(from "Chair's Report of the 54th Annual Meeting")

The associated meetings of the Scientific Committee and Commission sub-groups were held at the same venue in the period 24 April to 19 May 2002.

1.2 Welcome addresses
Mr Tsutomu Takebe, Minister of Agriculture, Forestry and Fisheries welcomed all delegations and participants to the 54th Annual Meeting of IWC on behalf of the Government of Japan. Referring to Japan's 5,000-year tradition of utilising whales, he noted the significance of holding the 54th Annual Meeting in Shimonoseki, where Japan's modern whaling originated. Recognising the polarised views among IWC member countries regarding the utilisation of whale stocks, he explained that Japan's policy on whaling and whale resources was to make sustainable use of robust and healthy whale stocks without adversely affecting them, while protecting depleted and endangered stocks. Referring to the view of some that whales should not be taken under any circumstances, even from abundant stocks, Mr Takebe stated his belief that protection measures alone would not maintain the balance of nature. In this respect, he noted the rapid recovery of many whales stocks since implementation of the moratorium and referred to estimates on the amount of living marine resources consumed by cetaceans, the agreement by FAO that studies should be conducted on the competition between whales and fisheries and the objectives of Japan's whale research programme. He hoped that at this meeting, Contracting Governments would not make exceptions of cetaceans but would regard them in the same light as other living marine resources so that progress could be made toward the basic principle of the sustainable use of whales based on science and in compliance with the International Convention for the Regulation of Whaling. He looked forward to a fruitful and constructive meeting.

Mr Uetake, Vice Minister of Foreign Affairs also welcomed participants. He recalled that since becoming a signatory to the Convention in 1951, Japan, as a responsible user of the resources, has supported the main object and purpose of the Convention, i.e. the preservation and sustainable use of the world's large whales. He noted that it is Japan's belief that, like other living marine creatures, the whale is a precious resource for human beings. He considered, however, that some countries have not understood this belief, leading to intense arguments at Annual IWC Meetings. He again expected heated arguments on many issues (e.g. on the RMS, the necessity to conduct research under scientific permit, the renewal of aboriginal subsistence whaling catch limits, the need to establish sanctuaries and the socio-economic importance of small-type whaling for Japan) but hoped that rational and constructive discussions based on the recommendations of the Scientific Committee and the Commission's other sub-groups could be heard. He noted that resolution of the whaling issue is not easy, but believed that a sensible solution could be found if all participants could express their views in a rational manner based on objective and scientific data.

Finally, Mr Kiyoshi Ejima, Mayor of Shimonoseki thanked participants for coming to Shimonoseki, recognised the hard work and lively discussions that would be taking place during the meeting, but encouraged everyone to take time to enjoy Shimonoseki's beautiful surroundings. He wished the meeting success.

1.3 Opening statements, credentials and discussions on the status of Iceland's adherence
1.3.1 Status of Iceland's adherence and credentials
The Chair welcomed new members to the IWC, i.e., San Marino (adhered on 16 April 2002), Benin (adhered on 26 April 2002), Gabon and the Republic of Palau (adhered on 8 May 2002), Portugal (adhered on 14 May 2002) and Mongolia (adhered on 16 May 2002). He invited them to give brief opening statements. However, before proceeding with these, Antigua & Barbuda questioned why Iceland had not been included in the list of new members. In response, the Chair informed the Commission that Iceland had deposited an instrument of adherence together with a reservation and accompanying declaration on 14 May 2002 and that the depository government was informing Contracting Governments accordingly. He recalled the decisions taken by the Commission at its 53rd Annual Meeting in London last year regarding Iceland's instrument of adherence deposited on 8 June 2001 that included a reservation to Schedule paragraph 10(e) concerning the moratorium on commercial whaling.¹ He reminded the Commission that it had discussed this matter in detail in London and that the Commission had decided, with some difficulty, that: (1) IWC has the competence to determine the legal status of Iceland's reservation; (2) the Commission does not accept Iceland's reservation; and (3) Iceland was invited to assist as an observer. The Chair explained that since Iceland's new instrument of adherence contained the same reservation, but with an additional declaration, he believed that the position remains governed by last year's decisions. As Chair he felt bound by last year's decisions unless and until the Commission decides otherwise.

Iceland stated that if it is considered that its reservation and thereby adherence was rejected in London and therefore not in effect, then the new instrument of adherence deposited on 14 May 2002 must be regarded as a fully valid new instrument of adherence. Iceland noted that the Convention is very clear on what happens when a government deposits an instrument of adherence with the depository, i.e. (1) the USA as depository informs all other Contracting Governments; and (2) according to Article X.4, the Convention 'enters into force with respect to each Government which subsequently ratifies or adheres on the date of the deposit of its instrument of ratification or the receipt of its notification of adherence'. Further noting that the Chair had stated that a new instrument had been received from Iceland, Iceland considered that according to the Convention, it is a new Contracting Government until it is challenged. Iceland believed that the IWC does not have the competence to vote down any country's membership.

Antigua & Barbuda noted that there is a new instrument of adherence and that it had accepted Iceland's membership with or without the reservation. It considered that the Commission has no authority to deny Antigua & Barbuda from accepting Iceland as a new member or to interfere with treaty relations between States.

The Chair regarded this as a challenge to his ruling but indicated that he would hear a few more views before proceeding with any action.

Norway indicated that it shared the views and the understanding of Iceland and supported its position. St. Lucia, Japan and the Russian Federation expressed similar views and indicated that they recognised Iceland as an IWC member.

New Zealand noted that the Chair in making his ruling was relying on clear decisions made previously by the Commission and that it would, in any vote on the issue, vote in favour of upholding his ruling.

Speaking to a point of order, Iceland stated that the issue at hand was the competence of either the Chair, the depository government or the Commission to disregard or reject Iceland's instrument of adherence deposited on 14 May. Iceland again stated that it believed none of these has the competence and that if the Chair wanted to rule otherwise Iceland would challenge it.

Denmark commented that last year it had not been in a position to take a decision on Iceland's adherence. It reported that legal considerations were now concluded and that Denmark's view is that the IWC is not competent to decide on this issue. It should be a bilateral matter between Iceland and those individual Contracting Governments having problems with Iceland's reservation.

The Republic of Guinea, China, Grenada, Dominica, the Republic of Palau, and St. Kitts and Nevis spoke in support of Iceland and recognised it as an IWC member. Several noted their opinion that the IWC is not competent to make decisions on membership. Grenada requested clarification on five issues: (1) whether any States other than Iceland had expressed such reservations before; (2) and if so, which States; (3) what decision was taken in each case; (4) what is the difference between these cases and Iceland; and (5) what rules of IWC has Iceland broken?

Responding to the clarifications sought by Grenada, the USA speaking as the depository government indicated that no other State had lodged reservations with respect to the commercial whaling moratorium and that there are no rules that have been broken. The USA noted that the instruments of adherence of this year's new members, San Marino, Benin, Gabon, the Republic of Palau, Portugal and Mongolia, contained no reservations or declarations and were effective as of the date of deposit. As depository, it considers each of these countries as new members.

In its capacity as a member government, the USA agreed with the comments of New Zealand. It noted that the reservation in Iceland's most recent instrument of adherence is exactly the same as that submitted last year with the exception that it now contains a policy statement. The USA considered that the policy statement is not legally relevant and that it simply shows what is already known, i.e. that Iceland wants to be the sole judge of whether to exercise its reservation in the future. It was the view of the USA that if Iceland does not like the commercial whaling moratorium, then it should join IWC without reservation and work towards having the moratorium lifted. In the meantime however, the USA considered the moratorium remains an integral part of the Schedule and believed that no country should be allowed to exempt itself from the Schedule at will - if this is allowed, the entire structure of the IWC would be undermined. The USA agreed with the views of the Chair that Iceland should continue its status as an observer, this being consistent with the Commission's decisions last year.

The UK supported the views of New Zealand and the USA. While the UK welcomed Iceland's decision to rejoin IWC, it did not welcome Iceland's decision to join with a reservation on key policies that the Commission has taken. The UK considered that the outcome of last year's rulings was correct and indicated that it intended to support the ruling the Chair had made earlier. Italy objected to Iceland's reservation and its contents and supported the Chair's position. Mexico believed that the issue at hand is the Chair's ruling, not the competency of the organisation to determine the legal status of Iceland's reservation since that was decided last year. Australia associated itself with the comments of New Zealand, the USA, the UK, Italy and Mexico. It considered Iceland's reservation to be the same as last year's and, like Mexico, considered that the debate is not on competency but on the Chair's ruling. Ireland, Spain and Germany made similar remarks.

Antigua & Barbuda however considered that the key issue is one of competency, not the Chair's ruling. It noted that the treaty relations that exist among IWC members are not between the individual Contracting Governments and the Commission but between the individual Contracting Governments themselves. In its view, the issue of Iceland's reservation is not a matter that can be decided by the depository government or by IWC. The Commission does not have the right to decide the treaty relations that will subsist between member States under the IWC. It noted that each Contracting Government has the right either to object to Iceland's reservation (and as a consequence the reservation will have no effect between those two members) or to accept the reservation, as Antigua & Barbuda has done. It further considered that adequate precedent could be found regarding reservations and recalled that in the past they have been addressed by individual Contracting Governments and not by the Commission. Antigua & Barbuda considered this the correct procedure from which there should be no departure. It considered that the report from the depository government regarding the deposit of Iceland's instrument of adherence is sufficient, informing members that Iceland has satisfied a requirement for becoming party to the Convention. Antigua & Barbuda stated that the proper course of action is for each Contracting Government to notify the depository of its position on Iceland's instrument of adherence.

Responding to these comments, the USA noted that each year in its role as depository, it provides a treaty status list to the Secretariat prior to the Annual Meeting that includes the names of the Contracting Governments to the Convention. It explained that after review by the Treaty Office of the US Department of State, the USA as depository chose not to include Iceland in the list because it did not believe that it was its role to reconcile the fact that the IWC had rejected Iceland's reservation last year and the fact that Iceland had resubmitted the same reservation this year with an attached Diplomatic Note. Since IWC members decided last year that the acceptability of Iceland's reservation is for the Commission to determine, the depository did not feel it would be appropriate to list Iceland as a Contracting Government given the circumstances. The USA noted that its Treaty Office is trying to steer a neutral course and that consequently in this year's treaty status list, the developments at IWC/53 with respect to Iceland are included in a footnote.

Regarding the existence of previous reservations, Japan drew attention to those made at the time of adherence by Argentina and Ecuador relating to territorial waters. It noted that IWC as a body did not intervene with respect to these reservations and questioned why it was doing so now with respect to Iceland's reservation.

Noting the need to decide on this issue, the Chair repeated his earlier ruling that the Commission should adhere to its decisions at IWC/53 and that Iceland is invited to assist as an observer.

Japan and Norway challenged the ruling. Norway also challenged the competence and authority of the Chair, acting on behalf of the Commission, to make such a ruling and believed that this challenge should be dealt with first. Australia commented that since the Chair had not made a ruling on competence, he could not be challenged on this. The Chair disagreed with Norway, stating that the first challenge was to his ruling and that it should therefore be this challenge that is voted on first and that in any case, the matter of competence would be dealt with at the same time. Iceland considered that voting on the challenge to the Chair's ruling was contrary to the Rules of Procedure F.2.(b) and that voting should be on the ruling itself. The Chair indicated that he was following Rule of Debate C.1 that requires the appeal (challenge) to a ruling to be put to a vote.

Eventually, following confirmation by a show of hands that Peru's financial repayment schedule had been agreed by the Commission and therefore its right to vote had been restored (23 in support and 5 against), and a report from the Secretary on credentials (a credentials committee had been formed comprising Australia, Japan and the Secretary and the credentials of all Contracting governments were found to be in order), the challenge to the Chair's ruling was put to a vote. There were 20 votes in support of the challenge and 25 against. The Chair's ruling was therefore upheld.

Following the vote, Norway indicated that its challenge of the competence of the Commission to deal with the issue of Iceland's membership had not been addressed. The Chair repeated his earlier statement that he considered the vote on his ruling covered the competency issue and therefore ruled that this agenda item be closed. Norway challenged this ruling. On being put to a vote, there were 17 votes in support of the challenge, 24 against and 3 abstentions. The Chair's ruling was therefore upheld and the agenda item was closed on the first day of the meeting.

On the second day, Iceland made a formal declaration and subsequently withdrew from the meeting. In its declaration, Iceland stated that in dealing with the issue of its adherence to the Convention, there had been breaches of general principles of international law, the IWC Convention and the IWC's Rules of Procedure. It considered that the USA as depository had not treated Iceland's instrument of adherence in the same manner as other new instruments. By not notifying Iceland as a member of the IWC Convention, the USA had misused its position as the depository government. It considered that the Chair had acted contrary to the IWC Convention by not recognising Iceland's membership in accordance with its instrument of adherence and that he had acted contrary to IWC's Rules of Procedure (as explained earlier). Finally, by refusing to accept Iceland as a member of the IWC Convention, it considered that a majority of IWC members had violated general principles of international law and the IWC Convention (Iceland also noted that almost half of the Contracting Governments recognised it as a member). Iceland considered all attempts not to recognise it as a member of the IWC Convention to be illegal, therefore not affecting its status as a member. Viewing the proceedings as unacceptable Iceland decided to take no further part in the meeting.

1.3.2 Opening statements

GABON
Gabon explained that it had decided to adhere to the Convention since IWC has an important role to play managing cetaceans and in view of the interest among its tourists created by the presence of cetaceans in Gabonese waters. It noted that its adherence demonstrates the will of Gabon's government to join the efforts of the international community in preserving biodiversity and the environment, especially the marine environment, and in fighting against illegal fishing activities. Gabon hoped that progress could be made at this meeting while taking into account responsibilities and a mutual understanding in combining economic and dietary objectives and the necessity to protect all endangered species, including cetaceans, within a context of respecting the biological balance and the sustainable management of resources.

MONGOLIA
Mongolia identified two positions/principles behind its adherence to the Convention: (1) to assure the right of landlocked countries to access and use international water resources, as established by the United Nations Convention on Law of the Sea (UNCLOS); and (2) to support the principle of sustainable use of renewable water resources. With respect to the former, it noted that in some regional conventions and agreements, the right of landlocked countries to access and use international water resources is not yet acknowledged. It therefore very much welcomed the ability to express its position on these matters afforded by its adherence to the Convention. With respect to the latter, it referred to the fact that its many thousand-year tradition of using natural resources sustainably had left it with an untouched and beautiful environment that is widely admired. Based on its tradition of conservation and sustainable use of natural resources and the principle of sustainable development proposed by the UN Conference on Environment and Development, Mongolia therefore considers it right to use renewable resources in a sustainable way.

REPUBLIC OF PALAU
The Republic of Palau noted the dependence of its people on marine resources for daily sustenance and livelihood and therefore its commitment to the principle of sustainable management and the rational utilisation of the world's marine resources. It also noted the polarisation within the Commission on whaling issues, but considered that when implementing the Convention, it is important that members take account of the best scientific information available and keep in mind the ultimate objective of the Convention. It recognised that it needed to build additional capacity so that it could participate effectively in the Commission's work, and indicated that it would be grateful to receive any technical support, assistance and guidance from the organisation or from any of its members.

PORTUGAL
Portugal referred to its long maritime tradition. It had adhered to the Convention from the position of contributing strongly to the preservation of the oceans - a common heritage of mankind that it believed should be preserved for future generations.

SAN MARINO
Notwithstanding its situation as a landlocked country, San Marino recalled its long-standing interest in questions concerning the preservation of natural resources worldwide. It considered in a positive light all activities of IWC, particularly the creation of sanctuaries that it considers an effective way of protecting some whale species from extinction. San Marino expressed the wish that all countries worldwide would adhere to the same ideal and co-operate in preserving the prosperity of the Earth and its living creatures.

1.4 Meeting arrangements and treatment of Resolutions
A provisional order of business was agreed. The Chair asked Contracting Governments to: (1) keep Resolutions to a minimum and to consult widely in their preparation; and (2) be brief and to the point in their interventions, and to associate themselves, where possible, with earlier speakers who had similar views. The Secretary drew attention to arrangements for the submission of Resolutions and other documents².

¹See Ann. Rep. Whaling Comm 2001: 6-8.
²With respect to Resolutions, although many draft Resolutions were submitted to the meeting, only one was addressed (and adopted, see Section 10.1.1). Lengthy discussions over the renewal of aboriginal subsistence whaling catch limits (agenda item 6.3) reduced the time available for other issues. The Chair gave priority to the presentation and discussion of the reports from the Commission's sub-groups leaving no time for other draft Resolutions to be addressed.

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