Wednesday, August 17, 2011

'Because we can'

Dr. Sidney Holt is ASOC's representative at meetings of the International Whaling Commission (IWC) and has decades of IWC experience. The following guest blog by Dr. Holt discusses the why the structure of the IWC enables countries to opt out of following the same rules as other member states.

'Because we can' - That’s what a young, masked looter in London told a TV reporter when he was asked ‘Why are you doing this?’ The second part of his response was made pointing across the Thames from Lewisham on the South Bank to Canary Wharf, one of London’s financial nuclei, on the north: ‘They make lots of money and stuff without working, why shouldn’t we, who also haven’t got jobs?’

In a way that is what Japan’s ‘scientific whaling’ in the Antarctic has been about – Because we Can.  There has been much media talk about this matter saying there is a huge loophole in the commercial whaling moratorium declared by the International Whaling Commission in 1982. There isn’t. And ‘Why does the IWC give quotas for that?’ It doesn’t. And ‘Why doesn’t the IWC put a stop to it?’ It can’t. This all arises from the simple fact that one of the purposes of the International Convention for the Regulation of Whaling 1946 was to provide an umbrella for an IWC but it has other purposes, nothing to do with the IWC, including legitimizing unregulated killing of whales for science, just what is ‘science’ being decided exclusively by the killer.

Misunderstanding about this goes far beyond those who worry about the effectiveness of the IWC - its dyfunction, as some like to say. The drafters of the UN Convention on the Law of the Sea (UNCLOS), followed by those who wrote the reports from UN Conferences on the environment, especially that held in Rio de Janeiro in 1992. – The Earth Summit as it was called - all wrote that the whales are a global resource the conservation of which should be protected by an unnamed inter-governmental body (in the hard-law UNCLOS) case, and specifically by the IWC in the case of the soft-law document Agenda 21 from Rio. Then and at other times delegates from all countries ignored the fact that a few of their representatives, negotiating in 1946, had decided to give the new IWC very limited powers. Those limitations, and severe operational strictures, in the end guaranteed the Great Massacre I have described before.

The draft treaty text they were all looking at in 1946 was largely the work of n admirable American scientist-diplomat named Dr Remington Kellogg. Much of it came from various agreements reached between whaling companies and governments in the 1930s; one of those was that it should be acceptable to kill for scientific purposes individual whales of what were then designated at fully Protected Species – the several ‘right whale’ species and the gray whale. Kellogg and the United States were adamant that there must be a standing Commission, which eventually became the IWC, to enact and monitor the rules they were making, an idea was strongly opposed by the companies and some of the governments negotiating in the 1930s. I often think of Kellogg as I think of President Woodrow Wilson, who in Versailles in 1919, during the ‘Peace’ negotiations, proposed the establishment of a League of Nations – precursor of the UN – and then lived to see it come into being (and, incidentally have a considerable effect on whaling) but with his own country, the USA, not joining.  In the more recent photographs Dr Kellogg and President Wilson look similar – and tired!

The negotiators of the ICRW 1946 had their hands and feet tied. The US Government was looking at the time to inter-governmental management organizations, established under conventions, to regulate fishing, especially on the high seas (at the time territorial waters were only three or six miles wide.) The US fear of the failure of the IWC in 1959 was focused on a possible ‘domino effect’) a political paradigm of the time) on the numerous regional and specialized fisheries bodies that were important to the US in its global fisheries strategy – which included keeping such bodies out of the UN system.
In 1946 it was unclear how these bodies would evolve. For example it was contentious whether or not they would have scientific staffs and conduct research or rely entirely on the efforts of member states or a mixture of the two. In the 1946 negotiations the matter of how decisions would be taken by the new Commission and in what circumstances they would be binding was controversial and difficult to resolve.

One possibility, favoured by several delegations was that decisions would be taken by a two-thirds majority of a quorum, as is the rule in many organizations. This arithmetic was not, however, acceptable to the four countries then engaged in Antarctic pelagic whaling – Norway, UK, USSR and Netherlands, - since it would not do if, say, three of them were to gang up against the other. In these circumstances a three-fourths majority found favour.  In addition an opt-out rule was to be inserted, what is called the objection procedure. It is not unusual for provision to be made in international treaties for ‘reservations’ to certain provisions or decisions. (It is a very important feature of the UN Convention on the Law of the Sea that acceding governments cannot declare any reservations or object to valid decisions, though in the latter case a proper appeal process, through a special tribunal, is provided for). But in the ICRW case it would allow opting out of a decision taken by a large majority. However, in the ICRW it has another, more important, meaning. It was supplemented by a provision that if anyone lodged an objection all other states would be given a chance also to object even if they had voted for and previously accepted the decision. That way valid decisions could be completely nullified, and they often were, subsequently. Furthermore, it was made easy to leave the IWC, with just a time delay, and on several occasions some whaling countries did do that – for example Netherlands and Norway – and others threatened to do so – particularly Japan, repeatedly.

The 1946 negotiators ensured that it was impossible for the IWC to allocate annual catch limits to particular nations’ operations; the US delegation was particularly insistent that any such provision would negate the ‘freedom of the seas’, which was sacred. The unintended effect was that countries whaling in the Antarctic agreed amongst themselves what each of them ‘needed’ to pay their costs in the coming year, added the figures together and then would not vote in the IWC for any different number, and if others did then they lodged objections. In 1946 was suggested that international observers, appointed by the IWC as well as the national inspectors, be placed on whaling ships but that was considered inimical to sovereignty and likely to be expensive. Finally, the ICRW made it impossible to set international limits to the amount of whaling power to be deployed, such as numbers of factories and catcher boats and the size and power of catchers. Thus regulation primarily by setting numerical catch limits was made inevitable. There was some talk of limiting commodity production, as the companies had sought to practice pre-war, but this was impracticable because of the diversification of commodities and the changing and variable efficiency of, for example oil extraction from bones and muscle as well as from blubber. It took a quarter of a century to effect some change involving appointment of international observers, and formal agreements on catch shares but only outside the IWC and only for baleen whale catches in the Antarctic. The USSR did propose limits to the numbers of pelagic expeditions and their catchers, but only in its own interest and not very pressingly; its proposals were summarily dismissed by the other whalers though the idea got some support from FAO.

All these flaws and loopholes were of course well-known to the IWC Members. One might wonder ‘Why did the Parties to the ICRW not amend it? They could do so, through a diplomatic conference agreeing on a Protocol subject to ratification by all Parties. Some small, but rather trivial amendments were made that way – for example defining helicopters attached to whaling operations as participating vessels. There were three serious sequential attempts during 1977 at fundamental amendment – all three diplomatic conferences, in Copenhagen, Reykjavik and Lisbon failed, this last so quickly that when I arrived in Lisbon to represent FAO, a few hours late, it has already adjourned! An idea for another, in 1978, was not followed through because of uncertainties about the evolution of the law of the Sea through the UN process. Interesting features of this effort were that in addition to draft texts produced by some Governments, the World Conservation Union (IUCN)  provided the one that got most support in general – it came from a legal working group in which I was pleased to participate – and the effort to resolve the failure in 1946 to define ‘whales’ or ‘whaling’. On the former the USA pressed for a revised convention to apply to all marine cetaceans, others naturally wanted the status quo to remain. On ‘whaling’ the non-lethal ‘use’ of whales through whale-watching, which is now big and global, was then in its infancy and geographically limited. The Government of Japan still insists that consideration of whale-watching is not within the competence of the IWC, but in 1977 many people already had a different idea. I was happy with Sir Peter Scott’s suggestion (taken into the UK position) that since bird watchers called their hobby ‘birding’, and that was generally accepted, whale watchers could properly call their activity ‘whaling’ so no change to the ICRW was needed.

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