IWC – Day Three Round up from Slovenia

Day Three

So what did yesterday’s closed-door session reveal? From the opening session it’s hard to tell.

Scientific permits and the impact of the International Court of Justice (ICJ)

• We should have seen how this was going to go when Japan insisted that there was only one way to objectively read the ICJ Judgment and that was its way and no one else’s. What was more disconcerting was when Japan thanked the IWC “for helping to improve its whaling”.

• Japan’s early intervention was immediately supported by Iceland who had its own scientific whaling program being reviewed by the IWC Scientific Committee and so may be a little sensitive to the issue.

• Japan declared that JARPA II has been stopped in accordance with ICJ.

• Japan repeated that, “There will be no JARPAII starting this year in the Austral summer of 2014/15. We will comply with the ICJ judgment…. new research plan will take account of the ICJ judgment … we are, we will and we do [take account of it]…. we will provide more details under a later agenda item …” Later Japan restated this “[we have a] future possible research plan but that’s not JARPA II (and therefore its okay?”

• Australia and Chile made interventions reminding commissioners about the Scientific Committee report.

• UK agreed with them and said that UK scientists didn’t input to discussions on JARPAI I as they deferred to the ICJ judgment.

• Monaco agreed saying the ICJ is “the highest body of law… so continuing business as usual regardless of the ICJ judgment is frivolous [to say the least] and discredits the IWC.” Monaco then suggested not to take any more time debating this as there were other priorities.

• The Chair closes discussion on the ICJ case (NZ resolution is still to be discussed) and the IWC now moves onto discuss Iceland’s previous scientific whaling program – but no questions from the floor.

 

Review of Previous Scientific Whaling Programmes

• Now the Chair moves onto a controversial issue the IWC Scientific Committee Review of JARPA II as many countries did not believe that the IWC should have been reviewing something that was declared illegal by the ICJ.  

• In a move not seen before, in my memory, the Chair decided by letter, that Japan should be able to have JARPA II reviewed by the Scientific Committee back in February before the IWC could consider the ICJ report. This of course, lends credibility to Japan’s case that its whaling was scientific even if the ICJ said it was commercial.

• Australia notes that many scientists and countries did not believe that this should have been discussed and should not be reported under the Agenda items ‘Scientific Permits’ as it currently does.

• Argentina speaks in support of Chile and Australia, as does Brazil and Ecuador, Mexico and Costa Rica.

• Japan refers to Chair’s previous ruling that Scientific Committee should review as requested by Japan 

• UK associates with Chile and others, noting its scientists did not take part in the review.

• Monaco supports Australian and disagreed with interpretation of Japan, noting that if the IWC ignores the ICJ it will be a disservice to international law. 

• Australia notes that, despite what Japan may claim,  the Court specifically notes that Japan was in contravention of the moratorium.

 

Icelandic Scientific Whaling Review 

• Maybe everyone feels Iceland have been on the receiving end enough, or maybe no one wants to give them a chance to pontificate but no one comments and the item is closed.

• Sue Fisher gives an excellent presentation on CITES and IWC cooperation which stimulates some appropriate criticism of Iceland’s whaling.

  

‘Safety at Sea’

• Maybe we should call this the ‘Great Japanese advert for Sea Shepherd’, for that’s all this is every year. Japan complains that it cannot catch whales because of ‘SS’ as they like to call them and then ‘SS’ recruits even more supporters.

• Don’t know who is advising Japan on their PR, but maybe need to rethink that one.

• Something very odd then happens. Japan, whilst claiming that small cetaceans are outside of the competency of IWC, invites a Taiji dolphin hunter to speak to the IWC? Of course it’s to complain about ‘SS’, but it allows the other countries to critique Japan on an issue it rarely speaks on.

• The US, noting that the Taiji hunts have been raised, raises its concerns as to the sustainability of these hunts. 

• Australia and others suggest the whole issue should be dealt with at the International Maritime Organisation.

 

Small Cetaceans get their day in the sun

• Maintaining a theme that Japan has started, the IWC moves onto the report of the Small Cetacean Sub-Committee.

• Mexico speaks on the plight of the Vaquita porpoise (less than 100 left) and gets huge support from around the meeting, but also encouragement to take more immediate action to address gill-netting.

• Brazil speaks on efforts to protect Amazon River dolphin on which WDC has been campaigning and encouraging Brazil to take action.

• Argentina speaks on need to protect the Franciscana.

• Many speak of the plight of the Maui dolphin and the need for New Zealand to do more.

• UK notes other species, including Irrawaddy dolphin in the Mekong, Chinese finless porpoise, the Maui dolphin, the Franciscana, the Amazon River dolphins, and Taiwanese white dolphins. UK to contribute another £10,000 to the small cetacean fund. 

• Japan, Iceland and Norway remain silent on all these pressing issues offering no support – says something I think.

 

Infractions: or when it all gets surreal

• Firstly we get a report by the Chair of the Infractions Committee which notes that, with respect to Greenland that,

• Argentina had noted that Greenland whaling had been infractions; Chile, Mexico all supported.

• Denmark noted that it has done all it can, and should not portray the ‘exceptional circumstances’ faced by Greenland as an infraction as this does not address the comprehensive efforts of Greenland to solve this issue. Denmark had been working hard to solve the issue. Chair noted that it would be brought to the Commission.

• USA reported that it had taken a bowhead mother and calf, but this was unavoidable and therefore not an infraction?

 

Report on JARPA II catches

• Japan argues that ICJ is not retrospective and therefore its catches were not infractions (this is a reinterpretation of the ICJ ruling that I know of no other lawyers who would agree with Japan)

• Chile and Argentina had challenged that they were infractions. Japan responded that the IWC website records them as “Article VIII whaling’ and therefore were! (I.e. its written that we are right and therefore you are wrong)

The Chair then opened up the meeting for discussion

• Iceland noted that Greenland had received support from the Scientific Committee and was hampered by no meeting of IWC (in 2013). Went on to claim that these are special circumstances and therefore Greenland should be given special consideration – ‘it was not their fault‘

• Norway: Greenland was ‘forced into this position’, so not their fault.

• Australia: Associated with Argentina, and argued that proper process should be followed, and any takes by Greenland should be listed as infractions. Australia noted that ‘We are mindful of discussions and efforts of Denmark, but the IWC did not approve a quota and therefore it cannot be left to a contracting government to decide what constitutes an infraction and what does not’. Australia is rightly concerned at what precedent this would set in international law.

• Secondly, Australia believes IWC records to accurately record the Court’s decision on JARPA II

• Argentina: associates with Australia and that “Argentina considered that for the 2013 and 2013/2014 the captures of 9 fin Whales, 8 humpbacks Whales, 175 minke Whales of West Greenland and the 6 minke Whales of East Greenland must be reported as infractions” and asks the Secretariat to explain under which criteria they decided to input those captures as ASW when compiling the table

  

At this point the Chair decides to give their personal interpretation of what should happen. To many, form the tone in which she delivers this, it sounds that she is initially giving a ruling

• The Chair argues that the “IWC did not deny Greenland a quota and did not zero of the quota, but that the situation was that the IWC failed to set a quota”

• But what does this statement mean? Does she believe that quotas roll over if no quota is agreed? When did the IWC agree this, as has not been the legal situation before?

• Russian Federation joins the argument saying that the Schedule did still allow for Greenland to take whales, but only that no quota existed. This means they could continue hunting as long as this text existed, therefore Greenland could continue hunting. 

• This, Russia argues, was similar situation with regard to Bowheads in Shimonoseki, when no assigned quota, but could continue hunting.

 

WDC believes this is a dangerous argument. Does it mean that if the Schedule does not have a zero quota included in its tables then countries can set their own quotas?  We shall press this issue with delegations tomorrow.

 

• The Chair went on to argue that ‘a counter schedule amendment must be put forward, but was not n 2012, so not a zero quota, and in the future another proposals must be put forward”. 

• Maybe seeing a way to guarantee its future Bowhead quota the US quickly agrees. However maybe the US has not thought through the full implications of such a position.

• The Chair, realising that Parties are not just accepting her comments, tries to placate concerns claiming she raised this at last meeting and she does not understand why people are raising it now. 
• Mexico: But does it mean that unless a zero is in the Schedule any country can set its own quotas in the future, and not just ASW?

• Monaco: disagrees with Chair’s interpretation

• Chair reiterates her thoughts that, “There was no counter proposal, no proposal to say zero, or say nine or ten humpback, in my opinion, therefore Commission made an error, in that we did not assign a quota. there was no advice given. Normally there is a counter proposal, did not vote on zero quota. This may be a loophole, this is my opinion and this is what happened, you can go back and read the meeting report form the verbatim report (no there is not one anymore), need to move forward and make sure this does not happen again”

• Colombia associates with Monaco with concerns and New Zealand disagrees with Chair saying Denmark overreaching on quota it was not going to get and it did not. We would conclude that there was no quota

• St Lucia: Supports Chair (who is from St Lucia)

• Chile and Panama raise concerns   

• EU not speaking as they do not have common position on this issue and so forced to be silent it would appear – Glad to see my tax euros are well spent on buying absolute silence on this critical issue of democracy.

• Denmark: We do report infractions, GL does seek to implement IWC guidance and this was exceptional situation, but thanks all for the Package solution

• Chair: Suggests this be dealt with in ASW working Group, and leave to US to discuss, but Australia suggests that on the last point, group has limited membership and so suggest a broader representative group is more appropriate and the Chair suggests sub-committee on ASW.

 

Phew, we have more time to discuss this, but today the IWC was close to making rules on the hoof based on a principle that only benefits those who want to go whaling. The issue of whether Greenland’s whaling was in fact, an infraction is held over until tomorrow.

 

Japan and its Small Type Coastal Whaling Proposal

 

This subject has been under discussion all week and for the last twenty years

• Japan argues that its proposal does not contravene the moratorium. Japan argues that others cannot argue that Moratorium should continue – what that means for the uninitiated is that Japan does not agree with them, therefore it wished to disregard their statements. 

• Australia responds that Japan has not fulfilled the process to be able to resume commercial whaling and therefore still oppose. The USA seconds the comments of Australia and note that 10(e) sets zero quotas and that is where it should remain

• But where is the EU? Ah they speak finally, Italy (for EU) states that ‘our position is clear that we are against commercial whaling’

• Japan agrees with NZ that this proposal is not for ASW, not Special Permit whaling, ‘but our case is under 10(e) we should be allowed to whale as ‘conditions’ have been made.’ 

• Japan asks if the EU is opposed to whaling at any point, how is this not against the ICRW, however, its notes ‘that’s their position’. We’ll be back, – tomorrow. No, that was not a Terminator reference, they actually said that, but tried to sound less threatening as NZ had previously suggested they had come across a little aggressive.

 

Whale Killing and welfare issues

• The UK has been trying to steer the IWC to address a range of issues of welfare concern, not just those with respect to whaling.
• After being somewhat ambushed by Norway yesterday the UK had a further dialogue with Norway and so were pleased to present final revised document IWC/65/05 Rev 2. This splits the hunting and non-hunting welfare issues and satisfies the whalers.
• Proposals adopted by consensus and UK kicks in another £20k to keep the working group going.

 

In conclusion

It’s getting late now and delegates are shifting in their seats as stomachs grumble around the room.

The Chairs suggests the meeting resume at 08:30 local tomorrow as the meeting still has to address the three resolutions still open, on,

1. Civil Society

2. ICJ and Special Permits

3. Food Security

And the two Schedule Amendments 

1. STCW – Small Type Coastal Whaling

2. SAWS – South Atlantic Whale Sanctuary

The meeting also has to still decide how to deal with Greenland’s infractions and some items on the Conservation Committee agenda.

Well tomorrow promises to be a a full one, what will Japan try and pull out of its hat on STCW?; will the  ‘Food Security’ proposal help Japan eventually as they planned, will Japan accept the SAWS, and will the Like-Minded give up too much to secure the ICJ Resolution?

All will be revealed – maybe…