2. various conventions and the whaling issue area

The Convention on the Conservation of Migratory Species of Wild Animals (CMS)^{Footnote 3} provides that ‘[e]ach Agreement should … f) at a minimum, prohibit, in relation to a migratory species of the Order Cetacea, any taking that is not permitted for that migratory species under any other multilateral Agreement’.^{Footnote 4} This implies that states party to the CMS should take direction from the IWC in respect of species for which the latter body has a zero quota in place.^{Footnote 5} The IWC has agreed ‘that there is much benefit in maintaining a cooperative dialogue with other intergovernmental organisations with responsibility for or expertise in relation to small cetaceans, in particular [...] the bodies created under the Bonn Convention [CMS]’.^{Footnote 6}

The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)^{Footnote 7} provides that ‘[n]othing in this Convention shall derogate from the rights and obligations of Contracting Parties under the [ICRW]’.^{Footnote 8} The same wording is found in the Protocol on Environmental Protection to the Antarctic Treaty.^{Footnote 9} Considering that both CCAMLR and the Antarctic Treaty System (ATS) purport to foster a holistic, ecosystem-based approach to managing the Antarctic’s living resources, it is noteworthy that they both exclude management authority over one of the most essential elements of the area’s biodiversity – cetaceans. Australia argued at the 1982 IWC Meeting that ‘liaison and cooperation between the IWC and other organisations concerned either directly or indirectly with whales is necessary for the long term conservation of whales’, and argued that this was particularly true of the IWC’s relationship with CCAMLR.^{Footnote 10}

The 1982 UN Convention on the Law of the Sea (UNCLOS)^{Footnote 11} also treats cetaceans differently from other components of biodiversity and defers to other appropriate organizations for their management.^{Footnote 12} Although the term ‘appropriate organizations’ might suggest scope for alternative bodies to assume competence, the IWC is generally considered to be the only management body with global significance for cetaceans.^{Footnote 13} What is important for the point being made here, however, is that the UNCLOS (which was an attempt to codify much of the law then relating to the use of the sea) does treat cetaceans differently from other components of biodiversity and defers to other organizations for their management.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)^{Footnote 14} does not refer to the IWC specifically, but its Conference of the Parties (CoP) has recommended 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’.^{Footnote 15} CITES thus defers to the IWC on cetaceans instead of making its own scientific, and consequently legal, determinations of status. The IWC offered in 1976 to act as CITES’ official adviser on cetaceans, and then in 1978 requested CITES to ‘take all possible measures’ to support IWC restrictions on species taken.^{Footnote 16} However, the two organizations have not always had an easy relationship. CITES has seen five CoPs (1994, 1997, 2000, 2002 and 2004) at which Japan and/or Norway proposed the downlisting of certain species of minke whale from Appendix I to Appendix II to allow regulated international trade in those species.^{Footnote 17}

The Convention on Biological Diversity (CBD)^{Footnote 18} similarly makes no specific mention of the IWC, but provides that ‘[e]ach Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity’.^{Footnote 19} It also provides that ‘[t]he provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity’.^{Footnote 20} These two articles effectively defer to the IWC as authority for cetaceans.

What emerges from this quick scan of significant biodiversity-related conventions is a general and deliberate circumvention of the IWC, despite the obvious relevance of cetaceans to the subject matters of the conventions. The two most obvious reasons are, firstly, that to some states whaling is of such importance that all states can reach agreement only if the issue is excluded from consideration in negotiations towards new conventions. Secondly, states might be so concerned about importing the conflict that characterizes the IWC into new treaties that they are mutually willing to exclude the issue. Of course, this also means that any attempt to create a new convention to regulate small cetaceans on a global scale would be certain to founder on the same rock of state obduracy. They are thus left unregulated.

3. consequent lack of regulation

Problems abound. One such is that the treatment of certain cetacean species is not regulated. The Schedule to the ICRW lists the cetacean species which the IWC currently has authority to manage.^{Footnote 21} This list has been amended occasionally over the years, but not significantly. By and large, the list remains as it was when it was agreed in 1946. The original Annex is somewhat difficult to read – species are not numbered, they are in haphazard order,^{Footnote 22} some of their scientific names have changed, and some species have multiple names.^{Footnote 23} The term ‘small cetacean’ does not appear and is a later informal (albeit now accepted) coinage.^{Footnote 24} The arbitrary nature of the term appears from examples such as the northern bottlenose whale not being considered a ‘small cetacean’, while the larger Baird’s beaked whale is so considered.^{Footnote 25} It has even been speculated that the latter species was omitted from the list simply because it was hunted in Japan only and was little known to the ICRW’s (mostly Western) founding parties.^{Footnote 26}

The distinction does have a significant impact upon the application of relevant instruments to individual animals. Whereas ‘small cetaceans’ have been the subject of recommendations included in various resolutions^{Footnote 27} of the IWC, only the larger species of cetacean are dealt with in the text of the Schedule to the Treaty. The list has been amended from time to time. For instance, the killer whale was initially not included, but since 1977 it expressly belongs to the list of cetaceans over which the IWC exercises jurisdiction, and the species is within the scope of the current moratorium (technically, a ‘zero quota’) on commercial whaling.^{Footnote 28} At present, however, only 15 species are listed.^{Footnote 29} Approximately 70 species of cetacean^{Footnote 30} are not regulated by the IWC, and this leaves a ‘regulatory vacuum’. The UNCLOS defers the management of ‘cetaceans’, but the most appropriate management body (the IWC) covers only 15 species, although it does recognize other species as cetaceans. Staggeringly, there is no legal instrument of global scope that effectively covers these species.

Presumably, when 15 whaling nations crafted a treaty in 1946, at the dawn of international treaties that considered environmental aspects,^{Footnote 31} they were all agreed on the essentially economic nature of the treaty and did not consider it problematic that only a few species were regulated. After all, few species of any animal were regulated. By the time the problem became apparent of not having included more species, parties’ attitudes had both polarized and hardened. Agreement to expand the list had become all but impossible.

It would be unfair, however, to the IWC and its contracting governments not to acknowledge that it does have many ‘cooperative arrangements’ in place with other conventions and with various international organizations, many of which have observer status. In the ‘Chair’s Report’ for IWC 63 (2011), it is noted that such cooperative arrangements ‘have continued and been strengthened with a number of other Intergovernmental Organisations’.^{Footnote 32} These moves are obviously welcome as examples of links being forged between the ICRW/IWC and other conventions, but it is probably far too early to describe them as ‘synergies’. The confrontational nature of the IWC, and the level of contention within the organization, must make it difficult at the present time to conceive of formal synergistic arrangements. Rather, they probably represent initial cooperative efforts.

4. the ‘future of the iwc’

The deadlocked nature of the IWC has been acknowledged by its own contracting governments, which have gone so far as to engage in recent years in a formal process to seek resolution of the conflict. Stephenson and his colleagues dismiss this process, writing that ‘[a] decision in 2011 to extend the Future of the IWC process has produced no breakthrough’ and that ‘[a]fter four decades of sharp, unassuageable differences, it is hard to imagine a consensus on small cetaceans emerging in the near future’.^{Footnote 33}

The history of this resolution process (the ‘Future of the IWC’) is that at IWC 59, in 2007, it was agreed that steps should be taken towards resolving this conflict, if possible. The agreement was to create a small Steering Group which would explore ways to reconcile the different views. The Group suggested that there was an urgent need to explore ways to improve levels of trust and that ‘initially’ it would be ‘more fruitful to take a process-oriented approach and to seek ways to improve how negotiations within the IWC are conducted’. This led, in 2008, to 25 contracting governments meeting as a Small Working Group (SWG) and considering a ‘package deal’ that would include elements such as a limited resumption of whaling and bringing small cetaceans under the IWC. After a number of further meetings, the initiative was given the official title ‘Future of the IWC’, in which process compromise was sought on issues such as Aboriginal Subsistence Whaling, Creation of Whale Sanctuaries, Japanese Small Type Coastal Whaling, Lifting of the Moratorium on Commercial Whaling, Management of Small Cetaceans, and others.

A document entitled ‘A Proposed Consensus Decision to Improve the Conservation of Whales’^{Footnote 34} was put forward for adoption at IWC 62 in 2010.^{Footnote 35} While it is true that not all of these issues seem immediately to be relevant to the issue of small cetaceans, it is important to understand that for many (especially ‘pro-whaling’) contracting governments it is not viable to seek resolution of the impasse within the IWC unless there is ‘give and take’ and a ‘package deal’ is negotiated. However, consensus was not found in 2010, and the Chair’s suggestion that a ‘further period of reflection’ was needed was agreed to.

At IWC 63, in 2011, Argentina and Brazil put forward a proposal to establish a South Atlantic whale sanctuary. Various parties – including Japan, other ‘sustainable use’ countries and even members such as Russia which generally favour the anti-whaling arguments – objected, arguing that extracting a single issue from the proposed ‘package deal’ might lead to the ‘destruction’ of the ‘Future’ process. The matter was arguably symbolic as it was not likely that the proposal would achieve a 75% majority vote, but it led to a bitter battle of words before Argentina and Brazil drove the proposal to a vote. A group of ‘sustainable use’ countries then attempted to break the quorum before the vote, which led to an even more bitter battle over whether this was possible.^{Footnote 36} This resulted in a compromise set of paragraphs to be included in the Chair’s Report to record the events, with neither side backing down. It certainly appeared as though the ‘Future’ process was defunct. Nevertheless, in the aftermath of IWC 63 it is recorded that it was agreed that the progress achieved through the ‘Future’ process would be maintained; it was also recorded that there was general agreement to encourage continuing dialogue on the IWC’s future to continue building trust by coordinating proposals widely before submission, and to encourage continued cooperation on the work of the IWC despite different views on the conservation of whales and management of whaling.

At IWC 64, in 2012, various contracting governments gave views on the ‘Future’ process. Japan described the agreement made at IWC 63 to ‘continue dialogue to build mutual trust and collaboration’ as ‘indispensable’. Russia suggested that the process should continue, and that the SWG which had met from 2007 to 2010 be reassembled ‘so as to provide for the adoption of a package of measures which would include solutions to’ various issues, with such issues including ‘strike limits for small-type whaling’.^{Footnote 37} Australia and various other anti-whaling members, however, considered that the SWG’s ‘remit’ was over.^{Footnote 38}

Stephenson, Mooers and Attaran reject the potential usefulness of the ‘Future’ process. According to them, ‘[t]he Future of the IWC renewal effort has delivered no result at all for small cetaceans’ and, to be perfectly blunt, ‘[a] solution based on negotiation and good faith seems less likely now than at any time in the past’.^{Footnote 39} However, what is most important about the ‘Future’ process for this response commentary is that (i) although to date unsuccessful, the contracting governments to the ICRW have attempted since 2007 to reach compromise; (ii) while its future is uncertain, the process of seeking compromise may (and probably will) continue in at least some form; and (iii) the issue of IWC authority over small cetaceans is an important element of this compromise. The ‘Future’ process may yet represent the best way in which to redress the historical anomaly of the exclusion of small cetaceans from the IWC’s management authority. At IWC 64, in 2012, a number of countries^{Footnote 40} argued that small cetaceans ‘should be considered as an integral part of the work of the IWC’.^{Footnote 41} The ‘Future’ process remains an agenda item for IWC 65, in 2014.^{Footnote 42}

5. a move towards alternative management

Contracting government Monaco put forward a draft resolution at IWC 64, in 2012, entitled ‘Highly Migratory Cetaceans in the High Seas’.^{Footnote 43} The draft consisted essentially of a request for cooperation from, and discussion with, the UN General Assembly (UNGA). The thrust of the draft resolution was to move the debate on so-called ‘small cetaceans’^{Footnote 44} beyond the confines of the IWC. Monaco amended the draft proposal after consultation with various other parties, and it was then considered in plenary.

Monaco noted ‘that the overwhelming majority of marine cetacean species currently recognized by the IWC are highly migratory species and thus critically dependent on international cooperation for their conservation and management’. It noted that ‘Articles 65 and 120 of [UNCLOS^{Footnote 45}] require States to cooperate with a view to the conservation of marine mammals and, in the case of cetaceans, to work through the appropriate international organizations for their conservation, management and study both within and beyond the exclusive economic zone’, and expressed concern that ‘efforts by coastal and island States to protect these migratory species depend upon effective conservation efforts on the high seas’. Monaco then recalled that ‘due to a divergence of views among IWC Parties over the taxonomic coverage of the ICRW, only 38 highly migratory species of cetacean are included in the ICRW Schedule, without addition of any further species in the last 35 years’. It regretted that ‘most countries engaged in whaling have a policy of not providing data to the IWC Scientific Committee on cetacean species which in their view are not covered by the ICRW’, and expressed deep concern ‘that current catches of cetaceans in the world’s oceans – with the single exception of those meeting aboriginal subsistence whaling quota – are taken without agreed limits’. The draft resolution then proposed that the IWC should ‘call the attention of the international community to the circumstance that significant unregulated catches of highly migratory species of cetaceans continue to take place’, and invited ‘Contracting Parties to consider this issue in collaboration with the [UNGA], with a view to contributing to the conservation efforts of the IWC’.

After several postponements, Monaco’s draft resolution was discussed on the final day of the meeting. Monaco explained that the draft resolution aimed to address the fragmented legal coverage of highly migratory cetacean species, which were protected in some national waters but not elsewhere – despite this being ‘a time when the global community was calling for integrated marine governance’. The draft resolution was intended to tap into synergies and foster coordination between the IWC and the relevant [UN] processes. The idea was not to shift responsibility for whaling issues from the IWC to the UN, but rather to ‘seek synergies with UN processes by drawing the attention of a larger community of nations to the IWC’s Schedule and Resolutions which would strengthen the Commission’s work and embed it in the ongoing initiatives at UNCLOS’. According to Monaco, further, the resolution had as its key elements engagement and cooperation with the UNGA, particularly ‘in the context of the annual negotiations for the UN Resolution on Oceans and the Law of the Sea’, and examination of the gaps in the international regulation of highly migratory cetaceans.

Various countries spoke in support, particularly India and several European and Latin American countries. Many, however, were more cautious: New Zealand, for instance, said that the ‘regulation of small cetaceans was an unresolved issue between the IWC and all other relevant bodies’, but also expressed concern over ‘bringing the divisions of the IWC into the [UN] where negotiations proceeded largely by consensus’.^{Footnote 46} Support for New Zealand’s view came from countries as diverse as the United States (US)^{Footnote 47} and Norway, the latter saying that it shared New Zealand’s concerns about bringing the IWC’s divisions to the [UNGA]. China, Iceland and Japan spoke similarly, with Iceland’s view being that ‘the mandate of the IWC covered only those cetaceans listed in the Schedule to the ICRW’ and ‘that small cetaceans were protected by NAMMCO^{Footnote 48} in its region’. China declared that the IWC was the appropriate forum for the conservation and management of cetaceans;^{Footnote 49} while Japan asserted that the resolution required the IWC to ‘give up its work and ask the UN to take over – give up its mandate’.^{Footnote 50}

The proposed resolution was withdrawn before being put to a vote. Monaco seems to have realized that it had insufficient support even from sympathetic contracting governments (perhaps even from governments which had indicated that they would give support)^{Footnote 51} for the resolution to be adopted, and therefore withdrew it, despite initially having been resolute in wanting to have it voted upon. Monaco finally indicated that it would continue to work on the issue through a ‘non-IWC inter-sessional task force’.^{Footnote 52} Monaco’s Commissioner said that he thought it was ‘important to keep the spirit of building dynamics on our side’, that ‘there were difficulties with gaps in the management of cetaceans’, and that the ‘inter-sessional task force’ would ‘build on a platform with a view to explore the dynamics of synergies with UN processes’.^{Footnote 53}

That the draft resolution was put forward in the first place, and was discussed in plenary before being withdrawn, indicates that it was taken seriously – at least by its proponent. At the time of writing, notice of intention to submit a similar draft resolution has been put forward for the next meeting,^{Footnote 54} to take place in September 2014, and it certainly demonstrates Monaco’s intention to proceed again at the IWC. If Monaco does continue to push the issue forward,^{Footnote 55} it is likely that it will do so in two different forums: the forthcoming meeting of the IWC,^{Footnote 56} and the annual UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea,^{Footnote 57} the latter having been referred to specifically in the 2012 draft resolution.

Should Monaco’s proposal garner more support in 2014 than it did in 2012 (in particular, from the EU bloc of contracting governments) and the resolution be successful, an approach to the UNGA to consider the issue would carry substantial weight. Although resolutions require only simple majorities to succeed in the IWC whereas amending the Schedule^{Footnote 58} requires a 75% majority, a resolution framed in terms of a formal request from the IWC to other organizations would be difficult to ignore. The repercussions for the IWC of consideration by the UNGA would then be difficult to predict. Approximately half of the world’s states are members of the IWC. If the other half were to become interested, and even involved, this could significantly affect the IWC’s approach. Even if the issue were not taken to the UNGA, but taken instead to various other international organizations, expanding awareness of the ‘neglect’ of small cetaceans could hardly be harmful to their conservation and protection. Ultimately, it is difficult to predict whether the pro- or anti-whaling side would benefit more as a consequence of this development, but this should not be the most important consideration. What cannot be stressed enough is that the overriding consideration should be whether the marine environment in general, and unregulated cetacean species in particular, would benefit from such a discussion – especially if it were to lead ultimately to regulation.

6. other work

The IWC is doing much work that involves small cetaceans. Small cetaceans are included in the remit for study by the Ship Strikes Working Group^{Footnote 59} and there is a Voluntary Fund for Small Cetacean Conservation Research,^{Footnote 60} which relies on donations from contracting governments and NGOs and which offers competitive funding to particular research projects related to small cetaceans. The IWC’s Scientific Committee studies and reports on small cetaceans.^{Footnote 61} Notably, many of the small cetacean species which are considered by the Scientific Committee are not those that are actively hunted, but are endangered species found in the waters of fervent anti-whaling countries – such as the franciscana in Brazil, the vaquita in Mexico, the Indus River dolphin in Pakistan, Irrawaddy dolphin in Cambodia, and the Hector’s (including Maui’s, a subspecies) dolphin in New Zealand. Many of these species face multiple threats, including those from fisheries bycatch, ship strikes, and environmental change. While nobody doubts the willingness of states to protect these species,^{Footnote 62} they might benefit from being brought under the direct authority of the IWC. The threats to small cetaceans are far more varied than those posed simply by direct harvesting.