Irish Proposal - Whale and Dolphin Conservation Society
As the rest of this paper sets out, WDCS believes that it will be hardenough, once a regime legitimised by the Commission is in place, forParties opposed to commercial whaling to prevent a further escalation ofcommercial whaling in the future, let alone to eliminate it.The IWC is not in crisisAlthough the Moratorium has clearly not been a completesuccess, its failings are relative. The table below shows numbersof whales killed worldwide between 1982 and 1996. Before1982, the IWC was indeed in a real crisis with some 13,000whales being killed annually, but from 1988 onwards thosecountries that refuse to abide by the moratorium have generatedthe major crises. WDCS believes that it is inappropriate toconcede to the defiance of these countries when other whalingcountries, including Korea, Russia, Peru, Brazil, Spain, Icelandand Portugal (not even an IWC member at the time) abided bythe moratorium.140001200010000800060004000200001982Whales killed between 1982 and 1996, worldwide19831984198519861987198819891990The Irish Proposal is incompatible with themoratorium on commercial whaling‘The moratorium’ is the colloquial description of a specific legalprovision of paragraph 10(e) of the Schedule. i.e.:“Notwithstanding the other provisions of paragraph 10, catchlimits for the killing for commercial purposes of whales from allstocks...shall be zero”.The moratorium thus applies to all whales from all stocks. Assoon as the zero catch quota provision is modified andexceptions such as those provided in the Irish Proposal aremade, the moratorium, as originally intended, will be overturned.The Irish Proposal and the moratorium are clearly, therefore, mutuallyexclusive and Ireland’s claim that the proposal “collectively will improveand strengthen the level of protection provided for whales now and in thefuture, and increase the effectiveness of the Commission’s conservationand management measures” is naive.The Irish Proposal cannot remove the right ofContracting Governments to undertakewhaling for scientific purposesThe Irish Proposal only contemplates a voluntary measure torestrict / phase out scientific whaling; not a ban.For those Contracting Governments who want to ensure a199119921993199419951996S1Series1everything else in the ICRW: “Notwithstanding anythingcontained in this convention”.Clearly, negotiating with Japan not to invoke this right, as theIrish Proposal contemplates, is not the same as removing theright. The Discussion Document proposes that a resolutionwould be passed ‘unanimously’ requesting ContractingGovernments to limit their special permit whaling to species andareas for which the RMS has set quotas. This is not a “phase outof scientific whaling” as originally required by Ireland; itendorses its legitimacy.Although the Discussion Document mentions an “agreement tophase out existing scientific whaling programmes and not toextend or expand scientific whaling in the future”, no realprovision is made in the proposed Schedule amendment toachieve this. It just provides that catch limits other than thoselisted in Table 1. will be zero (which they are under themoratorium anyway) and states, in the event that total catchesover time exceed limits, that quotas will be reduced to zero untilthe Commission is satisfied that the “causes of the excess havebeen remedied”. This latter provision refers to “total takes of aspecies from a management area over a period of years” and ishardly a flexible enforcement tool (see below).WDCS notes further that resolutions, such as the one proposedin the Discussion Document are not binding on ContractingGovernments to the ICRW and a resolution passed unanimouslyis, in reality, no more binding than one passed by consensus.If the Commissioner for Ireland is confident that no ContractingGovernment to the IWC will block or later object to anySchedule amendment proposed to phase out scientific whaling,why then does the Irish Proposal not require unanimity for itsadoption? WDCS believes that if the Irish Proposal trulycontemplated a permanent end to scientific whaling, it wouldrequire the abolition of Article VIII which could only beachieved by a unanimous decision to amend the ICRW byprotocol.The Irish Proposal is legally unenforceableThe Irish Commissioner has stated that the Irish Proposal wouldbe implemented by a Schedule amendment by consensus (Canny20/10/97). When asked what would happen if a Party lodged anobjection to the amendment, he stated that the Irish Proposalwould be reversed at the next meeting. This does not, however,account for the political reality that consensus, or even thethree-quarters majority legally required, may not by then beattainable.Unanimity or consensus?It is important to recognise that the difference between decisions passed byconsensus and unanimity is political rather than legal. Consensus is passive;occurring in the absence of any opposition being articulated. A measure passedby consensus does not necessarily have the positive support by all ContractingGovernments who accepted it; they just choose not to state their opposition. Forexample, resolutions pass by consensus at the IWC, for example on smallcetaceans, the content and spirit of which Japan does not support. It just makes apolitical decision not to block the prevailing consensus.Unanimity requires a positive expression of support from each ContractingGovernment, usually expressed in a vote. Clearly, a Schedule amendment hasmore political force if passed with the positive support of all ContractingGovernments, but their right to object to it remains under Article V.3.a & b,nevertheless.Note, for example, that Russia voted in favour of the Southern Ocean Sanctuaryin 1994 and then filed an objection (since withdrawn) against the Schedule
The Irish Proposal cannot close the loopholewhich permits whaling under objectionThe Irish Proposal offers no legal mechanism to address theinalienable right of Contracting Governments to enterobjections to amendments to the Schedule. See above.This legal loophole will remain open as long as the objectionprocedure under Article V, 3.a & b. exists. It will be exploited aslong as Norway and Japan find it worthwhile to do so. As aconsequence of Irish Proposal negotiations, Norway couldwithdraw its existing specific objection to paragraph 10(e) ofthe Schedule, and would not be able to enter another in respectof that particular provision. However, its right to enterobjections in respect of any future catch limit set under the RMS,or any geographical delineation of a management area, which isentered in the Schedule, remains inviolable.The Irish Proposal cannot effect aninternational trade ban on whale products.The Irish Proposal contemplates two mechanisms by which aninternational ban on trade would be attempted:1) limiting the use of whales caught to local consumption.The Discussion Document provides that paragraph 10(e) of theSchedule would be amended to include a provision that “theproducts of such whales are used exclusively for localconsumption within that state”. However, no legal provisionexplicitly banning international trade in whale products isproposed. No mention is made of the existing ban oninternational trade in whale products under the Convention onInternational Trade in Endangered Species of Wild Fauna andFlora (CITES). Indeed, although Ireland signed the CITES treatymany years ago, it has still not ratified it.The Irish Commissioner has confirmed that by ‘local’ he meansnational consumption. ‘Local’ is not a term of art in law and nolegal definition of ‘consumption’ exists within the ICRW,Ireland presumably contemplates, therefore, that it will have thesame meaning as in Paragraph 15 of the Schedule which purportsto limit baleen whales caught in a commercial hunt to “be usedfor local consumption as human or animal food”. It is importantto note, however, that Article V of the ICRW does not give anylegal power to make such a restriction of usage. Indeed, it is alegitimate interpretation of Article V.2.c to argue that the ICRWspecifically prohibits such restriction.WDCS believes that it is dangerously naive to suggest that anunenforceable agreement that certain Contracting Governmentswill consume whale meat domestically will be equivalent tomaintaining the CITES Appendix I listing. In reality, WDCSbelieves, the Irish Proposal will make a downlisting more likelyand an agreement which lacks the legal force of an Appendix Ilisting would not be a suitable replacement for it.2) asking CITES not to downlist whalesIt is anticipated that Norway and Japan will submit downlistingproposals for some whale stocks to the next meeting of theConference of the Parties to CITES, which will take placebetween the 51st and 52nd meeting of the IWC. WDCS believesthat the existence of the Irish Proposal will actively encouragerather than deter a CITES downlisting at this meeting.The Commissioner for Ireland suggested that the way to addressthis risk would be for the IWC to forward a consensusWDCS believes that Ireland might offer some more realisticsuggestions if it were actually a Party to CITES and understoodat first hand the relationship between the two conventions. Cooperationbetween the IWC and CITES was initiated in 1979,when CITES agreed that it was desirable for consultations to bearranged between CITES and the IWC to ensure "that there wasno mutual conflict between the decisions made under the twoconventions". Since then, CITES has passed a series of importantresolutions (Res. Conf. 2.7 (rev.), Res. Conf. 2.8, Res. Conf. 2.9,Res. Conf. 3.13 and Res. Conf. 9.12) which enshrine thesupremacy of the IWC on issues relating to whaling. CITES,meanwhile, has competence to regulate trade in whale products.There are over 100 Parties to CITES who are not ContractingGovernments to the ICRW and may not understand, or beinclined to appreciate, the relationship between the twoconventions, nor the conservation mandate of the IWC.WDCS anticipates that if a resolution such as the one proposedby the Irish Commissioner is passed at IWC51, or if the IrishProposal is given any other endorsement at this meeting, itwould be presented to CITES in 2000 as an expression of theIWC’s support for a downlisting. A simple argument would bepresented to CoP11 by Norway and Japan that, to avoid ‘mutualconflict’ between the decisions of the two conventions, CITESshould respond to the expression of support by the IWC fortermination of the moratorium and resumed commercial whalingunder the Irish Proposal, by downlisting the species concernedto Appendix II.Irrespective of the status of the Irish Proposal at that stage,WDCS believes that Japan may re-employ tactics at CoP11that ithas used at previous CITES meetings to legitimise trade in otherluxury commodities for which it is the main market. For example:• Downlistings annotated with zero quotasJapan may try to make its whale downlisting proposals to CITESmore palatable by annotating them to provide that trade quotaswould start at zero, so that there would be no practical difference- at least initially - from an Appendix I listing. Japan knows thatannotations for zero quotas are vote-winners. At CoP10, after itsfirst two whale downlisting proposals failed, Japan added anannotation to its southern hemisphere minke proposal, statingthat the downlisting would allow a quota of “no more than thecatch quota set by the IWC”. Japan then won six more votes forthat proposal than for the previous two proposed downlistings.• International trade with a single importing stateJapan may try to make a whale downlisting appear to be moreeasily controlled by specifying limited trading partners. Thistactic was employed at CoP10 in relation to elephant ivory.Japan persuaded CITES to downlist elephants in three Africancountries to Appendix II in order for them to sell ivory to Japanonly. The same tactic was also employed, although notsuccessfully, by Japan and Cuba in a hawksbill turtledownlisting proposal to CoP10.• Legal international trade under reservationJapan and Norway have both lodged reservations against theAppendix I CITES listing of whales. They are, therefore, alreadytreated as if they are not Parties to CITES in respect of thespecies concerned and can, in theory, already trade legally inwhale meat with each other, with other Parties (such as Peru)who hold a reservation, and with non-Parties to CITES, such asIceland.