23. International Whaling Commission (IWC)

23. International Whaling Commission (IWC) (1) Introduction The IWC held its sixty-sixth meeting (IWC-66) in Portorož, Slovenia, on 24–8 October. Sixty-seven of the eighty-eight contracting parties to the International Convention on the Regulation of Whaling (ICRW) attended as well as six inter-governmental and thirty-two non-governmental organizations. The commission last met in 2014. Meanwhile, the Bureau—which was established to oversee the commission’s projects and provide advice for its chair and Secretariat in inter-sessional periods when the commission moved to biennial meetings in 2012 in order to reduce the costs and resentments incurred by annual meetings of its divided members—met in 2015. The ICRW authorizes the IWC to regulate the conservation and utilization of ‘whale resources’ and to make recommendations to contracting governments. This review records the achievements of the meeting regarding sanctuaries and other conservation measures, Aboriginal subsistence whaling (ASW), small-type coastal whaling, special permit whaling for research purposes, the work of the IWC, and the work of the IWC’s committees, sub-committees, and working groups. (2) Sanctuaries and Other Conservation Measures The IWC has established whale sanctuaries in the Indian and Southern Oceans. Both sanctuaries are subject to periodic review, and, at the meeting, the Scientific Committee reported that the second decadal review of the Southern Ocean Sanctuary had been completed. The committee had recommended the development of a management plan and explicit funding for the sanctuary. The Conservation Committee endorsed the findings of its steering group that the sanctuary is consistent with other existing measures to protect whales and the precautionary approach and contributed positively to existing international commitments on biodiversity and climate change. Despite this positive feedback regarding the Southern Ocean Sanctuary, the IWC voted against a new South Atlantic Sanctuary that was once again proposed at the meeting by Brazil, Argentina, Gabon, South Africa, and Uruguay. This sanctuary was first proposed to the commission in 2001 but had failed to achieve the majority required (changes to the ICRW’s schedule require a 75 percent majority). Brazil argued that the proposed sanctuary aims to protect cetaceans in the South Atlantic Ocean and also to promote local sustainable tourism and cooperation among nations (Chair’s Report of the Sixty-sixth Meeting (2016), 6). The Scientific and Conservation Committees presented reviews of the proposal. The Scientific Committee agreed that the proposal had been adequately reviewed and that sanctuaries can, in principle, encourage collaboration and the development of research and monitoring programs relevant to meeting conservation and management goals adopted by the commission (Chair’s Report, 6). The Conservation Committee endorsed the proposal’s inclusion of a management plan and concluded that the sanctuary would help to protect whales, was consistent with the precautionary approach, and could enhance social activities including research and education (Conservation Committee Review of the Proposed South Atlantic Whale Sanctuary, Doc. IWC/66/CC 14 (2016)). The proposal’s opponents questioned the scientific basis of the sanctuary, the effectiveness of sanctuaries as a resource management tool, and the legitimacy of sanctuaries under the ICRW. The proposal’s backers anticipated the sanctuary’s potential benefits to whale-watching and non-lethal research and argued that the proposal, which was supported by all range states, presented an opportunity for the commission’s members to contribute to their international obligations on climate change and biodiversity (Chair’s Report, 6–7). The proposal was put to a vote but failed to reach the majority required, gaining thirty-eight votes in favour and twenty-four against. This is a slightly heavier defeat than in 2014, despite Denmark (which usually opposes sanctuary proposals) choosing to vote with the European Union. The IWC adopted three resolutions aimed at the conservation of whales at the meeting. Resolution 2016-3 on Cetaceans and Their Contributions to Ecosystem Functioning acknowledges the increasing scientific data about the ecosystem functions of whales (particularly of whale faecal plumes that concentrate nitrogen and iron near the surface, and whale carcasses that decay, thereby enhancing biodiversity), encourages the commission to work towards integrating consideration of the ecosystem contributions of whales into future decisions, agreements, and resolutions, and asks the Scientific and Conservation Committees to further include the contributions of cetaceans to ecosystem functioning in their work. After discussion, the commission passed this resolution with thirty-six votes in favour. Resolution 2016-4 welcomes the adoption of the Minamata Convention on Mercury, which is expected to come into force in 2017 and aims to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds by banning new mercury mines and phasing out existing ones, phasing out and phasing down mercury use, and controlling mercury pollution. In Resolution 2016-4, the IWC agrees to seek collaboration with the parties to the Minamata Convention on Mercury and to contribute to research and monitoring of mercury in cetaceans; invites members of the commission to promote non-lethal research on the presence of mercury in cetaceans; and requests the Scientific Committee to report on the current state of knowledge on the presence of heavy metals in cetaceans at the Commission’s next meeting. Thirty-eight members of the commission voted in favour of Resolution 2016-4, and twenty-three members voted against it, including Iceland and Japan, who argued that the resolution falls outside the scope of the convention. Japan also ‘expressed concern that it discourages lethal research’ (Chair’s Report, 13). Resolution 2016-5 on the Critically Endangered Vaquita was passed by consensus. This resolution is the IWC’s third on the vaquita, a small porpoise endemic to the Gulf of California that is imperiled by illegal gillnet fishing for totoaba, a rare fish with a highly prized swim bladder. The resolution acknowledges the various positions of the parties on the jurisdiction of the commission in regard to small cetaceans, but goes on to express the deep concern of the commission that the estimated total abundance of vaquita in 2015 was just fifty-nine, meaning that the species is facing imminent extinction. Resolution 2016-5 affirms the need to ban gill-netting in the Gulf of California; commends the Mexican government introduce such a ban but urges it to make it comprehensive; and urges contracting governments to follow the recommendations of the parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora to eliminate trade in totoaba swim bladders and provide support for Mexico in its efforts to prevent the vaquita’s extinction. Although this resolution passed by consensus, twenty-five members appended a statement reinforcing their view that the IWC ‘has no legal authority over the vaquita or other small cetaceans and has no substantive means to influence its status, including managing fisheries that catch small cetaceans incidentally.’ Resolution 2016-5 is therefore only of limited and symbolic importance to the vaquita (Chair’s Report, 14). (3) Aboriginal Subsistence Whaling (ASW) Paragraph 13(b) of the Schedule to the ICRW sets catch limits for ASW. The process for setting these limits is that the Scientific Committee, through its Sub-Committee on ASW, provides advice to the IWC on whether proposed catches will harm the affected whale stocks—this is calculated by implementing strike rate algorithms developed by the Scientific Committee—which then decides whether to endorse the catch, taking into account a ‘needs statement’ describing the cultural, subsistence, and nutritional aspects of the hunt. Catch limits are subject to review, and, in 2016, catch limits for bowhead whales from the Bering–Chukchi–Beaufort Seas, gray whales from the eastern stock in the North Pacific, minke whales from the west and east Greenland stocks, fin whales from the west Greenland stock, bowhead whales from the west Greenland feeding aggregation, humpback whales from west Greenland, and North Atlantic humpback whales from off St. Vincent and the Grenadines were all reviewed. The Scientific Committee’s findings were that none of the hunting proposed would harm the stocks, and ASW was endorsed by the commission. However, the IWC’s process for managing ASW is under pressure. In 2012, Denmark’s Greenland hunt was not endorsed, leading to friction between Denmark and the commission. Controversially, Denmark proceeded with the hunt despite the absence of commission endorsement. This tension was resolved for the short term in 2014 when the IWC re-authorized the Greenland hunt for the period 2015–18. To progress the wider concerns of hunters for a consistent and more long-term approach to ASW, the commission agreed to set up a working group to run a workshop to consider long-term issues of greatest concern. When reporting back to the meeting, the working group placed emphasis on allowing flexibility in the preparation of needs statements given the large variety of hunts, and on the rights of indigenous peoples and the need for the commission to align its ASW practices with those that contracting governments had committed to elsewhere in the international system. The workshop also proposed a timetable for the assessment of catch limits to allow more time for consideration. The meeting invited an international law expert on indigenous peoples’ rights to address it, endorsed the working group’s recommendations on process and agreed to pilot use of the workshop’s timetable, and referred the workshop report to the ASW Working Group for further consideration. (4) Small-Type Coastal Whaling Japan reported back to the meeting on the consultation on small-type coastal whaling it conducted with the contracting governments in the inter-sessional period following the IWC’s 2014 refusal to adopt Japan’s proposal to set a catch limit for small-type coastal whaling in the schedule. Japan’s report opened up two short discussions regarding the scope and future of the commission and about the basic divide between the contracting governments on the conservation and utilization of whales. Japan proposed continuing informal inter-sessional discussions around a list of questions suggested by the parties and offered to draft terms of reference to guide this process. The commission agreed that discussions should be initiated. Ghana presented a draft resolution on food security, calling on the IWC to take full account of livelihoods in developing nations when exercising its functions. There was no consensus on this matter, and no vote was called for. (5) Special Permit Whaling Special permit whaling is, without doubt, the most contentious aspect of the IWC’s work. Of particular issue is Japan’s special permit scientific research program in the Southern Ocean. In 2014, the International Court of Justice found that special permit research programs are subject to objective scrutiny, and that JARPA II (the program being implemented by Japan at the time) was inconsistent with the ICRW (Whaling in the Antarctic (Australia v Japan; New Zealand Intervening), 31 March 2014). Following this decision, Japan discontinued JARPA II but indicated its intention to continue lethal research on whales under a new program, which it said would be compliant with the court’s decision. In response, the IWC passed Resolution 2014-5 at its meeting in 2014, requesting contracting governments not to issue any new special permits unless the research program they propose has been reviewed by the Scientific Committee. The commission has considered the committee’s report on the program, assessed the responsible government’s compliance with the review process, and made recommendations on the merits of the program. Japan resumed whaling in 2015 under a new research program, NEWREP-A, observing that it had complied with the schedule’s binding instruction to governments to submit proposals to the Scientific Committee for review and comment. Japan had indeed done this and had also responded to the recommendations the committee subsequently made. However, Japan did not wait for the committee to finish its review of NEWREP-A or for the IWC to consider the research program before resuming special permit whaling in 2015 and, thus, did not comply with Resolution 2014-5. Therefore, at the meeting in 2016, Australia and New Zealand presented Resolution 2016-2 on Improving the Review Process for Whaling under Special Permit to reaffirm the role of the IWC in special permit whaling and to establish a standing working group to consider Scientific Committee reports on proposals for special permit whaling (beginning with NEWREP-A) and report to the commission on the proposal’s compliance with Annex P: Process for the Review of Special Permit Proposals and Research Results from Existing and Completed Permits (which the committee has revised to reflect Resolution 2014-5 and the judgment of the court in Whaling in the Antarctic). Resolution 2016-2 was passed by thirty-four votes to seventeen (with ten abstentions) despite Japan’s insistence that it ‘is aimed at unduly limiting the implementation of Japan’s scientific research programs regardless of scientific value and in a manner inconsistent with the Convention’ (Chair’s Report, 9). A majority of the governments at the meeting also noted with concern that Japan had issued special permits before the committee’s review was complete, and the IWC had considered NEWREP-A and that, ‘on the basis of the information before the Commission, NEWREP-A is not “for purposes of scientific research” as required’ by the Convention, and further requested that Japan cease lethal research methods (Chair’s Report, 32). (6) Work of the IWC The IWC adopted two resolutions affecting its own work at the meeting. Resolution 2016-1, which was presented by Australia, was adopted by consensus. In this resolution, the commission recognizes the importance of ensuring that its institutional and governance functions align with best practice for contemporary multilateral treaty bodies and agrees to a comprehensive and independent review of its arrangements. This review will be conducted by three independent panelists selected by a Steering Group established at the meeting and will be based on the terms of reference set out in the annex to the resolution. These terms refer to: the best practice ‘principles of transparency, accountability, credibility and effectiveness’ and define the scope of the review to include the organization of the commission’s work; the processes for agreeing on work programs, strategic direction, and the allocation of resources; methods and processes of communication; the functioning and effectiveness of the Secretariat; and the rules on procedure and finance. Expressly excluded from the scope of the review are the text of the ICRW, the schedule, the conservation and management of cetaceans, compliance, and aligning of the IWC’s operations with Whaling in the Antarctic. The IWC agreed to Resolution 2016-6 on Strengthening the Capacity of Governments of Limited Means with thirty votes in favour and an unusually high number of thirty-one abstentions. This resolution was developed by the Working Group on Providing Options to Governments of Limited Means to Participate in the Commission’s Work, chaired by Japan. The resolution creates a voluntary fund to alleviate the financial pressures that interfere with the participation of some governments in commission meetings. The resolution states, in apparent reference to claims of vote rigging that have beset the commission in the past, that ‘for reasons of fair representation,’ governments cannot choose which other government(s) will benefit from their contributions or finance participation other than by contributions to the fund. (7) Committees, Sub-Committees, and Working Groups At the meeting, the IWC adopted reports from its Scientific, Conservation, and Finance and Administration Committees, its Infractions, Budgetary, and ASW Sub-Committees, and its Working Group on Whale Killing Methods and Welfare Issues (which focused in particular on whale entanglements and strandings). The Conservation Committee reported that it had developed and endorsed a strategic plan—with a vision of ‘healthy and well-managed populations and recovered cetacean populations worldwide’—to direct its work from 2016 to 2026. The Scientific Committee updated the meeting on its ongoing work on: whale stocks (expressing concerns over the effects of oil and gas exploration and other activities off Sakhalin Island on gray whales, recent high numbers of strandings of Southern hemisphere right whale calves, and the status of Arabian Sea humpback whales); agreed abundance estimates (noting that it has established a working group to help it to complete this work by 2018); the revised management procedure (which the committee uses to estimate sustainable catch limits for commercial whaling of baleen whales); ASW (reporting good progress on the development of strike limit algorithms, which the committee uses to estimate the effect of the hunts); conservation management plans; cetacean habitat (here the committee drew attention to the Rio Doco crisis in Brazil, where a mine tailings dam collapsed releasing waste including heavy metals into the habitat of Franciscana and Guiana dolphins); the annual State of the Cetacean Environment Report under Resolution 2000-7; cetacean health and disease; ecosystem modelling; climate change; unintended anthropogenic impacts on cetacean populations; IWC-POWER (the IWC’s non-lethal research program); the Pollution 2020 Research Programme; and small cetaceans. On the matter of small cetaceans, the committee observed that while it had increasingly expressed concerns about particular small cetaceans, and generally recommended stricter management and the immediate elimination of by-catch mortality, ‘there had often been insufficient or no management response’ from governments. The committee requested that the IWC encourage all members to submit by-catch data and reiterated its long-standing recommendation that contracting governments should not allow by-catch of small cetaceans to occur without first assessing the sustainability of affected populations (Chair’s Report, 22 and 23). The committee expressed its grave concern for the vaquita and for New Zealand’s Maui’s dolphin, two sub-species imperiled by fishing-related mortalities and emphasized the need for New Zealand to take precautionary measures ‘with the highest priority assigned to immediate actions to eliminate bycatch’ of Maui’s dolphin (Chair’s Report, 22). The committee also reported that it had set up task teams to study Franciscana and South Asian river dolphins and identified protection measures for Atlantic humpback dolphin as an urgent priority (Chair’s Report, 23). The Scientific Committee also reported that both it and the Conservation Committee had agreed that anthropogenic sound could adversely affects cetacean populations and that a precautionary approach should be taken to this threat (Chair’s Report, 27). The two committees also made recommendations on addressing by-catch (which the Scientific Committee has ‘repeatedly identified as the most serious direct threat to cetaceans globally’ (Chair’s Report, 26), ship strikes, and marine pollution. These recommendations were endorsed by the IWC and include establishing a standing working group on by-catch, developing a by-catch mitigation initiative supported by an expert panel, developing a management plan on marine debris and pollution, and continued engagement with the International Maritime Organization on ship strikes and marine pollution. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

23. International Whaling Commission (IWC)

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Abstract

(1) Introduction The IWC held its sixty-sixth meeting (IWC-66) in Portorož, Slovenia, on 24–8 October. Sixty-seven of the eighty-eight contracting parties to the International Convention on the Regulation of Whaling (ICRW) attended as well as six inter-governmental and thirty-two non-governmental organizations. The commission last met in 2014. Meanwhile, the Bureau—which was established to oversee the commission’s projects and provide advice for its chair and Secretariat in inter-sessional periods when the commission moved to biennial meetings in 2012 in order to reduce the costs and resentments incurred by annual meetings of its divided members—met in 2015. The ICRW authorizes the IWC to regulate the conservation and utilization of ‘whale resources’ and to make recommendations to contracting governments. This review records the achievements of the meeting regarding sanctuaries and other conservation measures, Aboriginal subsistence whaling (ASW), small-type coastal whaling, special permit whaling for research purposes, the work of the IWC, and the work of the IWC’s committees, sub-committees, and working groups. (2) Sanctuaries and Other Conservation Measures The IWC has established whale sanctuaries in the Indian and Southern Oceans. Both sanctuaries are subject to periodic review, and, at the meeting, the Scientific Committee reported that the second decadal review of the Southern Ocean Sanctuary had been completed. The committee had recommended the development of a management plan and explicit funding for the sanctuary. The Conservation Committee endorsed the findings of its steering group that the sanctuary is consistent with other existing measures to protect whales and the precautionary approach and contributed positively to existing international commitments on biodiversity and climate change. Despite this positive feedback regarding the Southern Ocean Sanctuary, the IWC voted against a new South Atlantic Sanctuary that was once again proposed at the meeting by Brazil, Argentina, Gabon, South Africa, and Uruguay. This sanctuary was first proposed to the commission in 2001 but had failed to achieve the majority required (changes to the ICRW’s schedule require a 75 percent majority). Brazil argued that the proposed sanctuary aims to protect cetaceans in the South Atlantic Ocean and also to promote local sustainable tourism and cooperation among nations (Chair’s Report of the Sixty-sixth Meeting (2016), 6). The Scientific and Conservation Committees presented reviews of the proposal. The Scientific Committee agreed that the proposal had been adequately reviewed and that sanctuaries can, in principle, encourage collaboration and the development of research and monitoring programs relevant to meeting conservation and management goals adopted by the commission (Chair’s Report, 6). The Conservation Committee endorsed the proposal’s inclusion of a management plan and concluded that the sanctuary would help to protect whales, was consistent with the precautionary approach, and could enhance social activities including research and education (Conservation Committee Review of the Proposed South Atlantic Whale Sanctuary, Doc. IWC/66/CC 14 (2016)). The proposal’s opponents questioned the scientific basis of the sanctuary, the effectiveness of sanctuaries as a resource management tool, and the legitimacy of sanctuaries under the ICRW. The proposal’s backers anticipated the sanctuary’s potential benefits to whale-watching and non-lethal research and argued that the proposal, which was supported by all range states, presented an opportunity for the commission’s members to contribute to their international obligations on climate change and biodiversity (Chair’s Report, 6–7). The proposal was put to a vote but failed to reach the majority required, gaining thirty-eight votes in favour and twenty-four against. This is a slightly heavier defeat than in 2014, despite Denmark (which usually opposes sanctuary proposals) choosing to vote with the European Union. The IWC adopted three resolutions aimed at the conservation of whales at the meeting. Resolution 2016-3 on Cetaceans and Their Contributions to Ecosystem Functioning acknowledges the increasing scientific data about the ecosystem functions of whales (particularly of whale faecal plumes that concentrate nitrogen and iron near the surface, and whale carcasses that decay, thereby enhancing biodiversity), encourages the commission to work towards integrating consideration of the ecosystem contributions of whales into future decisions, agreements, and resolutions, and asks the Scientific and Conservation Committees to further include the contributions of cetaceans to ecosystem functioning in their work. After discussion, the commission passed this resolution with thirty-six votes in favour. Resolution 2016-4 welcomes the adoption of the Minamata Convention on Mercury, which is expected to come into force in 2017 and aims to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds by banning new mercury mines and phasing out existing ones, phasing out and phasing down mercury use, and controlling mercury pollution. In Resolution 2016-4, the IWC agrees to seek collaboration with the parties to the Minamata Convention on Mercury and to contribute to research and monitoring of mercury in cetaceans; invites members of the commission to promote non-lethal research on the presence of mercury in cetaceans; and requests the Scientific Committee to report on the current state of knowledge on the presence of heavy metals in cetaceans at the Commission’s next meeting. Thirty-eight members of the commission voted in favour of Resolution 2016-4, and twenty-three members voted against it, including Iceland and Japan, who argued that the resolution falls outside the scope of the convention. Japan also ‘expressed concern that it discourages lethal research’ (Chair’s Report, 13). Resolution 2016-5 on the Critically Endangered Vaquita was passed by consensus. This resolution is the IWC’s third on the vaquita, a small porpoise endemic to the Gulf of California that is imperiled by illegal gillnet fishing for totoaba, a rare fish with a highly prized swim bladder. The resolution acknowledges the various positions of the parties on the jurisdiction of the commission in regard to small cetaceans, but goes on to express the deep concern of the commission that the estimated total abundance of vaquita in 2015 was just fifty-nine, meaning that the species is facing imminent extinction. Resolution 2016-5 affirms the need to ban gill-netting in the Gulf of California; commends the Mexican government introduce such a ban but urges it to make it comprehensive; and urges contracting governments to follow the recommendations of the parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora to eliminate trade in totoaba swim bladders and provide support for Mexico in its efforts to prevent the vaquita’s extinction. Although this resolution passed by consensus, twenty-five members appended a statement reinforcing their view that the IWC ‘has no legal authority over the vaquita or other small cetaceans and has no substantive means to influence its status, including managing fisheries that catch small cetaceans incidentally.’ Resolution 2016-5 is therefore only of limited and symbolic importance to the vaquita (Chair’s Report, 14). (3) Aboriginal Subsistence Whaling (ASW) Paragraph 13(b) of the Schedule to the ICRW sets catch limits for ASW. The process for setting these limits is that the Scientific Committee, through its Sub-Committee on ASW, provides advice to the IWC on whether proposed catches will harm the affected whale stocks—this is calculated by implementing strike rate algorithms developed by the Scientific Committee—which then decides whether to endorse the catch, taking into account a ‘needs statement’ describing the cultural, subsistence, and nutritional aspects of the hunt. Catch limits are subject to review, and, in 2016, catch limits for bowhead whales from the Bering–Chukchi–Beaufort Seas, gray whales from the eastern stock in the North Pacific, minke whales from the west and east Greenland stocks, fin whales from the west Greenland stock, bowhead whales from the west Greenland feeding aggregation, humpback whales from west Greenland, and North Atlantic humpback whales from off St. Vincent and the Grenadines were all reviewed. The Scientific Committee’s findings were that none of the hunting proposed would harm the stocks, and ASW was endorsed by the commission. However, the IWC’s process for managing ASW is under pressure. In 2012, Denmark’s Greenland hunt was not endorsed, leading to friction between Denmark and the commission. Controversially, Denmark proceeded with the hunt despite the absence of commission endorsement. This tension was resolved for the short term in 2014 when the IWC re-authorized the Greenland hunt for the period 2015–18. To progress the wider concerns of hunters for a consistent and more long-term approach to ASW, the commission agreed to set up a working group to run a workshop to consider long-term issues of greatest concern. When reporting back to the meeting, the working group placed emphasis on allowing flexibility in the preparation of needs statements given the large variety of hunts, and on the rights of indigenous peoples and the need for the commission to align its ASW practices with those that contracting governments had committed to elsewhere in the international system. The workshop also proposed a timetable for the assessment of catch limits to allow more time for consideration. The meeting invited an international law expert on indigenous peoples’ rights to address it, endorsed the working group’s recommendations on process and agreed to pilot use of the workshop’s timetable, and referred the workshop report to the ASW Working Group for further consideration. (4) Small-Type Coastal Whaling Japan reported back to the meeting on the consultation on small-type coastal whaling it conducted with the contracting governments in the inter-sessional period following the IWC’s 2014 refusal to adopt Japan’s proposal to set a catch limit for small-type coastal whaling in the schedule. Japan’s report opened up two short discussions regarding the scope and future of the commission and about the basic divide between the contracting governments on the conservation and utilization of whales. Japan proposed continuing informal inter-sessional discussions around a list of questions suggested by the parties and offered to draft terms of reference to guide this process. The commission agreed that discussions should be initiated. Ghana presented a draft resolution on food security, calling on the IWC to take full account of livelihoods in developing nations when exercising its functions. There was no consensus on this matter, and no vote was called for. (5) Special Permit Whaling Special permit whaling is, without doubt, the most contentious aspect of the IWC’s work. Of particular issue is Japan’s special permit scientific research program in the Southern Ocean. In 2014, the International Court of Justice found that special permit research programs are subject to objective scrutiny, and that JARPA II (the program being implemented by Japan at the time) was inconsistent with the ICRW (Whaling in the Antarctic (Australia v Japan; New Zealand Intervening), 31 March 2014). Following this decision, Japan discontinued JARPA II but indicated its intention to continue lethal research on whales under a new program, which it said would be compliant with the court’s decision. In response, the IWC passed Resolution 2014-5 at its meeting in 2014, requesting contracting governments not to issue any new special permits unless the research program they propose has been reviewed by the Scientific Committee. The commission has considered the committee’s report on the program, assessed the responsible government’s compliance with the review process, and made recommendations on the merits of the program. Japan resumed whaling in 2015 under a new research program, NEWREP-A, observing that it had complied with the schedule’s binding instruction to governments to submit proposals to the Scientific Committee for review and comment. Japan had indeed done this and had also responded to the recommendations the committee subsequently made. However, Japan did not wait for the committee to finish its review of NEWREP-A or for the IWC to consider the research program before resuming special permit whaling in 2015 and, thus, did not comply with Resolution 2014-5. Therefore, at the meeting in 2016, Australia and New Zealand presented Resolution 2016-2 on Improving the Review Process for Whaling under Special Permit to reaffirm the role of the IWC in special permit whaling and to establish a standing working group to consider Scientific Committee reports on proposals for special permit whaling (beginning with NEWREP-A) and report to the commission on the proposal’s compliance with Annex P: Process for the Review of Special Permit Proposals and Research Results from Existing and Completed Permits (which the committee has revised to reflect Resolution 2014-5 and the judgment of the court in Whaling in the Antarctic). Resolution 2016-2 was passed by thirty-four votes to seventeen (with ten abstentions) despite Japan’s insistence that it ‘is aimed at unduly limiting the implementation of Japan’s scientific research programs regardless of scientific value and in a manner inconsistent with the Convention’ (Chair’s Report, 9). A majority of the governments at the meeting also noted with concern that Japan had issued special permits before the committee’s review was complete, and the IWC had considered NEWREP-A and that, ‘on the basis of the information before the Commission, NEWREP-A is not “for purposes of scientific research” as required’ by the Convention, and further requested that Japan cease lethal research methods (Chair’s Report, 32). (6) Work of the IWC The IWC adopted two resolutions affecting its own work at the meeting. Resolution 2016-1, which was presented by Australia, was adopted by consensus. In this resolution, the commission recognizes the importance of ensuring that its institutional and governance functions align with best practice for contemporary multilateral treaty bodies and agrees to a comprehensive and independent review of its arrangements. This review will be conducted by three independent panelists selected by a Steering Group established at the meeting and will be based on the terms of reference set out in the annex to the resolution. These terms refer to: the best practice ‘principles of transparency, accountability, credibility and effectiveness’ and define the scope of the review to include the organization of the commission’s work; the processes for agreeing on work programs, strategic direction, and the allocation of resources; methods and processes of communication; the functioning and effectiveness of the Secretariat; and the rules on procedure and finance. Expressly excluded from the scope of the review are the text of the ICRW, the schedule, the conservation and management of cetaceans, compliance, and aligning of the IWC’s operations with Whaling in the Antarctic. The IWC agreed to Resolution 2016-6 on Strengthening the Capacity of Governments of Limited Means with thirty votes in favour and an unusually high number of thirty-one abstentions. This resolution was developed by the Working Group on Providing Options to Governments of Limited Means to Participate in the Commission’s Work, chaired by Japan. The resolution creates a voluntary fund to alleviate the financial pressures that interfere with the participation of some governments in commission meetings. The resolution states, in apparent reference to claims of vote rigging that have beset the commission in the past, that ‘for reasons of fair representation,’ governments cannot choose which other government(s) will benefit from their contributions or finance participation other than by contributions to the fund. (7) Committees, Sub-Committees, and Working Groups At the meeting, the IWC adopted reports from its Scientific, Conservation, and Finance and Administration Committees, its Infractions, Budgetary, and ASW Sub-Committees, and its Working Group on Whale Killing Methods and Welfare Issues (which focused in particular on whale entanglements and strandings). The Conservation Committee reported that it had developed and endorsed a strategic plan—with a vision of ‘healthy and well-managed populations and recovered cetacean populations worldwide’—to direct its work from 2016 to 2026. The Scientific Committee updated the meeting on its ongoing work on: whale stocks (expressing concerns over the effects of oil and gas exploration and other activities off Sakhalin Island on gray whales, recent high numbers of strandings of Southern hemisphere right whale calves, and the status of Arabian Sea humpback whales); agreed abundance estimates (noting that it has established a working group to help it to complete this work by 2018); the revised management procedure (which the committee uses to estimate sustainable catch limits for commercial whaling of baleen whales); ASW (reporting good progress on the development of strike limit algorithms, which the committee uses to estimate the effect of the hunts); conservation management plans; cetacean habitat (here the committee drew attention to the Rio Doco crisis in Brazil, where a mine tailings dam collapsed releasing waste including heavy metals into the habitat of Franciscana and Guiana dolphins); the annual State of the Cetacean Environment Report under Resolution 2000-7; cetacean health and disease; ecosystem modelling; climate change; unintended anthropogenic impacts on cetacean populations; IWC-POWER (the IWC’s non-lethal research program); the Pollution 2020 Research Programme; and small cetaceans. On the matter of small cetaceans, the committee observed that while it had increasingly expressed concerns about particular small cetaceans, and generally recommended stricter management and the immediate elimination of by-catch mortality, ‘there had often been insufficient or no management response’ from governments. The committee requested that the IWC encourage all members to submit by-catch data and reiterated its long-standing recommendation that contracting governments should not allow by-catch of small cetaceans to occur without first assessing the sustainability of affected populations (Chair’s Report, 22 and 23). The committee expressed its grave concern for the vaquita and for New Zealand’s Maui’s dolphin, two sub-species imperiled by fishing-related mortalities and emphasized the need for New Zealand to take precautionary measures ‘with the highest priority assigned to immediate actions to eliminate bycatch’ of Maui’s dolphin (Chair’s Report, 22). The committee also reported that it had set up task teams to study Franciscana and South Asian river dolphins and identified protection measures for Atlantic humpback dolphin as an urgent priority (Chair’s Report, 23). The Scientific Committee also reported that both it and the Conservation Committee had agreed that anthropogenic sound could adversely affects cetacean populations and that a precautionary approach should be taken to this threat (Chair’s Report, 27). The two committees also made recommendations on addressing by-catch (which the Scientific Committee has ‘repeatedly identified as the most serious direct threat to cetaceans globally’ (Chair’s Report, 26), ship strikes, and marine pollution. These recommendations were endorsed by the IWC and include establishing a standing working group on by-catch, developing a by-catch mitigation initiative supported by an expert panel, developing a management plan on marine debris and pollution, and continued engagement with the International Maritime Organization on ship strikes and marine pollution. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

Journal

Yearbook of International Environmental LawOxford University Press

Published: Dec 28, 2017

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