(from "Chair's Report of the 55th Annual Meeting")

COMMISSION DISCUSSIONS AND ACTION ARISING
The Netherlands commended the work of the Scientific Committee and endorsed its plans to co-operate with other international organisations.

Japan noted the request of some Scientific Committee members for clarification and elaboration of certain aspects of Resolution 2002-1. Japan agreed that this is necessary. It considered that the first principle regarding temporary overlap of management measures is inconsistent with earlier instructions given to the Scientific Committee, and the second principle on the application of the Precautionary Approach to be an excuse for using worst-case scenarios. Japan believed that the earlier instructions provide a better framework for sanctuary reviews and that Resolution 2002-1 impeded progress in reviews and should be repealed.

Mexico considered it inappropriate for members of the Scientific Committee to request clarification on Resolution 2002-1. The Resolution had been adopted by majority voting and therefore was an instruction to the Scientific Committee from the Commission. Norway took the opposite view. It considered that the Scientific Committee should be independent and should point out potential problems to the Commission.

While Norway found the MPA concept very interesting, it believed that according to international law, MPAs can only be established by sovereign states within their 200 mile zone. It therefore questioned why the concept was being discussed in association with reviews of IWC sanctuaries. Japan expressed similar views. The Netherlands, Australia, Italy, Mexico, Brazil and Monaco disagreed, believing that MPAs are relevant to the Scientific Committee's work. Italy noted that in discussions in both the World Summit on Sustainable Development and the Convention on Biodiversity, recommendations have been made for the establishment of MPAs in waters beyond those of national jurisdiction, and added that it, France and Monaco have established a network of interconnected MPAs largely in the high seas. Monaco commended the Committee for drawing the Commission's attention to the link between sanctuaries and MPAs.

The Commission noted the Scientific Committee report and endorsed its recommendations.

10.1.2 Preparations for the review of the Southern Ocean Sanctuary
REPORT OF THE SCIENTIFIC COMMITTEE
The Committee had been asked by the Commission to review the Southern Ocean Sanctuary (SOS) in 2004 and an intersessional working group had been appointed to develop a proposed framework to carry out the review. A number of detailed comments on the review process for the SOS were made and a mechanism to improve the review next year was developed, including co-operation with other organisations. In particular, it believed that outside scientists could contribute in two main areas: (1) to provide advice on how to introduce MPA scientific concepts to the IWC Sanctuaries and Sanctuary proposals and on establishing monitoring programmes; and (2) to evaluate the SOS effectiveness given its objectives and the criteria developed by the Committee and approved by the Commission.

COMMISSION DISCUSSIONS AND ACTION ARISING INCLUDING A PROPOSAL TO AMEND THE SCHEDULE
Australia considered that the review of the Southern Ocean Sanctuary will be a performance review against the objectives given in Resolution 1998-3¹⁸ and not on whether the sanctuary should exist or not. The USA agreed and welcomed the Scientific Committee's plans.

With respect to the two points on which the Scientific Committee proposed should be the focus of external non-IWC affiliated scientists, Norway had no problems with the second point, but considered that the first point was unacceptable. This was in line with its earlier intervention (see 10.1.1). Australia agreed with Norway and suggested that the first point be deleted as it is misplaced with respect to the review of the Southern Ocean Sanctuary. It would be more appropriate in relation to criteria for new proposals. The UK agreed with Australia's suggestion but wondered whether problems with point (1) were due to some misunderstanding. The UK did not interpret point (1) as a suggestion that MPAs are established, but rather that some MPA concepts, such as critical habitats are also relevant to sanctuaries.

The Scientific Committee Chair explained that the sense of point (1) is that the scientific concepts developed for assessing the effectiveness of MPAs could also be used to evaluate sanctuaries.

Given the discussion on this issue, the Chair proposed that the Scientific Committee concentrate on the second point, taking into account other scientific concepts, such as MPAs, where appropriate. The Commission agreed.

PROPOSED AMENDMENT TO SCHEDULE PARAGRAPH 7
Japan recalled that Article V.2.(b) of the Convention indicates that management measures should be based on scientific findings. It considered that the Southern Ocean Sanctuary was not established in accordance with this provision, and as it has for a number of years, proposed an amendment to paragraph 7 of the Schedule designed to make the Sanctuary more consistent with Article V.2. It proposed to delete the 3rd sentence of paragraph 7.(b) (i.e. 'This prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this Sanctuary, as may from time to time be determined by the Commission') and to add a new sub-paragraph (c) as follows:

'7. (c) The prohibition described in sub-paragraph (b) above shall not apply unless there is clear advice from the Scientific Committee that it's required for conservation purposes.'

The text for the proposed new sub-paragraph was slightly different to that proposed previously¹⁹.

Norway supported Japan's proposal. It noted that when the Southern Ocean Sanctuary was established in 1994, Norway did not participate in the voting, believing it to be out of order since it did not comply with either Article V.2 (b) or Article V.2.(d) (i.e. that consideration shall be given to the interests of the consumers of whale products and the whaling industry). It considered that these Articles had still not been met.

Australia, Mexico, the USA, Germany, Italy, Monaco, New Zealand, the UK and Sweden found Japan's proposal unacceptable. Australia noted that the purpose of the Southern Ocean Sanctuary is to provide full protection to whales in the Sanctuary and that Japan's proposal would remove this basic provision. Mexico made a similar comment, stressing that many countries consider sanctuaries as an additional management tool that focus on conservation and the precautionary principle - well-known concepts applied worldwide. The USA disagreed that the sanctuary lacks a scientific basis. In its view, the Southern Ocean Sanctuary:

(1)

safeguards depleted whale stocks in their breeding, feeding and calving grounds;

(2)

complements the protections provided by the Indian Ocean Sanctuary for migratory species;

(3)

facilitates the development of national and international research programmes on depleted stocks and their habitat; and

(4)

promotes biodiversity.

Germany, Italy, Monaco, New Zealand and the UK associated themselves with these earlier statements. New Zealand considered that the proposed amendment raised the question of what action should be taken in the event of scientific uncertainty. It noted that the assumption in Japan's proposed Schedule amendment is that there is an abundance of whales unless the contrary is demonstrated by scientific evidence. New Zealand believed that the opposite assumption should be made in line with the precautionary principle. Sweden supported establishment of relevant sanctuaries, not only from a biological point of view (i.e. in protecting whales and ecosystems) but also because they would provide long-term security from whaling for certain areas even when an RMS is accepted. Sweden believed that this would assure 'whalewatching countries' that their rights would be respected when whaling is made possible and thus facilitate implementation of all objectives of the IWC.

On being put to a vote, Japan's proposal was not adopted. There were 17 votes in support, 26 against and two abstentions.

10.2 South Pacific Sanctuary
10.2.1 Proposal to amend the Schedule to establish a sanctuary
For the fourth year²⁰, Australia and New Zealand proposed to establish a South Pacific Sanctuary as follows:

'In accordance with Article V (1)(c) of the Convention, commercial whaling, whether by pelagic operations or from land stations, is prohibited in a region designated as the South Pacific Sanctuary.

This Sanctuary comprises the waters of the Southern Hemisphere enclosed within the following line: starting from the southern coast of Australia at 130 ° E; thence due south to 40 ° S; thence due east to 120 ° W; thence due north to the equator; thence due west to 141 ° E; thence generally south along the Papua New Guinea - Indonesian maritime boundary to the northern coast of Papua New Guinea at 141 ° E; thence generally east, south thence west along the coast of Papua New Guinea to the southern coast of Papua New Guinea at 141 ° E; thence due south to the northern coast of Australia at 141 ° E; thence generally east, south thence west along the coast of Australia to the starting point.

This prohibition applies irrespective of the conservation status of baleen or toothed whale stocks in this Sanctuary as may from time to time be determined by the Commission. However, this prohibition shall be reviewed ten years after its initial adoption, and at succeeding ten year intervals and could be revised at such times by the Commission.'

New Zealand reported that in addition to Australia, the other co-sponsors of the proposal were Argentina, Austria, Brazil, Finland, France, Germany, India, Italy, Mexico, Monaco, the Netherlands, Peru, Portugal, San Marino, Spain, Sweden, the UK and the USA. It noted that the co-sponsors remain convinced that the establishment of a South Pacific Whale Sanctuary is vital to ensure the conservation of whales in the region since it would complement the protection of all the great whale species that breed in tropical and sub-tropical latitudes and migrate each summer to feeding grounds within the Southern Ocean Sanctuary. New Zealand indicated that most of the eleven great whale species found in the proposed sanctuary area remain seriously depleted after the intensive exploitation last century and that protection of their breeding grounds is critical to ensuring the recovery of these populations. New Zealand also referred to a number of recent studies of humpback whales that have provided new evidence: (1) for low abundance and genetic isolation among the breeding grounds of Oceania; (2) that the region of New Caledonia is a reproductively separate breeding ground with low abundance; (3) for a distinct breeding ground in French Polynesia, unrecorded in historical whaling literature. Referring to the Opening Statement from the South Pacific Regional Environment Programme, New Zealand reported that over the last two years, a total of around 12 million square kilometres of Exclusive Economic Zones have been declared as national whale sanctuaries, demonstrating the widespread and growing support in the South Pacific Region for the proposed whale sanctuary. In view of such a strong expression of the region's aspirations, New Zealand believed it was now time for the Commission to vote in favour of the South Pacific Whale Sanctuary.

Australia reported on developments since IWC/54 that support the proposed sanctuary. At a national level, like New Zealand, it drew attention to the network of domestic whale sanctuaries already in place or proposed. At a regional level it noted that: (1) there had been continued discussions with range states and that there is now a clear sense of regional consensus in support of the proposed sanctuary; (2) in September 2002, the Conference of the Parties to the Bonn Convention (the Convention for Migratory Species) had endorsed Australia's proposal to list all great whales found in the proposed South Pacific Sanctuary area; and (3) that the South Pacific Whale Research Consortium decided in February 2003 to increase its commitment to research in the area. Australia also noted that the future economic well-being of small island states in the area depends heavily on tourism, and that growth of whalewatching (an industry currently worth over 1 billion $ US per year) in the South Pacific is dependent on protection of these migratory species. Finally, Australia noted that national steps can go only so far, and that as the body with global responsibility, IWC must take the lead role in creating the South Pacific Sanctuary.

10.2.2 Commission discussions and action arising
Noting that the South Pacific Sanctuary proposal had not changed since last year, the Chair of the Scientific Committee drew the Commission's attention to previous Committee discussions, i.e. at the 2001 and 2002 Annual Meetings²¹. The Chair reminded the Commission that the Scientific Committee had not been able to reach consensus and had reported arguments both for and against the proposal.

During the discussions, many of the co-sponsors indicated their support for the proposed sanctuary, with several of them noting the importance of recognising the wishes of the local people. It was also suggested that sanctuaries are important tools in strengthening the conservation agenda of IWC.

Denmark noted that there was nothing new in the proposal compared with last year, and in view of the commercial whaling moratorium and restrictions on the use of factory ships (see Schedule paragraph 8) saw no urgent need for the sanctuary. It also reported that if a protected area is established in Denmark, regulations are adopted to ensure that all necessary safeguards are put in place, i.e. not just a ban on hunting/exploitation of the species to be protected. In the case of whale sanctuaries, Denmark believed that in addition to banning whaling, something that is within the competence of IWC, the rationale for creating a sanctuary would suggest that other safeguards be taken into consideration and adopted, e.g. in relation to shipping, fishing activities including fishing gear, whalewatching and oil and gas exploration and exploitation. It considered that such considerations are missing from the proposal.

Iceland recognised the right of individual States to establish protected areas in waters under their jurisdiction, but believed that it goes against the general principles of international law and the ICRW specifically to close vast areas to whaling without regard to the abundance of different whale stocks in those areas. It considered that IWC should work to protect stocks that need it rather than employing a regional ban on whaling, and it believed that the proposal does not meet the requirements of Article V.2 of the Convention. Iceland urged Contracting Governments not to go against the Convention or the principles of sustainable development and use. Norway supported these views. It believed that the only reason for supporting the sanctuary proposal is the fear that the existing commercial whaling moratorium is not sufficiently robust and durable. Creation of the sanctuary would be a devious means of keeping the moratorium alive. The Republic of Palau indicated that its view had not changed since last year. It remained committed to sustainable use based on sound science and felt that there is insufficient evidence that all whales in the proposed sanctuary area require protection. It could not support the proposal. Japan recalled that no advice from the Scientific Committee supporting the proposed sanctuary had been forthcoming. It believed that stocks of large whales were increasing in the area and that prey species such as tuna may be affected with consequential effects on the economies of small island states. Dominica associated itself with the remarks of Iceland, Norway and Japan. It considered the proposal to be another attempt to circumvent the Convention and believed that the objective of the sanctuary agenda is to close off the seas for the selfish motives of the rich to create a paradise for their tourism at the expense of hunger and poverty. Antigua and Barbuda made similar remarks. St. Lucia noted that it has established MPAs in its own EEZ and was not against conservation, but that it did not believe IWC has the right to establish non-intrusion zones for the rest of the world. It also believed that the proposed sanctuary would have negative implications for shipping and trade and could not support it.

Before allowing the proposed Schedule amendment to be put to a vote, Iceland questioned whether, given its earlier comments, the proposal was admissible. The Chair ruled that it was. Norway challenged this ruling, but the Chair's ruling was upheld when put to a vote, there being 15 votes in support of Norway's challenge, 26 against and 2 abstentions.

The proposed Schedule amendment did not attract the required three-quarter majority when put to a vote. There were 24 votes in support, 17 against and 4 abstentions. Several countries explained their vote. Ireland, who had abstained, indicated that they are supportive of sanctuaries in principle but believed that any new proposals should have maximum consensus and notably support from whaling nations. Referring to its proposed holistic approach put forward some years ago, Ireland indicated that to have voted in favour of the sanctuary would be inconsistent with the 'Irish proposal'. Antigua and Barbuda voted against the proposal as it felt it had been denied a satisfactory explanation. Norway, although it considered the vote out of order, voted against the proposal as it wished its views to be known.

10.3 South Atlantic Sanctuary
10.3.1 Proposal to amend the Schedule to establish a sanctuary
For the third year, Brazil introduced its proposal, co-sponsored by Argentina and others, to create a South Atlantic Whale Sanctuary. The amendment proposed was the same as in previous years, i.e., the inclusion of a new sub-paragraph in Chapter III of the Schedule as follows:

'In accordance with Article V(1)(c) of the Convention, commercial whaling, whether by pelagic operations or from land stations, is prohibited in a region designated as the South Atlantic Whale Sanctuary. This Sanctuary comprises the waters of the South Atlantic Ocean enclosed by the following line: starting from the Equator, then generally south following the eastern coastline of South America to the coast of Tierra del Fuego and, starting from a point situated at Lat 55 ° 07,3'S Long 066 ° 25,0'W; thence to the point Lat 55 ° 11,0'S Long 066 ° 04,7'W; thence to the point Lat 55 ° 22,9'S Long 065 ° 43,6'W; thence due South to Parallel 56 ° 22,8'S; thence to the point Lat 56 ° 22,8'S Long 067 ° 16,0'W; thence due South, along the Cape Horn Meridian, to 60 ° S, where it reaches the boundary of the Southern Ocean Sanctuary; thence due east following the boundaries of this Sanctuary to the point where it reaches the boundary of the Indian Ocean Sanctuary at 40 ° S; thence due north following the boundary of this Sanctuary until it reaches the coast of South Africa; thence it follows the coastline of Africa to the west and north until it reaches the Equator; thence due west to the coast of Brazil, closing the perimeter at the starting point. This prohibition shall be reviewed twenty years after its initial adoption and at succeeding ten-year intervals, and could be revised at such times by the Commission. Nothing in this sub-paragraph shall prejudice the sovereign rights of coastal states according to, inter alia, the United Nations Convention on the Law of the Sea.'

Brazil began its introduction by noting the importance it gives to the environmental and social dimensions of sustainability and that without adequate environmental safeguards, it believed that social justice can be seriously compromised. It is this concern that underlies Brazil's national policies. Brazil considered the history of whaling to be one of the saddest examples of the violation of the sustainability principle. Not only did whaling cause damage to stocks shared by many coastal nations, the profit generated was concentrated in a few developed countries to the great disadvantage of most of the global community. Brazilian society's changing attitudes in the late 1980s saw the flourishing of a wide array of sustainable non-lethal uses such as scientific research, public education and awareness and the development of whalewatching that brings direct benefits to local communities. It believed that the prospect of the resumption of large-scale commercial whaling is again on the horizon, but that while it and other nations are willing to consider the views and needs of whaling countries, it wished to make clear that no agreement could be reached if regional conservation policies are not recognised and safeguarded by the Commission. This was what the proposed sanctuary was designed to do but also to ensure that the participation in good faith of Brazil and other countries with similar views in the work of the Commission would not threaten their sovereign rights to use whale resources non-lethally. Brazil reported that it had consulted with all range states, both IWC members and non-members, to ensure that the proposal was well-known and understood, and that it had received wide support. It urged Contracting Governments to support establishment of the South Atlantic Sanctuary and acknowledge the sovereign right of coastal nations to protect their marine resources.

Argentina indicated that creation of the sanctuary would contribute to:

(1)

the recovery of whale populations and the protection of biodiversity:

(2)

research on depleted stocks and their habitats;

(3)

the promotion of modern educational activities; and

(4)

the development of environmentally-friendly tourism activities in its region.

Argentina stressed its commitment to sanctuaries, including opposition to the abolition of current sanctuaries, and believed that co-operation with CCAMLR and CITES (in view of its long history of supporting IWC's management regulations) is important. Noting recent national regulations designed to protect whales, dolphins and porpoises and the development of whalewatching that has made considerable contributions to improved livelihoods of local populations and increased interest in marine mammals by the public, Argentina also called on the Commission to support the proposed sanctuary.

10.3.2 Commission discussions and action arising
The Chair of the Scientific Committee reported that due to a shortage of time, the Committee had be unable to fully discuss an evaluation of the South Atlantic Sanctuary proposal based on the instructions provided by the Commission and the review criteria. He noted however that there were differing views provided by two evaluations of the sanctuary proposal given in Annex P of the Committee's report.

A number of co-sponsors including South Africa, Germany, Australia, the USA, the Netherlands, New Zealand, Monaco, Spain, Sweden, Portugal, Mexico, Italy and France spoke in support of the proposed sanctuary.

Noting Brazil's reference to the sovereign rights of coastal states, Iceland indicated that it was not familiar that this interpretation applies to the high seas. Rather than repeating the same comments as it made in discussions on the South Pacific Sanctuary proposal, Iceland urged the Chair to allow the proponents of the South Atlantic Sanctuary to answer two questions, i.e. (1) in what way is the sanctuary necessary for the optimum utilisation of whale resources, and (2) in what way does it take into consideration the interests of consumers of whale products and the whaling industry. It considered that not allowing the proponents to answer these questions would give the impression that they have no legal arguments and are simply pushing their opinion through by the force of a vote.

The Republic of Guinea noted the conflicting interests and contradictions within the Commission giving examples of (1) the RMS on the one side and the maintenance and creation of sanctuaries on the other - questioning the value of an RMS if the oceans were to be closed, and (2) the desire to ensure the survival of depleted whale populations while also wanting to protect species not endangered. Noting concerns regarding competition between whales and fisheries, the Republic of Guinea considered that a balance between pelagic fisheries and whales is necessary. It was disturbed by the notion that whales should be conserved without sufficient scientific evidence at the expense of human food requirements. It believed that a well-developed RMS would provide for sustainable whaling and conservation and therefore could not support the proposed sanctuary. While Benin appreciated the proposal, it could not support it if it is not based on science and drew attention to the fact that there is no consensus on this issue among the Scientific Committee. Gabon made similar remarks. Japan considered the proposed sanctuary to have no scientific basis and to be against the Convention as it would deny sustainable use. Norway indicated that its comments on the proposed South Pacific Sanctuary were also equally valid in this case.

New Zealand addressed the issue of admissibility of both sanctuary proposals as questioned by Iceland. In its view, both proposals were not only admissible but also clearly within the terms of the relevant parts of Article V.2 of the Convention and within Article 31 (3) of the Vienna Convention on the Law of Treaties. Noting that Article V.2.(a) refers to the optimum use of whale resources, New Zealand believed that there is no basis either within the Convention or international law to limit this concept to the killing of whales for human consumption. Regarding Article V.2.(b) that requires Schedule amendments to be based on scientific findings, New Zealand referred to the wealth of material and scientific justifications for the Southern Ocean Sanctuary provided in the supporting paper submitted jointly with Australia (IWC/55/5) which would be pertinent also to the South Atlantic Sanctuary. It further noted that this Article does not make a report from the Scientific Committee in favour of a particular proposal a pre-requisite. Finally, regarding Article V.2.(d) stating that Schedule amendments 'shall take into consideration the interests of the consumers of whale products and the whaling industry', New Zealand considered the whaling industry to include whalewatching, an activity that the Commission has taken into account for many years. Spain, Portugal, Mexico, Ireland and Brazil supported these remarks. In addition, Brazil believed that it is in the best interests of the lethal whaling industry to try to accommodate the needs and concerns of other regions and nations with respect to the management of whale resources and considered it entirely appropriate to propose sanctuaries in regions of the world where the vast majority support their establishment. With respect to the issue of the scientific basis for the proposed sanctuary, Brazil considered it highly unlikely that the Scientific Committee could achieve consensus since government delegations with different policies tend to have different legitimate views on science.

Iceland thanked New Zealand and Brazil for attempting to answer its questions. It did not dispute New Zealand's comment that optimum utilisation does not just refer to hunting, although hunting is included, but it did contest its remark that the whaling industry includes whalewatching and Brazil's notion that whalewatchers were consumers of whale products. Although 'whaling' is not defined in the Schedule, Iceland pointed to the definition of 'small type whaling' in the Schedule that refers to catching operations. Iceland continued to be of the view that the sanctuary proposal was not in accordance with Article V.2 of the Convention.

The Chair concluded that there was no consensus on the proposal or on the interpretation of the Convention and proceeded to a vote. There were 24 votes in support, 19 against and 3 abstentions. The proposed Schedule amendment to create a South Atlantic Sanctuary was therefore not adopted. Brazil thanked those who supported its proposal, regretted the outcome of the vote but noted that it would continue to pursue the establishment of the sanctuary. Ireland referred to its earlier comments on the South Pacific Sanctuary proposal to explain why it abstained.

¹⁷ For details of the Scientific Committee's deliberation on this Item see J. Cetacean Res. Manage. 6 (suppl.)
¹⁸ Ann. Rep. Int. Whaling. Comm. 1998: 42-43
¹⁹ For example see Ann. Rep. Whaling Comm 2000: 14; Ibid. 2001: 17; Ibid. 2002: 35
²⁰ Ann. Rep. Whaling Comm. 1999: 10-11; Ibid. 2000: 15-17; Ibid. 2001: 17-18; Ibid. 2002: 33-34
²¹ J. Cetacean Res. Manage. 3 (Suppl.): 65-67; Ibid. 4 (Suppl.): 65-67

_