2. THE VOTE ON MONACO’S RESOLUTION AT IWC 65

In June 2014, Monaco gave notice of its intention to submit a draft resolution to IWC 65, after the failure of a similar resolution at IWC 64 in 2012. The draft was formally submitted in July 2014.Footnote ⁷

Monaco introduced its resolution in debate in plenary at IWC 65 in September 2014, indicating that the text had been redrafted over several months with assistance from countries like the United States (US) and New Zealand, and was now focused on environmental threats. Referring to the IWC’s Scientific Committee, Monaco claimed that there are ‘five times more whales roaming the oceans than are covered by the IWC’. Furthermore, Monaco argued that ‘contrary to beliefs in other institutes, the world of whales is not covered by any other agencies’, and that the disappearance of thousands of whales which we are currently witnessing will ‘take its toll on biodiversity and threaten food security’. Monaco then argued that it was the responsibility of the IWC, with its expertise, to play an active role in the ‘mosaic of agencies’ involved, and called for its resolution to be adopted by consensus.Footnote ⁸

Monaco’s proposal was supported in plenary by Argentina, Australia, Brazil, Chile, the Dominican Republic, Italy on behalf of the European Union (EU),Footnote ⁹ Mexico, New Zealand, Peru, Uruguay, and the US.Footnote ¹⁰ Argentina said that ‘for us, small cetaceans do fall within the competence of the IWC’;Footnote ¹¹ and Argentina and Australia both recommended greater cooperation between the IWC and the Convention on the Conservation of Migratory Species of Wild Animals (CMS).Footnote ¹²

In opposition, Norway said that Monaco’s ‘concern with small cetaceans is understandable’ but that ‘the resolution paints a false picture – small cetaceans are not very highly migratory and most of the threats are in controlled areas and not specific to small cetaceans’.Footnote ¹³ Norway concluded that it ‘does not think this a priority’. Japan indicated that it supported Norway and shared its position. ‘It is well known’, said Japan, ‘that we express the position that the small cetacean issue is outside of this organization’s competence’. Japan continued that Article 64 of the United Nations Convention on the Law of the Sea (UNCLOS)Footnote ¹⁴ ‘is as important as other provisions of UNCLOS – “coastal states shall cooperate re highly migratory species with view to optimal utilization”’. Japan then concluded that ‘conservation and optimal utilization under Article 64 should be handled by regional bodies’. Iceland said it thought that ‘this resolution is unbalanced under the skin’; that Iceland would ‘always be willing to cooperate on conservation’, but that ‘this organization [the IWC] is barely able to deal with the stocks it has’ and there was ‘no reason to take on more’. South Korea said that it ‘supports cooperation with other organizations, but in the context of IWC research on cetaceans [this is] not a priority so doesn’t support this’.Footnote ¹⁵

New Zealand stated that it had worked with Monaco in preparing the draft, and commended Monaco for showing ‘flexibility’ and moving away from the ‘different earlier version’. New Zealand then commented that it found ‘the arguments about the Law of the Sea highly technical and highly irrelevant’ and could not ‘see the point of them’.Footnote ¹⁶

The Chair ruled that there was no consensus. Monaco then addressed the plenary again and explained that it had removed some ‘divisive material’, such as the ‘reference to whaling and deliberate takes’. It then observed that the resolution did not take a stand on whether small cetaceans are beyond the IWC’s jurisdiction. Monaco qualified as false Norway’s ‘remark that most small cetaceans are not highly migratory’, and said that ‘most do not stay in the EEZ [Exclusive Economic Zone] only and in remit of one nation’. On Article 64 UNCLOS, Monaco said that this ‘deals specifically with fish, but you don’t fish whales you hunt them’, and that Article 65 UNCLOSFootnote ¹⁷ ‘deals specifically with marine mammals in the EEZ’. Monaco referred to ‘another comment that this body should not play a major coordinating role’ but argued that the ‘point is to assert [that] our Commission should not be outside that debate when it takes place’.Footnote ¹⁸ This text, said Monaco, ‘refers to cooperating with other organizations not named, clearly CMS, although CMS is not global because of the absence of key countries’. Moreover, according to Monaco, the IWC ‘should get close to’ the Convention on Biological Diversity (CBD),Footnote ¹⁹ the regional fisheries management organisations (RFMOs), the International Maritime Organization (IMO), and the United Nations Division for Ocean Affairs and the Law of the Sea (DOALOS).

The debate showed that the four opposing governments tried to downplay the importance of the issue, rather than tackling Monaco’s arguments directly. However, by then it had become obvious that, with the support of the EU members, a majority vote could not be prevented. Hence, the pro-whaling camp’s position was probably intended to prepare the ground for future battles by minimizing the significance of the highly migratory/small cetacean question.

Put to a vote, the resolution was passed with 37 votes in favour,Footnote ²⁰ 15 against,Footnote ²¹ and 7 abstentions.Footnote ²²

3. THE FINAL TEXT OF RESOLUTION 2014-2

Resolution 2014-2 (Resolution on Highly Migratory Cetaceans),Footnote ²³ as passed, notes that ‘nearly all marine cetacean speciesFootnote ²⁴ are highly migratory and thus critically dependent on international cooperation for their conservation and management’. It recalls that the ICRW Schedule currently lists management measures for only 17 of these species;Footnote ²⁵ notes that Articles 65 and 120 UNCLOS ‘provide that States shall cooperate with a view to the conservation of marine mammals and, in the case of cetaceans, work through the appropriate international organisations for their conservation, management and study both within and beyond the [EEZ]’; and recognizes that ‘efforts by coastal States to protect these migratory species depend upon concerted, additional conservation efforts on the High Sea’. The Resolution notes further that ‘for the majority of cetacean species the main conservation threats involve factors, such as entanglement, marine debris and traffic, that cannot be solved through IWC action alone, but require the cooperation of other relevant organizations’.

The operative section of Resolution 2014-2 then indicates that the IWC therefore ‘decides to seek enhanced collaboration in the conservation of migratory cetaceans with other intergovernmental organizations whose cooperation is essential to secure the lasting protection of these species in the world ocean’; ‘requests the Secretariat to conduct consultations and develop a work plan with regard to sharing of data and research priorities’; ‘invites Contracting Parties to raise the need for increased international collaboration regarding highly migratory cetaceans in relevant international fora, with a view to contributing to the conservation efforts of the IWC’; and ‘decides to review progress at the 66^th Meeting of the Commission’.

It appears that Monaco decided to present a draft resolution which built upon the failed draft of 2012, but which was likely to be more attractive to contracting governments otherwise reluctant to ‘stick their necks out’ and ‘engage in conflict’. The fifth point, which alludes to factors that ‘cannot be solved through IWC action alone’, certainly cannot be denied. Allied to this, the sixth, seventh and eighth points (the ‘action points’) are no longer specific to the UN General Assembly (UNGA), but are broader in their remit of engagement. It might be objected that the IWC is already engaged in significant collaborative efforts,Footnote ²⁶ and that Monaco’s initiative is therefore unnecessary, but the resolution does have the potential to bring important impetus to the particular issue of small cetaceans. While Monaco uses the term ‘migratory’ rather than ‘small’, understanding was clear that the real issue was the ‘small cetacean problem’. This is apparent from Japan’s response, in which it reiterates that the ‘small cetacean issue is outside of the organisation’s competence’. Although the 2014 draft does not specifically mention the UNGA,Footnote ²⁷ the history of the matter demonstrates that an approach to that body is envisaged. The choice in the draft resolution not to focus on expansion of the debate to a particular organization, and instead to frame the issue in more general terms, probably contributed significantly to its eventual adoption.

4. TAKING THE RESOLUTION FORWARD

After the successful adoption of Monaco’s Resolution, approaches to the UNGA to consider the issue will carry more weight. Although resolutions require only simple majorities to succeed in the IWC (whereas amending the ScheduleFootnote ²⁸ requires a 75% majority), a resolution backed by a mandate for IWC contracting governments to raise the issue in other foraFootnote ²⁹ will presumably be more difficult to ignore.

Monaco did indeed raise the issue at the annual UNCLOS negotiations late in 2014, specifically in the negotiating rounds towards the Resolution on Oceans and the Law of the Sea.Footnote ³⁰ The records of the negotiations are not made public, but the present author was advised that, in the end, only one country blocked consensus on text that would otherwise have appeared in the Resolution. Allegedly, this block was on the formal ground that the country in question lacked internal authority.

The text that would otherwise have been included read that the UNGA:

Monaco resubmitted the paragraph in late 2015 and, after amendment, it was finally included in the Resolution on Oceans and the Law of the Sea, which was adopted on 23 December 2015.Footnote ³¹ The final text reads that the UNGA:

There was, apparently, renewed resistance from Iceland and Japan before changes to wording were agreed (especially on ‘higher trophic levels’ instead of ‘highly migratory species, marine mammals, sea turtles and seabirds’) and consensus was reached.

5. COMMENTARY

Stephenson, Mooers and Attaran wrote in 2014 that:

What the authors have done here is to conflate international and national legal systems as though they operate in the same way, but their example can work only in a national legal system. A domestic court could consider a national law and, in this consideration, part of the court’s role would be to ensure the rationality of the statute. However, the reality of international law is that states cannot legally be forced by other states to act in a certain way, even if the latter states contend that the former are behaving irrationally. Furthermore, in national law, a legal subject cannot at its own discretion ‘opt out of the system’ and exclude the judiciary from adjudicating on certain matters where that subject is concerned.Footnote ³⁴ Again, the situation is distinctly different at the level of international law.

This misunderstanding goes to the crux of the problem of the management of small cetaceans. Small cetaceansFootnote ³⁵ are not and have never been subject to the management authority of the IWC. Contracting governments in favour of this position cannot be forced by other contracting governments to accept a change to this status based on their interpretation of the definition of ‘whale’.

According to an editorial in the first issue of the Journal of Cetacean Research and Management, ‘some governments take the view that the Commission has the legal competence to regulate catches only of these named great whales. Others believe that all cetaceans, including the smaller dolphins and porpoises, also fall within IWC jurisdiction’.Footnote ³⁶ Some have argued that the original listing of only a few species should not be seen as an absolute barrier to the subsequent listing of other species. Gillespie, for instance, condemns as ‘simplistic’ the idea that ‘the nomenclature to the ICRW was the cut-off line for what species were to be under the purview of the ICRW – or the core of some form of agreement which delineated authority’.Footnote ³⁷

According to Gillespie, Japan argued (at IWC 34) that if a whale species did not feature in the original list, then the ICRW cannot claim jurisdiction over it unless all contracting governments agree.Footnote ³⁸ In support of this, according to Gillespie, Japan relied on Article 31(2)(a) of the 1969 Vienna Convention on the Law of Treaties,Footnote ³⁹ on the basis that the original nomenclature was an ‘agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’, and that, accordingly, any attempt by the IWC to exercise management control over species not listed on the nomenclature would be ultra vires unless all contracting governments agreed subsequently to change the nomenclature.Footnote ⁴⁰ The point which Gillespie does not make, and which is damaging to Japan’s argument, is that partial amendments have been made to the Schedule, such as by way of addition of the killer whale to the Schedule in 1977. At IWC 34, 35 and 36, however, it could apparently not be agreed whether the addition of the killer whale constituted a precedent.Footnote ⁴¹

The discussion at IWC 35 concerned the IWC’s competence to set catch limits in the North Pacific for the Baird’s beaked whale, which was not a species listed on the original nomenclature. The Chair’s Report reflects that ‘divergent views’ were expressed on whether the chart of nomenclature should be regarded as ‘an attempt to secure consistency of terminology’ to which ‘no legally binding character should be attributed’, or whether the ‘reference in the Final Act to acceptance of the chart as a guide only means that the names therein are to be taken as a guide, whereas the list of species which the Conference regarded as whales is exhaustive’ and therefore that ‘the Commission’s competence to adopt regulatory measures is restricted to those species listed’ – in the latter case, unanimous agreement would be required to extend management to additional species, as the chart ‘was adopted unanimously’.Footnote ⁴²

Gillespie argues against the idea that ‘the ICRW cannot evolve without the full and unanimous consent of all the signatories’,Footnote ⁴³ and posits that the ICRW ‘was clearly designed to evolve through subsequent practice and the operation of a three-quarters majority (but dissenting nations still have the clear right to object and not be bound)’.Footnote ⁴⁴ Hence, Gillespie asserts that the original listing does not preclude future listings, but he simultaneously acknowledges that such future listings cannot be achieved except by way of a three-quarters majority vote.

This is correct and it is why the argument that small cetaceans should be regarded as falling automatically within the IWC’s management auspices is not currently a ‘live’ issue within IWC debate. Contracting governments understand that the issue cannot be forced and therefore proceed on the understanding that this is an issue which requires a negotiated solution, since there is no current prospect of either ‘side’ within the IWC obtaining the 75% majority necessary for a Schedule amendment.Footnote ⁴⁵

Writing in the mid-1990s,Footnote ⁴⁶ Burns canvasses the history of the IWC’s consideration of the small cetacean issue. He explains that sporadic efforts within the IWC from the 1960s onward culminated in 1993 with the adoption of a resolution which he describes as being ‘extremely ambiguous’ and as ‘amount[ing] to little more than a pledge by the member states to revisit the issue in the future’.Footnote ⁴⁷ According to Burns, ‘several Parties to the ICRW continue to steadfastly maintain that any effort to regulate small cetaceans under the treaty would be outside the scope of the ICRW, and thus would be rendered ultra vires, or would conflict with other treaty commitments’.Footnote ⁴⁸

Since then, there has been little movement on the issue. As discussed in the article to which the present article is an update, bringing small cetaceans under the management auspices of the IWC was one of 33 elements of the proposed ‘Future of the IWC’ conciliation package.Footnote ⁴⁹ One of the ‘fundamental elements’ of the proposed ‘consensus decision’ put forward at IWC 62, in 2010, was to ‘bring all whaling authorised by member governments under the control of the IWC’.Footnote ⁵⁰ Further, the IWC was to establish at IWC 62 a Working Group, ‘representing a broad cross section of the membership, to continue to examine reform of the Commission, including governance issues, the role of science in decision making, sanctuaries, research conducted by special permit, whaling under objections and reservations, the commercial whaling moratorium, international trade, bycatch and small cetaceans’.Footnote ⁵¹

Recourse to the International Court of Justice (ICJ) on the issue is, in my view, highly unlikely to happen. This may not be a bad thing for the anti-whaling side, as such litigation might be a dangerous move. Judgment in favour of the inclusion of small cetaceans would not be a foregone conclusion.

Space precludes a longer discussion here, but the 2014 judgment of the ICJ in the Whaling in the Antarctic caseFootnote ⁵² was a victory for Australia and New Zealand. Judgment was given in their favour and Japan was impliedly found to have been dishonest about its JARPA II whaling programme. Importantly, a necessary implication of the judgment is that contracting governments may not simply act ‘as they like’ in issuing scientific whaling permits, but are subject to oversight. However, in many ways Japan would be entitled to feel that it emerged from the litigation in a stronger position than before. The ICJ held that ‘the fact that a programme involves the sale of whale meat and the use of proceeds to fund research is not sufficient, taken alone, to cause a special permit to fall outside Article VIII’.Footnote ⁵³ This will make it difficult in the future for anti-whaling contracting governments and other campaigners to argue that Japan’s sale of meat from research whaling efforts is a breach of the ICRW. The ICJ further held that ‘given that the value and reliability of data collected are a matter of scientific opinion, the Court finds no basis to conclude that the use of lethal methods is per se unreasonable in the context of JARPA II’,Footnote ⁵⁴ which will scupper future arguments that only non-lethal whaling is acceptable. Finally, the ICJ held that ‘amendments to the Schedule and recommendations by the IWC may put an emphasis on one or the other objective pursued by the Convention, but cannot alter its object and purpose’,Footnote ⁵⁵ which will make it difficult in the future to argue that the ICRW has evolved over time and become a ‘conservation-oriented treaty’.

Japan has already advised the IWC formally of its intention to commence a new research whaling programme: the New Scientific Whale Research Programme in the Antarctic Ocean (NEWREP-A).Footnote ⁵⁶

Given this ‘backfiring’, it seems highly unlikely that any government would be willing to risk litigation before the ICJ on the issue of small cetaceans.Footnote ⁵⁷ Were it to happen, the most likely finding by the ICJ would be that contracting governments to the ICRW cannot be forced to accept the non-consensual imposition of species into their management ambit, given that (a) this is the apparent understanding of the contracting governments, as evidenced by their consistent practice through the lifetime of the ICRW, and (b) through its Schedule, the ICRW provides for a means to broaden its ambit and include new species. As the ICRW already provides the IWC with the means to correct the alleged anomaly, the ICJ would be unlikely to rule that it was entitled to impose a solution simply because the contracting governments find it politically difficult.Footnote ⁵⁸

A different solution therefore needs to be found.