Source: High North Alliance publication issued in conjunction with the 1997 CITES meeting in Harare.

CITES and the IWC:

The Fall of Conservation?

The Downlisting of Minke Whales in the North Atlantic

CONTENTS:

Cover Illustration

Quotes

1.CITES and the International Whaling Commission: On Divergent Courses

2. Minke Whales listed in the CITES Appendices

3. Biological Criteria
3.1 North East Atlantic Minke Whale Stock
3.2 North Atlantic Central Stock
3.3 IUCN puts minke whale in Lower Risk category
3.4 Abundance and decline - two central criteria

4. Precautionary measures
4.1 A DNA register to control trade
4.2 Border controls
4.3 Inspectors on board every Norwegian whaling vessel
4.4 "Appropriate enforcement controls"

5. The Relationship between CITES and the International Whaling Commission
5.1 CITES’ relationship with other organisations regarding marine species
5.2 Consistency between CITES' regulations on trade and the IWC's management measures?
5.3 CITES resolutions concerning its relationship with the IWC
5.4 The purpose of the IWC and guidelines for its decisions
5.5 The IWC – from over-exploitation to conservation to blanket protection
5.5.1 The whaling ban
5.5.2 Change of standpoint: absolute opposition to commercial whaling
5.5.3 A new management procedure based on the precautionary principle
5.5.4 Stalemate
5.5.5 The Chairman of the IWC Scientific Committee resigns in protest
5.6 The legality of IWC decisions

6. The principle of sustainability as a basis for international environmental agreements

7. CITES and the whales - conclusion

REFERENCES

The way in which CITES chooses to relate to the International Whaling Commission (IWC) will be decisive for the organisation's own future ...

1. CITES AND THE INTERNATIONAL WHALING COMMISSION:
ON DIVERGENT COURSES

Five proposals for the downlisting of whale stocks from Appendix I to Appendix II have been submitted for the consideration of the 10th Conference of the Parties to CITES. The Contracting Parties to CITES must decide whether they wish to undertake an independent assessment of the downlisting proposals in accordance with the objectives of CITES and the current listing criteria, or whether they are satisfied that such an assessment is unnecessary in view of the International Whaling Commission's (IWC) ban on commercial whaling.

The way in which CITES chooses to relate to the IWC will be decisive for the future of CITES. Today, the IWC is dominated by a group of nations that have declared themselves in opposition to the commercial utilisation of whales in any form whatsoever - irrespective of whether it is sustainable or not. By basing its own decisions on those of the IWC, CITES will be endorsing a policy where myths, cultural preferences and the popularity of certain animals in urban public opinion, mean more than biological and ecological criteria and scientific assessment. As a result, the credibility of CITES as a conservation body will be severely impaired.

POLICY BASED ON PUBLIC OPINION
The USA, UK, Australia and New Zealand constitute the core of those IWC member nations that oppose all commercial whaling. Common to their policies on whaling is consideration of "public opinion". The anti-whaling nations in the IWC have delayed the work on the development of the Revised Management Scheme that was designed to ensure sustainable whaling. At present this work has come to a complete stop, despite the fact that the most important part of the management scheme - a quota calculation model that takes the precautionary principle seriously - was endorsed by the Commission in 1994.

CONTEMPT FOR SCIENCE
According to the wording of the Convention, decisions made by the IWC shall be based on the best scientific advice. However, in 1993, the chairman of the Scientific Committee, Phil Hammond of the UK, resigned in protest, and asked "What is the point of having a Scientific Committee if its unanimous recommendations ... are treated with such contempt?"

According to the rules of the IWC, a three-quarters majority is required for the Revised Management Scheme to be passed and quotas allocated. It is therefore highly unlikely that quotas for sustainable commercial whaling will ever be agreed to by the IWC. Nevertheless, the analysis of the proposals to downlist whale stocks prepared for COP10 by the IUCN and TRAFFIC is based on the assumption that the IWC will complete the Revised Management Scheme, and that this tool will be put to use in the establishment of conservative quotas for commercial whaling (see section 5).

This is put forward in such a way that it appears to be a realistic scenario for whaling nations such as Norway, Japan and Iceland. Such an assumption is at best naive, at worst an attempt at deliberate misguidance.

Whales are special, even token animals for the general public in many countries. However, CITES was not set up to promote the particular cultural preferences of urban societies nor to ban trade in charismatic species. CITES is a conservation body, the object of which is to ensure international cooperation on "the protection of certain species ... against over-exploitation through international trade" (CITES Convention).

CONSERVATION AND SUSTAINABLE USE
So far, CITES has recognised the principles of conservation and sustainable use on which there is global agreement. According to these principles, there is no conflict between conservation and the sustainable use of wildlife. The publication entitled "Caring for the Earth, a strategy for sustainable living," published jointly by the IUCN, WWF and UNEP (1991), defines conservation as "the management of human use of organisms or ecosystems to ensure such use is sustainable". The same source defines sustainable use as the use of "renewable resources...at rates within their capacity for renewal". "It is wrong to imply that conservation means not exploiting wildlife" (Topkov, 1994). These definitions clearly show that any policy that completely rejects all commercial utilisation of certain species or groups of species, irrespective of their biological status, has nothing to do with conservation.

As far as marine species are concerned, CITES shall, pursuant to the Convention, "consult inter-governmental bodies having a function in relation to those species especially with a view to obtaining scientific data .. and to ensuring coordination with any conservation measures". The IWC clearly states that its management decisions are not conservation measures. In 1994, the Commission established a Southern Ocean Sanctuary where all whaling is banned indefinitely, "irrespective of the conservation status of the stocks" (IWC, 1996a). The IWC did not wait for comments from its own Scientific Committee before passing the motion. And indeed, any comments from the Scientific Committee would have been irrelevant, since the proposers themselves drew attention to the fact that the idea of a sanctuary was not founded on a scientific basis. Consequently, CITES cannot assume that management decisions made by the IWC are "conservation measures".

SPECIES THREATENED WITH EXTINCTION
The CITES Convention only provides for a general ban on international trade in species that are "threatened with extinction". Such species shall be listed in Appendix I. With regard to other species that are not threatened with extinction, but for which there is a chance that international trade might lead to them becoming so, strict regulations on trade can be introduced pursuant to the Convention. These species are listed in Appendix II. The same applies to species that can be mistaken for endangered species.

In assessing proposals for the downlisting of species from Appendix I to Appendix II, the Contracting Parties to CITES shall therefore first and foremost consider whether the population in question is threatened with extinction. As far as the minke whale stocks are concerned, recent research shows that these stocks are abundant and do not meet the criteria for listing in Appendix I (see Section 3). "In all reasonableness we would have to say that a commercial catch could be taken without endangering these stocks," says IWC Secretary Ray Gambell (1993).

The question is whether the minke whale stocks should have been listed in Appendix I in the first place. This decision, made at the 1983 Conference, came in spite of the fact that the CITES Secretariat, the USA, the European Community, and Switzerland held the view that the criteria had not been met.

SUPERVISION AND CONTROL
With regard to the assessment of proposals for downlisting, Resolution 9.24, Annex 4, concerning "Precautionary Measures", states that in cases where the biological requirements have been fulfilled, it shall also be taken into consideration whether the appropriate management and control measures are in place, in order to ensure that downlisting does not lead to the species becoming endangered. It also states that "the Parties shall, in the case of uncertainty ... act in the best interest of conservation".

Just what management and control measures are considered appropriate is, of course, a matter of judgement. Norwegian whaling is supervised by an inspector on board each vessel. Quotas are allocated on the basis of the IWC's newly developed quota calculation model. Any future international trade will be monitored through a DNA database which will include data from each individual whale that has been caught (see section 4). Consequently, it will be possible to take samples of whale meat and blubber on the market and check them against the database. The details of these supervision arrangements will naturally enough be the subject of some discussion, but should such measures not be deemed adequate in accordance with the Resolution on Precautionary Measures, then one might easily conclude that once a species has ended up in Appendix I, it is simply impossible to downlist it. It is also pertinent to point out that should the resumption of trade, after the downlisting of a species, lead to unforeseen negative consequences, then the Parties can make sure that it is re-listed in Appendix I at the next CITES meeting. CITES also has the opportunity of tailoring the conditions on which the resumption of trade shall be based.

Norway's initiative with regard to the supervision of trade in minke whales with the help of a DNA database should be regarded by CITES as an interesting pilot project which could contribute to the development of new methods and new technology in preventing trade in endangered species.

STRICT DEMANDS ON SUSTAINABILITY
In the light of the history of whaling and the over-exploitation of former times, it is only reasonable that strict demands are made to ensure the sustainability of commercial whaling. However, one must also be aware that the terms under which whaling is conducted have also undergone a process of change. For one thing, the market for whale oil has been taken over by cheaper vegetable oils. The demand for whale oil was the driving force behind the whaling industry of the past. Of the many nations that previously conducted whaling operations, such as the UK, the USA, the Netherlands, New Zealand and Australia, most have no plans for resumption. The remaining whaling countries today are those where whales have long been a food resource. While little international attention was given to whaling in the 1950s and 1960s, the Save-the-Whale movement has seen to it that whaling today has found its place near the top of the international agenda, and all whaling is observed with Argus-eyed vigilance. The degree of knowledge necessary to ensure that whaling is sustainable is far greater today than it was just a few decades ago.

AN INDEPENDENT ATTITUDE
Over the years, a number of CITES resolutions have dealt with the organisation's relationship to the IWC. All of these resolutions have been based on the assumption that there is conformity between the agendas of CITES and the IWC, and that IWC policy is based on conservation, biological criteria and scientific advice - not whale rights and public sentiment.

In the 1980s, CITES assumed an independent position in relation to the IWC by listing whale populations for which the IWC was still setting commercial quotas in Appendix I. This applied to the populations of sei whales, fin whales and Bryde's whales (see section 5.2). Such action involved an indirect criticism of the IWC for allowing the commercial harvest of populations whose status (at the time) was uncertain. There is just as much reason for CITES to remain critical and independent towards the IWC today, given that the aim of CITES is to adhere to its objectives, and remain an organisation that bases its work on the globally agreed principles of conservation and sustainable use.

2. MINKE WHALES LISTED IN THE CITES APPENDICES

In 1979, all species of the order Cetacea (dolphins, porpoises and whales) that were not already in Appendix I were listed in Appendix II, and this included the minke whale.

In 1982, the IWC passed a motion to introduce a temporary ban on whaling, due to come into force in 1986. (Certain aboriginal subsistence whaling operations were exempted from the ban.) The IWC decision was followed up by the Seychelles at the CITES Conference in 1983. The Seychelles proposed that all species covered by the IWC management regime should be added to Appendix I, with one exception: the West Greenland minke whale stock. In practice, the Seychelles proposal only applied to two species, the minke whale and the pigmy right whale, as all other "IWC whales" were already listed in Appendix I. (Other proposals to transfer Bottlenose and Bryde's whales to Appendix I in 1983 were also adopted.)

The Seychelles proposal was controversial. The reason for this was primarily that the classification of the minke whale stocks as "threatened by extinction" - which is the criteria set out in the CITES Convention for listing populations in Appendix I - was obviously not correct. Even the proponent admits, in the written justification of the proposal, that "there is no positive evidence that any putative population of minke whales is endangered in terms of the literal interpretation of the Berne criteria for CITES" (CITES, 1984).

Because of this, the CITES Secretariat recommended that the proposal be rejected because it met neither the Berne criteria nor the provisions of the Convention (Berney, 1997). Likewise, a CITES committee set up to review the species listed in CITES Appendices concluded earlier that no changes should be made for cetaceans (Berney, 1997). The USA shared the opinion of the Secretariat, writing in their comment on the proposal that it did "not appear to be justified on biological grounds" (CITES, 1984). On the same grounds, Switzerland suggested that the proposal be withdrawn. This was supported by the European Community: "The scientific data that are presently available to us lead to the conclusion that these criteria [i.e. the Berne criteria] are not met. ... [T]he amendments as proposed by the Seychelles should rather be considered at the next meeting" (CITES, 1984).

Despite all this, the Seychelles proposal was passed with 29 votes in favour, 5 against and 23 abstentions. Six countries lodged reservations against the listing, Peru, Norway, Japan, Argentina, Brazil and Switzerland. The latter three have since withdrawn their reservations.

As the discussions show, the reason for listing the minke whale stocks in Appendix I was not that the stocks were endangered. This is illustrated by the fact that the stock for which real doubts may have been justified, the West Greenland stock, was the only one that was not transferred to Appendix I. The real motivation behind the proposal was the inclusion of the minke whale stocks in the IWC ban on commercial whaling, highlighted by the fact that listing in question was not to be applied until the IWC ban on whaling ban had come into force in 1986.

At the last COP in 1994, Norway also proposed the downlisting of the Northeast Atlantic and North Atlantic Central minke whale stocks. The proposal was rejected by 48 votes to 16, with no fewer than 48 countries abstaining. With reference to Resolution Conf. 2.9, the CITES Secretariat concluded its recommendation by determining that the two stocks were to remain in Appendix I. As far as the Northeast Atlantic stock is concerned, there was some uncertainty at the time with regard to the stock estimate. One argument against the downlisting of the stock was that it might turn out to meet the new criteria for listing in Appendix I once a more reliable stock estimate had been developed. (As things turned out, that was not the case. See Section 3.) As for the North Atlantic Central stock, however, there was no doubt that it did not meet the criteria for listing in Appendix I. Once again it was the IWC ban on commercial whaling that proved to be the decisive factor.

WHALES LISTED IN THE CITES APPENDICES: 1975: Blue whales, humpbacks, grey whales, bowhead whales and right whales listed in Appendix I 1977: The various stocks of sei whales and fin whales listed in Appendix I and II 1979: The order Cetacea listed in Appendix II, with the exception of those that were already listed in Appendix I 1981: Sperm whales, fin whales, and sei whales listed in Appendix I 1983: Bryde's whales, beaked whales, pigmy right whales and minke whales (with the exception of the West Greenland stock) listed in Appendix I (the last two effectively from 1986) 1994: Downlisting proposals for 2 minke whale stocks in the North Atlantic rejected 1997: 5 downlisting proposals for various whale stocks submitted

  3. BIOLOGICAL CRITERIA

CITES decisions to list species and populations on its Appendices are based on a special set of criteria. Up until and including the 9th COP, the so-called Berne Criteria were applied, but it was widely acknowledged that these criteria were less than satisfactory. In 1992 it was agreed that CITES should develop new listing criteria. These were subsequently adopted in 1994 and will be applied for the first time at this year's meeting in Harare. The aim in developing new criteria was to "inject more science into the decision-making process and to make it consistent with modern conservation" (Topkov, 1994).

The new criteria are contained in Res. 9.24, which consists of 5 Annexes as well as the
resolution itself. The biological criteria for inclusion in Appendix I are given in Annex 1, while Annex 5 lists the definitions and guidelines for the specific terms used.

The biological criteria for inclusion in Appendix I can be summarised as follows:

-Criterion A: The wild population is small.
-Criterion B: The wild population has a restricted area of distribution.
-Criterion C: A decline in the number of individuals in the wild.
-Criterion D: The species is likely to satisfy one or more of the other criteria within five years.

3.1 NORTH EAST ATLANTIC MINKE WHALE STOCK

An international group of scientists appointed by the Scientific Committee of the International Whaling Commission (IWC) reached consensus in May 1996 on an estimate of 112,000 minke whales in the Northeast Atlantic (95% confidence limits 90,000 to 135,000). The estimate was reviewed by the IWC Scientific Committee at its 1996 meeting, who "agreed that the estimates of abundance are adequate for use in the Revised Management Procedure" (IWC, 1996).

This estimate is based on a line transect survey which was carried out in 1995 using
methodology previously approved by the IWC Scientific Committee. International observers and scientists were present on the vessels, including 4 of the 9 scientists who took part in the group that finally developed the estimate.

The scientific group also recalculated the estimate from the 1988-89 survey, and the new figure of 65,000 was also endorsed by the Scientific Committee. The recalculations came as a result of problems in reproducing the estimate of 86,700 which had been confirmed by the Scientific Committee in 1992. Errors were found in the computer software used. The new software has now undergone "an extensive and independent review" (IWC, 1996).

The group noted that the estimates from the 1995 and the 1988-89 surveys are not directly
comparable due to differences in methodology. The Scientific Committee report notes that the estimate from the 1995 survey is "a more reliable estimate" than that resulting from the 1988-89 survey (IWC, 1996). Among the reasons given for this is that during the 1995 survey there were two observer platforms on every vessel with two independent teams of observers. This was not the case in 1988-89, but a separate independent observer experiment was performed in 1990 with two platforms on one vessel. Thus the Scientific Committee concluded that the 1995 estimate is more reliable because it "did not depend on extrapolation from independent observer data collected in a different year as was the case for the 1989 estimate". The Scientific Committee also gives other plausible reasons why the 1988-89 estimate could be seriously biased downwards, but notes that a natural rate of increase is a likely factor in explaining part of the difference between the two estimates.

3.2 NORTH ATLANTIC CENTRAL STOCK

The Scientific Committee of the North Atlantic Marine Mammal Commission (NAMMCO) agreed in March 1997 on an estimate of 72,000 for the North Atlantic Central stock of minke whales (NAMMCO, 1997). This estimate is based on data from the joint North Atlantic Sighting Survey for cetaceans which was conducted from late June to early August 1995 (NASS-95). Surveys were carried out both from aircraft and vessels around Iceland, and by Norwegian vessels in the Central stock area during its 1995 survey, which was also a part of NASS-95.

Based on surveys carried out mainly in 1987 (NASS-87), but with some survey effort in 1989, the IWC Scientific Committee agreed on an estimate in 1990 of 28,000 (c.95% CI 21,600-31,400) "as the best estimate of the number of minke whales in the Central stock area," and concluded that "the Central stock of minke whales in the North Atlantic should be classified as an Initial Management Stock" (IWC, 1990). Such a classification would also have meant that quotas larger than zero could have been set for this stock. But the Scientific Committee did not apply this classification because it was not relevant in relation to the Revised Management Procedure, which was in the process of being finalising at the time.

In explaining the difference between the estimates from the 1995 and 1987 surveys, the
NAMMCO Scientific Committee refers to the fact that the 1987 aerial survey covered a
substantially smaller area than the 1995 aerial survey, and that different methodologies were used to estimate abundance (NAMMCO, 1997). In the analysis of the primary data from 1995, it became apparent that a somewhat unfortunate choice of methodology had been made in the analysis of the primary data from the 1987 aerial survey.

Catches from this stock, which began around 1920, have always been limited, with a long term annual average of less than 150 animals (statistics compiled by NAMMCO). In other words, it is not possible for catches at these levels to have led to any significant reduction of the stock.

3.3 IUCN PUTS MINKE WHALE IN LOWER RISK CATEGORY

In the 1996 IUCN (The World Conservation Union) Red List of Threatened Animals, the
minke whale was moved to the non-threatened category of "Lower Risk" (Baillie and Groombridge, 1996). This classification was determined by the IUCN Species Survival Commission and its Cetacean Specialist Group and refers to minke whales on a global basis. IUCN distinguishes between two species, namely minke whale Balaenoptera acutorostrata, and Southern Minke Whale, Balaenoptera bonarensis, both of which have been placed in the "Lower Risk" category.

According to the definitions of IUCN categories, the classification of the two minke whale
species as "lower risk" means that, firstly, they have been reduced by less than 20% over the last 60-75 years (i.e. the last three generations). Secondly, it is not likely that these two species will be subject to a reduction of more than 20% over the next 60-75 years. And thirdly, quantitative analyses conducted by IUCN indicate that the probability of extinction in the wild is less than 10% within 100 years.

The northern hemisphere minke whale, Balaenoptera acutorostrata, consists of stocks in the Atlantic, Mediterranean and Black Sea. The largest of these stocks are those which Norway has proposed be transferred from Appendix I to Appendix II: the Northeast Atlantic and North Atlantic Central stocks. These are also the stocks for which the most comprehensive scientific knowledge is available. In other words, the IUCN listing should be a good indication of the biological status of these two stocks. The IUCN analysis also confirms that the species as such is not threatened with extinction, but rather is abundant.

3.4 ABUNDANCE AND DECLINE - TWO CENTRAL CRITERIA
Abundance estimates for the Northeast Atlantic and Central North Atlantic minke whale stocks show that with respect to criterion A (res. 9.24, Annex 1), which refers to the number of individuals in the population, there is no basis for inclusion in Appendix I. This is also the conclusion of IUCN/TRAFFIC in their analysis of the Norwegian proposal (IUCN, 1997).

But IUCN/TRAFFIC argue in their analysis that there is a possibility that the Northeast
Atlantic stock has been reduced by more than 50% within the last two generations (i.e. the last 40 to 50 years). If this is the case, the stock would qualify for inclusion in Appendix I
according to Criterion C (relating to decline).

One argument put forward by IUCN/TRAFFIC for such a large decline is that in 1985 the
IWC classified the Northeast Atlantic stock as a "Protection Stock", i.e. it was estimated to
be less than 54% of its original level. The basis for this classification were highly disputed estimates based on mark-recapture data of 44,000 for the total stock (IWC 1984), and of 22,000 for the exploited stock size (i.e. only a part of the total stock) (IWC 1985). Claims of further decline made in 1985 were based on catch-per-unit-effort analyses. This method of stock estimation has been shown to be extremely unreliable and later estimates based on sighting surveys are of a far higher quality.

The other argument made by IUCN/TRAFFIC is that the IWC Scientific Committee concluded that there had been a "significant decline ... over the period 1951-87", and that "two studies estimated declines of 30% and 55% respectively" (IUCN, 1997). However, the IWC report from 1991 states that "... the Committee agreed that ... there has been a statistically [our emphasis] significant decline... " (IWC, 1992). "Statistically significant" is quite different than "significant". The former only means that it is possible to show a decline with statistical methods. The latter means that a decline has been significant. IUCN/TRAFFIC's reference to the report on this matter would appear to be deliberately misleading.

This impression is confirmed by the fact that IUCN/TRAFFIC also fail to mention that the
study which showed a decline of 30% rejects the claim in the other study which estimated a decline of 55%. While the first study was peer reviewed and submitted as a paper to the Scientific Committee, the other study, which was conducted by Justin Cooke, has not been published and was only distributed during the meeting

Also missing from the IUCN/TRAFFIC analysis is the fact that these percentage declines were calculated from an estimate of 87,000 in the Northeast Atlantic, rather than the most recent and more reliable estimate of 112,000. The latest estimate shows that a decline of 55% in this stock is not possible.

The estimate of 112,000 for the Northeast Atlantic stock indicates that the classification as
Protection Stock cannot be correct. If the claims of decline of more than 50% over the last two generations (i.e. the last 40-50 years) are taken seriously, then this would mean that at the beginning of this period the total stock was 224,000. The total number of whales taken since commercial hunting of them began in the late 1920s is just over 100,000 (Anderson et al, 1987). Most of these are from the Northeast Atlantic, although this figure also includes smaller catches from the Central and Western stocks. In the period 1930-37 it is estimated that 5,000 minke whales were taken (Anderson et al, 1987). Over the last 50 years a total of c.95,000 animals have been taken from the stocks in question. Given the reproductive capacity of the minke whale - with a minimum growth rate of 1- 2% a year in a harvested stock - it is a mystery how a catch of less than 95,000 animals over 50 years from the Northeast Atlantic stock can lead to a decline of more than 112,000. The most probable scenario is that the stock two generations ago was at the same level as it is today and that catches in the interim period have been sustainable.

A decline of 50% does not correspond at all with IUCN's own classification of the minke
whale species, Balaenoptera acutorostrata, in the "Lower Risk" category. As mentioned, this classification means that the species has not declined by more than 20% over the last three generations. The Northeast Atlantic stock is probably the largest one of this species and makes up such a large part of it that it would be difficult to imagine that the species in its entirety has not been reduced by more than 20% if the Northeast Atlantic stock has been reduced by more than 50%.

4. PRECAUTIONARY MEASURES

Even if the two North Atlantic minke whale stocks do not meet the biological criteria for listing in Appendix I (i.e they could not presently be transferred from Appendix II to Appendix I), they shall remain in Appendix I if the requirements for the appropriate precautionary measures, as stated in Res. 9.24, Annex 4, are not met. This difference between uplisting and downlisting is thus consistent with the precautionary principle, and means that the Parties shall also take into account whether appropriate measures for management and control are in place before a downlisting occurs.

CITES shall only approve a downlisting if the Parties are satisfied with the "implementation by the range states of the requirements of the Convention" and if there are "appropriate enforcement controls and compliance with the requirements of the Convention" (Res. 9.24, Annex 4, B.2.b). And if there is any uncertainty regarding either the status of a species or the impact of trade on the conservation of a species, the Parties shall "act in the best interest of the conservation of the species" (Res. 9.24, Annex 4, A).
In addition, CITES can approve specific export quotas subject to special conditions.

4.1 A DNA REGISTER TO CONTROL TRADE
Norwegian authorities plan to establish a separate DNA register for whales to control any international trade involving minke whales (see section 4.3.2 in the proposal submitted by Norway). Beginning with the 1997 whaling season, DNA samples will be taken from each minke whale caught. These samples will then be analysed and the DNA profile for each whale will be registered in a database.

To the extent that they are available, profiles from other minke whale stocks and from other whale species will also be registered. It would appear from the Japanese downlisting proposals that Japan is also working on developing methods for using DNA analyses to control trade in minke whales. Japanese authorities already carry out spot-checks of whale products in the Japanese market using DNA and isozyme tests (IUCN, 1997 and IWC, 1995).

Using this control system, whale meat and blubber in the market can be tested to determine its DNA profile, which can then be checked against DNA profiles in the database. It is then possible to determine whether the meat or the blubber stems from a legally-caught whale. From a test taken in the market, it is thus possible to identify the individual whale from which the sample is taken.

In the same way that the DNA register will be able to confirm that products in the market stem from a legal catch, the register will also be able to confirm whether meat and blubber have been caught illegally. If a DNA profile is not found in the register, it should be possible to identify the stock and/or species from which the test derives. Information of this kind will be of enormous help in investigating any illegal whaling and trading. A DNA register of this kind is likely to function as a deterrent to illegal activities. For such a register to work properly, however, it is essential that it is extensive, with as many DNA profiles as possible.

4.2 BORDER CONTROLS
In 1993, the Norwegian authorities introduced a licensing system to regulate the export of minke whale. Since then the Ministry of Fisheries has not issued export licenses. Similarly, Japan requires an import license for the import of minke whale products. The Japanese authorities will not issue such a license if there is insufficient control on the part of the exporting country (IUCN, 1997). Russia prohibited international trade in whale products in 1996, while the situation in the Republic of Korea is less clear (IUCN, 1997).

In addition to the license requirement and the planned DNA register, there are, of course, ordinary border checks of imports and exports between the countries involved. In the period 1987-1994, Japanese customs authorities discovered eight attempts at smuggling a total of 948 tons of whale products into Japan. Five of these incidents concerned the smuggling of Bryde's whale. Five of the eight cases concerned smuggling from Taiwan, one incident from Korea and one from Russia. It is not known which country was involved in the last attempt at smuggling, but 18 Japanese citizens have been sentenced to between eight months and two years in jail.

In 1996, four tons of whale meat was confiscated by Japanese customs authorities. This consignment, which was marked as mackerel, came from Norway. This incident is currently being investigated in both Norway and Japan. Another attempt to smuggle whale meat from Norway to Japan was discovered in 1993 at Fornebu airport, Oslo. The whale meat was packed in cartons marked as shrimp. The people involved in this case have been charged, and the matter will appear before the court in the course of 1997.

4.3 INSPECTORS ON BOARD EVERY NORWEGIAN WHALING VESSEL
Each Norwegian vessel involved in whaling has a publicly-appointed veterinary-trained inspector on board during the whaling season. In connection with the planned control system, inspectors will be responsible for taking samples from each whale caught for DNA testing. The duty of inspectors is to ensure that the whaling is carried out according to current regulations. They have the authority to stop whaling operations if breaches of the regulations are discovered. Their most important task is to check that the assigned quota is not exceeded. In addition, inspectors also check the time it takes to kill the whales and the equipment and methods used, as well as carry out other sampling for research purposes.

In 1994, the Norwegian coast guard discovered that a whaling vessel had caught one whale more than its assigned quota. The inspector on board was allegedly asleep when the whale was harpooned and brought on board. The owner of the vessel was fined NOK 10,000 (c. US 1,600). In addition, both the owner and the vessel have been excluded from taking part in whaling for five years.

In the limited aboriginal catch of minke whales off East Greenland from the North Atlantic Central stock (the 1997 quota is 12), there are no inspectors on board during the whaling. During the Japanese scientific whaling, there are inspectors on board each vessel whose tasks and responsibilities are similar to those on board the Norwegian vessels. It is also apparent from Japan’s downlisting proposals that there will be an inspector on board each vessel when Japan resumes commercial whaling.

4.4 APPROPRIATE ENFORCEMENT CONTROLS
The Parties to CITES shall decide whether whaling and trade controls satisfy the precautionary measures (Res. 9.24, Annex 4) which must be in place before a downlisting can occur. The Parties must decide whether there are "appropriate enforcement controls and compliance with the requirements of the Convention". Further, the Parties shall, in the case of uncertainty about the effects that trade can have on "the conservation of the species", ensure that they "act in the best interest of the conservation of the species".

Irrespective of the extent of resources used to control whaling and trade, the possibility of illegal whaling or trade will never be completely removed. Nor is a total ban on whaling or trade a perfect insurance against violations of the law.

By imposing strict controls and harsh penalties, the chance of violations is reduced. Enforcement controls will also provide information about the extent of any violations. The enforcement controls in place in Norwegian whaling can be characterised as extremely stringent - since there is an inspector on board each boat. The Norwegian proposal for controlling trade through a DNA database with DNA profiles for every single whale that is caught goes further than any other system for controlling the trade of wild species. This type of control initiative will prevent legal products from functioning as a cover for illegal products in the market. It is difficult - if not impossible - to distinguish between meat from minke whales and meat from other baleen whales in a shop freezer. DNA testing will reveal the difference.

Norway has undertaken to use IWC's newly-developed quota calculation model which is based on the precautionary principle. This model requires the regular monitoring of stocks through a survey every six years. In the event of a reduction in a stock, quotas will immediately be reduced. Regular monitoring of stock development in this way is the best method of establishing whether management is sustainable.

IUCN/TRAFFIC (1997) comment that the supporting statements for the Norwegian and Japanese downlisting proposals "claim that it is unlikely that the catch of whales and subsequent landing from national waters could be made unnoticed".

IUCN/TRAFFIC claim that "the illegal whaling by the USSR in the 1960's contradicts this statement". Firstly, it is far-fetched to compare Norway and Japan with the extremely closed Soviet society of the 1960s. Secondly, according to the IWC Secretary, Ray Gambell, the systematic under-reporting of Soviet whaling ceased when IWC's scheme for the exchange of observers came into effect in 1972 (Gambell, 1994).

CITES cannot demand perfect systems, but it must ask whether enforcement controls will ensure that violations are kept at a level which will not endanger the survival of whale stocks. If the enforcement controls proposed by Norway in conjunction with the downlisting of minke whale stocks in the North Atlantic are not satisfactory, the question will be whether it is possible to produce control initiatives that are stringent enough, while still being realistic, or even whether it is possible to downlist at all.

5. THE RELATIONSHIP BETWEEN CITES AND THE INTERNATIONAL WHALING COMMISSION

The two international treaties, CITES and the International Convention for the Regulation of Whaling (ICRW), both came about in order to ensure that the exploitation of species in the wild be kept at a sustainable level. The IWC's mandate is limited to a number of species of great whales and pertains to the regulation of whaling, whereas the mission of CITES involves the regulation of trade in all wild species of flora and fauna. The Convention came about in acknowledgement of the fact that international trade can lead to the over-exploitation of wild species, and that the regulation of trade can help prevent such over-exploitation. With regard to ensuring that the exploitation of whales is sustainable, the two Conventions supplement each other, while at the same time, their mandates are distinctly different: The IWC deals with the regulation of whaling, and CITES deals with the regulation of international trade.

Neither of the two Conventions includes wording that precludes in any way the consumptive use of wild species. The CITES Convention only allows for the implementation of regulatory initiatives in cases where trade endangers the survival of a species or population.

The ICRW was established in order to safeguard the long-term interests of the whaling industry (see Section 5.4). The International Whaling Commission (IWC) is the body appointed by the ICRW to carry out the management of whaling pursuant to the Convention. This section provides documentation of the fact that the IWC passes motions that are in conflict with the ICRW, and that the IWC fails to execute the tasks that are necessary in order to fulfil the objectives of its Convention. When signatory states to this Convention today declare that they intend to put a stop to all commercial whaling, irrespective of whether it is sustainable or not, and then proceed to use the IWC as a vehicle for the achievement of this goal, then they are clearly in conflict with the objectives of the ICRW.

The important question for CITES is what are the consequences of this for its relationship with the IWC?

5.1 CITES' RELATIONSHIP WITH OTHER ORGANISATIONS REGARDING MARINE SPECIES
As concerns amendments to Appendix I and II, the CITES Convention instructs its Secretariat to "consult ... interested bodies". It is not specified how resulting recommendations are to be treated, but with regard to marine species, it states, amongst other things, that the intention of such consultations is to ensure "coordination with any conservation measures enforced by such bodies":

"For marine species, the Secretariat shall ... consult inter-governmental bodies having a function in relation to those species especially with a view to obtaining scientific data these bodies may be able to provide and to ensuring coordination with any conservation measures enforced by such bodies" (Art XV, 1a-2b).

From this wording it would appear that the CITES Convention instructs its Contracting Parties to reflect the decisions of other management bodies with regard to marine species when making decisions on listings and the regulation of trade. In other words, if an inter-governmental management body bans the taking of specimens from a given population, then this population shall be listed in Appendix I with a subsequent ban on trade. Similarly, if the management body allows specimens to be taken from a population, then CITES shall reflect this, thus allowing trade by listing the species in Appendix II, or excluding it from the lists altogether.

Applied to the relationship between CITES and the IWC, such an interpretation would mean that as long as the IWC maintains its ban on whaling, then CITES must automatically list all "IWC species of whale" in Appendix I. Similarly, should the IWC lift the moratorium and allocate whaling quotas for certain populations, then CITES must transfer them to Appendix II.

A closer examination of the wording of Art. XV, 1a and 2b, and of CITES precedence will show that this interpretation is not correct.

According to Art. XV, CITES is not required to coordinate its policy with any management measures implemented by other inter-governmental bodies. The object of coordination applies solely to "conservation measures". Should another inter-governmental body conduct unsustainable management by, for example, allocating such extensive quotas that the survival of a species or population is at risk, this can certainly not be characterised as a "conservation measure". The same applies to management initiatives that ban the utilisation of an abundant, non-endangered species or population, irrespective of whether such utilisation is sustainable or not, and to other initiatives that are more stringent than required by conservation considerations. The IUCN/UNEP/WWF definition of conservation is, once again, "the management of human use of organisms or ecosystems to ensure such use is sustainable" (1991).

Article XV, 1a and 2b, in no way prevents Contracting Parties from conducting an independent assessment of whether amendments to the Appendices are in compliance with the criteria provided by the Convention and relevant resolutions, and whether they serve to promote the objectives of the Convention. Article XV. 1a and 2b, do however, require that the management measures of other relevant bodies be taken into consideration, but only insofar as they are "conservation measures".

Article XV, 1a and 2b, makes no mention of any specific bodies with whose conservation measures CITES is required to coordinate its listings. In addition to the IWC, the North Atlantic Marine Mammal Commission, NAMMCO, also has expertise and a role to play with regard to the North Atlantic minke whales, a fact which has already been recognised by CITES in its request to NAMMCO for scientific data and views on the Norwegian downlisting proposal. NAMMCO is responsible for the latest central Atlantic stock estimate. NAMMCO has provided management advice on bottlenose whales, which are also covered by the IWC. And NAMMCO has adopted a Joint Control Scheme for the Hunting of Marine Mammals (including minke whales) in the North Atlantic, which provides for an international exchange of observers. In the event of conflicting advice from the IWC and NAMMCO, it will be up to CITES to decide which of the organisations conducts a policy that is most consistent with modern principles of conservation and sustainable use.

5.2 CONSISTENCY BETWEEN CITES' REGULATIONS ON TRADE AND THE IWC'S MANAGEMENT MEASURES?
In view of the above, it is not surprising to find that CITES does not automatically reflect the management measures of the IWC when amending its appendices. In the 1980's, the IWC established quotas for sei whales and fin whales. In spite of this, CITES transferred both species to Appendix I in 1981. CITES did not consider these IWC quotas as conservation measures and consequently chose to overrule the IWC in its assessment of which Appendix they should be listed in. CITES also chose to list Bryde's whale in Appendix I with effect from 1983, even though the IWC continued to allocate whaling quotas for Bryde's whale stocks up until 1986.

The listing of the West Greenland minke whale stock in Appendix II shows what trouble CITES can end up in if it tries to follow the agenda of the IWC. The IWC permits Greenland to hunt this stock in accordance with the arrangements for aboriginal subsistence hunts. The West Greenland stock was not included in the 1993 Seychelles proposal for the transfer of the minke whale stock from Appendix I to Appendix II. The proposal justified this by stating that it was the only minke whale stock "from which there is a take to meet aboriginal needs for local consumption". It was also stated that "there is no estimate" for this stock. It is clear that both the Central North Atlantic and the Northeast Atlantic stocks are more numerous than the West Greenland stock. Even though there is no stock estimate available for the West Greenland stock, there is reason to believe that the pressure of the hunt (i.e. the relationship between hunting quotas and the size of the stock) is greater than that of the other two stocks (IWC, 1992, 1994). The take from the Northeast Atlantic stock constitutes approximately 0.5% per annum and the take from the Central stock was far below 0.5% during the period when commercial whaling was carried out (up until 1986).

In other words, the IWC's management regime is no longer determined by biological criteria, but by cultural criteria (see also section 5.5.1). In its attempts to reflect this policy, CITES has listed minke whale stocks which are clearly abundant and non-threatened in Appendix I, which is supposed to be reserved for populations threatened with extinction. At the same time, it has retained a stock in Appendix II whose conservation status is less clear. CITES may well find itself in deep water as a result; there is no clause in the Convention which authorizes the use of cultural considerations as a criterion for amending the Appendices.

The West Greenland stock is the only "IWC whale population" that has not been transferred to Appendix I, even though the IWC also permits aboriginal subsistence whaling of bowhead, grey, humpback and fin whales. The transfer of these species to Appendix I is hardly consistent with permitting catches of the same species, but it is consistent with the refusal of the IWC to allow commercial use of and thus trade in products of such catches. The IWC has neither the mandate nor the expertise to regulate international trade; it is up to CITES to evaluate when international trade poses a threat to species or populations.

These examples show clearly the difficulties CITES encounters in trying to coordinate amendments of its Appendices with the IWC management regime, which is based on very diffuse cultural criteria. The result is a lack of consistency in decisions on listing amendments, and decisions that are in conflict with the CITES Convention.

5.3 CITES RESOLUTIONS CONCERNING ITS RELATIONSHIP WITH THE IWC
A number of CITES resolutions deal with relations with the IWC. Some people claim that such resolutions demonstrate that CITES "recognizes the competency of the IWC as the lead organisation responsible for the regulation of whaling", and has therefore agreed to coordinate regulation of trade in whale products with IWC management measures. One argument against the downlisting of minke whale stocks is that this will bring the IWC and CITES "into conflict with each other" (Stroud, 1997).

However, CITES resolutions contain no general recommendation that amendments of CITES Appendices should reflect IWC management measures.

One of the resolutions most frequently referred to is Resolution 2.9 from 1979. This concludes that CITES "recommends that the Parties agree not to issue any import or export permit ... for any specimen of a species or stock protected from commercial whaling by the International Convention for the Regulation of Whaling". Thus, the resolution only recommends that permits should not be issued, and does not specify the Appendices in which various species and stocks should be listed.

Resolution 2.9 describes the New Management Procedure in positive terms, "noting that the IWC has taken increasingly vigorous action through application of its New Management Procedures to provide for the effective conservation and management of whales ... by establishing limits on the number of whales that may be taken". It is difficult to see the relevance of this resolution to the current situation, where the IWC has rejected the New Management Procedure, but has not replaced it with anything different.

Resolution 2.7 from the same year "recommends that those Parties which do not currently adhere to the International Convention for the Regulation of Whaling be encouraged to do so". Today, this recommendation is best interpreted as being addressed to countries which openly admit that they oppose the objective of the ICRW by attempting to stop all commercial whaling, whether or not it is sustainable. Countries still engaged in whaling today are either not members of the IWC (Canada), or operate within the framework of the Convention, through, for example, exemptions for aboriginal subsistence whaling (Denmark/Greenland, Russia), legal reservations to the moratorium (Norway) or through special arrangements for scientific whaling set out in the ICRW (Japan).

All the CITES resolutions concerning relations with the IWC implicitly assume that IWC management measures are in accordance with the objective of the ICRW and that they can be considered as "conservation measures".

5.4 THE PURPOSE OF THE IWC AND GUIDELINES FOR ITS DECISIONS
The objective of the 1946 International Convention for the Regulation of Whaling (ICRW) is expressed in its preamble, which explains that the Parties have "decided to conclude a convention for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry". Furthermore, the preamble states that depleted stocks are to be protected and that "... increases in the size of whale stocks will permit increases in the number of whales which may be captured".

To achieve the objective of the Convention, the Parties established the International Whaling Commission (IWC). According to the Convention, decisions of the IWC shall "provide for the conservation, development and optimum utilization of the whale resources", "shall be based on scientific findings" and "shall take into consideration the interests of the consumers of whale products and the whaling industry".

Binding decisions on management require a three-quarters majority and form part of the Schedule, which is an Appendix to the Convention. Individual member states may lodge reservations against specific decisions. In addition, the IWC can adopt non-binding resolutions by a simple majority. The Convention is open to any country that wishes to become a Party, regardless of their real interest in whaling.

5.5 THE IWC - FROM OVER-EXPLOITATION TO CONSERVATION TO BLANKET PROTECTION
In many ways, the International Convention for the Regulation of Whaling (ICRW) was ahead of its time. It was one of the first international agreements for the management of renewable resources that was based on the principle of sustainable use. However, it was several decades before the convention came close to fulfilling its purpose. In the 1940s, 1950s and well into the 1960s, whaling was still an important industry for a number of countries. The whaling nations in the IWC blocked proposals for reductions in catch quotas. They were aware that it was necessary to reduce catches, but were unable to agree among themselves on how to share the reductions. Over-exploitation of whale stocks continued.

The management procedure followed by the International Whaling Commission (IWC) during this period was totally inappropriate in biological terms, and quotas were not species-specific.

In the 1960s, the profitability of commercial whaling declined dramatically, partly because the most important stocks were severely depleted, but also because cheap vegetable oils replaced whale oil. Many whaling companies closed down their operations. For those whaling operations that survived into the 1970s and 1980s, whale meat was the most important product.

These developments made it easier to gain a hearing for conservation measures in the IWC. A former IWC Commissioner for the US wrote: "The turning point came in 1965, when for the first time in history the Commission agreed to establish a catch limit in the Antarctic lower than the best scientific estimate of sustainable yield" (McHugh, 1974). Several whale species were protected. The IWC introduced its New Management Procedure to ensure that any whaling operations that continued were sustainable. Even though this model was a major step forward, it had several weak points. For example, it did not take uncertainties in abundance estimates sufficiently into account. Nevertheless, it can be said that after the introduction of the New Management Procedure, whaling carried out in accordance with the IWC management regime was generally sustainable. The international observer scheme introduced by the IWC in 1972 also helped to ensure this. According to IWC Secretary Ray Gambell, the scheme put an end to the consistently misleading figures from Soviet whaling operations (Gambell, 1994).

5.5.1 THE WHALING BAN
Despite this progress, the Commission nevertheless decided in 1982 to implement a ban (moratorium) on commercial whaling with effect from 1986. Within the Scientific Committee of the IWC, opinion was divided as to the need for this measure.

The Schedule amendment implementing the moratorium gives the impression that it was only meant to be a temporary measure: "This provision will be kept under review, based upon the best scientific advice, and by 1990 the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits." It was largely due to this wording that the Icelandic national assembly voted by a majority of one not to lodge a reservation against the decision. Iceland assumed that the moratorium would be reassessed by 1990 at the latest, as indicated, and that quotas would then be set on the basis of new, more reliable information on whale stocks.

The IWC’s ban on whaling is generally referred to as "the moratorium on commercial whaling". This is because of the passage in the Schedule amendment which states that zero catch quotas are to be set for whaling for "commercial purposes". However, this does not mean that the ban applies to commercial whaling only.

The only openings for exemptions from the ban (in addition to the possibility of whaling under the reservation clause and scientific whaling, which both are directly authorized by the ICRW) are offered by quotas in the "aboriginal subsistence category". This means that non-aboriginal whalers who should wish to engage in non-commercial whaling will not be allocated quotas by the IWC. But even aboriginal communities cannot necessarily expect to be given quotas for subsistence whaling. The IWC first assesses whether the community can demonstrate a "continuous nutritional need and cultural dependence on whaling". In the case of the Makah Indians, it seems likely that the result of the assessment will be negative. The USA has applied for a quota of five grey whales on their behalf, for subsistence and ceremonial purposes, from a stock of more than 20,000 animals. The USA withdrew its application during the 1996 IWC meeting once it became clear that there was not the necessary three-quarters majority. And yet the Makah Indians have a 1,500-year history as a whaling people, and their whaling rights are set out in an 1855 treaty with the US government. The fact that it is 70 years since they last caught a grey whale has been used against them, but this is the length of time it took for the population to return to its pre-exploitation level after only a few decades of over-exploitation by whalers from the Anglo-Saxon tribe that had invaded Makah territory. The same Anglo-Saxon tribe, today represented by the UK, New Zealand and Australia, is now using the IWC as a tool to avoid taking steps that could mitigate the consequences of this invasion for the Makah Indians.

In a number of cases, the IWC has allocated quotas for "aboriginal subsistence whaling", even though the catch clearly has commercial elements. For instance, Russia has been allocated quotas for grey whales even though some of the meat has been sold as feed to fur farms, and meat and blubber from animals caught under quotas allocated to Greenland is distributed through ordinary commercial channels and can be found vacuum-packed in the refrigerated counters of Nuuk supermarkets. This is in clear contravention of the criteria for aboriginal subsistence whaling. The IWC also allocates quotas to the Alaskan Inuit, who sell by-products of the catch, whalebone and baleen handicrafts, on the commercial market. This, however, is permitted under the terms of aboriginal subsistence quotas, which were tailored to the needs of the USA, and which are virtually copied from the corresponding provisions of the US Marine Mammal Protection Act.

The IWC "moratorium on commercial whaling" is in reality a general ban, from which certain exemptions may be made. There are no clear criteria for such exemptions. What is quite clear is that neither the fact that the catch is non-commercial nor the fact that the community is aboriginal is sufficient in itself to qualify for an exemption from the ban, and even the combination of the two may not be enough. The allocation of quotas for aboriginal subsistence whaling has thus become a purely political process, where the result is decided by the feelings of a majority of IWC members.

The Seychelles played a key role in bringing about the decision to introduce the moratorium, just as it did in CITES when the minke whale was transferred to Appendix I. The proposal for the moratorium was put forward by the Seychelles. The country’s delegation included Sidney Holt, a central figure in the Save-the-Whale movement. He was chairman of Greenpeace UK for a short period, and has been employed by the International Fund for Animal Welfare for the past ten years. Together with the director of Greenpeace International, David McTaggart, he played a central role in efforts to recruit new member states to the IWC in order to obtain enough votes to ensure that the proposal for a moratorium was adopted (Spencer, 1991; Day, 1992 (1987)).

In the period 1979-1982, 19 new states joined the IWC, most of them completely unconnected with the whaling industry. This made it possible to achieve a three-quarters majority for a whaling ban. Several of the new members were represented in the IWC by foreign nationals hand-picked by those groups in the Save-the-Whale movement who were responsible for recruiting them (Spencer, 1991; Cherfas, 1988; Day, 1992 (1987)). Greenpeace compared this process with a coup d’etat; "environmental and animal welfare groups (...) carried out what amounted to a coup d’etat in the International Whaling Commission" (Wilkinson, 1989). The new members were the Seychelles, Oman, Switzerland, China, Costa Rica, Dominica, India, Jamaica, the Philippines, St. Lucia, St. Vincent and the Grenadines, Uruguay, Antigua, Belize, Egypt, Kenya, Monaco, Senegal and West Germany.

Norway, the Soviet Union, Peru and Japan lodged reservations to the decision to introduce a moratorium. The latter two countries have since withdrawn their reservations.

5.5.2 CHANGE OF STANDPOINT: ABSOLUTE OPPOSITION TO COMMERCIAL WHALING
Many of the countries that argued for the whaling ban in 1982 and assured the whaling nations that this was not intended to be a permanent ban have since changed their standpoint. The leading nations in the IWC, the USA, the UK, New Zealand and Australia, now refuse to countenance the resumption of commercial whaling under any circumstances, even if their requirements as regards sustainability and humane killing are met.

In a note to Iceland and Norway in 1993, the USA explained the background for this change of position:

"The United States has been working in good faith in the IWC in recent years to develop reliable scientific data and a revised management scheme which could serve as a basis for a decision on whether to lift the moratorium on commercial whaling. Since that process is nearing completion and scientific analysis now shows that some populations of minke whales are likely to sustain a limited harvest, it was time to review US policy. As evidenced by the unanimous vote in the House for a resolution to ban commercial whaling, there is presently no support in the US Congress or among the American public for commercial whaling. Therefore, the United States has decided not to support resumption of commercial whaling, whether pelagic or coastal, and will abstain or vote against commercial quotas in the IWC".

To ensure that whaling nations such as Canada, Iceland, Japan, Norway and Russia follow whaling policies that are in agreement with the opinion of the American public, the USA has on a number of occasions threatened them with economic sanctions. The USA has also urged Iceland "to weigh the risks against the cost" in connection with Iceland’s proposals to resume whaling (US Note to Iceland, May 1993).

Britain came out of the closet in 1996. "Commercial whaling is opposed by the vast majority of our citizens and by Parliament... Accordingly, the UK will oppose any move to end the current moratorium on commercial whaling," said Tony Baldry, Britain’s Fisheries Minister, in a written statement to Parliament (May 8 1996).

The same attitude to whaling is evident Down Under. "Our basic concern is to ensure that whales are not killed", stated New Zealand’s IWC Commissioner Jim McClay (McClay, 1996). As grounds for this standpoint, he referred to "the current reality of world opinion" (NZ Opening Statement to the 1994 IWC Meeting).

Even so, it is neighbouring Australia that would probably win a medal as the country that is most strongly against whaling. Australia has established a National Task Force to assist its push for a permanent international ban on commercial whaling. "There should be no commercial whaling at all. We believe the practice of killing whales is unjustifiable", says Australian Environment Minister Robert Hill (Media releases, Australian Federal Environment Minister Robert Hill, June 17 and September 30 1996).

The Australian Commissioner to the IWC, Peter Bridgewater, current Chairman of the IWC, finds that "... there is nothing that the whale yields that we can’t obtain by more humane methods from our agricultural activities. So in that sense we don’t see why extremely large and beautiful animals should be hunted for meat and other products that are available from other sources. Much simpler, much less costly. Why would we do it? It just doesn’t make sense" (Bridgewater, 1991). The man who made this statement is also head of the Australian National Parks and Wildlife Service and responsible for managing Australia’s annual cull of about 3 million kangaroos. Australia is currently campaigning to increase exports of its kangaroo products, and has protested strongly against the US import ban on such products.

The faction within the IWC that needed a three-quarters majority to have the whaling ban adopted in 1982 now needs only one quarter of the votes to block its repeal. As long as the USA, the UK, Australia and New Zealand continue to oppose commercial whaling, there is no possibility that the moratorium will be lifted.

5.5.3 A NEW MANAGEMENT PROCEDURE BASED ON THE PRECAUTIONARY PRINCIPLE
Shortly after the moratorium entered into force, the IWC Scientific Committee was commissioned to draw up a new management procedure, known as the Revised Management Procedure, which was to give precedence to the precautionary principle and was intended to replace the New Management Procedure. This work took eight years, and the results were presented to the IWC in 1993. The core of the Revised Management Procedure is a quota calculation method which takes uncertainty fully into account. The larger the uncertainty surrounding important biological data (such as stock size), the smaller the quota allocated. The management procedure also requires whaling nations to monitor stocks by means of surveys, which are to be carried out every six years. If they fail to do this, the quotas allocated are reduced, ultimately to zero.

The Scientific Editor of the International Whaling Commission, Greg Donovan, describes the development of the RMP as a "major advance in the scientific approach to natural resource management. (It) is the most rigorously tested management procedure for a natural resource yet developed. It sets a standard for the management of all marine and other living resources. ... (T)he procedure ... is very conservative and certainly more conservative than anything else that has gone before" (Donovan, 1995).

5.5.4 STALEMATE
The IWC approved the Revised Management Procedure (RMP) in 1994, but decided not to put it into effect until an observer and control scheme could be developed. This, together with the RMP, is to constitute the Revised Management Scheme. It now appears that there can be no question of resuming whaling before development of the new observer and control scheme is completed, but this requirement was not introduced until 10 years after the decision to impose a moratorium.

At present, it seems unlikely that the quota calculation model the Scientific Committee has spent eight years developing will ever be used. Work on the observer and control scheme has come to a complete halt, and nobody in the IWC is willing to predict when the work will be completed. The main reason for this stalemate is that New Zealand, Australia and the UK have made completely unrealistic demands concerning the scope of the scheme. They want it to include delivery and distribution of whale products on domestic markets, and require monitoring of whale products through the entire chain of distribution until they reach the consumer. Furthermore, they want to see the establishment of a monitoring centre based at the IWC secretariat, which is to be manned on a 24-hour basis. The centre would register the positions of whaling vessels at all times and maintain contact with the observer or observers on board.

Norway already requires each whaling vessel to carry a Norwegian inspector, but this is not enough for the anti-whaling nations. They want national inspectors to be replaced by international observers, or alternatively for each vessel to carry an international observer appointed by the IWC in addition to a national inspector. If there are language problems, an interpreter must be provided. The costs of all these measures are to be met by the whaling nations.

Norway is willing to consider an international observer system, but believes that the IWC must meet the costs if it requires such a control system. The whaling nations already pay much higher membership fees than other IWC members.

For small-scale whaling operations such as those in Greenland and Norway, where coastal fishing vessels are used for whaling operations, the costs of these proposals from the anti-whaling nations would be of the same order of magnitude as the income derived from whaling (International Harpoon, 1995).

If the anti-whaling majority of the IWC so wished they could dictate an observer and control scheme and ignore the protests of the whaling nations, thus ensuring implementation of the RMS. However, this would remove any excuse for failing to allocate quotas for commercial whaling. Even if the conditions imposed were so strict that the whaling nations were in practice unable to use their quotas, the allocation of quotas in itself would arouse strong opposition in the Save-the-Whale movement, and would be in conflict with the position taken by the USA, the UK, New Zealand and Australia.

In their opening statement to the IWC meeting in 1995, New Zealand stated that they were "opposed to commercial whaling and the delegation will work to ensure that the moratorium on commercial whaling is maintained. Despite this we will continue to negotiate in good faith on the Revised Management Scheme". In other words, New Zealand promises to work "in good faith" to complete a scheme that, if implemented, would violate its "basic concern" by allowing whales to be killed.

To try to break this stalemate, an extraordinary meeting of IWC Commissioners was held in January 1997. The media and NGOs were not invited. The purpose was "to provide an opportunity for Commissioners to consider means to cut through the deadlock which exists on key issues" (Gambell, 1996). After the meeting, the IWC Secretary Ray Gambell said that it was held in a positive atmosphere. He believed that it might be possible to find a compromise that would permit commercial whaling in national waters but ban permanently any whaling in international waters. This was immediately refuted by the UK, which prefers that "the IWC becomes a purely protectionist organisation" (NTB, 1997).

5.5.5 THE CHAIRMAN OF THE IWC SCIENTIFIC COMMITTEE RESIGNS IN PROTEST
The Chairman of the IWC Scientific Committee, Dr Philip Hammond of the UK, resigned in protest in 1993. "What is the point of having a Scientific Committee if its unanimous recommendations ... are treated with such contempt," he asks in his letter of resignation. In conclusion he stated, "I can no longer justify to myself being the organiser of and spokesman for a Committee whose work is held in such disregard by the body to which it is responsible. Nor can I justify asking other members of the Committee to spend their valuable time working hard ... knowing how the results of this work may be treated. [...] I am left with no alternative, therefore, but to resign as Chairman of the Scientific Committee" (Hammond, 1993).

5.6 THE LEGALITY OF IWC DECISIONS
The IWC decided to establish a Sanctuary in the Southern Ocean in 1994. A sanctuary is an area where whaling is prohibited even in the unlikely event that the IWC repeals its general whaling ban. The description of the sanctuary in the IWC Schedule states that all whaling is to be prohibited "irrespective of the conservation status of ... whale stocks". The IWC made its decision before the Scientific Committee had an opportunity to comment on the proposal.

"This sanctuary was first proposed by Greenpeace a few years ago. It was formally proposed to the IWC by the French Government, at Greenpeace’s request," wrote the director of Greenpeace UK, Peter Melchett, to his members in June 1994. A former French Environment Minister confirmed the role of Greenpeace in the TV programme "Greenpeace, les Commandes de l’Ecologie", broadcasted by the TV station France 2 in September 1995, "Greenpeace and France had a deal to save the whales. The scientific arguments of France were partly written by Greenpeace. Then we presented it at the IWC." Before and after this, France has shown minimal interest in whales. Some observers claim that "the French proposal" was a form of restitution for the sinking of the Rainbow Warrior.

Japan claims that the decision to establish the Southern Ocean Sanctuary contravenes the Whaling Convention (pursuant to which the IWC was established) and is therefore contrary to international law. However, there is no dispute settlement body associated with the IWC which can deal with this type of conflict. Japan has tried to persuade the IWC to have the legality of the decision tried by an appropriate international institution (IWC/47/45). This could for example be the International Tribunal for Law of the Sea in Hamburg in Hamburg. A majority of IWC members rejected this proposal.

A number of experts on the Law of the Sea have argued vigorously that the decision to establish the sanctuary was in contravention of the Whaling Convention: "It seems to me very clear that the designation of the Southern Sanctuary by the IWC is not in conformance with Article V of the Convention" (Johnston, 1996).

A leading expert on the Law of the Sea, William Burke, is of the opinion that the decision on the sanctuary was not an isolated example, but that the Whaling Convention "is routinely violated by the majority of IWC members..." (Burke, 1997).

His view is supported by Johnston, who believes that violating the Convention is "a consistent pattern on the part of the majority of the Commission, reflected in their dismissive attitude to the work of the Scientific Committee, to convert the Convention into a coercive instrument for the indefinite suspension or termination of virtually all commercial whaling around the world, even in national as well as international waters" (Johnston, 1996).

The Secretary of the IWC, Ray Gambell, also considers that the absolute opposition of IWC members to commercial whaling "sits very strangely" with the Convention. "Here we have a fisheries convention which is being used not for regulating a fishery but for preventing a fishery" (Gambell, 1996b).

But does it matter if the IWC fails to comply with the provisions of its Convention? Only a few nations are affected, and whalers are not an abundant species.

"At its worst the moral of the IWC’s history could be this: will any nation that signs a global environmental or resource convention find itself ensnared in a regime that appears to discard its original premises and to pay little heed to its own scientific advisors? This would not be a good lesson", as Christopher D. Stone, Professor of Law at the University of Southern California, points out (Stone, 1996).

"I believe it would be wrong, and in the nature of cultural imperialism, for Ireland to attempt to impose our cultural values on those nations whose populations have depended on the whale for generations", said Mr. Higgins, Ireland’s Minister for Arts, Culture and the Gaeltacht, during the IWC meeting in Dublin in 1995.

6. THE PRINCIPLE OF SUSTAINABILITY AS A BASIS FOR INTERNATIONAL ENVIRONMENTAL AGREEMENTS

The acknowledgement that international cooperation is a necessary condition for solving the world’s environmental problems is at the core of the many environmental agreements that have been signed on the international arena in recent decades. The basis for these agreements is conservation and the principle of sustainability.

In 'Caring for the Earth, a strategy for sustainable living', conservation is understood to be "the management of human use of organisms or ecosystems to ensure such use is sustainable," and sustainable use means using "renewable resources...at rates within their capacity for renewal" (IUCN, UNEP and WWF, 1991).

The 1992 UN Conference on Environment and Development (UNCED) in Rio, adopted as a general principle the optimal sustainable use of the renewable marine resources: "States ... commit themselves to the conservation and sustainable use of marine living resources on the high seas" (Agenda 21, chapter 17).

It has been claimed that UNCED in Rio passed a resolution declaring that whales and other marine mammals were to be exempt from the principle of sustainable use. This is not correct. The fact is that as far as marine mammals are concerned, UNCED allows each individual country exemption from the principle of optimal utilisation of all marine resources. The reason for this exemption is consideration for those countries which, for cultural reasons, do not permit the use of marine mammals.

It has also been claimed that the Rio Conference established that the IWC is recognised as the global authority on the regulation of whaling. This is not correct either. The fact is that UNCED recognises "the responsibility of the International Whaling Commission for the conservation and management of whale stocks and the regulation of whaling pursuant to the 1946 International Convention for the Regulation of Whaling"(our emphasis). As we know, this convention is based on conservation and sustainable use.

The United Nations Convention on the Law of the Sea (UNCLOS) has also adopted optimal sustainable use of renewable marine resources as a general principle. This also applies to marine mammals, but, as is the case with UNCED, UNCLOS also gives individual countries the opportunity to "regulate the exploitation of marine mammals more strictly" (Article 120).

Article 65 of UNCLOS requires states to "...work through the appropriate international organizations for the conservation, management and study of cetaceans". "The UNCLOS text does not specify which international body - or even if there is to be only one body - is the appropriate organisation through which coastal states are to cooperate with respect to the management and conservation of the whale resources," comments the IWC Secretary Ray Gambell (1993a). Given the existing practice in the IWC - contrasted with the definition of conservation as quoted above - it is also highly relevant to ask whether the IWC can be said to be an "appropriate" organisation in this respect.

Therefore it is not surprising that whaling nations in the North Atlantic have established the North Atlantic Marine Mammal Commission, NAMMCO, as a regional international management organisation, which covers all marine mammals in the region. Since the IWC refuses to provide management advice on large whales according to its Convention, these countries can work through NAMMCO to fulfil their obligations to UNCLOS.

7. CITES AND THE WHALES - CONCLUSION

"Renewable resources are the basis of all economies: People cannot live without them. They include soil; water; products we harvest from the wild such as timber, nuts, medicinal plants, fish, and the meat and skins from wild animals, domesticated species..." (WWF, IUCN and UNEP, 1991).

The WWF/IUCN/UNEP publication "Caring for the Earth" states the obvious. People cannot live without using renewable resources. Marine living resources are important for the world food supply and for the economies and cultures of countless coastal communities.

For the sake of future - as well as present - generations, the international community supports the principle of sustainable use in the management of renewable resources.

It should also be obvious that, as a renewable marine resource, marine mammals, including whales, are embraced by the sustainable use principle. This is not, however, obvious to everyone. New Zealand tried to propose a motion that Agenda 21 should include a ban on the commercial use of whales. The proposal hinted that the ban should also include seals. The justification for the proposal stated that "whale stocks cannot be compared with, say, fisheries resources" and that the whales are "in a sense the equivalent in the marine environment of human beings in the land environment". The proposal concluded that one should approach the whales "as fellow denizens of planet Earth, with perhaps much to teach us, rather as potential steaks or pet food" (Stewart, 1991).

Victor Scheffer, the former head of the US Marine Mammal Commission, a government body established to follow up the US Marine Mammal Protection Act, voices the same opinion: "Whales are different. (...) They deserve to be saved, not as potential meat balls, but as a source of encouragement to mankind" (Lones, 1989).

New Zealand's proposal received no support and never reached Rio. It was rejected in the preparatory process.

"It has also been argued that whales and other cetaceans should not be hunted at all because of their uniqueness. However, all things in nature are unique, it seems difficult to argue that one species is more unique than another and should therefore receive special treatment", states the 1993 Council of Europe Parliamentary Assembly Report on Marine Mammals (1993).

Then there are those people who claim that we should be particularly careful in allowing whaling in the light of the tragic history of whaling. Yet civilisation's negative influence on wildlife is in fact more noticeable in the case of terrestrial mammals than it is for marine mammals. The most immediate threat to wildlife at present is habitat destruction. No whale species has been made extinct by man, while a large number of species of terrestrial mammals have been eradicated. The precautionary requirements should be the same for all wildlife, whether it is terrestrial or marine.

For some of the NGO's present at the CITES meeting, banning commercial whaling is only one step on the way to a general ban on all commercial use of wildlife. "Sustainable use is a bankrupt philosophy that capitalises on brutality and death. What the world needs for the new millennium is not a philosophy of death but rather a philosophy of life - that glorifies and preserves the lives of all", states president of the US Humane Society, Paul Irvine (HSUS, 1994). Other Western NGO's are not concerned with "the lives of all", rather they are primarily interested in preserving species of the "charismatic mega-fauna" category.

It is naive to think that those forces that are against all commercial use of wildlife - or who wish to preserve charismatic species - will stop at whales. What is important for them in the first instance is to undermine the principle of sustainable use. Once one species is exempted from the principle, it will be impossible to set any limits. Why not elephants, too, or seals, and why not fur-bearing animals?

Countries like the US, Australia and the UK are trying to play the field. Through the IWC, they are attempting to ban all commercial use of whales. Yet the UK exports meat from deer living in the wild for far greater sums than the total value of Norwegian minke whaling. The United States is threatening to take the EU to the WTO court over the EU ban on fur imports. Australia is furious about the US import ban on kangaroo products.

The only way forward is to adhere to "the globally agreed principle of sustainable use" and to resist the attempts of some Western countries to undermine this principle. Their efforts to introduce global bans on the use of species that are particularly popular within their culture is nothing less than an extension of their tradition of cultural imperialism. These efforts are often supported with threats of economic sanctions.

The judgement of whether the use of a wildlife resource is sustainable or not has to be based on scientific criteria and scientific data. The objective of the new CITES criteria for amendments of the Appendices was to "inject more science into the decision-making process and to make it consistent with modern conservation" (Topkov, 1994).

In addition, the concluding statement of the EU at the last CITES meeting stressed the importance of basing CITES' follow-up of the "globally agreed sustainable use principle" on "scientific evidence and objective data": "[We] have noted with satisfaction the consensus ... to extend practical support to the globally agreed principle of sustainable use of the world's natural resources, based on scientific evidence and objective data" (EU, 1994).

If CITES chooses to apply this objective approach to whales too, there is no doubt that the minke whale stocks in the North Atlantic should be downlisted. Extensive measures to control the whaling are already in place and stock development is monitored on a regular basis. Strict control of international trade will also be implemented when it is permitted. International trade in products from these stocks will not bring the minke whale, Balaneoptera acutorostrata, or any other species of whale to the brink of extinction.

"It is not that a majority of IWC members are necessarily in favour of commercial whaling: clearly they are not", stated New Zealand in its UNCED proposal (Stewart, 1991).

It is not at all clear that CITES members agree with the IWC majority. CITES has four times as many members as the IWC. CITES does not have the same narrow focus as the IWC. On its agenda are not only whales, but all species of the world’s wild flora and fauna. It is therefore more likely that CITES will think and act in terms of ecological principles. And one can only hope that CITES - unlike the IWC - will adhere to the objective of its own Convention, as expressed by the CITES General Secretary I. Topkov (1994a):

"... the objective of the (CITES) convention, clear for anyone to see, is not to stop the exploitation of wildlife, but to ensure it is limited to avoid harm to wild populations. This may not be protectionism, but it is conservation."


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