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

(3)

The IWC Scientific Committee continues to provide the Commission with precisely requested scientific advice on issues related to a sanctuary in the Southern Ocean;

(7)

in the light of a number of specific ecological issues requiring clarification, the Scientific Committee continues to study and gives guidance to the Commission concerning, inter alia, the following:

(a)

area of specific whale activity, e.g. feeding and breeding grounds and the length of stay in any area;

(b)

north-south migrations between feeding and breeding areas;

(c)

east-west migrations for information on the possibility of significant movements between major ocean basins and populations;

(d)

species interaction including inter-species competition;

(e)

global environmental abiotic factors affecting whales in the Southern Ocean.

In addition the Scientific Committee had before it the draft report of a Workshop to Outline a Programme of Non-Lethal Whale Research in the Southern Ocean Sanctuary, held in Galway immediately before the Scientific Committee meeting and co-sponsored by the World Wide Fund for Nature, the International Fund for Animal Welfare and Greenpeace. This report was intended to provide input into the development of a cetacean research programme for the Southern Ocean Sanctuary. The aim was to generate a wide range of ideas for both short- and long-term research but not to design specific proposals.

The Scientific Committee then considered the Recommendations made by the Commission. There was some question as to whether Recommendation 5 from the Commission's Working Group was relevant to the Committee's discussion. This states:

(5)

The establishment of a sanctuary in the Southern Ocean requires commonly-agreed objectives. Such a sanctuary, if established, could provide an opportunity to members of the Commission to promote further research activities in the Southern Ocean and, with the advice of the Scientific Committee, stimulate co-ordination thereon with other relevant international organisations on the following issues:

(a)

linkage between a sanctuary and the need for the scientific research in it, in particular the type of research needed, who will undertake it and the level of expenses to be met;

(b)

monitoring and comparing the management of whale stocks to which an RMS may be applied with a situation where no whale catch would occur.

The Scientific Committee drew the Commission's attention to the fact that consideration of this recommendation requires some input from the Commission, particularly with respect to the objectives. Should the Commission wish, this item could be placed on the Committee's Agenda for next year.

With respect to Recommendation 3, the Scientific Committee noted that the Commission had not requested advice on any particular item this year.

With respect to Recommendation 7, the Scientific Committee noted that consideration of these questions is part of its ongoing work, particularly in the Sub-committee on Southern Hemisphere Baleen Whales. It also drew the attention of the Commission to its earlier discussion of Sanctuary related issues when the available information was summarised. Item (e) is being addressed by the Workshop on the Effects of Climate Change on Cetaceans to be held in the next year.

Chile affirmed its commitment to the Southern Ocean Sanctuary, looked forward to the review in ten years time, emphasised its view that only non-lethal research should be conducted in the Sanctuary, and expressed its concern over the announced increase in the Japanese research catch. It called for implementation of some system of vigilance, perhaps in coordination with CCAMLR and FAO. It then read out a statement by the Valdivia Group of countries (Argentina, Australia, Chile, New Zealand, South Africa and Uruguay) which saw the creation of the Sanctuary as a most significant step in the conservation of whales, placed emphasis on international co-operation in research, monitoring and management, and called on countries engaged in scientific whaling to re-direct their research efforts to non-lethal means.

France and India also supported of the development of non-lethal research techniques. Brazil spoke of its close association with the adoption and aims of the Sanctuary, endorsed the statement of the Valdivia Group, and expressed its appreciation of the non-lethal research carried out by Japan. France also associated itself with the Valdivia Group statement.

Japan explained its research in the Antarctic in the context of the increasing human population in the world, the resulting global flood shortage and the need to obtain more food from the sea in the future. It rejected the suggestion that non-lethal techniques were available to provide all the information needed on whales and their ecosystem in a timely manner.

The USA endorsed the Valdivia Group statement and believed that the Commission should instruct the Scientific Committee to continue examining the question of research in the Sanctuary and develop a programme of non-lethal research as a priority. The UK, Oman, New Zealand, Germany, Spain and Monaco associated themselves with this view.

Argentina stated its position as follows: the Sanctuary should not be invoked to restrict the liberties of the high seas, in particular fishing; implementation should not affect the rights of the coastal states; it favoured the establishment of institutional relations with CCAMLR; the objectives of the Sanctuary should be achieved by consensus between IWC members; the UNDP should be approached in connection with the establishment of a voluntary fund to assist developing country members of the IWC in matters of scientific research; and it is premature to change the geographical boundaries of the Sanctuary until a detailed evaluation has been carried out.

St Lucia pointed out that culls are sometimes necessary in sanctuaries and called on the Scientific Committee to give guidance on the type of information and kinds of research needed to enable the Commission to make its judgments. Japan, St Vincent and the Grenadines and Norway supported this statement, and the latter put on record its view that the establishment of the Sanctuary was a mistake, because there is no demonstrated scientific case for it and it does not fulfill the requirements in the Convention.

13.2 Discussion on Recommendations 7, 9, 10, 11, 12 and 13 in the Report of the Intersessional Meeting of the Working Group on a Sanctuary in the Southern Ocean
Switzerland pointed out that the recommendations were meant to get the scientific information necessary to establish the Sanctuary. Since it is now in place, it wondered if some of them were now obsolete.

Japan introduced a legal opinion from Prof. W.T. Burke of the School of Law, University of Washington, which argued that the establishment of the Southern Ocean Sanctuary did not conform to Article V of the Convention - to carry out the objectives and purposes of the Convention based on scientific findings - nor meet the Commission's guidelines for the establishment of sanctuaries, and the recommendations of the Norfolk Island Working Group. Japan therefore questioned the legality of the decision.

The UK commented on the late submission of this document, but had another legal opinion from Prof. P. Birnie which concluded that the Commission's decision taken through the normal voting procedure was determinative. It asked for more time to consider the Japanese document and to present its own. The Netherlands supported this request.

France saw little point in returning to the recommendations from Norfolk Island year after year, since the decision was made, and thought that discussion on the legal issue would lead nowhere.

St Vincent and the Grenadines was not surprised by the conclusion of the Japanese document, which concurred with its own opinion expressed last year when it abstained in the vote. It thought it bad that the majority is free to be wrong and disregard the Convention.

The USA believed that all the legal, technical and scientific issues had been weighed last year before the vote, and that most of the recommendations had been overtaken by events. Australia echoed the views of the USA and France, and commented on the subjective statements in the Burke paper which, therefore, lacked credibility in its view.

St Lucia did not challenge the legality of the Sanctuary decision, but believed it would be useful to have recourse to an independent legal opinion.

Norway spoke of the Convention requirement for amendments to be based on scientific findings, noted that the Sanctuary was not proposed for scientific reasons, and for these reasons had not participated in the vote last year.

Dominica had always been worried by the Commission rushing to a final position without adequately addressing all the factors on an issue. It supported the request to leave the matter open for further discussion.

On resuming, New Zealand commented that the Commission had reached a binding decision by its vote last year, to which only one government had objected (to the inclusion of one species), and the only remedy now for any government who believes that decision was wrong is to propose another Schedule amendment. It therefore moved, under Rule of Procedure C.2(b), that debate on this subject be adjourned. This was seconded by Monaco, Ireland, Oman, France and Finland, and the discussion therefore ended.

Japan and St Vincent and the Grenadines, commented that once again the majority was preventing discussion and consideration of a serious question that had been raised.

13.3 Action on recommendations and
13.4 Action arising
The USA proposed that the Scientific Committee should be requested to examine the question of research in the Sanctuary and as a matter of priority develop a programme for non-lethal research. This view was shared by India. Australia echoed these remarks and referred to its own allocation of funds for a major new programme of research monitoring and management in the Sanctuary which will allow it to develop and participate in cooperative international programmes. It also suggested that the Scientific Committee had a close look at a paper tabled by Japan on types of research programmes needed for particular issues.

Japan appreciated this comment, and suggested that Recommendations 3, 7 and 9 (options for the geographical boundaries) from Norfolk Island should be looked at by the Scientific Committee, as well as the objectives and aims of the Sanctuary. The Chairman of the Commission and the Chairman of the Scientific Committee both thought the latter was more a task for the Commission itself, on which the Scientific Committee could develop research programmes, a view shared by St Vincent and the Grenadines. The USA agreed that the Scientific Committee should stimulate and coordinate research, such as the blue whale programme and the workshops on environmental threats already underway. Australia encouraged countries represented in the Scientific Committee to come prepared for this discussion. In response to a further intervention from Japan, the Chairman of the Commission recalled that one of the objectives of the Sanctuary had been articulated as research and monitoring of highly depleted populations.

India suggested seeking help from the IUCN Commission on Protected Areas, and the Secretary was asked to communicate with them to see if they could add anything to the discussion, while Japan identified GLOBEC and CCAMLR as appropriate organisations for information and collaboration.

At a later session Australia introduced a Resolution co-sponsored by Brazil, Chile, France, Germany, Monaco, Netherlands, New Zealand, Oman, Russian Federation, South Africa, Spain, USA and UK. It was concerned about the continuing research being conducted under special permit particularly in sanctuaries. Australia had reminded Japan of the preference of the IWC to use non-lethal techniques, and it was deeply concerned about the increase in catch and area proposed and the continuation of such a significant programme of killing in a designated sanctuary area.

India and Austria expressed their support and Switzerland suggested taking a decision by consensus, but Japan thought it would prohibit measures necessary to provide data and information for better management and monitoring on the Southern Ocean and so opposed. Because it was an important principle, Norway called for a vote.

Japan proposed an amendment, to add 'where practical and possible' to the operative paragraph, and this was seconded by St Lucia and Norway, but defeated by 7 votes in favour, 20 against with 4 abstentions. The original Resolution (shown in Appendix 9) was then adopted with 23 votes in favour, with 7 against and 1 abstention.

Mexico stated that it voted in favour because it supported the spirit of the proposal to avoid unnecessary killing, but its scientists have not found enough evidence to assure that necessary research can be fully conducted with non-lethal means.

Japan introduced a Resolution on legal matters related to the adoption of the Southern Ocean Sanctuary and, as recommended by the Norfolk Island Working Group on the Sanctuary, sought to clarify the legal issues raised by requesting the Secretary to refer the matter to relevant international legal institutions. While recognising the doubts of some countries on the legal basis for the decision, the Netherlands thought it would be very strange having taken the decision for the IWC to submit it to another organisation for legal review. Chile also opposed the Resolution and thought, as New Zealand had stated earlier, that any change should be by amendment of the Schedule. Mexico believed the Commission approved the Sanctuary according to the Rules of Procedure as the will of the contracting parties; it also found inconsistencies in the proposal and thought a vote would not set a good precedent. France, for the reasons advanced by the three previous speakers, moved to close the debate under Rule of Debate C.2(c). Mexico and the USA seconded this motion. Discussion between the Russian Federation, Norway and France clarified that the intent was to close the issue with no further action. There was no opposition to this motion and the Chairman ruled that the issue should remain on the Agenda and be discussed at the next Annual Meeting, a decision which Japan appreciated.

_