress Reports” to the Scientific Committee, but this reporting is incomplete (only 19 countries presented “Progress Reports” in 2008) and the reports are not always in a standard format. Another source of information comes from independent “market sampling”, whereby DNA samples are taken from whale meat on sale in markets in Japan and Republic of Korea.

  While the IWC has considered many of the scientific aspects of the issue, including possible mitigation strategies, the Commission itself has not devised a means of reducing the number of cetaceans killed. The issue has been proposed for consideration by the IWC Conservation Committee. In addition, the animal welfare aspects (time to death) of entanglement will be considered at an IWC workshop in 2009. 

In 2001 the IWC passed a resolution recommending that “If the whale cannot be released alive […]

1. There shall be no commercial exchange of incidentally-captured whales for which no catch limit has been set by the Commission;
2. If an incidentally-captured whale is subject to a catch limit awarded under the RMP, and the sovereign government wishes to permit commercial exchange for that whale, then:
1. A DNA sample must be forwarded to the appropriate diagnostic register;
2. The incidental capture must be counted against the overall quota for that species or stock.”

Intentional “bycatch” or “net whaling”

Some “bycatch” is thought by some commentators to be deliberate. Whales in the East Sea/Sea of Japan are threatened by high levels of entanglement in fishing nets and some unknown level of illegal hunting. Although regulations in both Japan and the Republic of Korea prohibit killing whales deliberately with nets, the sale of whales taken as ‘bycatch’ sustains a thriving commercial market in the southeast region of the Korean peninsula and contributes to the larger whale meat market in Japan. Because even a small minke whale is reportedly worth US$30-40,000 on the Korean wholesale market (and presumably more in Japan), there is no incentive for fishermen to reduce bycatch and a considerable incentive to engage in directed illegal hunting or intentional ‘net whaling.’ Although both South Korea and Japan require the reporting of whales killed as bycatch, the enforcement of this regulation and the accuracy of these records are questionable. The Government of Korea has confirmed a number of illegal catches in recent years but independent estimates based on DNA profiling of whale meat in commercial markets indicate that the true magnitude of unregulated takes is nearly twice as large as the official reports.  In January, 2008 50 tonnes of whale meat (reported to be from 60 minke whales) were seized by Korean police and 70 persons were investigated, including fishermen, distributors and operators of 46 whale meat restaurants in the Ulsan region. This seizure confirms a widespread and organized program of illegal whaling.

The DNA analyses have also revealed the sale of a number of protected species of whale in South Korea and Japan, including the very rare Western North Pacific gray whale. It was unclear whether the sources of the whale meat were legal or illegal (by-catch, strandings or meat from stockpiles), thus highlighting the poor regulation of Japan‘s marketplace.

As a result of growing concern about high levels of coastal bycatch in South Korea and Japan and the uncertainty of stock structure in the western North Pacific minke whales, the Scientific Committee endorsed a new in-depth assessment, with a focus on the ‘J’ stock found primarily in the Sea of Japan. This was delayed in 2008 when scientists from Japan announced that they were not in a position to complete the work necessary. The ‘J’ stock was exploited intensively by the Republic of Korea and to a lesser extent by Japan between 1962 and 1986, with nearly 14,000 animals taken during this period. In 1983, the IWC Scientific Committee concluded that the ‘J’ stock was depleted, and the stock was subsequently declared a “Protection Stock” by the Commission under its existing management procedure. At recent meetings of the Scientific Committee, evidence has been provided of low abundance. The existence of multiple stocks, the takes reported by the Governments of Japan and South Korea and the results of market surveys indicating further unreported takes provide additional cause for concern for the survival of this population, and has important consequences for consideration of authorized “coastal whaling” catch limits in the region.

Policy Options

Coastal whaling (i.e. within EEZ)

The Issue

The IWC has chosen to consider ‘coastal whaling’ as whaling within Exclusive Economic Zones (EEZs), hence the title of this section. However, ’coastal whaling’ is not defined in the ICRW or the Schedule and can be interpreted in various ways. It is commonly perceived as whale hunting carried out from catcher boats operating from land-based processing stations.  To some it is a term used to describe Northern Hemisphere whaling, although some of that takes place hundreds of miles from shore and, as in the case of some Norwegian and Japanese whaling, involves processing whales at sea. A decision to consider “coastal whaling” as whaling within EEZs should  not detract from the basic principle contained in the ICRW^[6] that the Convention applies “to all waters where whaling is prosecuted” (that is, regardless of the juridical status of those waters). Nor should it detract from the fact that whales are Highly Migratory Species as classified in UNCLOS Articles 64 and 119, moving in their lifetimes between territorial waters, EEZs and high seas.

The provisions contained in the IWC Schedule that refer to whaling operations are framed largely in terms of “factory ship” operations (including “whale catchers attached thereto”) and “land station” operations (including “whale catchers attached thereto”). Some provisions refer to “pelagic” whaling, which in IWC usage means operations involving factory ships or specially modified catcher vessels aboard which whale carcasses are initially processed.  “Pelagic whaling” is sometimes erroneously thought to mean high seas whaling; in fact, pelagic whaling can be and is also carried out within EEZs; it refers to where the whales are processed, not where they are caught. The IWC has maintained since 1979 a prohibition on all pelagic whaling except that for minke whales.^[7] Earlier decisions which are still binding also prohibit pelagic whaling in the tropics, sub-tropics and temperate waters worldwide, except in the Northwestern Pacific.

The only category of whaling that is explicitly defined in the IWC Schedule is ‘small-type whaling,’ that is: “Catching operations using powered vessels with mounted harpoon guns hunting exclusively for minke, bottlenose, beaked, pilot or killer whales.” This definition applies to Norwegian minke whaling (which is mostly pelagic whaling, occurring in both EEZs and high seas), Icelandic minke whaling, and Japan’s mixed-species “Small-Type Coastal Whaling” in the North Pacific. For domestic administrative purposes, Japan’s whaling in the North Pacific has long been divided into two categories: Small-Type Coastal Whaling (STCW) and Large-Type Coastal Whaling (LTCW). (These are not IWC terms.) The latter, involving large, 600-750+ ton vessels ranging up to a hundred miles or more from Japan into the North Pacific for catches of the larger species, mostly sperm whales, was ended when Japan withdrew its objection to the moratorium with effect from 1987. As recently as 2006 Japan submitted proposals to the IWC for commercial catch limits for minke and also Bryde’s whales in the Western North Pacific which formerly were targeted by these operations.  STCW, on the other hand, involves smaller vessels (average 36 tons) operating not more than 50 miles from shore, usually much closer, and based in the four coastal towns (Abashiri, Ayukawa, Taiji and Wadaura) where there is a long history of hunting cetaceans: they catch minke whales and some small cetaceans, catches of which are not regulated by the IWC, particularly Baird’s beaked whales and pilot whales.

Since the late 1980s Japan has requested a special “relief” allocation normally of 50 minke whales for these four communities, and Japanese officials repeatedly single out a positive resolution of the needs of these whaling towns as a fundamental element of any negotiated package in the IWC.  The “relief” request would involve making an exception to the moratorium, since commercial elements are considered an integral part of the operation, and for this reason it has been rejected repeatedly by the like-minded countries. Japan has tried to minimize the commercial elements of the Japanese coastal catch ‘relief’ proposals in recent years in order to make the proposal more acceptable but some commercial elements inevitably remain.  

Since 2002 Japan has added a “coastal element” to its JARPN II research programme, granting licenses to the STCW vessels to hunt minke whales again for the first time since Japan withdrew its objection to the commercial whaling moratorium with effect from 1988. Initially the STCW vessels were authorized to catch 60 minke whales per year, but in 2005 this number was increased to 120 minke whales annually (i.e. more than double the number requested for the “relief allocation”). A considerable number of minke whales are also killed in these same areas as bycatch, and the meat and products from them enter the local markets as well.  It is not clear whether Japan is also seeking a revival of the LTCW operations in future, although a consideration of “coastal whaling” as whaling with the EEZ would not rule this out. At present the rest of the JARPN II catches are being taken by the pelagic fleet that, in the Southern Hemisphere summer months, is used in Japan’s other scientific whaling program, JARPA II, in the Antarctic.

In Norway, minke whaling takes place primarily from specially adapted fishing vessels some 40-80 feet in length that serve as combined catcher/factory vessels, operating out of various coastal towns in the north of the country.  A few larger vessels travel to the more distant Spitsbergen and Jan Mayen Island, several hundred miles from mainland Norway, though are still whaling, strictly speaking, within Norway’s EEZ. For the last few years, the government has set annual catch limits of over 1000 minke whales under its objection to the moratorium, but in practice its whaling industry has concentrated on whaling in the more accessible areas close to the Norwegian coastline and has had difficulties in selling the meat.  This has resulted in catches of around half of the total limit set by the Norwegian government.  Norway seems comfortable with the current situation of whaling under objection and does not appear willing to engage in serious negotiations about putting its catches back under the control of the IWC. However, Norway has also initiated a process within the Scientific Committee to review aspects of the RMP with a view to allowing higher catches.

 In Iceland  there is considerable domestic controversy over whaling which is likely to be heightened as Iceland considers possible future membership of the EU, which prohibits commercial whaling  in the waters of EU member states. The future of whaling in Iceland is also linked to the possibility to export whale meat to Japan as there is a very limited domestic market.

Discussion

Many believe that addressing coastal whaling and/or various forms of small-type whaling, along with resolution of the issue of special permits (also known as ‘scientific whaling’) will be central to any broad agreement among all parties at the IWC, unless the governments of the three whaling countries concerned make unilateral decisions to cease or phase-out these activities.

In the early days of “modern whaling”^[8], whaling powers, mostly Northern Hemisphere countries, established land stations in distant countries, especially in the Southern Hemisphere to gain access to the Antarctic and sub-Antarctic whaling grounds. During the second half of the 20^th Century, Japan established joint ventures with whalers in some Latin American countries such as Brazil, Chile and Peru, as well as in Spain and in the Republic of Korea.  These operations depleted many populations of seasonally available large whale species.

The issue of coastal whaling touches upon several complex matters, ranging from national sovereignty, provisions in the UN Convention on the Law of the Sea (UNCLOS) and the sustainability of catches from particular populations/stocks.  In this regard, it is important to note that the first proposal to try and resolve the IWC impasse by restricting catches to “coastal whaling” was made through the so-called Irish Proposal, presented formally by the Irish Commissioner in 1997 and which read:

“quotas should be restricted to existing coastal whaling and all other waters should be declared a global  sanctuary. Products would be for local consumption only, with no international trade. Lethal scientific permit whaling would be phased out, and the impacts of whale watching regulated.”

The Irish proposal did not define “coastal whaling” and spoke, erroneously, of “quotas” since the IWC determines only “catch limits”, quotas being then the national shares of the overall catch limit.  The proposal referred to “existing” [coastal whaling] in an attempt to limit authorized operations only to those countries engaging in commercial whaling/whaling under special permits at the time (Japan, Iceland and Norway), hoping thus to avoid the expansion of commercial whaling to other countries. Whether special considerations made for a few countries could then be withheld from others with, in the view of those others, equally valid claims is not at all clear. The Republic of Korea is one country often cited as one that would be likely to want to benefit from such an arrangement as well, but in future there could be others. It should further be recalled that under ICRW Article V(2)(c) amendments to the Schedule (e.g. catch limits or other regulatory decisions) “shall not involve restrictions on the number or nationality of factory ships or land stations, nor allocate specific quotas to any factory ship or land station or to any group of factory ships or land stations”, so individual whaling operations could not be specified in any final Schedule amendment related to this scenario, unless agreed otherwise.

The Irish proposal did not receive much support from either side of the whaling debate. Whaling countries did not see any advantage in relinquishing rights to take whales in most of the world's oceans and the proposed phasing out of scientific whaling was especially controversial.  Non-whaling nations held out the hope that commercial whaling would die of its own accord for economic reasons, if not through sustained political pressure.  Elements of the Irish proposal are now being revisited, albeit informally, in a new light.

In 2002, the Commission asked its Scientific Committee to identify the management implications of restricting whaling to within EEZs, in terms of risk and yield.^[9]   This question was considered at a special Commissioners’ meeting in Berlin in 2003 chaired by Henrik Fischer.^[10] The Committee said it was aware of the vulnerability of species to whaling close to the coast and took this into account in the process of conducting Implementation Simulation Trials before recommending to the Commission a variant of the Revised Management Procedure (RMP).^[11] The Committee advised that “under the RMP, the restriction of whaling to waters within 200 miles of the coast will have no effect on catches permitted in Small Areas that fall entirely or partly within 200 miles of the coast. However, because no catches would  take place in Small Areas entirely outside 200 miles of the coast, this additional management measure would reduce risk (to beyond that incorporated in the RMP) but also reduce yield.”^[12]  In other words, when or if applying the RMP, restricting whaling to EEZs would reduce the risk to whale populations, below that inherent in the RMP, as well as the yield, or whales caught.

Apart from whaling under special permit, there is no real prospect of large-scale high seas commercial whaling operations resuming in the foreseeable future.  Thus, from a logistical, economical and political standpoint, coastal whaling or land-station whaling are the most realistic options for continuing a viable whaling industry Some have speculated that Japan may be willing to ‘trade’ or reduce its whaling under special permit in exchange for a limited coastal catch authorized by the IWC.  If this is so, it could have far-reaching implications for the future of the IWC.  It would mean that, in practice, most or all whaling activities would be confined to jurisdictional waters of a very limited number of nations, thus potentially lending such operations to much closer scrutiny, both scientific and for enforcement/compliance purposes, than any current high seas operation.  If this is achieved with an IWC-agreed and IWC-supervised catch limit, it would establish a precedent which could be used to encourage Norway to revert to IWC-approved whaling and abandon its unilateral approach.

For many of the countries that have until now supported maintenance of the commercial whaling moratorium, participating in any IWC decision authorizing any commercial whaling would be a substantial and difficult concession, often in conflict with domestic public opinion. The gains for whale conservation would have to be significant for this to be possible. 

Many IWC members who support the moratorium would in principle support an agreement that ended whaling in the Southern Hemisphere.  However, many of these same countries, (particularly Latin America where whaling is often associated with the darker days of military dictatorships), strongly disapprove of the relatively recent Japanese ‘satellite’ whaling, or whaling which took place in  locations in countries outside Japan on behalf of Japan. They are wary that agreements on the resumption of coastal commercial whaling will subject them to Japanese pressure to re-establish similar ‘satellite’ whaling stations in their countries or elsewhere in the Southern Hemisphere, especially in warmer waters with breeding areas.  Given the history of Japanese ‘vote consolidation’ targeting developing countries, they worry that this could further serve to destabilize sovereign conservation and non-lethal use policies in the developing world.  Thus, the Irish Proposal´s explicit reference to ‘existing coastal whaling’ would need to be re-examined though remains problematic.

        The Irish proposal’s call for whale products to be “for local consumption only”, if such a formulation could be found (including for example by prohibiting sales even in domestic supermarkets) it would be key to prevent any international trade in whale meat.  A commitment to prohibit international trade would overlap with the competence of the Convention on International Trade of Endangered Species (CITES)^[13], but this should not be an obstacle, and could be cemented by parallel actions in that body [See section on Trade Restrictions]. 

 Concerns over the status of the minke whale stock(s) that would be the targets of any IWC-authorized coastal whaling by Japan and Korea also need to be further explored and addressed before any final decision could be considered.

Policy Options

Commercial whaling moratorium

The Issue

As a result of documented past abuses by the whaling industry, work within the Scientific Committee showing that whale stocks could not be protected from depletion under the management regime then in effect, and the ensuing worldwide anti-whaling campaign, the IWC adopted in 1982 a decision setting all remaining commercial whaling catch limits to zero for an indefinite period (a number of species and populations had already been protected by earlier decisions). Commonly known as the commercial whaling moratorium, the decision is codified in Paragraph 10(e) of the IWC Schedule, which reads:

“Notwithstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based on the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits.”

Japan, USSR/Russia, Norway and Peru lodged formal objections to this decision in accordance with Article V(3) of the ICRW and therefore were not bound by it.  Japan and Peru later withdrew their objections, leaving only Russia and Norway not legally bound by the moratorium.  The USSR/Russia ceased whaling in 1987.  Iceland withdrew from the IWC but returned in 2002 with a reservation to 10(e) as part of its instrument of adherence to the Convention^[14], and recommenced whaling under that reservation in 2006.  Norway and Iceland set their catch quotas and target species unilaterally.

The whaling countries and their allies have argued repeatedly that the decision was not taken in accordance with ‘scientific advice,’ and that its review in 1990 was mandatory and therefore its maintenance beyond that year is unacceptable, if not illegal. The Scientific Committee’s “advice” on the various proposals for cessations and moratoria put to it in the late 1970s/early 1980s was divided, as it usually is on controversial matters, reflecting its composition. But some members of the Scientific Committee, faced with evidence – now widely accepted – that the existing management procedure at the time could not protect exploited populations from being depleted, did recommend that the IWC adopt a negotiated pause in commercial whaling, arguing, for example, that “an objective view of our ability—or lack of ability—to provide advice with sufficient accuracy and needed caution leads to the conclusion that a negotiated (interim) cessation of commercial whaling, until such time as improvements have been made to methods of assessment, is a reasonable alternative to the other methods that have been tried, to ensure the productivity of whale resources.”^[15] The mandated 1990 “review” was of the effects of the moratorium on whale stocks, with no obligation to lift the moratorium at that time. In fact, the Scientific Committee attempted to undertake that review, but found that it was unable to offer any advice as to the effects of the moratorium on various whale stocks, noting that this was “influenced by: the length of time for which the 1982 decision had been in effect, the population biology of larger whales, the precision and frequency of surveys to estimate abundance and the reliability of the population models used for prediction.”^[16]  More recently there is evidence that some whale populations that were decimated in the early decades of 20^th Century commercial whaling are now showing signs of recovery (such as the Eastern Pacific gray whale, and some populations of humpbacks), but these have been under protection for far longer than that provided by the 1982 decision. For some whale populations, such as the Northeast Atlantic and Southern Hemisphere minke whales, the zero catch limits set by the 1982 decision have never been realized because of on-going whaling under objection or special permit.  Pro-moratorium countries also argue that while the IWC Scientific Committee is still undertaking the ‘comprehensive assessment’ of whale stocks worldwide – a highly complex and time-consuming task in itself – there was no obligation to overturn the moratorium on any given date.  They point out that new (non-lethal) uses and other serious threats to whales such as the impact of climate change have emerged since the decision was adopted, thereby warranting a precautionary approach and the maintenance of the moratorium.

The adoption of the Revised Management Procedure (RMP) in 1994 gave rise to calls to lift the moratorium, but many see the Revised Management Scheme (RMS), a monitoring, control and supervision system, as an indispensable complement which is still missing. 

Discussion

Considered the most important management decision ever taken by the IWC, the moratorium on commercial whaling is at the center of the controversy between those who advocate a ‘sustainable harvest’ of whales and those defending a continuation of protective measures to allow both for the full recovery of whale species and populations and for the development of alternative, non-lethal uses without the threat of resumed lethal takes.  Carrying enormous political and symbolic weight, any modification in the text of Paragraph 10(e) to allow commercial whaling to resume would represent a symbolic victory for whaling interests, but would be fiercely opposed and denounced by most countries which have supported the continuation of the moratorium as well as by members of the scientific community and civil society organizations.

As a result, whaling countries will never likely be able to gain the three quarter majority of voting parties to overturn the moratorium.  However, many in the ‘like-minded’ (pro-moratorium) group may be willing to discuss limited exceptions to it.

Likewise, the whaling States are never likely to agree to the permanent adoption of 10(e), but it is believed that Japan at least might be willing to discuss measures that in practice would allow for legal catches of whales even with 10(e) remaining in force.

Proposed solutions would therefore be more likely to fall on receptive ears if they were framed in terms of “Paragraph 10(e) notwithstanding.”(See the discussion on coastal whaling).

Policy Options

Compliance and monitoring

The issue

Infractions of IWC regulations have long plagued the Commission’s efforts at managing whaling. With no ability to impose sanctions or penalties directly, the Commission has depended on the whaling countries themselves to take the necessary action under domestic legislation; this has not always been successful. The most blatant case concerned the massive and systematic cheating by the USSR’s four Antarctic high seas expeditions over the years 1947-1972. Catches of more than 100,000 baleen and sperm whales in the Southern hemisphere, including protected species such as blue and right whales, some 40,000 humpback whales, and mothers and calves of all species, went unreported and therefore were  not taken into account in any of the IWC’s management decisions during the years that the cheating was taking place.  Infractions, and what to do about them, have been a major item of discussion during the RMS process.

Member States are required by Article IX of the ICRW to submit annual reports of infractions, and the penalties imposed, to the IWC. Since the 1950s these have been considered by the IWC’s Infractions Sub-Committee, which has also received reports from national inspectors as well as from the international inspectors operating under the IWC’s International Observer Scheme, agreed in 1972. (The IOS is not in effect for any of the current whaling activities by Japan, Norway and Iceland.) The Infractions Sub-committee discussed 24 cases of reported illegal whaling, and six of illegal trade between 1990 and 2005, with no reported resolution.  Examples from the 1970s and 1980s include the catching of undersized whales, illegal use of factory ships, the use of non explosive “cold” harpoons which cause a slow death, and wasteful processing.  Even now, relatively small-scale violations continue.  However, the IWC has no authority to enforce whaling regulations or punish violators.

In recent years, with the growing success of market sampling to detect infractions through DNA analysis, calls from some Member States for governments to report information to the IWC related to the availability, sources of and trade in whale products have been controversial, with the three whaling countries insisting that such reports would be outside the scope of the Convention. Nevertheless, the item remains on the agenda of the Infractions Sub-Committee. In the late 1970s, when commercial whaling was being carried out by several states not members of the IWC, the Commission passed three resolutions calling on its members to refrain from importing whale products from or exporting whaling expertise and material to, non-member states. These resolutions, though non-binding, were taken seriously, and were assisted in particular by a change in Japan’s domestic legislation listing states from which the importation of whale products was prohibited. The U.S. Government also used these resolutions as the basis for bilateral approaches to some of the countries concerned. Within a short time all of the countries concerned had joined the IWC. Something similar could be pursued in the development of a reformed IWC to ensure compliance by whaling operations of member states with IWC decisions.

    The ICRW also lacks a compulsory dispute settlement mechanism to settle disputes between States. This runs counter to modern international practice, and contributes to the current deadlock in the IWC.

Discussion

   Professor Calestous Juma has attributed the lack of trust amongst IWC Members to, inter alia, insufficient compliance mechanisms.

Compliance at the IWC historically has been discussed in the context of the Revised Management Scheme, (RMS), the negotiation of which was suspended by the IWC in 2006 for the inability of the negotiation process to make progress.

It is beyond the scope of this paper to discuss best practice in compliance and enforcement in multilateral environmental agreements, but there are many examples from which the IWC could draw in resolving this issue.  Essential components include clear provisions for reporting, monitoring and verification by independent parties.

The United Kingdom at IWC/58 in St Kitts in 2006 submitted a paper on options for compliance mechanisms (see section on Sanctions). That paper, comprising a table, listed proposals and outstanding issues, and cross referenced them with compatibility with the Convention and gave relevant examples of international best practice.  Issues covered included establishment of a Compliance Review Committee (CRC), functioning of such a Committee, such as catch documentation schemes and review of national actions, measures to secure compliance such as withdrawal of voting rights, black-listing of vessels, license withdrawal, financial penalties, quota reduction and trade restrictions.

 In addition effective non-compliance mechanisms include vessel registers, vessel monitoring systems (VMS), observers, inspectors who may board and inspect vessels and catches and inspect vessels and catches in port, catch documentation schemes, and compliance regimes implemented by flag and national States.^[17] There is frequently a binding disputes resolution process to resolve disputes between parties. It should be noted, however, that in the whaling context, compliance and enforcement would also need to encompass animal welfare considerations, IUU whaling vessels, any whaling carried out under Article VIII,^[18] as well as entanglement, ship strikes and other non-intentional take scenarios.

The UN Fish Stocks Agreement, for example, has extensive compliance provisions.  States are required to ensure compliance by vessels,^[19] enforce conservation and management measures wherever violations occur, investigate alleged violations and report to the complaining State and relevant RFMOs, require flag vessels to give investigating authorities information, refer cases for prosecution, and ensure  that vessels found to have committed serious violations do not engage in fishing operations on the high seas until such time as all outstanding sanctions imposed by the flag State in respect of the violation have been complied with.  There are also provisions for international^[20] and regional and sub-regional^[21] co-operation in enforcement including, in the latter case, boarding and inspection. There are also provisions for port State measures,^[22] such as inspections and prohibition of landings and transshipments.

Policy Options

Developments in ocean governance

The issue

Ocean governance has developed enormously since the negotiation of the ICRW, which lacks many critical elements of good governance that have evolved since 1946, as noted  in the section on the Purposes of the convention. There is a clear cross-over between issues of broader oceans governance and the purposes of the Convention.

Discussion

It is widely accepted that good governance at the international level is fundamental to the achievement of sustainable development.^[24]   Article 65 of the Law of the Sea Convention requires States to co-operate with a view to the conservation of marine mammals and to work through the appropriate international organizations for their conservation, management and study.

Article 65 also suggests that international organizations, as well as coastal States, can prohibit, as well as limit and regulate the exploitation of marine mammals more strictly than is provided in Part V of the Law of the Sea Convention. The ICRW, as written, sits uncomfortably with this aim.  Article 65’s obligation to co-operate with a view to the conservation of marine mammals should be considered alongside the obligation in article 5 of the CBD to co-operate for the conservation and sustainable use of biodiversity.  Appropriate governance mechanisms are crucial to provide a framework of international co-operation. Mechanisms for co-operation feature in many wildlife and conservation conventions developed since 1946. For any solution to be durable, it will be necessary to address the underlying problems and bring the IWC into harmony with modern international law and to implement contemporary principles of co-operation,^[25] which must take place in good faith with a view to an agreed aim. Key tools include the precautionary approach, the ecosystem approach and environmental impact assessments.

Effective global governance requires integrated management and sustainability, efficient and participatory based decision-making processes, addressing opt-out provisions to ensure full compliance with international conservation measures, international co-operation between States and co-ordination between international agencies, transparency, including access to information, consultation, participation and dispute resolution mechanisms.^[26] The Rio Declaration emphasized principles of universality, democracy, transparency, cost-effectiveness and accountability,^[27] and periodic review to assess both the past performance and effectiveness of existing international agreements.^[28]

The Slade Report^[29], issued after the Second Pew Whale Symposium in Tokyo at the beginning of 2008,  noted that “[r]elative to other international conventions and multilateral organizations, the IWC is outdated, less transparent, less flexible and less responsive. The ICRW itself does not include many elements of more modern international conservation agreements, such as references to the precautionary approach, ecosystem approach, conflict resolution or transparency -- or clear criteria or definitions of such elements.”

One significant advantage of discussing objectives and elements of modern ocean governance is that this avoids the traditional positions for or against scientific whaling or for or against the moratorium, and a more productive discussion may therefore be possible (See related discussion in Purposes of the Convention). 

Possible way forward:

Objections and reservations

The issue

Article V(3) of the ICRW provides Contracting Governments with the option to object to amendments to the Schedule, and thus opt out of conservation measures, even though they’ve been adopted by a three fourths majority of the Parties.  Many Member States consider the ability to opt-out to be a ‘critical failure’ of the Commission.^[30]

Japan maintains an objection to the Southern Ocean Whale Sanctuary to the extent that it applies to minke whales,^[31] despite the sanctuary being adopted^[32] by 23 votes to one, with six abstentions.^[33]  Norway and Russia maintain objections to the commercial whaling moratorium in paragraph 10(e) of the Schedule although Russia withdrew from commercial whaling in 1987.^[34] Norway has unilaterally allowed minke whaling by its whalers since 1993 under its objection to the moratorium. Argentina,^[35] Chile,^[36] Peru,^[37] Ecuador^[38] and Iceland made reservations when joining the Convention.^[39]  Iceland’s reservation made when it re-joined the IWC in 2002 was particularly controversial, as it contained a conditional objection to the moratorium.^[40] 

Discussion

Reservations allow member States to exclude or modify provisions of a treaty in its application to that State.^[41]  While reservations offer flexibility and may increase membership in multilateral treaties because they allow States to participate without complete agreement on all treaty provisions, they may also have the effect of undermining important conservation and management provisions of an agreement, if not defeating the object and purpose entirely.^[42]  The Law of the Sea Convention,^[43]  the Convention on Biological Diversity (CBD)^[44]  and the United Nations Framework Convention on Climate Change (UNFCCC) are examples of modern conventions which do not allow for reservations.  The Convention on Migratory Species (CMS)^[45]  allows reservations only in relation to amendments.^[46]    Similarly, objections allow member States to exclude the application of agreed measures to themselves.  In doing so, they can undermine the effectiveness as well as the universal scope of the agreed measures.

Some fisheries Conventions permit reservations and objections, but the trend is to constrain opt-outs (or objections to conservation and management measures). The recently amended Convention on Cooperation in the Northwest Atlantic Fisheries (NAFO Convention)^[47] provides for a constrained opt-out mechanism, with a requirement that objecting States provide an explanation of alternative measures and with provision for a panel to examine such measures.^[48]  The Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (SEAFO^[49] Convention) has a similar objection and ad hoc panel system.

Under the ICRW, when a Member State objects to a Schedule Amendment within 90 days,  this extends the time  in which additional objections by other Member States can also be filed by a further 90 days, a reflection of the competitive relationship that existed among the whaling countries that negotiated the ICRW.^[50]  In this way, the ICRW allows for objections to multiply.  A recent conference to review the Fish Stocks Agreement (FSA), to which many IWC Members belong, agreed to “[e]nsure that post opt-out behavior is constrained by rules to prevent opting out parties from undermining conservation, clear processes for dispute resolution, and a description of alternative measures that will be implemented in the interim.”^[51]

CITES has a reservation provision similar to that of the IWC. Japan, Iceland, Norway, Palau and St Vincent and the Grenadines maintain reservations on the CITES Appendix 1 listings of various species and populations of whales.^[52]  Japan maintained reservations on sea turtles until 1994.^[53] So it can be said that while there are examples of unconstrained opt-out provisions, these can give rise to controversy and tension within and outside the Convention and can undermine the measures implemented by the Convention itself.  It can be seen that the trend in modern fisheries instruments, as seen by NAFO, SEAFO and the FSA review conference, is to include: (1) rules to prevent opting out parties from undermining conservation; (2) clear processes for dispute resolution; and (3) a description of alternative measures that will be implemented in the interim.

Policy Options:

Research under special permits

The Issue

When the ICRW was negotiated in 1946, the signatories agreed to an exemption of its provisions for the taking of whales for scientific research. ICRW Article VIII permits a Contracting Government to grant to any of its nationals a special permit authorizing that national to kill, take and treat whales “for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.” Article VIII also requires that any whales taken under these special permits “shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.”

At various times in the Commission’s history the “overuse” of this provision has concerned Member States and the Scientific Committee. As early as 1963 the Committee recommended that it should be consulted prior to permits being issued, but it was not until 1979, and only after an independent legal opinion had been obtained by the Secretary, that the Commission adopted Schedule paragraph 30 making it obligatory for Member States to submit their permit proposals to the Scientific Committee for prior review; the country issuing the permit, however, is in no way bound by the advice of the Committee. Since the moratorium came into force in 1986, however, the IWC has seen Article VIII being used to allow unprecedented, long-term catches. The Government of Japan has steadily increased the number of whales and whale species caught for scientific purposes, both in the North Pacific and in the Southern Ocean Whale Sanctuary, to an extent which suggests that Article VIII is being used  to sustain the whaling industry rather than just or primarily for scientific purposes. Furthermore, the whale meat produced as a result of this scientific research is sold on the Japanese domestic retail market to fund the activities of the Institute of Cetacean Research (ICR) in Tokyo.

The continuation of ‘scientific whaling’ is a major roadblock to a broad agreement on the future of the IWC and its resolution is central to achieving any meaningful compromise, given the IWC three-quarter majority rule.

Japan is the only country currently conducting whaling under special permits.  Norway briefly used the scientific whaling loophole before it decided to return to full-scale commercial whaling from 1993 onwards under its objection to Paragraph 10(e).  Iceland conducted a four-year scientific whaling program (1986-89) during the course of which 292 fin and 70 sei whales were taken. Iceland again engaged in whaling under special permit after it had rejoined the Commission in 2002 and issued permits to some of its minke whalers in the years 2003-07 but also decided to resume its own commercial operation under its reservation to paragraph 10(e) in 2006.  In 2003, Iceland had also proposed to take fin and sei whales under special permit, but none has yet been taken (7 fin whales taken in 2006 were classed as commercial). South Korea, like Iceland, launched a multi-year program of scientific whaling  the same year that the moratorium came into force, on the Sea of Japan-Yellow Sea-East China Sea stock of minke whales, declared by the IWC in a 1983 decision to be a “Protection Stock” because of its depleted state. Following bilateral negotiations with the U.S. Government, Korea ceased this whaling after only one season.

 Japanese scientific whaling is conducted by the ICR, which is funded by government subsidies and the sale of the resulting whale meat and other products. 

Japan has implemented two large-scale programmes, called JARPA and JARPA II (in the Antarctic) and JARPN and JARPN II (in the North Pacific), resulting in the unilateral catch allocation of approximately 11,000 whales of six species (Antarctic minkes, common minkes, sei, fin, Bryde´s and sperm whales).^[54]  The 2007/08 and 2008/09 JARPA II missions had a quota of up to 935 minke whales, 50 fin and 50 humpback whales, but Japan has so far refrained from catching humpbacks.

Discussion

 There has been substantial criticism of these programs for a number of reasons.  Very few papers using data from JARPA or JARPN have been published in the international peer-reviewed scientific literature, despite the many years of ‘scientific whaling’, and JARPA has received two critical reviews from the Scientific Committee, in 1997 and 2007. To many countries, the Japanese special permit programs signify the continuation of commercial whaling in defiance of the moratorium, resulting in widespread criticism, even from those countries that may not oppose whaling per se. Japan argues that the whaling program estimates biological parameters which could be used for management, in particular natural mortality, and to understand the role of whales in the Antarctic ecosystem. However, the December 2007 review by the IWC Scientific Committee found that despite 18 years of research in the JARPA program, none of the four main objectives (including the estimation of natural mortality and the trend of the Southern hemisphere minke whale population) have been achieved. Japan has argued that the scant publication record in scientific journals is due to Western ethical considerations or anti-Japanese bias by Western journals.

Article 30 of the Schedule to the Convention provides that:

“A Contracting Government shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them.  The proposed permits should specify:

‘(a) objectives of the research;

“(b) number, sex, size and stock of the animals to be taken;

“(c) opportunities for participation in the research by scientists of other nations;

“(d) possible effects on conservation of stock.”

The IWC has adopted many resolutions over the years requesting Japan to refrain from issuing permits to kill whales for scientific research unless it is to collect information that is essential and cannot be gathered through non-lethal means.^[55]  The Scientific Committee reviews special permit applications and advises the Commission on whether the information sought in the proposed research programme meets certain criteria, including whether the information is required for the purposes of management of the stock being researched and whether the information sought could be obtained by non-lethal means.^[56] In Resolution 1995-9, the Commission recommended that scientific research involving the killing of cetaceans be permitted only in exceptional circumstances where the questions address critically important issues which cannot be answered by the analysis of existing data and/or use of non-lethal techniques.^[57] Japan has not entered any objection to Article 30 of the IWC Schedule, which is thus binding on it.  It must therefore forward proposed permits to the Secretariat before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them.

In recent years, many members of the Scientific Committee have become increasingly disturbed at the failure of Japan to take serious account of its critical analyses of JARPA and JARPN, and the inability of both the Committee and the Commission to significantly influence whether or not a permit should be issued.  A revised approach to dealing with special permit proposals and reviews has recently been developed by the IWC’s Scientific Committee, and will be tried for the first time in the forthcoming review of the JARPN II program.^[58]

The concept of abuse of rights should also be considered.  A State, while technically acting within the law, may incur liability from abusing its rights.^[59]  Article 300 of the Law of the Sea Convention establishes the obligation to act in good faith and not to abuse rights.  A closely related principle is that a balance must be struck between the right of a Contracting Government to invoke an exception under Article VIII and the duty of that Government to respect the treaty rights of the other Members.^[60] Articles 65 and 120 of the Law of the Sea Convention also require that “States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study”.  The IWC is the ‘appropriate international organization’ for the conservation and management of whales; later  its standing was also specified in Agenda 21, Chapter 17.65.^[61] 

The majority of the IWC member countries from the Southern hemisphere (in particular from Latin America) view the Japanese continuation of high seas whaling operations as a direct threat to their national interests in the non-lethal use of the whale resources, and a signal that Japan’s intentions for the future include the resumption of large-scale whaling far from its own shores.  Australia and New Zealand, among others, have insisted that all of the necessary data for whale management that has been obtained from these whaling activities could have been gathered through modern non-lethal means, which had not been anticipated in 1946 when the exception for scientific catches was incorporated in the ICRW.

A challenge to any negotiation of this issue is the very nature of Article VIII whaling.  The removal of the treaty right would require an amendment to the Convention, which is as unlikely as Japan's attempts to overturn the moratorium.  Therefore, a solution for phasing out or eliminating present scientific whale catches would have to be essentially political in nature, achieved through consensual or at least broad majority agreement which must include Japan, and be robust in its crafting so as to allay legitimate fears of a ‘voluntary’ agreement being short-lived or easily flouted.

From the pro-moratorium side, it is clear that any agreement involving Art. VIII whaling would have to eliminate or at least phase out over a short time the whaling activities taking place in the Southern hemisphere. This would be seen as a central achievement, and possibly in a second phase the same could happen with the North Pacific catches. Eliminating or severely restricting Article VIII whaling would go a long toward resolving the whale conservation dispute and the current impasse in which the IWC finds itself.

Japan would require a politically meaningful quid pro quo of some practical value regarding whale products (e.g. benefits in terms of meat distribution for specific communities).

While such an agreement would probably result in a net loss of whale meat tonnage compared to current catches under special permit, it is assumed that there is an interest within the Japanese Government to reduce the controversy and opposition generated around the world by its whaling operations.

The response of Norway and Iceland to such a possible compromise would need some discussion. On the one hand, these two whaling countries could object to being excluded from a solution that addresses primarily a solution for Japan. But on the other hand, it is possible that they would welcome a solution for the Japanese case in the hope that this will diminish the overall attention on whaling, hence the pressure on themselves.

Policy Options:

Revised Management Procedure (RMP)

The Issue

The Revised Management Procedure (RMP) was developed as a result of eight years of work by the Scientific Committee including rigorous testing by computer simulation. It was eventually accepted by resolution in 1994 though never formally adopted into the Schedule as the majority of Commission members preferred to await completion of the accompanying Revised Management Scheme (RMS).

One of the principal reasons that Member States gave for supporting adoption of the moratorium in 1982 was that the existing provisions for management, the NMP, adopted in 1975, had nevertheless with time been shown unable to protect whale stocks from depletion and proved difficult to implement as it depended on data that were either unreliable or difficult to obtain.

At the 1983 Annual Meeting, in the wake of the moratorium decision the previous year, Japan introduced a resolution, agreed by consensus, that established a Joint Working Group of the Scientific and Technical Committees with the mandate to, inter alia, “consider what conceptual approaches might be used to provide the Commission with more effective scientific advice and recommendations for management.” This decision launched the process within the Scientific Committee that led to the development of the RMP.

Although the RMP effectively replaces the NMP, the fact that the RMP has not been formally adopted into the IWC Schedule leaves the NMP as the only management procedure that is currently in place. And the RMP’s specification and policy guidelines emphasising precaution, established by resolution only (requiring a simple majority), could presumably also be changed by simple majority decision of the Commission members.

The key decision regarding the RMP is IWC Resolution 1994:5 “Resolution on the Revised Management Scheme” which, inter alia:

“(3) ACCEPTS that the specification of the Revised Management Procedure given in Annex H, Rep. Int. Whal. Commn 44:145-52, including its attached annotations as amended by Annex N (IWC/46/4) and Annex I, (Rep. Int. Whal. Commn 44:153-67), completes the main scientific component in the development of a Revised Management Scheme for commercial baleen whaling;”

And, importantly,

“(4) NOTES that this specification should not be modified, reconfigured or adjusted unless expressly instructed by the Commission;”

The RMP consists of the core Catch Limit Algorithm (CLA) and the rules for applying it. Among these: that it applies to baleen whales only, that all catches should be zero unless a non-zero catch limit is determined under the RMP, and that all human-induced takes  be calculated into catch limits (this was later specified to comprise takes under special permit (‘scientific whaling’), bycatch mortality and ship strikes).

Given the difficulties of applying its predecessor, the NMP, the RMP was developed with a view to ‘keeping it simple’: it requires only two sets of information, population estimates from sightings surveys, and historic catch data. It contains a built-in incentive to conduct regular surveys in that catch limits are phased out to zero if new surveys are not conducted; and no catch limit can be set until there has been a survey conducted to approved standards of design, execution and oversight. In the course of developing the RMP, the Scientific Committee called on the Commission to make certain policy determinations, which it did by resolution. Three management objectives were identified by the Scientific Committee: (a) stability of catches over time, (b) minimizing the risk of depletion, and (c) providing the highest long term yield.

The critical point about the RMP is that it is a precautionary procedure,which has been tested and found to be robust to uncertainty in the input data and some changes in the environment. At the time the Commission selected a tuning level of 0.72 as providing the most desirable characteristics in terms of management objectives. The Scientific Committee had done some trials with lower tuning values that would have allowed higher catches but been less precautionary. The agreed version of the RMP also sets a stock level of 54% of pre-exploitation size as the protection level. The Government of Norway has claimed to be using the RMP when calculating the catch limits that it unilaterally sets for its whaling operations under its objection to paragraph 10(e), but it is in fact using a modified version of that agreed by the Commission with a lower tuning. Norway now using the lowest tuning that can be applied to the current Catch Limit Algorithm. This has been in keeping with the policy directive issued by the Norwegian Parliament in a 2004 White Paper calling for catches of minke whales by Norwegian whalers to be trebled,^[62] although the whalers regularly fail to catch anywhere near the established limits. Unlike the original RMP, the lower tuning of the RMP has not been subject to the full set of simulations tests by the Scientific Committee, and is not in keeping with the Commission’s decision in the 1994 resolution that no modifications should be made to the RMP without the Commission’s approval.

Another feature of the RMP as specified and agreed is that the ‘catch limit’ that it generates is really a ‘total allowable removal,’ which should include all known human-induced mortality, not just commercial, subsistence or scientific whaling takes. This has obvious consequences for whaling under special permit and bycatch, and in the case of the latter makes it all the more important to be able to quantify with precision the scale of the mortality. At its 50th Annual Meeting in 1998, the Commission passed a resolution agreeing that any catch limits established under the RMS "shall be calculated by deducting all human-induced mortalities that are known or can be reasonably estimated, other than commercial catches, from the total allowable removal."^[63] Precise interpretation of this phrase proved to be somewhat problematic, and the Commission in 1999 requested the Scientific Committee to better define what was meant. The 2000 RMS Working Group reviewed the text prepared by the Scientific Committee “and agreed that it needed to be made more specific regarding the meaning of human-induced mortalities other than commercial catches.” The following text was agreed:

“Catch limits calculated under the Revised Management Procedure shall be adjusted downwards to account for human-induced mortalities caused by aboriginal subsistence whaling, scientific whaling, whaling outside IWC, bycatches and ship strikes.

Each such adjustment shall be based on an estimate provided by the Scientific Committee of the size of adjustment required to ensure that total removals over time from each population and area do not exceed the limits set by the Revised Management Procedure. Total removals include commercial catches and other human-induced mortalities caused by aboriginal subsistence whaling, scientific whaling, whaling outside IWC, bycatches and ship strikes to the extent that these are known or can be reasonably estimated.”

As recorded in the Chairman’s Report of the 2000 meeting, when questioned by the UK if they accepted this text, Norway said that “it would go along with the wording in the spirit of cooperation” but Japan was less positive.^[64] 

Discussion

With the 0.72 tuning chosen by the Commission, the RMP is a precautionary procedure that presents a low risk of unintentional depletion. This has inevitably led to criticisms from some pro-whaling groups and governments who would prefer a higher level of risk by allowing higher catches.  Norway has already initiated the process to consider modifications to the RMP which would make it less precautionary

This raises some important questions as the IWC faces its future.  The RMP is a procedure  that has been agreed by the Commission to a large extent by consensus, but should it be re-negotiated if that is required to reach an agreement?: should the RMP be adopted into the Schedule in advance of agreement of the RMS or something similar, but not implemented?

Policy Options

Revised Management Scheme (RMS)

The Issue

The IWC has dedicated many years to discussions about the elements of a Revised Management Scheme (RMS). While there is agreement among most members that an RMS is necessary, the disagreement over what the various elements should be, where the burden of financial responsibility should lie, to what extent control and monitoring measures should be independent of national control, and what the relationship should be between adoption of an agreed RMS into the Schedule and maintenance of Schedule paragraph 10(e) - the moratorium – eventually brought the RMS negotiation process to the point of stalemate. The question now is whether and how it should be revived, and if so, how to surmount these same disagreements in a fresh endeavor.

The concept of a Revised Management Scheme (RMS) was first raised at the IWC’s 1990 Annual Meeting. Several governments noted that the input parameters to the RMP, particularly the history of catches over time, needed a framework of observation and inspection (i.e. an RMS) to provide confidence that the correct catch history was being used to calculate catch limits. The various elements needed to complete the RMS, in addition to the RMP, were noted in a resolution adopted two years later.^[65] The RMS was also conceived as an additional safeguard to ensure that the RMP, by then making good progress through the Scientific Committee, would be fully adhered to by any country whaling under its provisions. These elements and other aspects of a future RMS were reconfirmed in the 1994 resolution in which the Commission agreed the RMP and its specification as proposed by the Scientific Committee.^[66]

The process for negotiating an RMS was initiated the following year with a meeting in Norway, and a number of working group and technical meetings have been held since, including an Expert Drafting Group (2001/2) that developed square-bracketed draft Schedule text as a way to move the discussions forward on the fundamental issues.  A key part of discussions over the years have centered around the question of what supervision and control measures should be included in the RMS. Unresolved issues included: (1) the level of international observer coverage required; (2) the type and level of tracking of whaling vessels required; (3) the frequency with which reporting information must be provided; (4) the maintenance and accessibility of a register of  DNA profiles of all whales killed; (5) procedures to monitor the origins of whale products on the market; (6)  oversight and review of the operation of the Scheme; and (7) the funding of the Scheme.

The RMS Working Group was reconvened in 2004 following a two-year pause, and an intensive period of negotiation on elements of an acceptable RMS began, led by then IWC Chairman Henrik Fisher. The RMS ‘Chair’s package’ discussed in 2004^[67] included 9 elements: a Revised Management Procedure (RMP),^[68] a phased in approach to commercial whaling,^[69] national inspection and observation schemes,^[70] additional catch verification to combat IUU whaling and/or unreported bycatches (but not to monitor trade),^[71] compliance,^[72] a mechanism to apportion RMS costs,^[73] measures for the lifting of paragraph 10(e) (the moratorium),^[74] addressing whaling under special permit,^[75] and animal welfare considerations.^[76] At IWC/56 in Sorrento in 2004 discussion included the link between an RMS and the lifting of the moratorium; catch verification, animal welfare, compliance and whaling under special permit; cost sharing and the absence of a consideration of sanctuaries.^[77]  Resolution 2004-6 on ‘Completion of the Revised Management Scheme’^[78] revived the RMS Working Group (dormant since 2002). That group met in Borgholm, Sweden in late 2004 and in Copenhagen, Denmark in 2005, followed by a meeting during IWC/57 in 2005.  Much discussion centered on the elements of the ‘package’ and on linkage with the moratorium.^[79] 

Progress on the RMS was brought to a halt in 2006.  At a meeting in Cambridge,  “the RMS Working Group agreed that discussions on further collective work should be postponed for the time being but with individual governments or groups of governments free to work together if they so choose”^[80]. The basic “stalemate” saw the whaling countries accusing the pro-moratorium countries of “moving the goalpost” and making impossible demands, and the pro-moratorium countries arguing that the whaling countries demonstrated their contempt for conservative management of whaling by not accepting basic standards for international observation and control, data availability, and the responsibility to bear the costs of monitoring their own whaling industries.

Discussion

It is evident that many of the issues discussed in this document are inter-related and cannot be properly addressed in isolation. An overall framework such as that intended by the RMS is needed in order to deal effectively with, for example, compliance and monitoring, infractions, data collection and sanctions.  A great deal of effort and drafting has already occurred through the years of the various RMS-related meetings and discussions, examining options for catch verification measures, inspection and observation (both national and international), a centralised DNA database overseen by the IWC itself, and so on. These previous efforts can provide a useful resource if the IWC Member States intend to re-engage seriously in resolving these long-standing and important issues in order to modernize and strengthen the IWC for the future.

Policy Options

Sanctuaries

The Issue

There are currently two whale sanctuaries established by the IWC: the circumpolar Southern Ocean Whale Sanctuary agreed in 1994 and the Indian Ocean Sanctuary established in 1979.  Other sanctuaries have been proposed but not agreed by the IWC: Brazil, Argentina and South Africa, with several other co-sponsors, have been proposing since 2001 a South Atlantic Whale Sanctuary. A proposal for a North Atlantic Whale Sanctuary considered by the IWC in the early 1980s was unsuccessful and was eventually dropped.  Australia and New Zealand for several years proposed the creation of a South Pacific Whale Sanctuary but eventually suspended putting the sanctuary proposal to the IWC and  they now work more directly with their regional neighbors to establish a series of protected areas and sanctuaries in national waters throughout the Pacific.  In other measures taken outside the IWC, Italy, France and Monaco (all three IWC member countries) have established and maintained a whale sanctuary in the Ligurian Sea through the Pelagos agreement of 1999, and in 2006 France announced the creation of a sanctuary within its waters in the French West Indies and during IWC/58 in St. Kitts invited other countries from the region to join.

IWC Sanctuaries are established in accordance with ICRW Article V, which allows for “open and closed waters, including the designation of sanctuary areas.”^[81]   Amendments to the Schedule must be:

“such as are necessary to carry out the objectives and purposes of the Convention and provide for the conservation, development, and optimum utilization of the whale resources; (b) shall be based on scientific findings; (c) shall not involve restrictions on the number or nationality of factory ships or land stations, nor allocate specific quotas to any factory ship or land station or to any group of factory ships or land stations; and (d) shall take into consideration the interests of the consumers of whale products and the whaling industry.”^[82]

As with any amendment to the Schedule, Sanctuaries must be adopted by three quarters majority. It is beyond the scope of this review to address specifics of the establishment of the Indian Ocean and Southern Ocean sanctuaries, but it is worth noting that although the Indian Ocean Sanctuary has been maintained since its inception in 1979 with little political dispute (helped by the fact that the original proposal was amended to raise the southern boundary of the sanctuary to latitude 55°S thus excluding the Antarctic whaling grounds exploited at the time by the Japanese and Soviet fleets), the continuation of whaling activities within the boundaries of the Southern Ocean Sanctuary established in 1994, by 23 votes to one (Japan),  is still causing  considerable polarization in the organization although it directly affected only one Member State (Japan).

Since the late 1980s, no Southern Hemisphere nation has gone whaling commercially or has expressed any intention to do so.  In fact, many have invested in non-lethal uses (benign research, whale watching and historical/cultural recovery).

Several Pacific Island nations who are not members of the IWC have declared their own EEZs as whale sanctuaries, covering over 11 million sq km of the South Pacific.

In 2001, Brazil, Argentina and South Africa formally presented their proposal for a South Atlantic Whale Sanctuary (SAWS). While it was presented in the accepted format of that time, the supporting document^[83]  was updated in 2005 to include further reference to socio-economic implications of the proposal in relation to the promotion of collaborative research and the joint development of non-lethal uses in the region.

Although SAWS has obtained a significant simple majority each time the IWC voted on it (including 60% of the Plenary votes at the 59^th Annual Meeting in Anchorage in 2007) it has not obtained the 75% majority required for its adoption as a Schedule amendment. The Buenos Aires Group (of Latin countries) tabled the proposal again for discussion at the 60^th Annual IWC Meeting, but agreed upon request of the Chair to refrain from putting it to a plenary vote as a goodwill gesture to help de-polarize the proceedings.  By the same token, Brazil and others stressed that SAWS should be incorporated into any future comprehensive agreement, and barring that they reserved the right to bring the proposal to a vote in Madeira in 2009 and beyond.

Discussion

The issue of sanctuaries has acquired a political meaning beyond the simple prohibition of whaling.  It has come to represent both an aspiration of regional country assemblages and the potential way forward for the IWC, which could be the geographical separation of management regimes, lethal and non-lethal.  In this light, continued Japanese whaling in the Southern Ocean Sanctuary is counterproductive (see section on research under special permits).  This is exacerbated by the fact that Japan has lodged a formal objection to the Southern Ocean Sanctuary with respect to minke whales, leaving open the option to establish a legal commercial whaling operation inside the Sanctuary.  Whaling proponents hold that the sanctuaries are not based on scientific findings, and that the IWC did not take into consideration the interests of the consumers of whale products and the whaling industry, as required by Article V.2 of the Convention.

The IWC Scientific Committee, which is charged with analyzing and making recommendations in relation to Sanctuary proposals, has not reached a consensual advice in any of the Sanctuaries adopted or proposed, simply because it too is politically divided along the very same lines as the IWC itself. In the end, it will be up to the Commissioners to make political decisions on the establishment of new sanctuaries as part of an overall ‘package’ agreement.

Possible way forward:

Trade restrictions

The Issue

 Although the IWC has never agreed binding measures related to trade regulations, it has occasionally passed resolutions recommending, for example, that Member States refrain from importing whale meat and other products or exporting whaling expertise and technology to non-IWC Member States^[84], and that the products obtained from whaling under special permits be destined “primarily for local consumption”^[85] or “entirely for domestic consumption”.^[86] IWC Resolution 1994-7 on International Trade in Whale Meat and Products, inter alia: 

(3) OBSERVES that any commercial international trade in whale products obtained from research whaling or fisheries bycatch makes illegal commerce more difficult to detect, and undermines the effectiveness of the IWC's conservation program;

(4) CONSIDERS THEREFORE that meat and products from research whaling should be utilised entirely for domestic consumption; and

(5) INVITES each Contracting Government to report to the Infractions Sub-committee at every Annual Meeting:

(a) information on whale meat and products available on its domestic market, and the specific source of those items (i.e. commercial whaling, research whaling, fisheries bycatch);

(b) any shipments of whale meat and products intercepted in international commerce, especially those involving their nationals or interests, and what measures the Government has taken in response; and

(c) any other developments relevant to trade in whale meat or products (e.g. new laws or regulations).

There also exists a close relationship between the IWC’s decisions and those of the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES).^[87] This was most recently reconfirmed in CITES Resolution 11.4 adopted in 2000, which recommends, inter alia, that “… the Parties agree not to issue any import or export permit, or certificate for introduction from the sea, under this Convention for primarily commercial purposes for any specimen of a species or stock protected from commercial whaling by the International Convention for the Regulation of Whaling.”^[88] International trade in cetaceans is regulated under CITES, as  nearly all the large whales and some dolphin species are listed  on Appendix I (no international trade allowed for commercial purposes) and others, including the West Greenland stock of minke whales, are placed on its Appendix II (trade allowed only with an export certificate).^[89]

The commercial elements of a possible agreement on Japanese coastal whaling are also under discussion.  Another trade issue recently debated in the IWC is whether supervision and control of future whaling operations under a ‘Revised Management Scheme’ would include DNA monitoring of whale products.  This would allow for the identification of species/stocks in trade.  There are questions about which authority (domestic or international) would supervise such a system.

Similar to the IWC, there are provisions within CITES which allow for countries to file reservations against decisions such as species listing. Currently five IWC member states (Iceland, Japan, Norway, Republic of Palau, and St. Vincent and the Grenadines) have reservations to the listing of many cetacean species. This had relatively little consequence in practice until recently, as little international trade had taken place for several years,  other than Japan’s import of whale products from whales caught in international waters in its ‘scientific whaling’ programs. The whaling countries, however, persevered (unsuccessfully) with efforts to repeal the CITES  listings.  In 2008, Iceland and Norway took advantage of these reservations to reopen international trade and shipped 60 tons of fin and minke whale meat to Japan, which was cleared for import after being held for several weeks by Customs.

Discussion

 Whether Japanese whaling under special permit in the high seas is in violation of CITES restrictions in relation to ‘introduction from the sea’ also remains an open question.  Japan’s catch of sei whales under the JARPN program, for example, appears to be an infringement of CITES, because its reservation to the Appendix I listing for sei whales does not apply to the North Pacific population. However, no action has been taken against Japan and the CITES Secretariat appears to be unwilling to take Japan to task for it.  CITES is currently debating whether the taking of whales at sea constitutes ‘introduction from the sea’, or whether the introduction takes place upon landing in Japan.^[90]

Many resolutions in the framework of both the IWC and CITES have established the close linkage between the decisions of both organizations, giving primacy to the IWC.^[91]  This relationship has been promoted mainly by pro-moratorium countries in recognition of the role of international commerce, primarily in whale meat for the Japanese market, as the motor driving the worldwide expansion of the whaling industry in the years before adoption of the moratorium decision, and its potential to do so again in future.  Japan and other whaling countries have repeatedly sought first to down-list or de-list cetacean species from CITES Appendices (which would require a two-thirds majority vote), and then to weaken the linkage by attempting to reverse CITES decisions, so far without success. In recent years, support for whaling countries at CITES seems to have eroded, and none of their recent efforts have met with majority support.  The latest IWC-relevant resolution, adopted in 2007,^[92] affirmed that the moratorium on commercial whaling remains in place and that the reasons for the moratorium were still relevant; it requested Contracting Governments to respect the relationship between the two conventions and not to seek the removal of cetacean species from CITES Appendix I.

Any possible concession that pro-moratorium countries might consider making to a limited, negotiated resumption of coastal whaling under IWC supervision would most likely be tied to the maintenance of the status quo on international trade, e.g. CITES Appendix I listing.  This would require that whaling countries withdraw their CITES reservations to the listings of at least the great whales and possibly, all cetacean species. It is unclear at this stage whether any of these countries would consider taking such a significant step, which is likely a sine qua non for obtaining support among most pro-moratorium countries to a ‘package’ solution. It is also likely that pro-moratorium countries and environmental NGOs would want assurance that there will be no loopholes such as the ‘introduction from the sea’ argument or further opt-outs.

As regards DNA monitoring of whale meat trade, it is not impossible that the whaling countries, their political reservations notwithstanding, could agree to a system of trade monitoring through genetic sampling in a shared registry with open access to bona fide researchers, that is operated by the national governments and supervised by the IWC.

Policy Options

Whale Watching/non-lethal use

The Issue

Non-lethal use of cetaceans comprises benign (e.g. non-life-threatening) scientific research, environmental education through use of flagship species, socio-cultural values (e.g. historical role of whales in national history, folklore and native knowledge) and, most importantly from an economic standpoint, whale watching. It has been reported that whale watching has become the segment of ecotourism with the largest documented growth worldwide, in excess of US$ 1 billion of direct and indirect revenues.^[93] It has emerged in inverse proportion to the decline of commercial whaling and in direct relation to the global movement to prevent the extinction of large whales.

Given its economic and social/political importance in a majority of IWC member States, whale watching and non-lethal use has become a major topic for the Commission to address. The IWC has established a Whale Watching Subcommittee of the Scientific Committee to review research conducted on the potential impacts of the activity on cetaceans and to make recommendations for management. An item of the plenary agenda serves to update and discuss the matter on an on-going basis, and the implementation of management measures is also now being addressed by the Conservation Committee.

The Latin American countries, Australia, New Zealand and South Africa attach particular importance to this issue, and frequently describe the potential impact of special permit whaling on the high seas in regions where whale watching operations take place as a major infringement on the equitable use and sharing of whale resources.

Discussion

Whaling countries have tried to downplay the importance of the issue and even to remove it from plenary discussions, (although Japan, Iceland and Norway all have profitable whale watching industries).

Because the net reproductive rate of whales is low, there is only a limited potential for profiting from a ‘one-time’ appropriation of their yield, whereas by non-lethal uses the value of a single whale can be accrued and appropriated repeatedly over time. The current and potential use of whale resources through non-lethal means is therefore of much greater economic benefit to many coastal communities than whaling ever could be. A report released in June 2008 notes that the activity has grown around 11.3% annually in the Latin American region over the last ten years, now generating US$ 79.4 million in direct revenues and US$ 278.1 million in indirect gains, distributed amongst 18 countries.^[94] 

To promote non-lethal use within the IWC and send a strong political message, the Latin American countries (with support from Australia, Austria, France, Hungary, Italy, New Zealand, Portugal and the UK) proposed in 2007 at the 59^th IWC meeting in Anchorage, a Resolution on the Non-Lethal Use of Cetaceans.  The operative paragraphs read as follows:

“RECOGNISES the valuable benefits that can be derived from the non-lethal uses of cetaceans as a resource, both in terms of socio-economic and scientific development;

“RECOGNISES non-lethal use as a legitimate management strategy;

“ENCOURAGES member States to work constructively towards the incorporation of the needs of nonlethal users of whale resources in any future decisions and agreements.”

The resolution was adopted with 42 votes in favor, 2 against and 2 abstentions, and 20 countries ‘not participating.’

The growing economic importance of whale watching has also expanded the social basis of stakeholders in whale conservation, mobilizing entire communities to support and legitimize their governments’ political stance against the resumption of whaling under any form that could eventually threaten their own non-lethal use of whales.  Japan and Norway have argued that both lethal and non-lethal uses can coexist as occurs in their own national waters. But this is unlikely to be a long-term option for both management and political reasons. It has been documented that many whales that frequently swim in  whale watching operation areas are becoming used to the presence of boats and are therefore  more ‘watchable’ but also more ‘catchable.’ From a market perspective, few tourists would be attracted to places where their ecotourism experience could be tarnished by the killing of the very animals they are paying to watch and enjoy.

The Future of the IWC process requires as a first step confidence-building among countries and stakeholders with differing views, interests and values. The non-lethal use issue is a key to building and achieving such trust through the adoption of measures that would ensure that different uses are given the at least the same weight in the IWC, with regional interests duly accommodated.

Policy Options