(from "Chairman's Report of the Thirty-Ninth Annual Meeting")

Statements of support for this proposal were made by a number of governments. Sweden expressed its concern about the development of whaling for scientific purposes, and saw the resolution as a step forward to avoid abuse. Switzerland emphasised its domestic preoccupations over the use of animals for scientific purposes, and Australia spoke of the need to prevent whaling for scientific research circumventing the effects of the moratorium and affecting the Comprehensive Assessment. The Federal Republic of Germany recognised the two main aspects of the proposal as establishing additional criteria for scientific whaling both for the Comprehensive Assessment and other important research needs, and the right of the Commission to express its view on research programmes of member states which involve the taking of whales.

The Netherlands and the UK were both concerned that commercial whaling may be reintroduced under the guise of scientific study, and believed that the resolution proposed appropriately reflects the Commission's right and responsibility to express its views and the sovereignty of Contracting Governments to issue special permits. The People's Republic of China supported the use of special permits for real research, but opposed their use as an excuse for commercial whaling. It thought permits should be approved by the Scientific Committee and the IWC, and the catches, restricted to the needs of the Scientific Committee, to avoid depletion of the whale resources.

Opposition to the proposal was voiced by Iceland, which believed that the issue had been effectively resolved last year. In its view the proposal of the USA was inconsistent with the Convention, and exceeded its authority, so that Iceland would not consider itself bound by such a resolution and would seek remedial methods in accordance with international law. Its further cooperation or participation in the IWC would need to be considered if the resolution were to be adopted. Japan similarly believed that the resolution infringed the sovereign rights of Contracting Governments to issue special permits, and did not think the Commission should make decisions on the scientific soundness of a programme by majority vote. The USSR regarded scientific research on whales as a matter of paramount importance. The decision to terminate whaling had led to a sharp decline in research and loss of biological information. In this situation it believed that research whaling could make a considerable contribution to the collection of biological information and monitoring of the status of stocks. It further considered the proposed resolution to be in contradiction with the provisions of Convention Article VIII.

Norway was also dismayed at the re-opening of an issue dealt with last year. It was aware of the concerns, and quoted the World Commission on Environment and Development to this effect, which commented that permissions for such hunting should be stringently applied by IWC members. While Norway was prepared to enter into constructive discussion of the criteria for review of special permits, it had grave misgivings about the preamble, certain operative paragraphs, and the proposed procedure couched in semi-Conventional language in the proposal.

The Republic of Korea also voiced its opposition to the proposed resolution.

The Chairman then adjourned the discussion on this Item until the next session.

Following this adjournment, Norway introduced as an amendment a detailed draft in the same format as the original proposal, but which the Chairman ruled to be a new resolution rather than an amendment of the first. This new draft was based on the two premises that the guidelines established last year should be retained, as in the first proposal, but that any element which raised doubts about conformity with the Convention or the political consequences should be omitted. This was described paragraph by paragraph, seconded by Iceland and supported by Japan.

The UK recognised some useful elements in this proposal, but also some shortcomings, notably the lack of reference to the moratorium on commercial whaling or the Comprehensive Assessment, the need for an annual review and report by the Scientific Committee of research programmes, various details of wording, and the omission of any procedure for the Commission to make a judgement on the matter.

Iceland had some difficulty in participating in the debate on a question of principle, because it believed the USA proposal was unlawful, but nonetheless set out the Icelandic views on the legal situation. This close analysis concerned the relationship between Articles VI and VIII of the Convention. Attention was focused on the terms in Article VIII permitting any Contracting Government to grant its nationals a special permit 'notwithstanding anything contained in this Convention', and such killing, taking and treating of whales being 'exempt from the operation of this Convention'. Iceland believed that the USA's proposal was inconsistent with the Convention because it would infringe the rights of Contracting Governments and impede their ability to fulfill their obligations under Article VIII. It introduced extraneous political and economic considerations by the threat of sanctions under US law and was an attempt to amend Article VIII by unlawful means.

The USSR and Japan supported these views.

The USA emphasised its view that the Commission's position on the moratorium on commercial whaling, which is still not in place, and the Comprehensive Assessment, which is proving difficult to begin, should be strengthened more than by last year's Resolution so that whaling for scientific purposes might not be a way for some to get around the moratorium. It reiterated that the Commission may make recommendations to any Contracting Government under Convention Article VI, and that catches under Article VIII are 'for purposes of scientific research'. It saw its proposed resolution as an attempt to establish standards following the precedent of last year's Resolution adopted by consensus, and to allow the Commission to express its view as well as the Scientific Committee on proposed special permits.

Australia refuted the Icelandic implication that the resolution it had jointly sponsored was designed primarily to allow the domestic legislation of other countries to bear on IWC members who could be judged to be in contravention of the scientific criteria for special permits. The immediate problem was the duty and responsibility of the Commission to manage and conserve the whale stocks and, given the possibility that some countries may seek to take advantage of the exception in the Convention, make recommendations on scientific permits to interested Governments.

Oman and Netherlands associated themselves with this view.

Norway concurred with the argument put forward by Iceland and supported its conclusions, seeing the USA proposal as an attempt to set up a totally novel procedure using the phraseology that the Commission 'agrees' as a more binding relationship than a recommendation.

After a further adjournment to the next session, Japan introduced a series of amendments to the original resolution proposed by the USA and others. These were intended to clarify certain paragraphs and safeguard the position of principle and legal interpretation it held. These amendments were seconded by Iceland.

The Federal Republic of Germany then proposed that the debate should be closed on all the proposals before the meeting, as it believed there was no chance of a compromise because of basic differences of opinion, and the arguments were being repeated.

Norway spoke against the closure, since there had been no opportunity to discuss the amendments recently presented or to consider modifications, and Mexico supported this position.

After clarification of the procedure being followed, the motion to close the debate was adopted by 18 votes in favour, 8 against with 6 abstentions.

The Commission then proceeded to vote separately on each of the nine amendments proposed by Japan to the resolution put forward by the USA and five co-sponsors.

The proposed amendments to preambular paragraphs 1 and 2 were defeated, with 7 votes in favour, 21 against and 4 abstentions; and 5 for, 23 against and 4 abstentions respectively.

The amendment to preambular paragraph 3 was adopted with 24 votes in favour and 8 abstentions.

A proposed new preambular paragraph, amendments to operative paragraphs 1, 2 sub-paragraph 1, 2 sub-paragraph 3, replacing paragraphs 3 and 4 with new wording, and replacing paragraph 6, were all defeated, the voting being 9 for, 19 against, 4 abstentions; 6 for, 18 against, 8 abstentions; 7 for, 19 against, 6 abstentions; 6 for, 21 against, 5 abstentions; 6 for, 19 against, 7 abstentions; and 5 for, 19 against, 8 abstentions respectively.

Turning to the original proposal by the USA and others, now amended by the substitution of the Japanese wording for preambular paragraph 3, Brazil proposed that the third operative paragraph should be voted on separately, and since there was no objection, this was done and the paragraph adopted by 17 votes in favour, 7 against with 8 abstentions. The remainder of the proposed resolution was then voted on as amended, and approved by 19 votes for, 6 against with 7 abstentions. The text as adopted is given in Appendix 1 and the alternative Norwegian proposal was not considered further.

In explaining their votes, Norway, Brazil, Japan, Argentina and Mexico made reference to their legal concerns and rights; Switzerland and Sweden indicated their conservation considerations; and St Lucia and St Vincent and the Grenadines spoke of the need for negotiation and consensus.

8.1 Report of the Scientific Committee
Before discussing particular scientific permits, the Scientific Committee reviewed the guidelines established for this procedure, namely the six arising from Schedule paragraph 30, and the four contained in the 1986 Resolution of the Commission. There were some difficulties in interpreting three particular points in the latter, and after discussion the Commission agreed that it had been intended for the Scientific Committee to report if cold grenade harpoons were used in special permit catches; and that the Resolution just adopted contained new criteria to aid evaluation of whether 'proposed catches would facilitate the conduct on the Comprehensive Assessment'. No explanation of the term 'practically' in the criterion of whether 'the objectives of the research are not practically and scientifically feasible through non-lethal research techniques' was forthcoming.

(a) Republic of Korea
The Scientific Committee reviewed the results of an existing scientific permit issued by the Republic of Korea, under which 69 minke whales had been taken last year. Considerable concern was raised by the Committee about the result of research under this permit. Specifically, the Committee agreed that the information collected cannot help with any significant management question, nor is it of any significant scientific value, as only a fraction of the potentially available biological data was collected.

The Scientific Committee requested clarification on the question of whether data reporting requirements/requests in the Schedule were applicable to catches taken under scientific permit. The Chairman of the Commission took the position, without touching on the question of whether or not this information is required, that it would be helpful to the Scientific Committee if Governments did supply these data and they should be encouraged to do so.

A revised permit proposal from the Republic of Korea for a take of 80 minke whales a year from 1987 to 1989, together with independent sighting surveys, in the Sea of Japan - Yellow Sea - East China Sea area, was also reviewed by the Scientific Committee. It expressed concern that there was insufficient precision in both the objectives and methods to be employed (similar to last year's work) to properly evaluate the likely success of either the biological or sightings data gathering, and that the take may further deplete the stock or substantially impede its recovery. It therefore requested that the Commission strongly urges the Government of the Republic of Korea to refrain from issuing the permit until it can fully show that the take will not further deplete the stock and that it will materially contribute to the Comprehensive Assessment of this stock.

(b) Iceland
The Scientific Committee reviewed the results obtained from catches taken under special permits by Iceland last year. In 1986 a total of 76 fin whales and 40 sei whales were taken and some 33 studies were underway or proposed. Comments were provided under each of the guidelines for review of special permits. There were differences of opinion on the objectives and contribution of the information, and whether it would facilitate the Comprehensive Assessment. There were excellent arrangements for cooperative investigations and maximum effort was expended to collect and analyse the material. The Scientific Committee was unable to evaluate the effect of the catches of fin and sei whales from these stocks without a better estimate of population abundance.

Work proposed for future years was also discussed. This included a catch of 80 minke whales, which will not be taken until satisfactory arrangements were made regarding the landing of whales at centralised areas and facilities for conducting field research. The fin and sei whale programme will also continue.

(c) Japan
The discussions in the Scientific Committee on a proposed annual research catch of 825 minke whales and 50 sperm whales in the Antarctic as part of a 12 year programme were both lengthy and complicated.

Minke whale samples from Areas IV and V were designed primarily to obtain estimates of age-specific natural mortality, together with information on stock identity, year-to-year variations in biological parameters, feeding ecology and energetics. Some members did not believe the main reason for the Scientific Committee's failure to provide useful advice on replacement yields and the effects of continuing catches from these stocks arose from not having reliable estimates of natural mortality, but rather net recruitement estimates. Concern was also expressed about the feasibility of the methodology proposed to distinguish various effects, and the sampling strategy. Also, the management procedures being developed are robust to imprecision or bias in estimates of population parameters. Other members disputed some or all of these points. The Scientific Committee also considered the Japanese proposal in terms of the guidelines for special permits, and presented a range of views.

The proposed take of sperm whales was to investigate the role played by cetaceans in the ecosystem with emphasis on the sperm whale and its food. Secondary objectives include long-term study of reproduction, growth, energetics, stock identity, and pollution. The eight year plan involves a maximum catch of 50 whales in Divisions 4, 5, 6 and 7.

The Scientific Committee agreed that, while important, the role of whales in the ecosystem is not of immediate importance to the Commission's deliberations. Southern sperm whale stocks have not been assessed recently, so no advice could be offered on the effect of the take, but some members noted that the removal of the solitary, large, socially mature bulls in high latitudes may have greater biological significance than the removal of an average sperm whale. The sampling scheme should be carefully considered, and input from cephalopod researchers solicited.

8.2 Action arising
(a) Republic of Korea
In the Commission, the UK and the People's Republic of China expressed their concern on the research carried out by the Republic of Korea.

The Republic of Korea emphasised the difficulties it faced in conducting research, that the proposed research catch is about 10% of the average catch in the last decade, its belief that this will not adversely affect the stock, and its responsibility for conservation in its 200 mile zone. It therefore could not accept any recommendation.

The USA then introduced a proposed resolution recommending that the Republic of Korea refrain from issuing, or revoke, special permits as described in the latter's proposal to the Scientific Committee.

Japan proposed adjournment of the debate on this Agenda Item, to allow time for overnight consultation with its government. Argentina supported this as the Commission's usual practice, and there was no dissent.

On resumption, St Lucia expressed the view that it would be better to give national institutions an opportunity to improve their methodology or programmes, rather than to ask that governments revoke or refrain from granting permits.

The USA formally proposed its resolution, which was seconded by Switzerland because of the clear and unequivocal advice of the Scientific Committee, and supported by the People's Republic of China. The Republic of Korea then repeated that it could not accept the resolution, and Brazil and Japan while accepting the comments of the Scientific Committee, could not support this action by the Commission on legal grounds.

Argentina requested that the final two paragraphs should be voted on separately, and this was seconded by Brazil but objected to by the USA. On being put to the vote, the proposal was defeated with 12 votes in favour, 13 against and 6 abstentions.

The whole resolution was then adopted by 19 votes for, 3 against with 9 abstentions and appears in Appendix 2.

Brazil explained its position on this and other resolutions to be considered with similar phraseology; it did not object to the substance but only the actions proposed by the Commission. Argentina shared this position.

Norway made a general statement recognising commendable aspects of two other research programmes to be considered, where evaluation of each on its own merits would lead to different conclusions in each case. It was concerned that the Commission was adopting mechanical conclusions, possibly redoing the work of the Scientific Committee, and required a better forum for its discussions.

(b) Iceland
Australia commented on the report of the Scientific Committee, emphasising the points made by those scientists who expressed concerns about allowing this scientific take to continue. It concluded that serious doubts were raised with regard to three of the four criteria established by the 1986 resolution and believed that the Icelandic scientists should submit a revised proposal, and that the Commission should urge the Government of Iceland to refrain from issuing special permits for the taking of fin, sei and minke whales. It therefore tabled a resolution to this effect, which was seconded by New Zealand and supported by Sweden.

Iceland put forward an amendment to this resolution to defer consideration of the report of the Scientific Committee on the research programme of Iceland and any action arising until the 40th Annual Meeting. It argued that the scientific report was not prepared in such a way as to provide all the information necessary for the Commission to take scientific responsibility at this time. Iceland outlined its four-year programme and the North Atlantic sightings survey about to take place. Apart from the legal aspects, it considered the Australian proposal of a destructive nature and with little basis in science.

Norway seconded this amendment, which was defeated with 9 votes in favour, 17 against and 5 abstentions.

Turning to the Australian proposal, Argentina again asked that there be a separate vote on the last two paragraphs, which was agreed.

Before the vote, the UK explained that it was voting solely on the taking of whales and wished to congratulate Iceland on the other parts of the research programme. This position was shared by Denmark, the Federal Republic of Germany, Finland, Switzerland and the Netherlands.

The last two paragraphs of the resolution were then adopted by 16 votes for, 6 against and 9 abstentions.

Brazil expressed its concern over putting a standard paragraph as the conclusion of these resolutions, disregarding elements of merit in the programmes.

The first part of the resolution was then adopted, with 19 votes in favour, 4 against and with 8 abstentions. The full text approved appears in Appendix 3.

(c) Japan
Japan emphasised that its programme has been designed with a genuine scientific aim. A new research institute has been established to implement this long term study. It believed the sample sizes were large enough to give reliable results but would not adversely affect the stocks.

The UK reviewed the comments in the report of the Scientific Committee, and concluded with respect to minke whales that it had not been satisfactorily demonstrated that this large undertaking would produce reliable results, and that sperm whale work was not of essential importance to the Commission at this time. It therefore put forward a resolution recommending the Government of Japan to refrain from issuing the special permit until the uncertainties identified are resolved.

This was seconded by Sweden.

Japan pointed out that a number of the points expounded by the UK were arguable, and the only way to reduce uncertainty in knowledge of the stocks is by carrying out research. It noted that of 16 countries consistently voting for these resolutions, 7 did not attend the Scientific Committee, and another 7 did not submit Progress Reports on research. It appealed for support for scientific advance and on legal grounds.

Japan then put forward an amendment to the UK resolution, deferring consideration and any action until the 40th Annual Meeting.

This was seconded by the Republic of Korea, Norway, Iceland and the USSR, the latter two recognising the serious intent of the research over the future years.

Switzerland asked if the research would also be deferred if the discussion was put off to next year, and Japan responded that as it would lose the funding available now it would proceed. Antigua and Barbuda suggested referring the mathematical problems involved to independent experts for judgement, and Japan stated it was open to any constructive suggestions, and was already taking such advice. The People's Republic of China believed the sample sizes proposed to be too large; the Scientific Committee should establish the catch size necessary.

The Japanese amendment to defer consideration was defeated by 11 votes for to 16 against, with 4 abstentions.

It was agreed, on the proposal of Argentina, to vote on the last two paragraphs of the UK proposed resolution separately, and these were adopted with 16 votes in favour, 9 against and 6 abstentions. The remainder of the text was then adopted by 18 votes for, 8 against with 5 abstentions. The full text is given in Appendix 4.

St Lucia and Brazil explained their votes on the grounds of seeking improvements in the research programmes and recognising their merits. Mexico also pointed out its concern with the potential effects on some of the stocks, and appealed for international cooperation. Japan expressed its dismay and disappointment at the decisions being taken.

(d) General
Iceland put forward a proposal designed to be one way out of the legal dispute, by setting up a group of legal experts to consider if the resolutions adopted are consistent with the Convention, and to establish a third-party settlement procedure if there is still disagreement. This was seconded by Norway and Mexico, and supported by Japan.

The USA opposed the proposal, arguing that the legal analysis turns on commonly understood words and is not esoteric. There will always be disagreement among legal experts, so that the Commission would be abdicating responsibility to a third party.

Switzerland and Brazil suggested that this issue could be considered by the Working Group established to examine questions related to the Convention. Following further discussion involving these countries, St Lucia and Australia, on the question of whether the issue could be referred to the Working Group if the proposal failed at this meeting, the Icelandic proposal was put to the vote and defeated, with 6 votes in favour, 17 against and 6 abstentions.

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