High Stakes At The IWC

By Dr. Robbins Barstow, Director Emeritus, Cetacean Society International

The forthcoming meeting of the International Whaling Commission (IWC) in Ulsan, Republic of Korea, from 20-24 June 2005, will be a high stakes session. For the future of whales, the stakes may be higher than at any time since the historic 1994 meeting in Puerto Vallarta, Mexico, which established the vast, circumpolar Southern Ocean Whale Sanctuary, wherein all "commercial whaling . . . is prohibited."

At that meeting in Mexico a decade ago, which I attended as a non-governmental observer (NGO), the Commission approved by consensus (but did not make part of the IWC's "Schedule") a controversial "Revised Management Procedure," recommended by the IWC Scientific Committee. This established a complicated, algorithm formula for calculating sustainable yield catch limits for possible future commercial whaling, on a conservative, strictly limited basis. The Commission left unresolved the bitterly divisive question of how this Procedure might be implemented and enforced.

RMS Negotiations

The following year, in 1995, the Cetacean Society International (CSI) and more than 70 other conservation organizations, large and small around the globe, addressed a "Statement of Affirmation" to all the Contracting Governments of the IWC, expressing the following aim: "While continuing to maintain staunch opposition to any resumption of commercial whale killing or any change in the Commission's zero catch limits, we urge member nations to participate in discussions that seek to establish a fail-safe system of supervision and control to be in effect should commercial whaling, nevertheless, come to be authorized at some future date."

And for the past ten years, the issue of establishing a Revised Management Scheme (RMS) has been the subject of countless meetings, documents, reports and debates in a constant struggle between pro-whaling and anti-whaling forces. But it appears that the impasse over whether any kind of RMS could be acceptable to both those who view the IWC as a venue for whale killing and those who see it as a venue for whale protection, is coming to a head this year.

At last year's IWC meeting in Sorrento, Italy, the Commission by consensus directed its RMS Working Group "to complete work on the RMS package, with the goal of having a finalized RMS text ready for consideration, including possible adoption, at IWC 57 [the 2005 meeting in South Korea], and/or to identify any outstanding policy and technical issues."

The new Working Group held its first meeting in Borgholm, Sweden, from 29 November to 1 December 2004. It is meeting again in Copenhagen, Denmark, from 30 March to 1 April 2005. The Borgholm meeting was attended by 49 official delegates, representing 23 countries, including 6 from the USA, as well as 12 NGO observers.

An extensive, 33-page, small-print document entitled "Chair's Report on the RMS Working Group Meeting" held in Sweden in December, which was chaired by Horst Kleinschmidt, the IWC Commissioner for South Africa, can be downloaded from the IWC internet site at: http://iwcoffice.org/.

Also available at the same site is the 25-page, small-print "Chair's Report of the meeting of the RMS Small Drafting Group" (SDG), which followed the Working Group meeting in Sweden, and was chaired by Michael Tillman of the USA, with 22 participants from 11 countries.

Outstanding Issues

It is clear from these reports that the issue of a Revised Management Scheme for the International Whaling Commission is being taken very seriously by all involved, that it is exceedingly complex, and that there are deeply opposing views.

The Agenda for the Sweden meeting identified 10 major elements of an RMS Package that needed to be considered, with a draft proposal by the Chair as a starting point for discussion, followed by other proposals and the "development of options." Objections were raised at many points both by those whom Japan referred to as "pro-use countries" and by those "who could not support any resumption of commercial whaling."

Almost all of the proposals for draft schedule texts which are contained in the Small Drafting Group's Sweden report include a variety of options, with bracketed texts representing areas where issues remain to be resolved. It is clear that deep disagreement remains, particularly with regard to any linkage of the adoption of an RMS to the lifting of Schedule paragraph 10(e), which is the so-called "moratorium" provision, adopted in 1982, establishing that "not withstanding other provisions . . . catch limits for commercial purposes of whales from all stocks . . . shall be zero."

Underlying Problem

There is, however, a fundamental problem underlying all of the current IWC negotiations. Without resolving this basic matter, any RMS which might be agreed upon will be essentially meaningless and only exacerbate the existing situation.

The problem lies in certain provisions of the original 1946 treaty establishing the IWC - the International Convention for the Regulation of Whaling (ICRW). There are two glaring loopholes and one critical omission which, as long as they remain part of the Convention, will effectively nullify any efforts to fully control global whaling. They are: (1) unlimited special permit whaling; (2) unbinding objections; and (3) toothless enforcement.

In my judgment, the only logical rationale for adopting a new management scheme for the regulation of whaling would be to have it encompass all whaling activities. It makes no sense to seek to establish cautionary rules and standards for the taking of whales if they can be rejected at will by any Contracting Government, and if all whale killing is not included.

Special Permits

As long as any country is free to ignore Schedule restrictions, and to grant "special permits," as Japan and recently Iceland have been doing, authorizing its nationals to kill any number of whales it "thinks fit," for "purposes of scientific research," catch limits set by IWC formulae would have no validity. Yet Article VIII of the Convention, unless changed or eliminated, allows precisely this loophole.

Many resolutions have been adopted by the Commission calling upon Japan to stop "research whaling" in the Southern Ocean Sanctuary, and also to stop its special permit whaling in the North Pacific, now expanded to include Sperm, Bryde's, and Sei Whales. But such resolutions are toothless, able only to cause embarrassment under existing Convention provisions.

Objections

By the same token, as long as any country can file an objection within 90 days, to any Schedule revision adopted by the Commission, and thereby not be bound by it, any catch limits set by the Commission could be immediately invalidated.

The Government of Japan lodged an objection within the prescribed period to Paragraph 7(b), which established the Southern Ocean Sanctuary in 1994, "to the extent that it applies to the Antarctic minke whale stocks." Therefore, as stated in a Schedule footnote, the Sanctuary provision came into force on 6 December 1994, "for all Contracting Governments except Japan." This technically frees Japan from respecting the Sanctuary management scheme, and Japan has been killing hundreds of minke whales in the Sanctuary area every year since.

The Governments of Japan, Norway, Peru and the Union of Soviet Socialist Republics lodged objection in 1982 to paragraph 10(e), which established the moratorium provision of zero catch limits "for commercial purposes of whales from all stocks." Subsequently, Peru and Japan withdrew their objections, but a Schedule footnote still states: "The objections of Norway and the Russian Federation not having been withdrawn, the paragraph [10(e)] is not binding on these Governments."

Thus Norway's continued and increasing killing of hundreds of minke whales for commercial purposes in the North Atlantic could not be controlled by any RMS while the Convention retains the objection provisions of Article V.

Enforcement

Finally, as long as the Commission itself has no means to enforce Schedule provisions and police its determinations through inspection, observation, verification, and compliance penalties, any Revised Management Scheme would have essentially only paper value. Present Article IX of the Convention leaves it entirely up to "each Contracting Government" to "take appropriate measures" to ensure compliance and punish infractions.

Over the years, a number of documented instances of Schedule violation have been reported to the Infractions Committee, with no penalties resulting. Instances have included such matters as meat from protected species being sold in Japanese markets, a Gray Whale carcass with many lances in it found on a Japanese beach, a landed Right Whale photographed at a possible Korean port, and strictly forbidden takings of "female whales accompanied by calves."

In the past, there have also been under-reported and unpenalized takings of large numbers of whales beyond specified quotas. Leaving punishment solely up to individual Contracting Governments has rendered the Covenant's current enforcement provisions almost totally ineffective.

Optimum Utilization

In addition to the basic need to amend the ICRW in respect to the above areas, to make available a fail-safe system of supervision and control for commercial whaling, clarification may now be required to assure that both lethal and non-lethal utilization of cetacean resources are given consideration in fulfilling the Convention's mandated purpose of providing for the "conservation, development, and optimum utilization of the whale resources" (Article V, 2). (Emphasis added.)

It has become clear in today's world that many Contracting Governments now view such non-lethal activities as whale-watching, benign research, and education as constituting the optimum means for "safeguarding for future generations the great natural resources represented by the whale stocks" (1946 Convention Preamble).

Possible Protocols

What remedies are available? During the discussion of Agenda Item 4.5 on "Compliance," at the December meeting in Sweden of the RMS Working Group, some members are reported to have proposed the development of a Protocol to amend the ICRW to establish effective compliance, dispute settlement, and penalties procedures. Such an amendment was considered "the only way to establish such a mechanism" (page 16 of Chair's Report).

The Report of the Chair of the Working Group also noted that under Agenda Item 4.8 concerning "Whaling under special permits," the view had been expressed that (page 21): "There is a need for binding provision, and possibly the amendment of the Convention through the development of a Protocol, to restrict/phase-out/abolish whaling under special permit. Adoption of an RMS package would need to be preceded by such binding action."

Included in the Chair's Report on the Sweden meeting is the following paragraph (page 17): "While the first option gave instructions to the SDG, it was noted that the second option regarding development of a Protocol (or Protocols) is not an issue for either the RMS Working Group or the SDG. New Zealand noted its intention to work on this with a view to providing some discussion text, possibly before the RMS Working Group meets in March 2005. It stressed that such text would not form part of the mandate of the Working Group, but rather provide background to discussions in the margins of the meeting regarding development of (a) Protocol(s). In addition to addressing a dispute settlement mechanism and compliance (i.e. a and b above), New Zealand's intention is to also include Article VIII and whaling under special permit and opting out of provisions within the scope of a Protocol or Protocols (see section 4.8.3)."

Now Is the Time

The time between the March/April follow-up meeting of the RMS Working Group in Copenhagen, Denmark, and the 57th Annual Meeting of the IWC from 13-17 June in Ulsan, Republic of Korea, provides a special window of opportunity for all of us who are concerned about keeping whales alive, to rally support for New Zealand's efforts to develop Protocols designed to strengthen the ICRW by closing loopholes and assuring compliance.

No Revised Management Scheme amendments to the IWC Schedule can be adopted without a three-fourths majority of those members voting. But in any case, the basic, priority issue which the Commission must now face is the necessity for Protocols to amend the ICRW.

The stakes are indeed high for the future of the world's great whales and other cetaceans. New Zealand's new Protocol initiative offers the key to assuring their protection from arbitrary slaughter. Now is the time for strong action by Governments and NGO's. Let's move!