(from "Chair's Report of the Fifty-Third Annual Meeting")
1.2 Welcome address
Mr Elliot Morley MP, Parliamentary Under Secretary at the Department for
Environment, Food and Rural Affairs welcomed all delegations and participants
to the 53rd Annual Meeting of IWC on behalf of the Government of
the United Kingdom.
Mr Morley thanked the Scientific Committee and the Commission sub-groups whose hard work had paved the way for the plenary meeting. He noted the many contentious and high profile issues to be discussed, but stressed that it would be essential for countries to put differences aside and to work together if progress was to be made. He wished the delegates and participants well and hoped that consensus and constructive solutions on these vital issues could be reached during the course of the meeting.
1.3 Opening statements
The Chair welcomed new members to the IWC.
Before inviting them to address the meeting, he made the following short
statement concerning the adherence1 by Iceland to the
International Convention for the Regulation of Whaling (ICRW):
'Iceland's recent deposition of an instrument of adherence to the International Convention for the Regulation of Whaling is expressly conditioned on a reservation to the commercial whaling moratorium found in paragraph 10 (e) of the Convention Schedule. Until the Commission has the opportunity to review this matter, the participation of Iceland in the IWC does not prejudice the positions of individual members of the Commission on this matter.'
Morocco, which had adhered to the Convention on 12 February 2001, informed the meeting that it had joined IWC so that it could contribute to establishing a sustainable management policy for marine resources. It noted it that it is convinced of the principle of sustainable development and rational utilisation of natural resources in compliance with relevant international conventions and arrangements adopted by the international community. While acknowledging IWC's work to conserve and protect whales, Morocco urged the Commission to complete and incorporate the Revised Management Scheme (RMS) into the Schedule. It noted the importance of science in IWC's work and urged it to explore partnership possibilities, particularly with FAO, regarding development of a sustainable whaling management system. Morocco's view on non-commercial whaling activities not having a significant effect on whale stocks was that they should be considered according to their scientific, cultural and financial impact within each specific context. Finally, Morocco thanked the Secretariat for its work, wished all participants a productive and successful meeting, and expressed the hope that the efforts of delegations would be dedicated to the completion of IWC objectives.
Iceland described the reasons behind its withdrawal from IWC in 1992 and the reasons for its re-adherence to the Convention on 8 June 2001. It had withdrawn since it believed that IWC was no longer operating in accordance with the Convention and had become a non-whaling commission rather than a whaling commission. However, Iceland considered that there are now signs that support is increasing within IWC for sustainable whaling in some form and had therefore decided to become a member so as to have an influence on the discussions taking place. Iceland also noted that since its withdrawal, a number of countries, both for and against sustainable commercial whaling, had urged it to rejoin. In view of this encouragement, it was disturbed by the reactions of some Contracting Governments to its instrument of adherence. Iceland considered that it had made use of the right it has under international law to adhere with a reservation, and that there is no legal basis for rejecting it. It considered it outside the competence of IWC to take a decision on Iceland's reservation by voting on it, and that it is up to individual Contracting Governments to accept or oppose the reservation unilaterally as had already been done by several States, and as was done with respect to reservations to the Convention lodged previously by Argentina, Chile, Peru and Ecuador. Iceland also had no doubt that its reservation with respect to paragraph 10 (e) of the Schedule is fully compatible with the object and purpose of the Convention. It further noted that international relations are based on the rule of law and that it could not believe that countries present would sidestep this principal in favour of political objectives. Finally, Iceland reported that it had rejoined IWC in good faith with a firm commitment to work constructively towards achievement of the objectives of the Convention and pledged to co-operate with other Contracting Governments that have undertaken to do the same by participating in the work of this important organisation.
Panama, which rejoined IWC on 12 June 2001, reported that its Government's policy is to participate in all international and regional fisheries organisations to promote the interests of its people and to contribute to the responsible management and conservation of all living marine resources. Panama explained that it is active in other intergovernmental fisheries organisations such as FAO2, ICCAT3, IATTC4 and OLDEPESCA5 where it has supported the principle of sustainable use based on sound science and in harmony with the marine ecosystem. Panama noted that fisheries are an important source of employment and revenue as well as an essential component of its food security. It therefore hoped that during the 53rd Annual Meeting, common ground could be found and that IWC could move closer to adoption of the RMS. Panama considered that, as with other marine resources, whales would benefit from a responsible and reasonable management scheme and that if this could be achieved, potential conflicts with other fisheries could be avoided. In conclusion, Panama invited member governments to move forward with their work in a spirit of co-operation and friendship.
The Chair reported that Opening Statements submitted by other Contracting Governments and by Observers would be included in the meeting documentation according to the Commission's normal procedure. He then went on to note with sadness the recent deaths of Mr Stuart Nanton, the long-time Commissioner to IWC for St Vincent and The Grenadines, and Dr Fujio Kasamatsu, a Japanese cetacean biologist who had played an important role in the Scientific Committee for many years.
1 Iceland's instrument of adherence stated that Iceland 'adheres
to the aforesaid Convention and Protocol with a reservation with respect to
paragraph 10 (e) of the Schedule to the Convention.
The reservation forms an integral part of this instrument of adherence'.
2 United Nations Food and Agriculture Organisation.
3 International Commission for the Conservation of Atlantic Tuna.
4 Inter-American Tropical Tuna Commission.
5 Latin American Organisation for Fisheries Development.
1.4 Meeting arrangements
1.4.1 Speaking rights for intergovernmental organisations (IGOs)
The Chair reported that during their private meeting on Sunday 22 July 2001,
the Commissioners had decided that IGOs should be allowed to make one
intervention during the meeting on a substantive agenda item.
He requested that IGOs inform him in advance of their interest in addressing
the meeting.
1.4.2 Order of business, preparation of Resolutions, credentials and other aspects
The Chair: (1) outlined the order of business he intended to follow during
the meeting; (2) asked Parties to keep Resolutions to a minimum, but to
consult widely in their preparation; (3) asked the Commission's sub-group
Chairs to be concise in their presentations to plenary, and (4) asked
delegates to be brief and to the point in their interventions, and where
possible to associate themselves with earlier speakers who had similar views.
The Secretary reported that all credentials were in order and reminded the meeting of arrangements for the submission of Resolutions and other documents. Later in the meeting, the credentials of the representatives of the Government of India were questioned. However, following the report from a credentials committee established by the Chair and comprising Australia, Japan and the Secretary, and discussion in a private Commissioners' meeting, the Chair ruled that the Secretary's conclusion on the status of India's credentials was correct. This ruling was not challenged, but Iceland, supported by Norway and Japan, registered their opposition to the decision.
1.4.3 Status of the Russian Federation and Iceland
Before moving to other agenda items, the following issues were addressed:
Discussions began with the request of the Russian Federation which explained that since it was in arrears with its financial contributions for 2000/2001 it was subject to the penalties prescribed in Financial Regulations F.2 and F.3 (i.e. it was receiving no documentation and its voting rights had been suspended). It considered this an unfortunate situation, reported that preparations for payment of contributions were in hand and asked the Commission for a 'special accommodation' that would allow the Russian Federation to retain its voting rights and to receive documents. Justification for this 'special accommodation' was that the Russian Federation had always had a good record in paying its annual contributions, and that its inability to fulfil its financial commitments to date was unexpected and considered to be a short-term problem. It hoped that its request could be accepted by consensus, but that if this were not possible, it would request that the matter be put to a vote.
Since it was apparent that the Russian Federation's request would not be accepted by consensus, the Chair ruled that Rule of Procedure E.2 applied, i.e. that the Russian Federation's voting rights would be 'suspended until payment is received by the Commission, unless the Commission decides otherwise'. The Chair then went on to address Iceland's reservation. A number of countries objected to this, preferring first to deal with the Russian Federation's voting rights. The Chair ruled that Iceland's reservation be addressed first. On being challenged, the Chair's ruling was carried (there being 21 votes in support of the ruling and 17 against).
Australia introduced a motion that it proposed together with the USA regarding Iceland's reservation. The motion stated that 'The Commission does not accept Iceland's reservation regarding paragraph 10 (e) of the Schedule (i.e., that Iceland is not bound by paragraph 10 (e) of the Schedule), as reflected in its instrument of adherence dated June 8, 2001'. Australia noted that it had looked forward to welcoming Iceland back into the Commission, but that this would not be possible because of the way it sought to rejoin the organisation and because of its reading of international law. It stressed that IWC must decide whether the reservation is acceptable, believing that if the Commission could not do this it would be very difficult for it to work effectively and would create a precedent that could hamper other organisations. Australia believed that IWC could not work efficiently if countries could join IWC while not accepting key aspects of the Commission's work and that it would have the effect that new members could be adhering to a different sort of Convention. Australia hoped that when the Commission had made its decision, it would be able to welcome Iceland as a fellow member without its reservation. The USA seconded the motion, making similar points to Australia. It added that Iceland had the opportunity as a member in 1982 to object to Schedule paragraph 10 (e) but had not done so. The USA believed that acceptance of this reservation now would undermine the commercial whaling moratorium.
Referring to Articles 19 and 23 of the 1969 Vienna Convention on Treaties, Japan considered Iceland's reservation to be fully compatible with the object and purpose of the ICRW, adding that acceptance or not of the reservation is a decision for each Contracting Government. It believed that there was no basis for the motion proposed by Australia and the USA, and that the Commission did not have the competency to decide the status of Iceland's reservation.
The Chair indicated he would take views from Contracting Governments on both the motion and on the issue of competency before making a ruling.
The Netherlands, UK, Italy, Argentina, New Zealand, Monaco, Sweden, Spain, Germany, Ireland and Finland made comments similar to those of Australia and the USA, supported the motion, and considered the Commission to have competency to decide the status of Iceland's reservation. On the issue of competency, New Zealand, like Japan, also drew attention to the Vienna Convention on Treaties. It acknowledged that the Vienna Convention was agreed after the 1946 ICRW and that not all IWC members have adhered to the Vienna Convention, but indicated that it is generally accepted that the Vienna Convention did no more than re-state and codify the customary international law on these issues. New Zealand drew attention to Article 20, sub-paragraph 3 of that Convention dealing with acceptance or rejection of objections that stipulates 'when a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation require the acceptance of the competent organ of that organisation'. It considered that this principal of customary international law to be binding on the Commission and that it gave rise to three questions: (1) is the ICRW the constituent instrument of the IWC?; (2) does the ICRW provide for reservations?; and (3) is the Commission, in plenary, the competent organ of the Commission? Since under Article III.1 of the ICRW, the Contracting Governments agree to establish an International Whaling Commission, New Zealand considered that the answer to the first and third questions is 'yes' and that the Commission is the only body vested with decision-making power. New Zealand noted that the Convention does not provide for reservations. It further noted that the reservation to the Convention requires the acceptance of the competent organ, and that therefore the Commission can and must decide. Ireland, while noting that it was one of the countries that had encouraged Iceland to rejoin, regretted the political stand Iceland had taken with the reservation, forcing Ireland to object. Ireland noted the wide divergence of legal opinions on the issue, that further advice or a legal ruling from another body could be sought but that in the meantime the Commission had a duty to protect the Convention and to take a decision.
Antigua and Barbuda, Norway, the Republic of Guinea, Iceland, the Russian Federation, Grenada and St Lucia spoke against the motion, believing that Iceland was within its rights to include a reservation in its instrument of adherence, and considered that the Commission did not have competency on this issue. Antigua and Barbuda stressed that the matter should be viewed with extreme caution and that any action taken should have a firm legal foundation. It considered that any vote on the issue of Iceland's reservation would be absurd and illegal. Norway associated itself with the earlier comments of Japan and with Antigua and Barbuda. It noted that there are mechanisms, stipulated by Article 20, sub-paragraph 5 of the Vienna Convention, whereby the non-acceptance of a reservation can be accommodated, i.e. States become bound to accept a reservation 12 months after a notification; States wanting to protest against a reservation must do so within the same 12-month time limit. Iceland stated that the general principle is that States have a sovereign right to make reservations, and that it is outside the competence of the Commission to accept or reject a reservation. Referring to New Zealand's remarks, Iceland disagreed that the Vienna Convention just codifies customary international law, but agreed that large portions were, or have since become, part of the body of customary international law. Given that it is customary international law, Iceland pointed out the need to look at the principles behind each provision. It noted that the provision in paragraph 10(e) of the Schedule was open to objection by all Contracting Parties, is not a constituent body of the IWC and therefore does not apply in so far as it represents customary international law. Its position was that it is a matter for individual States to decide the status of its reservation, and that any vote taken by the Commission would have no validity under international law. Iceland further noted that if the RMS is completed within a reasonable time-frame and if the moratorium is lifted, it would not need to use its reservation.
Switzerland welcomed Iceland's re-adherence, but noted its reservation with concern. On the issue of Iceland's adherence it noted that the Convention is silent on whether the Commission has to take a decision on the acceptance of a new Contracting Government, and that it has been the practice of the Commission not to do so. Switzerland considered this practice to be in line with international law. Its analysis of the issue had concluded that IWC is not an international organisation as it does not qualify as an autonomous body that possesses an independent legal personality, is not therefore subject to public international law that could pronounce itself on membership and that a vote on the issue would be against international law. Denmark noted that there were two issues under consideration: (1) whether or not the status of Iceland's reservation could be decided on by the Commission, i.e. a procedural issue; and (2) the motion from Australia/USA. Regarding the former, Denmark believed that further legal consideration was needed to resolve the question and that a decision should not be taken hastily. It considered that taking a decision not to vote on the issue at this meeting would not preclude the Commission from voting at a later stage. It underlined, however, that a 'no' vote from Denmark at this meeting would not represent Denmark's definitive view of the right of the Commission to decide the status of Iceland's reservation, but rather that a vote should not be taken at this meeting. Regarding the motion, it indicated that it would not participate in any vote as it believed this to be premature. France considered Iceland to be a member of IWC in accordance with Article X.4 of the ICRW and recognised the right of countries to make reservations to which members could individually object. It further noted that, like a number of other countries, it will object to Iceland's reservation, but it did not believe that the Commission was entitled to vote on this issue.
Morocco suggested that the Australian/USA motion be amended to the effect that the Commission urges Iceland to consider removing its reservation. Italy, supported by Mexico and New Zealand indicated that Morocco's proposal was not an amendment but a new proposal since it implies that Iceland's reservation is accepted. The Chair agreed and ruled that, as indicated by Rule of Debate E.3, the motion of Australia and the USA should be decided upon first.
Before addressing the Australian/USA motion, the Chair indicated that there was a need to decide on the issue of competency. As there was no clear view on this, he ruled that 'the Commission has competence to determine the legal status of Iceland's reservation'. Austria noted that it would abstain. On being put to the vote the Chair's ruling was upheld. It received 19 votes in favour, 18 against, and one abstention. Iceland regretted what it considered to be an illegal vote, adding that any subsequent vote in relation to its reservation would be invalid. In explaining its vote, the UK indicated that it interpreted the Chair's ruling as giving competence to vote on the Australian/USA motion and had supported the ruling on this basis. It considered that the Chair was right to look for a procedural modus operandi to allow the meeting to proceed to its substantive business.
On proceeding to the motion, Japan, Antigua and Barbuda, Iceland, the Republic of China, the Republic of Guinea, Norway, Morocco, Grenada, St Kitts and Nevis, St Lucia, the Solomon Islands, St Vincent and The Grenadines, Panama and Dominica indicated that they would not participate in what they considered to be an illegal vote. In the subsequent vote, the motion that 'the Commission does not accept Iceland's reservation regarding paragraph 10 (e) of the Schedule..' was carried. It received 19 votes in support and none against. Three countries abstained and 16 countries did not participate. Denmark explained that it did not participate in the vote since it believed it to be premature. Austria explained that while it disapproved of Iceland's reservation and its potential implications, it could not oppose it on legal grounds. It had therefore abstained.
Although the Chair first ruled that Iceland was invited to participate in the meeting without casting a vote, he subsequently revised this to 'the Chair rules that Iceland is invited to assist as an observer'. Japan opposed the ruling, but on being put to a vote, the Chair's ruling was carried, receiving 18 votes in support, 16 against with 3 abstentions.
Iceland indicated its intention to continue to participate in the meeting as a Contracting Government. Antigua and Barbuda registered its disquiet with the proceedings, believing that there was no legal basis for condemning Iceland to observer status. It hoped that opportunities would be found during the meeting to correct the situation and that Iceland's status as a full member would be recognised. The Republic of Korea and Norway had similar views. Denmark regretted the decision. Finland indicated that it objected to the reservation but considered that the Commission had no right to nullify Iceland's membership. The Republic of China, supported by Japan, questioned why the Chair had revised his ruling, noting that the Commissioners had not been forewarned at their private meeting. The Chair explained that he is exposed to advice from different directions, and that a way forward is to make a ruling, which he did. He noted that a ruling from the Chair is simply a technical way to make progress with contentious issues.
The meeting then returned to the issue of voting rights for the Russian Federation. The Chair ruled that the Russian Federation had the right to vote at the meeting. On being put to a vote, there were 15 votes in support of the ruling and 22 against. The Russian Federation voting therefore remained suspended, although the Commission agreed to provide documents to its delegation.
_