(from "Chairman's Report of the Forty-Third Meeting")

Japan suggested that this matter must be referred to a meeting on the Convention. It believes that only those species named in the 1946 List of Nomenclature are covered by the Convention and that others are not within the IWC's competence. There are many species and stocks around the world and off Japan alone there are 23 species and 29 stocks. IWC membership is small compared to the 139 coastal states and it would be wrong for this body to take such responsibility. It thought it better that this should be assumed by coastal states and regional organisations.

Serious practical consequences were foreseen by Norway for the workload of the Commission, and especially the Scientific Committee, if all cetacean species are to be considered. There were also questions of principle and it noted that the Preamble to the Convention and the Annex of Nomenclature limited the species to sub-sets of cetaceans. It emphasised states' sovereign rights within their 200 mile zones and the tendency for creeping jurisdiction to occur. It suggested that delimitation by ecological boundaries and therefore regional management might be preferable.

Denmark stated that the Convention does not give the Commission legal competence to manage small cetaceans.

However, New Zealand saw no ambiguity in the Commission's competence. The Convention and Schedule are the only legal texts, and these place no restrictions based on the sizes of whales but talk only of whales. The Annex of Nomenclature is not part of the Convention and therefore not a legal text but a list of alternative names for guidance purposes only, and the Final Act is not a binding document. The Commission agreed in 1961 that the Convention applies to all whales and no formal change has ever been suggested to this view.

The Netherlands supported the analyses of USA and New Zealand and believes that the Convention covers all cetaceans.

Chile recognised that Baird's beaked whale is already included in the Schedule but believed that the issue should be decided after careful consideration of its legal and practical implications and not under this Item.

Mexico pointed out that it actively participates in bilateral and regional management schemes. This is an unresolved debate in the IWC which must reach a clear consensus on its competence. It expressed the view that the USA initiative does not consider other existing arrangements and might lead to possible duplication of effort. It prefers to support appropriate regional fisheries organisations and cooperation between coastal states for the management and conservation of the small cetaceans.

Sweden was not opposed to regional cooperation, but it does believe that the Convention covers all cetaceans.

Australia agreed with the views expressed by the USA, New Zealand, the Netherlands and Sweden. It saw no restriction imposed by the Annex of Nomenclature and believes that a regional approach will only operate if it is under an appropriate global umbrella. The IWC must grapple with this question, perhaps next year after the UN Conference on Environment and Development.

Germany shared the view of New Zealand that the IWC has full competence for all cetaceans. This would impose a heavy workload and it suggested that there was a need to find how regional organisations deal with this matter.

Spain saw a link between this discussion and the agenda items of the Operation of the Convention and Small Cetaceans Subject to Significant Takes. It was sympathetic to the positions of Norway and Japan and could not support the USA proposal.

The UK supported the USA proposal for the reasons set out by Australia and shared the legal analysis by New Zealand. It saw value in the Scientific Committee's report on small cetaceans as an important practical aspect. No other world body deals with small cetaceans, some of which are subject to direct take. The IWC should consider whether it was recognising its responsibilities. Whilst there were conflicting interpretations of the Law of the Sea it did not see a problem of creeping jurisdiction as the IWC already dealt with large whales on a global basis. It preferred to adopt a pragmatic approach and broaden the debate.

Iceland supported the Norwegian position and especially the suggestion for regional solutions. It thought that the IWC must not try to legislate for over 100 countries not represented. It commented that the Commission found it hard to deal with questions which it agreed were within its competence.

Switzerland supported the views of New Zealand, Sweden, Australia and Germany. It thought a regional approach would be useful whilst believing that the Convention does cover all cetaceans.

Peru reserved its position since it thought that the IWC has no competence in this regard.

Brazil pointed out that the US proposal was not a simple issue to address. It reflected a longstanding debate over competence relating to species and their management. Instead of proceeding to annual confrontation it suggested that member countries make an effort to bridge their disagreement. Brazil was sure that if there was political will and the necessary flexibility, a solution could be worked out. This could be done by a group within the IWC.

St Vincent & The Grenadines does not accept IWC competence to deal with small cetaceans. It was concerned over the workload on the Scientific Committee. It was not prepared to bear the additional costs of such work. Practically, so many other countries need to be involved that regional arrangements seem preferable since the IWC cannot resolve many matters now.

Seychelles stated its view that the IWC is competent to regulate the commercial exploitation of all cetaceans but welcomed activity at the regional level.

Finland shared the legal interpretation of New Zealand, and Oman also believes the IWC is competent, supporting Brazil's suggestion to work out a solution. France emphasised that the IWC must ensure conservation of small cetaceans on the basis of continuation of scientific work and suggested cooperation with other appropriate Conventions such as Bonn and Berne. Ireland believed the IWC is fully competent.

New Zealand enquired as to the cost that caused concern to St Vincent & The Grenadines. The Small Cetaceans Sub-committee of the Scientific Committee has worked for many years and there was little extra cost this year. St Vincent & The Grenadines responded that it had asked for a cost analysis this year in the Finance and Administration Committee but had obtained no answer, and pointed out that more work was being suggested.

The Republic of Korea stated its view that the conservation of small cetaceans is a very important matter and believed that the dispute must be resolved by interpretation of the Convention. It thought that it will be possible to pursue proper conservation and utilisation by discussion between interested groups.

The USA indicated that it continues to believe that the IWC has competence to manage small cetaceans and asked if the Commission is prepared to exercise that competence, pointing out that UNCLOS indicates that management of marine mammals can be through appropriate international organisations. Is the IWC that body for small cetaceans? It wished the item to be continued on the Agenda and that the status of small cetaceans should continue to be considered in the Scientific Committee. It welcomed the suggestion from Brazil to set up a group to consider how the IWC will deal with this matter.

Iceland expressed the view that UNCLOS requires the coastal states to decide the relevant organisation, not the organisation to decide its competence.

The People's Republic of China supported management and particularly emphasised the importance of domestic legislation. It favoured the Brazilian suggestion.

The history of small cetaceans in the Commission was outlined by Japan, who noted that the Small Cetaceans Sub-committee of the Scientific Committee was established after a Special Meeting on small cetaceans was held in Montreal in 1972. It reviewed its own national research arrangements and pointed out that catches of Baird's beaked whale and other small cetacean species are reported each year as well as the national management regulations. Many other countries do not do this and it urged them to report such material before the IWC assumes any role.

The UK emphasised that Baird's beaked whale is larger than some species already regulated. It liked the idea from Brazil supported by the USA, and suggested that members reflect on this before the plenary session. The Netherlands also stated that it is looking for practical solutions such as the Brazilian/USA idea and added support for the German proposal to look at what other international organisations are doing.

Mexico preferred to continue the discussion in the framework of the Operation of the Convention. Denmark also saw the relationship with the Operation of the Convention and the suggestion of the need for a diplomatic conference. Norway was not opposed to the work of the Scientific Committee dealing with all threats to small cetaceans, including not only catches but pollution and environmental factors, but thought, like other delegations, that it might be best to deal with this matter under the item on the Operation of the Convention.

The Chairman indicated that, whilst there was clearly no consensus on this issue, there seemed to be a general feeling for further discussion which should go forward to the plenary session, and this was supported by Iceland.

Plenary discussion
In the plenary session, both New Zealand and the USA pointed out that they have a different interpretation from Iceland of the Law of the Sea text requiring coastal states to decide on cooperation through the appropriate international organisations. The USA also indicated that a Resolution on this Item might be brought forward.

After time for consultation between delegations, Brazil reported that a draft which had been circulated informally would not be tabled. An attempt had been made to go deeper into the problem of small cetaceans, at a practical level and for members to finally solve their differences of view on the issue of competence. An ad hoc solution for improving the situation of small cetaceans worldwide was proposed, but this is not a question to be solved by majority vote, since the cooperation of the minority is necessary to conserve the small cetaceans.

The USA proposed that this item be kept on the Agenda for next year so that all cetaceans can be considered by one international organisation that has special expertise in this area. The UK seconded this proposal, since it had not been possible to make enough progress this year, and the report of the Scientific Committee demonstrates that there is much to be done. The IWC may be well placed to achieve the cooperation, coordination and direction needed throughout the world.

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