19. IWC'S COMPETENCE TO MANAGE SMALL CETACEANS (1999)

19. IWC'S COMPETENCE TO MANAGE SMALL CETACEANS

(from "Chairman's Report of the Fifty-First Annual Meeting")

Switzerland introduced a document setting out its views on the IWC's competence to manage small cetaceans based on a legal analysis prepared by a Swiss attorney at law and lecturer at the University of Zurich Law School.

Since Switzerland adhered to the IWC, its delegation has consistently taken the view that nothing in the Convention nor in its 1956 Protocol would prevent the Commission from taking decisions regarding the management of small cetaceans.

This position was essentially determined by the perception of the Swiss authorities that 'whale' means any species of the zoological order Cetacea, because Article II of the Convention does not contain a definition giving a narrower meaning to the term. Also, there are similar environmental threats to all species and direct and indirect takes.

Sweden believed that the IWC should consider the conservation and management of all whale stocks. The Scientific Committee should continue its work, but it was not feasible for the Commission to manage small cetaceans, which would be better dealt with by cooperation with regional organisations. Finland agreed.

The Netherlands agreed with Switzerland, and the UK also agreed with the Swiss conclusions. It spoke of the valuable work of the Scientific Committee on small cetaceans, but believed the IWC's role is not itself to manage, which is the responsibility of national governments and the CMS, but it can provide scientific advice and knowledge. Monaco's view was close to the UK's, while the USA believed that the IWC has full competence on directed takes of all cetaceans, and supported the work of the Scientific Committee. New Zealand had a similar view and Austria agreed with the UK and the USA.

Brazil spoke of its cooperation in the Scientific Committee, including river dolphins, and also supported Switzerland over legal competence. Germany thought the Commission does have competence and looked for cooperation with other organisations and countries, and Italy believed IWC competence extended over all cetacean species.

Mexico was willing to share information, but reserved its position on the legal question. Spain also expressed a strong reservation, believing that the IWC has no competence on small cetaceans. Denmark agreed with Spain, as it thought the founding fathers never imagined that the IWC would manage small cetaceans. It favoured regional agreements, particularly since there has been no agreement for 13 years on the nine baleen whale species, so what prospect was there with 70 small cetacean species? Norway held similar views, while Dominica challenged the competence of the IWC to manage small cetaceans, and recalled the resolution in the Dublin meeting. St Lucia and Antigua and Barbuda agreed.

France did not wish to formally extend the legal competence, Chile could not accept binding Resolutions, and the Republic of Korea preferred coastal states and regional bodies to have control as in the Law of the Sea.

Japan noted that the IWC has only 40 members compared with over 100 states with small cetaceans, and its activities are extending. It believed jurisdiction was for only the species in the list of nomenclature, and the others come under coastal state and regional management. The issue of interpretation should be discussed at a Conference of the Parties, but although it was outside the IWC mandate, it was prepared to cooperate but may reconsider its approach.