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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Compliance Mechanism: International Whaling Commission

Malgosia Fitzmaurice-Lachs

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 30 March 2020

Subject(s):
Endangered species — Marine living resources — International courts and tribunals, procedure — Compliance with international decisions — Fact-finding and inquiry

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction to Whaling

There is no other object in international law which raises as many emotions and conflicting views as the whale. The whale is both an object of love and a utilitarian object treated as any other animal to fulfil the needs of human beings. The international legal regulation of the whale also demonstrates these conflicting aims. The 1946 International Convention for the Regulation of Whaling (‘ICRW’ or ‘Convention’) has the binary object and purpose—ie the conservation and management of whale stocks—on the one hand, and the orderly development of the whaling industry on the other, which has resulted in intervening years in disputes between State Parties to the Convention as to which is its dominant objective.

The approaches to whales are also very different, and they are treated as an object of consumption, the super animal, the object of religious beliefs, and as a totemic object. The Convention has currently 87 State Parties, out of which only a handful are engaged in any type of whaling; this also aggravates the cooperation between members of the Commission and is a cause of mutual mistrust and the lack of understanding (the original signatories were as follows: Argentina, Australia, Canada, Chile, Denmark, France, the Netherlands, New Zealand, Norway, Peru, South Africa, the Soviet Union, the United Kingdom, and the United States). It may be added that the development of international environmental law in general has also influenced the approaches to the whaling industry.

This article will be devoted to the non-compliance system under the ICRW (or rather reasons why it has not been established). The International Whaling Commission (‘IWC’ or ‘Commission’) is the body set out under the ICRW, consisting of commissioners (one from each Party to the Convention). The tasks of the Commission are as follows: setting catch limits by species and area (at present zero quotas due to the moratorium on commercial whaling [‘Moratorium’]), designating specified areas as whale sanctuaries, and restrictions on hunting methods. The IWC also, inter alia, sets out Conservation Management Plans for key species and population, regulates whale watching, undertakes study and research on cetacean populations, and develops and maintains scientific databases. There are various reasons why a non-compliance mechanism has not been set up under the ICRW (see below) including technical, legal, and political reasons, leading to an impasse in cooperation between State Parties to the Convention. In general, it may be said that the IWC is a rather dysfunctional body in which out of 87 Member States only a few have an interest in any form of whaling.

B.  History of Whaling

Whaling belongs to one of the most contentious issues of international law and ethics to which at present there is no a solution (Fitzmaurice 2015). The whale is seen as an object of consumption and at the same time as an object with an emerging right to life (Amato and Chopra, 1991, 21). As an object of consumption, the whale has been hunted for centuries for its oil, bones, and meat.

The history of whaling appears to have begun thousands of years ago, possibly 2200 BCE (on the modern history of whaling see Tønnessen and Johnsen, 1982; Fitzmaurice, 2015, 3–29; Dorsey, 2014). It is believed that the first organized hunt was conducted by the Basques in 700 CE, followed by the Flemish and the Normans, and then the British and the Dutch, who surpassed the whaling activities of the Basques. Spain, Norway, and France started whale hunting in the ninth century CE. The British, the Dutch, and the Germans expanded their whaling activities to the North Atlantic. Japan and Russia are considered to have started coastal whaling in the twelfth century, and the US in the sixteenth century. The early period of whaling was characterized by whaling from land stations as the main method, with the use of hand-thrown harpoons and nets from rowing boats. After that, the captured whales were processed in coastal waters.

Subsequent to the depletion of coastal whale resources, the period of pelagic—that is to say, open ocean—whaling began. Pelagic whaling also resulted in the expansion of whaling techniques, Russia establishing stations in Korea, and land stations opening in many other littoral States such as Australia and Canada (Tønnessen and Johnsen, 1982, 5). With the development of new technology, land stations lost their importance. Whales were processed entirely on-board factory ships, which resulted in States expanding their operations beyond territorial waters. New technology also contributed to the increase of caught whales. These included shell harpoons with an explosive head detonating inside the whale, which shortened the time of dying for a whale, and sonar devices and helicopter tracking (Tønnessen and Johnsen, 1982, 18). Unlimited and unregulated whaling commenced in 1883 and lasted for 21 years that ‘proved more than stocks of whales could stand’ (Tønnessen and Johnsen, 1982, 35). Until 1883, there is no reliable data on the number and type of species caught. Tønnessen and Johnsen are of the view that, despite the lack of data, it is without doubt that all species of whales were caught (1982, at 35).

Antarctic pelagic whaling quadrupled in the course of three successive periods between the years 1927–31. However, over-production and over-expansion coincided with the world economic crisis and a decrease in the price of all raw materials, which resulted in the collapse of the whaling industry (Fitzmaurice, 2015, 7). Overexploitation of whales during the period between the two World Wars led to the conclusion of two international conventions on the protection of whales: the 1931 International Convention on the Regulation of Whaling (‘1931 Convention’), and the 1937 International Agreement for the Regulation of Whaling (‘Agreement’). The 1931 Convention and the 1937 Agreement did not prove to be particularly effective (Leonard, 1941, 92), but they did provide a legal framework for the future regulation of whaling, which although not perfect, continues at present and is regulated by the 1946 ICRW.

C.  Contemporary Regulation of Whaling in International Law: A Brief Overview

The ICRW consists of the Convention itself, as well as a Schedule that is an integral part of the Convention text. The Convention sets out the general regulatory scheme for the management of whale stocks. The Schedule, according to Article V (1) ICRW, introduces standards to be followed regarding ‘conservation and utilization’ of whale species. It deals with the specific issues relating to conservation, such as: open and closed seasons; whaling methods; size limits for each whale; and inspection of whaling ships. Article III (2) ICRW sets out the procedure for the amendment of the Schedule, which must be effected by a three-quarters majority of voting members. There have been several subsequent amendments to the Schedule, including the imposition of the Moratorium, and the establishment of the Indian Ocean Sanctuary and the Southern Ocean Sanctuary. The first of these, the Indian Ocean Sanctuary, was established in 1979 and covers the whole of the Indian Ocean south to 55°S. The second was adopted in 1994 and covers the waters of the Southern Ocean around Antarctica. An additional proposal for a sanctuary in the South Atlantic Ocean has been repeatedly submitted to the Commission in recent years but was not approved. The sustainable use of resources is one of the elements of sustainable development concept, which consists of three elements: environmental, economic, and social. Sustainable development law is both an emerging body of legal principles and instruments, as well as an ‘interstitial norm[,] a concept that serves to reconcile conflicting environmental, social and economic development norms in international law, in the interest of present and future generations’ (see in general on the concept of sustainable development Cordonier Segger and Khalfan, 2004, 366). Sustainable use of living natural resources was a subject considered by the International Court of Justice (ICJ) in the Whaling in the Antarctic case in 2014 (see Whaling in the Antarctic, Australia and New Zealand (Intervening) v Japan, Judgment, 2014; Fitzmaurice and Tamada, 2016). Japan argued that the sentence from the Preamble of the ICRW ‘the orderly development of the whaling industry’ was the key and final aim of the Convention (Whaling in the Antarctic, Australia and New Zealand (Intervening) v Japan, Japan’s Counter Memorial, 2012, para 6.12). Thus, the Convention’s objective was the sustainable use of whales (Whaling in the Antarctic, Japan’s Counter Memorial, 2012, paras 6.14–6.30). The ICJ stated that the Convention ‘pursues the purpose of ensuring the conservation of all species of whales while allowing for the sustainable exploitation’ (Whaling in the Antarctic, Judgment, 2014, para 56).

The ICRW does not actually include a generic definition of a ‘whale’. Instead, it lists species under its protection in the Schedule to the Convention. The Schedule only lists so-called great whales. Such totemic whales as the narwhal whale are probably outside the remit of the ICRW, as a medium-sized whale. However, in order to preserve such objects of beauty as the narwhal, many States claim that the IWC has a remit to deal with all whales (Fitzmaurice, 2015, 50–54; 276–306). In practice, the Convention’s object of regulation remains vague and difficult to determine.

10  The whaling regime under the Convention provides for three types of whaling: commercial (at present zero) ‘quotas’; aboriginal (indigenous whaling); and scientific whaling. The Preamble to the ICRW includes amongst its aims ‘the proper conservation of whale stocks and … the orderly development of the whaling industry’. Thus it preserves the historical binary objectives of conserving whale stocks and preserving the industry. However, even in terms of this fairly contained objective, the IWC has never really successfully ‘delivered’. Stocks, especially in the past, were inadequately monitored, and depletion has continued (Fitzmaurice, 2015, 66). As a result—but, against the backdrop of a very much changed membership and a fundamentally different concept as to what the purpose of control should be— in 1982 the IWC introduced a complete ban on commercial whaling, known generally as the Moratorium or ‘zero quotas’, which came into effect in the season 1985–1986. The Moratorium was intended, however, only to be temporary. It was anticipated that stocks would recover and that, in due course, safe and sustainable levels of stocks of at least some species would have recovered sufficiently to allow a resumption of whaling. However, all attempts at finding an acceptable basis for a properly controlled resumption of whaling have so far failed, and the Moratorium is still in effect (Fitzmaurice, 2015, 66–171).

11  Conflicting attitudes to the Moratorium exemplify the meaning of a ‘whale’ for different societies. They show the vast and impossible-to-cross dividing line between two diametrically opposed camps: conservationist (conservation of whales for ultimate exploitation) and preservationist (the whale as a beautiful object which should not be exploited) (Heazle, 2006, 170). The vague and indecisive wording of the Convention clearly indicates that most of the issues in relation to the ICRW are contentious, starting with its binary object and purpose: the conservation and management of whale stocks in order to provide for the ‘orderly development of the whaling industry’, and recognition that whales are a ‘general trust’ to be safeguarded for ‘future generations’. Norway and Iceland have opted out of the Moratorium on whaling and are conducting legal commercial whaling operations. Scientific whaling is based on Article VIII ICRW and outside the regulatory scope of the IWC. The permits for scientific whaling are issued by national authorities (Art VIII ICRW).

12  Nonetheless, substantial levels of whaling continue, on the alleged basis of other provisions of the ICRW, and to a considerable extent outside the direct purview of the IWC (Fitzmaurice, 2015, 261–64). While there are also other points of contention—including the validity of sanctuaries introduced or proposed by the IWC, and of IWC terms such as ‘aboriginal whaling’—above all it is ‘scientific whaling’ and the issue of a resumption of commercial whaling that underlies the current state of conflict (Fitzmaurice, 2015, 261–64). The IWC is riddled with irreconcilable problems and has become a divisive body. There are still a few States which passionately uphold what they see as an almost inalienable right to continue commercial whaling, and there has thus developed a fundamental difference of attitude among the Member States of the ICRW towards whaling and, indeed, towards the very underlying objectives of the Convention and Commission. For this limited number of remaining ‘whaling nations’, whaling—albeit these days conducted in a properly controlled and sustainable manner—remains a legitimate activity along with other sustainable forms of exploitation of marine resources. However, for the largely non-whaling nations, vociferously backed by the powerful lobby of environmental and preservationist non-governmental organizations (‘NGOs’) (Fitzmaurice, 2015, 273)—as well as by widespread general public opinion—whaling in any form is seen as an unnecessary and, indeed, immoral activity which should, at least as an eventual objective, be permanently banned.

13  Underlying the protectionist stance are theories that accord inherent value, even rights, to the whale. There are numerous theories relating to the place of animals in our universe and the relationship between animals and humans (see eg Hegel’s Philosophy of Nature, Encyclopedia of the Philosophical Sciences, 2004; Amato and Chopra, 1991, 21; Levi-Strauss, 1968; Bowman, 2010, 62–63; Kant, 1997; Descartes, 1991; Bentham, 1988, 310–11). The direct anthropocentric approaches that characterized early environmental treaties were replaced by approaches that recognize an intrinsic value of the environment and the F010, 62–63). The animal rights debate has undergone a significant change since the advent of recent modern international law, and there are now a range of controversial but important rights-based theories which also underpin the idea of the protectionist stance (Singer, 2001; Nash, 1989).

14  One of the factors that has been suggested as detrimental to the effectiveness of the ICRW is its advanced age. The Convention was negotiated and structured almost 70 years ago and its main provisions were based on two pre-war treaties from 1931 and 1937. The basic structure of the Convention reflects the approaches to environmental matters of the period when it was negotiated; as such, it was not based on principles that characterize contemporary environmental protection, which is based on the holistic ecosystem approach, characterized by approaching the protection of an area as a whole, ie using a strategy for the integrated management of land, water, and living resources. The objective of the holistic ecosystem approach is to achieve conservation and sustainable use in an equitable way. One of the major weaknesses of the ICRW is its very rudimentary international enforcement mechanism. The main responsibility for the enforcement of the provisions of the Convention remains with the Parties to the Convention. According to Article IX (1), a State Party to the ICRW is in charge of its enforcement in respect to actions of ‘persons under its jurisdiction’ as for the prosecution of its violations. Another weakness of the Convention is the system of opting out (or tacit acceptance) procedure, which allows the Parties to the ICRW to log objections to the decisions of the IWC (such as in the case of the Moratorium on commercial whaling, by Norway), and thus weakens the regulatory powers of the IWC. Japan has a current objection to the Moratorium on killing minke whales, and to the Southern Ocean Sanctuary to the extent applicable to minke whales (Payne, 2015, 184). This system of objections (tacit acceptance) procedure, is a well-known and widely adopted procedure in many multilateral agreements. Almost all agreements adopted under the auspices of the International Maritime Organization (IMO) are based on this procedure. On one hand, such a mechanism naturally weakens the operation of a treaty by allowing certain States Parties to choose not be bound by amendments to agreements, resulting in only some State Parties being bound by the original text of the agreement, thus creating a multi-layered set of obligations within one treaty regime. On the other hand, such a procedure is an invaluable tool for an accelerated amendment procedure.

15  The IWC now has to attempt to operate as a forum within which irreconcilable conflicts of interest are resolved. The aspirations of the whaling nations, as they stand at present, simply cannot be met without some level, however contained, of resumption of commercial whaling. On the other hand, the aspirations of the preservationists, now a majority within the IWC, cannot be entirely fulfilled unless the possibility of any resumption of commercial whaling is abandoned. Therefore, the most important and daunting question is whether the ICRW is still a relevant international instrument, or whether it should be revised (or even abandoned as an obsolete treaty) given that it is falling short of meeting the current set of needs of the Parties to it. The lack of common understanding, and the acrimonious atmosphere between the members of the IWC, has had a paralysing effect on the functioning of the Commission and has led to international litigation.

16  One of the most incendiary questions under the ICRW concerns Japanese scientific whaling, which led to the Whaling in the Antarctic case in 2014 (Fitzmaurice and Tamada 2016).

17  Both Australia and New Zealand alleged that Japanese scientific whaling (under a programme called ‘JARPA II’) was in fact not ‘in purpose of scientific whaling’. The Court agreed and ordered Japan to withdraw all pending scientific permits. The Court’s judgment only applied to this particular scientific whaling by Japan, but will not affect any future whaling. In its judgment, the ICJ reiterated its view that JARPA II appeared to involve activities that could broadly be characterized as part of scientific research, but that the evidence was insufficient to establish that the programme’s design and implementation were reasonable in relation to achieving its stated objectives. The ICJ concluded that the special permits granted by Japan for the killing, taking, and treating of whales in connection with JARPA II had not been ‘for purposes of scientific research’ (pursuant to Art VIII (1) ICRW). The ICJ was of the view that Japan had met the requirements of paragraph 30 of the Schedule to the ICRW with regard to its JARPA II programme.

18  The Whaling in the Antarctic case is very important from the point of view of the role of experts in this case (Mangel, 2016; Mbengue, 2016; Mbengue, 2015; Scovazzi, 2015). This case gave rise to the general discussion relating to the rationale of the Court-appointed experts according to Article 50 Statute of the International Court of Justice (‘ICJ Statute’) (Peat, 2014). The discussion concerning experts before the ICJ began with the Pulp Mills on the River Uruguay case, where the role of party-appointed experts (Art 63 Rules of the ICJ) was subject to very critical comments by Judges Al-Khasawneh and Simma (Pulp Mills on the River Uruguay, 2010, paras 3 and 17).

19  The procedural questions were raised in the matter of the jurisdiction of the ICJ in the Whaling in the Antarctic case. The case was brought by Australia on the basis of the optional clause system (Art 36 (2) ICJ Statute). Japan challenged the jurisdiction of the ICJ on the basis of the optional clause of Australia, which exempted from the Court’s jurisdiction ‘disputes concerning or relating to the delimitation of maritime zones, including territorial sea the exclusive economic zone and continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation’. Japan maintained that it was a dispute ‘arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation’ (Whaling in the Antarctic, Judgment, 2014, para 32). Japan argued, inter alia, that the maritime areas listed in the Declaration of Australia were disputed since it did not recognize Australia’s claims and considered the areas in question to be part of the high seas (Whaling in the Antarctic, Judgment, 2014, para 33). The Court rejected the arguments of Japan and stated that ‘the task of delimitation consists in resolving the overlapping claims by drawing a line of separation between the maritime areas concerned’ (Whaling in the Antarctic, Judgment, 2014, para 39). Furthermore, it may be said that this case is the practical application of the obligations erga omnes partes (Art 48 Draft Articles on State Responsibility for Internationally Wrongful Acts; Obligations erga omnes), as Australia by bringing this case protected the interests of the community (for relevant cases see eg Barcelona Traction Light and Power Company Ltd, Belgium v Spain, 1970, para 33; Questions relating to the Obligation to Prosecute or Extradite, Belgium v Senegal, 2012, para 104; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, 2011, para 180).

D.  The International Whaling Commission and Compliance

20  On the subject-matter of compliance in the IWC see Gillespie 2005, 357–85 and Birnie, 2006.

1.  Historical Overview

21  The 1937 Agreement provided for national observers on whaling ships, but in fact it did not work well. No provision was made in the ICRW for any form of international compliance or enforcement system, apart from Article IX, which provided for each Party individually to carry out enforcement for its own vessels actively whaling in order to meet the ICRW’s conservatory aims. Article IX obliges each Party to ‘take appropriate measures to ensure the application of the provisions of this Convention and the punishment of infractions against the said provisions in operations carried out by persons or by vessels under its jurisdiction’. Whale stocks continued to decline in the 1950s, despite Norwegian proposals as early as 1956 at the 8th meeting of the IWC establishing the International Observer Scheme (‘IOS’). Despite initial objections, the IOS became fully operational in 1971–72, and on a bilateral basis covered aboriginal whaling. The ICRW was amended in 1956 to extend the meaning of the ‘whale catcher’, and augment the scope of the ICRW’s Schedule amendment powers by adding the provision for ‘methods of inspection’. More detailed requirements for the exercise of an effective ‘supervision and control’ system were later elaborated in the ICRW’s Schedule, in the form of a scheme of the exchange of international observers on board whale catchers. The establishment of the IOS was also a result of the 1972 United Nations Conference on Human Environment in Stockholm (Birnie, 2006, 182–83).

2.  The International Whaling Commission’s Attempts to Introduce the Inspection and Observers’ System

22  After the imposition of the Moratorium on commercial whaling, the IOS lapsed and the last observers were appointed in 1986. Therefore, Norwegian commercial whaling was not monitored by observers from other countries (Gillespie, 2005, 357–59). Vessel identification was yet another method to ensure compliance, especially in relation to the identification of vessels from IWC non-Parties. The IWC adopted the practice of the collation of lists that were commonly held in registers and then circulated to Parties, in 1979 (the Secretary would draw up an annual register of whaling vessels of member countries), in order to facilitate the Parties to take appropriate action against the whaling operations of vessels flying flags of convenience. As of 1990, Japan had no longer provided register information due to the sinking of whaling boats by so-called (by Japan) ‘terrorist groups’. Norway and Iceland had ceased to provide the information as well, and only Denmark has continued listing its whaling vessels (Gillespie, 2005, 359–60). The IWC made several new attempts to introduce observers with the advent of the introduction of Revised Management Scheme (‘RMS’), which combined scientific and non-scientific elements (inspection and observation schemes). In 1994, the RMS Working Group of the IWC was established to work on:

  1. (1)  an effective inspection and observation scheme;

  2. (2)  arrangements to ensure that total catches over time are within the limits set under the RMS; and

  3. (3)  incorporation into the RMS of the specification of its predecessor (the Revised Management Procedure [‘RMP’]) and all other elements of the RMS.

Finally, in 2003 the Special Working Group on costs agreed that there were four main elements to the costs of the RMS: national inspectors; international observers; vessel monitoring systems; and catch verification.

23  Therefore, the RMS has as an objective to combine science and politics under a single chapeau. The RMS will not be put into operation before an inspection and observation scheme has been established. According to the IWC, this procedure is a robust method of setting safe limits for certain stocks where the numbers are plentiful. The inspection and observation scheme being considered by the IWC distinguishes two types of scrutiny of whaling vessels: national inspectors to be appointed and paid by the Parties to the ICRW having jurisdiction over the commercial whaling operations (who are inspected and receive instructions from their national authorities); and international observers who are selected from a list of suitable candidates. The list is established by the IWC’s Secretariat and is subject to a scrutiny procedure by the Parties to the Convention, which may veto any candidate. The placement of the observers (after consultations with a Party to the Convention) is decided by the Secretariat. The observers’ tasks were formulated as purely relating to the monitoring functions: whether the whaling operations adhere to the ICRW’s provisions, checking licences, equipment, and log books, and also whether information on whaling operations is kept. The objectives of this inspection and observation scheme were in particular: to ascertain that the rules of, and regulation of, the ICRW and the IWC are adhered to; and reporting of any infractions of these rules to the Parties to the Convention and the IWC. Progress has been slow. Regular discussion at the annual IWC meetings has been supplemented by working groups, such as two restricted Expert Drafting Groups (‘EDGs’) (Gillespie, 2005, 360–61).

24  At the 49th IWC meeting, in 1997, Michael Canny, Ireland’s Commissioner, made several proposals in order to break the deadlock of the IWC (the so-called ‘Irish Proposal’). The Irish Proposal was based on the premise that some of the whale stocks were recovering and some were in abundance. In the view of Ireland, it was still premature to resume commercial whaling but, in principle, there was a basis for reaching a compromise between the preservationist and the conservationist factions within the IWC. The Irish Proposal was based on the following premises: the RMS should be completed and adopted (with the observers and inspection scheme in place); and quotas under the RMS should be limited to the coastal areas of the States which are engaged in whaling operations at present. Such a solution would de facto create a whale sanctuary in the greater part of the world oceans. What is more, it would require the following: whale products should only be used for local consumption (no commercial trade in them would be permitted); the killing of whales for scientific purposes should not be permitted; and strict regulations for whale watching should be put in place in order to minimize the possible disturbance to whales. There were some reservations between the States concerning the Irish Proposal, but the general view was that it was a solid basis for discussion, which States conducted in the years that followed (Fitzmaurice, 2015, 83).

25  Despite disagreements as to compliance and monitoring mechanisms, States identified certain areas in which agreement was achieved. The EDG, at the 2002 Auckland meeting, agreed to the following Statement of Principle, subject to the square brackets:

  1. 1. 

    1. (a).  The purpose of this [section] [chapter] is to set out the basic requirements for a robust supervision and control scheme to ensure compliance with the provisions of the Convention.

    2. [(b).  No provision of this Chapter V is intended to, nor shall it be deemed or interpreted to be, a restriction on any legitimate trade in any whale product] (IWC, Report of the Revised Management Scheme Expert Drafting Group, IWC/54/RMS, 3).

The second area in which there was substantial agreement concerned a subsidiary body to be established to deal with any necessary technical specifications relating to the overall compliance regime and developing the non-controversial technical details necessary for the practical implementation of the regime within the RMS (Gillespie, 2005, 362–63). A third area where there was agreement was regarding the governing principles for the compliance scheme, such as that it should be robust, independent, transparent, and based on best practice; simple, practical, and cost-effective as possible, concomitant with meeting its objectives; and the nature of likely future operations (while noting that any scheme must be sufficiently generic to be able to incorporate new vessels, etc without modification) (Gillespie, 2005, 363). However, despite agreement on the fundamental objectives of the compliance scheme, the crucial aspects within the multiple sections—concerning the inspection and observation scheme and the data required to be taken by observers; the tracking of whale products; and the establishment of a Compliance Committee to oversee the entire process—were far from settled (Gillespie, 2005, 363).

3.  The Impasse

26  At the 2006 meeting, the Commission accepted that an impasse had been reached at the Commission level on RMS discussions. The impasse over the functioning of the IWC may be very generally summarized as concerning the following two main reasons: the scientific reason (the failure to adopt the RMS), including the lack of reliable data as to the size of various whale stocks (which was one of the factors preventing the adoption of an ‘informed’ decision on whether to continue with the Moratorium); and the political reason, relating to the lack of agreement regarding the appointment of inspectors and international observers. There were certain attempts to remedy the impasse within the IWC. Despite agreement on the overall objectives of the compliance scheme, the crucial aspects are far from settled. The IWC noted at the 2007 Commission Meeting that ‘an impasse had been reached’ (Fitzmaurice, 2015, 83–86).

27  The impasse relating to the establishment of the compliance mechanism within the IWC is directly connected to the lack of cooperation among the Members States of the IWC. As to inspection and observation, the disagreement related to: whether observers should be placed on all whaling vessels; whether it is necessary to report daily on whales hunted, struck, and killed; whether a Party may object to the appointment of an observer; what information observers should be required to record, specifically, should they be required to record information pertaining to animal welfare considerations; and what the selection procedure of the observers should be (Gillespie, 2005, 367). Further, there were unresolved questions concerning the utilization of DNA and Catch Documentation Schemes to help track and identify products that are legitimately on the market and thus to distinguish those products that are illegitimate (Gillespie, 2005, 368–69). Finally, there were irreconcilable issues relating to the structure, functions, and the membership of the Compliance Review Committee. It was argued by some States that there was no need for such a body, as the Infractions Committee was more than adequate to perform such functions and ‘that the [Compliance] Review Committee proposal only added an unnecessary increased level of bureaucracy’. Norway noted that such a new body could be a ‘kangaroo court’ leading to ‘unfair judgments’ (Gillespie, 2005, 374). The question causing disagreement was the role of NGOs in such a body: which should be admitted, and could they be allowed speaking rights? The final disagreement concerned costs as to who would pay for the compliance requirements: the IWC, or the whaling nations (Gillespie, 2005, 372–73).

E.  Concluding Remarks

28  The failure to establish a compliance mechanism in the IWC reflects the general contentious atmosphere within this body. The lack of harmonious cooperation between the Member States in the IWC has an impact on the functioning of all aspects of the IWC, including the compliance mechanism. The lack of cooperation relates to all of the areas of the functioning of the IWC: technical (the disagreement over RMP); the continuation of the Moratorium; scientific whaling; and indigenous whaling quotas.

29  The recent meetings of the IWC have confirmed the lack of a common ground for cooperation and the general lack of understanding. This has been a continuing feature of the IWC. States need to be able to cooperate efficiently and constructively in order to establish a compliance mechanism and to have it function successfully.

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