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

The Scientific Committee also received reports on acoustic and sightings work carried out on an Australian ice-breaker undertaking a physical/biological survey off the waters of East Antarctica, and from platforms of opportunity (POPs). Germany is incorporating a cetacean component into a krill/fish/squid survey to be carried out off the Antarctic Peninsula.

The Scientific Committee welcomed these researches and noted the potential value of integrated studies that included cetacean surveys and oceanographic/primary production surveys. Acoustic surveys seem particularly suitable for POP studies.

The Scientific Committee had requested some advice from the Commission with respect to commonly-agreed objectives for the Sanctuary in the context of a recommendation from a Commission Working Group in 1995. The Commission made no comment on this last year and the Committee drew the attention of the Commission to this.

Indian Ocean
The cetacean results from a POP study in the western Tropical Pacific from March-July 1995 were welcomed by the Scientific Committee, noting that with experienced observers and careful planning, valuable information can be obtained from suitable POPs.

13.2 Commission's input to the Scientific Committee with respect to the objectives of the Sanctuary
Japan, after noting its objection to the Sanctuary, spoke on the objectives of the Sanctuary. It identified a sanctuary as a management tool to allow sustainable use of whale resources in other adjacent areas, and mentioned the east-west movement of minke whales. Appropriate research and monitoring systems have to be specified, and the issue of lethal versus non-lethal research considered.

There was no further comment in the Commission.

13.3 Legal issues
Japan introduced three papers. The first summarised an international legal workshop held in Tokyo in January 1996. It addressed the issues of: (1) What are the rights and duties of states under the Convention and subsequent binding legal acts of the organisation? What are the powers of an intergovernmental organisation to impose rights and duties upon its members? (2) What is the legal status of the moratorium on the taking of whales? Does the IWC have the right to extend it indefinitely? (3) What is the legal status of the Southern Ocean Sanctuary? Almost all participants in the Workshop agreed that establishment of the Southern Ocean Sanctuary in 1994 was in conflict with the Convention.

The second paper was a legal analysis by Prof. W. Burke (University of Washington). Last year he provided a paper which concluded that the Commission's action in designating the Southern Ocean Sanctuary did not conform with the purpose and principles of the Convention or the requirements of the Schedule. However, Prof. P. Birnie (UK) responded last year that a majority vote of the Commission was determinative and reflected a voluntary adjustment in the interpretation of the Convention. The paper this year responded to the arguments in detail and reinforced his earlier conclusion. Reference was made to the plain meaning of the text giving the objectives and purposes of the Convention as the sustainable harvest of whales, and that evolutionary revision requires the consent of all the parties.

In the third paper the Government of Japan submitted its opinion that the change in the objectives of the Convention based solely on majority interpretation should not be permitted, and clear and formal revision of the Convention will be required for this end. In its view the establishment of the Southern Ocean Sanctuary conflicts with the basic objectives of the Convention and violated the requirement of the Schedule that it should be based on scientific findings.

Chile strongly rejected Japan's claims about the legality and scientific basis for the decision. Its own legal specialists had different opinions from those put forward by Japan, and it suggested that any revision of the decision could only be by amendment of the Schedule. Mexico, Australia, Spain, USA, Brazil, Austria, Germany, Oman, South Africa and the UK shared this view, and the latter commented on the very short notice given both last year and this of the legal opinions submitted, which gave little opportunity to take account of the documents. New Zealand associated itself with these remarks and added that the time for raising the arguments was at the time the sanctuary proposal was being developed and adopted. Japan had only objected to the application to one species, the minke whale, and so it must be inferred that it considered the sanctuary otherwise satisfied the requirements of the Convention. The Convention contains no dispute clause and so the Commission itself is the body that can reverse the decision, by a Schedule amendment. Monaco, Netherlands and France agreed, the latter emphasising that the preamble to the Convention speaks of protecting whales from further overfishing. The Republic of Korea supported the need for a sanctuary where the resources are seriously depleted.

13.4 Other matters
Australia, on behalf of Argentina, Chile, New Zealand, South Africa and Uruguay constituting the Valdivia Group, read a statement. The delegations had met and consulted during the 48th Annual Meeting in Aberdeen with Brazil attending as an observer and associating itself with the statement. The Group was established in March 1995 to foster exchange and cooperation on environmental and related scientific matters among Southern Hemisphere nations. It reaffirmed that the creation of the Southern Ocean Sanctuary was a significant step towards the conservation of whales, expressed strong support for the Sanctuary and placed emphasis on the importance of developing a coordinated programme of monitoring and management of whales and their environment within the Sanctuary. The Group proposed to meet for this purpose well before the 49th Meeting, and noted the Scientific Committee's plans and other developments related to the Sanctuary. France wished to associate itself with this statement.

Japan welcomed the additional monitoring and research activity and requested that a list of these activities, objectives and results be provided to the IWC and the Scientific Committee.

13.5 Action arising
The Commission noted all the comments made on the legal question, and the need to ensure that the Scientific Committee and other member states are kept fully aware of research and monitoring programmes.

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