(from "Chairman's Report of the Forty-Third Meeting")
The Working Group's terms of reference were derived from four proposals made by the USSR at the 42nd Annual Meeting of the IWC and accepted by the Commission. The USSR had proposed that:
Some delegations expressed the view that improving and updating the Convention are urgently necessary because of fundamental changes of circumstances and international law. Of these delegations, some believed that the Commission had taken off from the Convention, and that the Convention should be modified in view of this development. It was noted that the extent of such revisions may require the convening of a diplomatic conference. Some delegations expressed regret at the slow pace the discussions had taken over the past several years and the low number of written responses to the 1988 questionnaire. The Chair provided the Working Group with some historical perspective by reminding it of the lengthy and complex analysis gone through in the 1970s when possible revisions to the Convention had been previously considered.
Other delegations, while acknowledging that there had been changes of circumstances since the negotiation of the Convention in 1946, did not consider them to be such fundamental changes in circumstances or international law so as to require revision of the Convention. They believed that the Convention in its present form has operated successfully over the years. They further stated that the Schedule, itself a part of the Convention, has provided the Commission with some flexibility since the Convention allows for amendment of the Schedule as circumstances require.
Some delegations stated that while revision of the Convention might be necessary at some stage, it was inopportune at this time. It was suggested that any review of fundamental aspects of the Convention would require sufficient support and may be premature in light of factors such as the consideration by the IWC of the development of revised management procedures and the 1992 UN Conference on Environment and Development. Nevertheless, a few delegations thought that one or two aspects could be considered in the interim. It was also stated, however, that care should be taken not to introduce elements which in any way could affect the completion of the Comprehensive Assessment.
Most delegations agreed however that a thorough review of the Schedule to the Convention should be undertaken to improve its operation. The possible adoption of a Revised Management Procedure would involve changes to certain parts of the Schedule and other aspects of the Schedule clearly needed updating. This review could also identify issues capable of being resolved by action within the terms of Article V of the Convention, or those which might only be resolved through other means. Some delegations, while not opposed to that review, considered it a separate issue from the operation of the Convention, and urged continuation of this work with regard to the Convention itself on the basis of the 1988 questionnaire.
Recommendations
The Working Group considered the draft Resolution of the USSR, but because of
fundamental differences in approach regarding the need for and timing of
review or revision of the Convention, could not reach consensus on it, and
made no recommendation on the draft Resolution to the Commission.
The Working Group made the following recommendations:
The Netherlands foresaw changes in the Schedule to implement a revised management procedure which will probably lead to a substantial improvement of the Schedule and therefore of the operation of the Convention. Partial amendment would not require a diplomatic conference and it thought that review of fundamental aspects of the Convention would require sufficient support and may be premature in light of such factors as the development of revised management procedures and the 1992 UN Conference on Environment and Development.
The balance between the objectives of the IWC was mentioned by the UK, who thought that when the moratorium was adopted the Commission decided that for the time being the conservation objective required greater consideration. It identified parts of the Schedule which might need to be rewritten if a Working Group is to initiate a thorough review.
The USSR reviewed the history of the Working Group set up as a result of its proposal in 1986. It had subsequently brought forward rather detailed proposals, and in 1988 the Auckland questionnaire was developed. However, there had been little support from member nations, despite the fact that a number of the provisions of the 1946 Convention are outdated and do not correspond with the realities of the present day with respect to the economic, political, ecological and legal standpoints. Impeding such a revision may cause the USSR to consider the relevance of its future participation in the Convention. It believed the parties are losing a good opportunity to settle some matters which are constantly debated and thus to secure the future stability of the IWC. In particular, the issue of small cetaceans may be solved in the context of the revision. In its view, the Commission might keep under constant review progress on the operation of the Convention. Review of the Schedule may be implemented by a special group of experts, but this will have a limited nature and will not solve the fundamental problems of the Commission.
A fundamental review of the Convention was thought to be premature by Germany, and Sweden also did not see the need at this point. The latter did support the proposal for a group to look at revision of the Schedule.
Mexico stated that it has been actively involved in this issue since 1988, and saw revision of the Convention as a priority because of the fundamental changes in the international law of the sea. It underlined its view that review of the Schedule is a separate issue, and in general it shared the views of the USSR.
The Republic of Korea believed that the present Convention has contributed to the proper conservation and management of whale stocks, but not so well to some points in the orderly development of the whaling industry at this moment. The revised management procedure under the present Convention could help in the near future. It thought it desirable that any revision should be pursued by all member nations, preferably by convening a diplomatic conference.
The USA was not enthusiastic about opening the Convention for amendment. In its view there is sufficient flexibility in the Schedule to allow for all the things necessary under the continually changing conditions. It supported the UK suggestion for a Working Group to initiate a thorough review of the Schedule prior to the next Annual Meeting.
Concepts such as environment, sustainable utilisation, 200 mile economic zones, the European Economic Community and home rule governments which were unknown when the Convention was drawn up more than 45 years ago were identified by Denmark. There is no clear limit between whales and other cetaceans, no revision clause, and the Schedule is a mess of bits and pieces put together over the years. It therefore could not support the idea of a group to review the Schedule but would like to see a new diplomatic conference to go into all the problems of unfairness in the Convention and to establish a new Convention which recognises that whaling can and should take place on a sustainable basis.
Spain had arrived at the conclusion that the UN Convention on the Law of the Sea is compatible with the Whaling Convention. It did not think that this is the moment for major revision of the Convention, but it did support the creation of a group for revising the Schedule.
Support for the remarks made by Germany and the USA was expressed by Australia, which saw the need for clear terms of reference for the proposed Working Group. New Zealand also shared the view of the UK as to the desirability of holding a special Working Group to review the Schedule.
6.2 Action arising
In discussion of possible draft terms of reference for the Working Group, the
UK identified the need for advice from the Scientific Committee concerning the
implementation of a revised management procedure.
This also includes arrangements for monitoring and data collection, as well as
inspection and enforcement advice from fisheries inspectors, all related to
the smaller geographical management units required.
Denmark raised the question of whether it is suitable for the revised management procedure to be included in the Schedule, and did not wish the work of the group to delay the adoption of a revised procedure. Norway supported this position.
After time for further consideration, the Commission then adopted the three recommendations from the Working Group and, on the recommendation of the USA, the terms of reference shown in Appendix 1.
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