Whales

Question 1

Why have a regime just focused on whales?

Answer 1

• migratory nature of whales - span jurisdictions + exist on the high seas -> requires unique instrument
• threat from over-fishing - very direct, human-caused threat

Question 2

History of ICRW

Answer 2

• International Convention on the Regulation of Whaling
• essentially, issue of overfishing brought states together as early as 1902, but not much success until 1946, when ICRW established

Question 3

ICRW - Jurisdiction

Answer 3

• applies to all waters (taking control of regulation + management of whales)

Question 4

ICRW - Preamble Components

Answer 4

• First goal – conservation of whales, notion of safeguarding natural resources for future generations
• Second goal – Concern of overfishing – across many areas + different species of whales, need international cooperation to address the problem
• Third paragraph – recognition that regulating stocks could allow for management in a way that maintains the population
  ->Concept that capture may be allowed w/o endangering natural resources (implicit acceptance of continued use + consumption of whales)
  -Fourth paragraph – Nod to fact that some communities are relying on consumption of whale meat for nutrition -> concept that regulation needs to be careful so as not to have devastating impacts on human communities
  Next three paragraphs – Desire for system of international regulation + desire for conservation, but explicit goal of making possible the orderly development of the whaling industry

Question 5

ICRW - How can the preamble be understood?

Answer 5

• concept that there is conflict w/in it
• anti-whaling nations could argue for conservation (very first paragraph arguably expresses desire to conserve for future gens) + argue goal of whaling industry has been subsumed overtime into the broader purpose of conservation
• pro-whaling nations would argue that the sole purpose of the conservation was to allow the industry to flourish

Question 6

ICJ Perspective on the ICRW Preamble - Quotes

Answer 6

• Para. 56: “The preamble of the ICRW indicates that the Convention pursues the purpose of ensuring the conservation of all species of whales while allowing for their sustainable exploitation. …[The Court here refers to the various paragraphs contained in the Preamble.] Amendments to the Schedule and recommendations by the IWC may put an emphasis on one or the other objective pursued by the Convention, but cannot alter its object and purpose.”
• Para. 58: “Taking into account the preamble and other relevant provisions of the Convention referred to above, the Court observes that neither a restrictive nor an expansive interpretation of Article VIII is justified.”

Question 7

ICJ Perspective - Significance

Answer 7

• concluding can’t lean too heavily on one arg or the other - concept that both are embedded in there
• saying need to draw interpretation from the original treaty, not necessarily what may have followed in the development
• q in class though of whether treaty’s purpose should be able to shift over time

Question 8

ICRW - Article I

Answer 8

• Paragraph 1 refers to the “Schedule” + says all references to the Convention includes this -> concept of flexibility + change, incorporating a Schedule w/ various specifics that can the be amended over time
• Paragraph 2 - setting out the scope of the treaty, but framing it in terms of States’ jurisdiction over ships + “land stations” (although ultimately covers all waters)-> leaving it to states to actually do the regulating

Question 9

ICRW - Article III

Answer 9

• establishes the International Whaling Commission (IWC)
  -composition: one member from each gov, + each member gets one vote (though may be accompanied by experts + advisers)
• IWC decisions made by simple majority EXCEPT decisions under Article V require 3/4 majority (important cause Article V does the actual regulating)

Question 10

ICRW - Article IV

Answer 10

• IWC can organize studies re whales + whaling
• can collect + analyze statistical info re condition + trend of whale stocks + effects of whaling activities
• study, appraise, + disseminate info re methods of maintaining + increasing pops of whale stocks

Question 11

ICRW - Article V

Answer 11

• deals with amendments to the Schedule -> IWC can adopt “regulations with respect to the conservation and utilization of whale resources”
• V(1) sets out kinds of amendments
• V(2) sets out criteria for making amendments
• V(3) sets out what happens when amendments pass

Question 12

ICRW - Kinds of Amendments to the Schedule

Answer 12

Article V(1) - IWC can fix:
(a) protected and unprotected species;
(b) open and closed seasons;
(c) open and closed waters, including the designation of sanctuary areas;
(d) size limits for each species;
(e) time, methods, and intensity of whaling (including the maximum catch of whales to be taken in any one season);
(f) types and specifications of gear and apparatus and appliances which may be used;
(g) methods of measurement; and
(h) catch returns and other statistical and biological records.

Question 13

ICRW - Criteria for Schedule Amendments

Answer 13

Article V(2)
These amendments of the Schedule:
(a) shall be such as are necessary to carry out the objectives and purposes of this Convention and to provide for the conservation, development, and optimum utilization of the whale resources;
(b) shall be based on scientific findings;
(c) shall not involve restrictions on the number or nationality of factory ships or land stations, nor allocate specific quotas to any factory ship or land station or to any group of factory ships or land stations; and
(d) shall take into consideration the interests of the consumers of whale products and the whaling industry.

Question 14

ICRW - Article V(3)

Answer 14

• provides timeline during which Parties can object to amendments
• if you object to an amendment within the requisite timeframe, the amendment does not become effective for you

Question 15

ICRW - Article VIII

Answer 15

• Scientific Permits
• technically allows for an exception to the moratorium - “Notwithstanding anything contained in this Convention…” (definition of Convention includes the Schedule, which includes the moratorium) contracting govs can authorize permits to kill/take whales for purposes of scientific research
• operation of these permits is controlled by the individual states - they need to report the permits to IWC, but there’s no approval mechanism, they retain the ability to set parameters + revoke permits, whole authority re granting permits (no measure whatsoever for int community to weigh in on whether or not the permit should be granted + what the conditions of the permit are)

Question 16

ICRW - Developments from 1946 to 1982

Answer 16

• shift in membership -> leads to moratorium
• anti-whaling states try to pull in other states that either have never had a whaling industry or never really had a strong whaling industry, + also some states that may be landlocked
• 1982 - parties adopt moratorium on commercial whaling
  -> comes in response to concern that the treaty isn’t having any effect + we still have significant declines in whale numbers

Question 17

Moratorium - Iceland vs. Norway

Answer 17

• Norway – immediately uses the exception procedure, doesn’t agree to the amendment (Norway followed the appropriate procedure – no one has ever suggested that Norway’s objection isn’t valid under international law)
• Iceland – initially fails to enter a reservation, then withdraws from the treaty, then re-enters but claims the reservation when it comes back in

Question 18

ICRW - Who’s doing the regulating?

Answer 18

• general model is one of lots of deference to the states
• Article VIII - lots of authority over permits
• Article IX - states are responsible for punishing infractions
• notion was that int community needs to cooperate (problem crosses borders, high econ importance, nothing seems to have worked, etc.) but still giving a lot of deference to the states

Question 19

ICRW - Article XI

Answer 19

• provides for withdrawal

Question 20

ICJ, Whaling in the Antarctic Australia v. Japan - Facts

Answer 20

• 2014
• Japan had been using Article VIII to issue permits since 1987 (first under JARPA, then under JARPA II)
• Not all the species at issue are considered endangered by IUCN – minke and humpback are considered “least concern” (this is an IUCN status), fin whales are endangered

Question 21

ICJ, Whaling in the Antarctic Australia v. Japan - ANalysis

Answer 21

• initially affirms there is state sovereignty + discretion in this area, but Article VIII can’t leave things completely up to the state
• ICJ takes two-pronged approach - first looks at whether program involves scientific research, then objective review of whether the killing/taking of whales is “for purposes of” scientific research (looks at whether use of lethal methods, programme’s design, and implementation are reasonable in relation to states objectives)
• ICJ doesn’t get to say whether it would do things differently, is there a better way, etc. – just looking at whether the means are reasonable in relation to the stated scientific objectives -> comes to the conclusion the means are unreasonable
  -> Ex’s: Japan didn’t adequately explain its choice of sampling size (ex: JARPA II objectives very similar to JARPA I, but sample size much larger for JARPA II w/o real explanation of why; by Japan’s own calculations, sample size for humpbacks + fins too small to accomplish what they’re allegedly looking at, etc. see paragraph 225 on pg. 267)

Question 22

JARPA Case - Rationale Behind ICJ Approach

Answer 22

• allows court to look at a more narrow question, they can give a bit more deference to the state by looking at a particular aspect (vs. would be tricky + less deferential to examine whether the stated goals are scientific)
  -> Japan gets to set the objectives, but ICJ can evaluate how it’s meeting them
• Not saying blatantly violating the treaty (ICJ trying to avoid this q a bit)
• Not even trying suggests bad faith, vs. softer to say you need to do a bit better about aligning your objectives w/ your means (less critical of Japan, while still making sure there’s some oversight)

Question 23

JARPA Case - Outcome

Answer 23

• Japan says it will comply with Court’s decision + cease JARPA, but then announces new program + also contemplating whether to be part of IWC

Question 24

Revised Management Scheme

Answer 24

• essentially, this is what parties say IWC would need to adopt in order to resume whaling
• theoretically, would be a sophisticated monitoring system that would allow for some whaling instead of the blanket moratorium

To achieve a sustainable harvest, would theoretically need to include:
- Effective inspection + observation scheme which fully address issues of under-reporting + misreporting catches
- Further elaboration of guidelines for conducting vessel surveys + analyzing data w/in RMS
- Arrangements to ensure total catches are w/in limits set under RMS
- Incorporation into Schedule of the specification of the Revised Management Procedure and the other elements of the Revised Management Scheme

Question 25

RMS - Why so difficult to agree?

Answer 25

• pro-whaling nations argue it’s just a stalling tactic -> some truth to this, given number of states that are firmly anti-whaling
  -> NGOs, charismatic megafauna, tied to hierarchy of animal rights (intelligence, communication) -> a lot of pressure coming from civil society
• Monitoring + compliance mechanisms – pro-whaling nations don’t want monitoring, but monitoring would be vital in order for this system to work
• Cultural tensions – concern that certain countries may be imposing their own views of what are appropriate animals to consume/what is an appropriate industry
• science would theoretically promote consensus, but highly politicized + contentious debates on everything (the population numbers, the size of the industry, arguments re subsidies being given to whaling, q of whether whale meat is being stored in freezers b/c there’s not actually demand vs. actually being consumed, cultural norms)

Question 26

Overview of Status of Pro-Whaling Nations

Answer 26

• Iceland – withdrew, then came back in with the reservation (they were allowed to vote on whether or not they could have this reservation – Iceland’s vote tipped the balance on its own re-entry, issue was decided by one vote)
• Japan – whaling under scientific research, have made “noise” re whether
• Norway – still whaling, still taking Minke whales (resumed in 1993), no one has punished them + no one really calls them out for it

Question 27

NAAMCO

Answer 27

• Created by several pro-whaling nations – creating own population data for whales in the North Atlantic
• Norway, Iceland, Greenland + Faroe Islands
• Prof says there is some valuable research happening, although website also has a bunch of discussion of importance of whaling (it has a particular objective in mind, but in practice it is contributing important research)

Question 28

Why do pro-whaling countries stay in IWC?

Answer 28

• not really a reason for them to step away + lose their vote + lose opportunity to be part of the narrative b/c they’ve already figured out how to do what they want while remaining in (Norway + Iceland have both obtained reservations to the moratorium)

Question 29

Current Status of ICRW

Answer 29

• q of whether too broken to be fixed
• shift over time in goals of countries (Prof noted think through how shift compares to Montreal Protocol and Kigali Amendment)
  ->could argue important to have evolution based on the science – here, heavy politicization b/c countries not aligned on the goal
• blanket ban + perceived illegitimacy means you are somewhat more likely to have non-compliance
• possibility of unilateral action (sanctions) by anti-whaling states, but seems like don’t see much
• concern that whaling is now happening outside the regulation of the ICRW (might be better to adopt RMS so at least you’re regulating it)

Question 30

CITES vs. ICRW

Answer 30

• Prof noted there are countries who oppose CITES in its entirety + believe its entire scheme fuels illegal trade – she said these countries haven’t stepped away b/c it’s hard to go out on your own

Question 31

Whale Conservation and ICRW

Answer 31

• question as to whether ICRW is the best way to go about whale conservation, given there are many other threats to whales (climate change, entanglement in fishing gear, vessel strikes, lack of prey (due to changes in ocean + overfishing), also ocean noise
• possibly look at other regimes that may exist + be appropriate to pursue this objective
• possibility of starting exclusively whale conservation-focused regime, but difficult to get states to participate (how do you balance state sov w/ conservation)
• concern that drama + politics of IWC may be distracting from other threats to the whales

Question 32

High Seas Treaty

Answer 32

• new one being developed - intended to think more about biodiversity approach within the seas, connected to UN Law of the Sea

Threats to potentially address:
- ocean noise (ties to deep sea bed mining + nat sec)
- entanglement
- climate change
- general concept that there are more threats to whales than just over-whaling