No vote on the South Atlantic Whale Sanctuary at the International Whaling Commission
The establishment of a South Atlantic Whale Sanctuary (SAWS) was once again an agenda item for the International Whaling Commission (IWC) during its 68th meeting in Portoroz, Slovenia. This time, it was the governments of Argentina, Brazil and Uruguay aiming to amend the Schedule to the International Convention for the Regulation of Whaling (ICRW) accordingly. The Schedule constitutes the directly applicable part of the ICRW in which, at least in principle, the Commission sets quotas for the hunting of whales. Since 1982, however, Article 10(e) of the Schedule has contained a zero-catch-quota for all commercially hunted whales, putting in place the so-called ‘moratorium’ on commercial whaling.
The establishment of a SAWS, encompassing an area of approximately 21 million square kilometres, was first proposed in 1998 by the government of Brazil, but was rejected by the Commission. Even though the proposal, which since then has been supported by Argentina, Uruguay, South Africa and Gabon was tabled again on numerous occasions since then, the necessary 3/4 majority to amend the Schedule accordingly has never been reached. Especially countries favouring the principle of ‘sustainable use’, i.e. the (potential) lethal use of whales, have opposed the proposal.
On Thursday, 20 October 2022, the SAWS was to be voted upon in the plenary. A precondition for a vote is the quorum, the minimum number of members of the Commission, corresponding to 50%+1. The IWC comprises of 88 Member countries, meaning that a quorum would correspond to 45 Members in the room. All in all, 58 Members were present during the meeting, of which 17 opposed the proposal. In order for this issue not to go to a vote, the quorum was broken by not being present in the room when the agenda item was to be voted upon. This left 41 Member countries in the plenary room, making it impossible for the chair to move the issue to a vote since this constituted less than 50%+1 of the Members of the Commission.
The discussions that ensued challenged the decision of the chair. Two views on what constitutes a quorum prevailed: first, a quorum means being present at the meeting. This view was put forward and defended by the proponents and other particularly Latin American countries. Second, a quorum means being present in the room for a particular vote. This view was applied by the chair and considered correct by EU countries, the US and Australia. It furthermore corresponds to IWC practice from earlier situations of this kind.
Since no agreement on the question of the quorum could be found, it was decided to work inter sessionally on this matter and to make this the very first agenda item for the next IWC meeting in 2024.
Extent, objectives and legal elements of the SAWS
The proposed establishment of a SAWS is not unique in an IWC context. Already in 1979 the Indian Ocean Whale Sanctuary (put in place indefinitely in 1992) was established. In 1994 it was followed by the Southern Ocean Whale Sanctuary (reviewed and renewed every ten years). In these sanctuaries, together making up an area of approximately 115 million square kilometres, all commercial whaling is banned. While this has proved to be rather uncontroversial in the Indian Ocean, the Southern Ocean Whale Sanctuary saw scientific whaling by Japanese whalers since its establishment and until Japan left the IWC in 2019. This triggered a case before the International Court of Justice (ICJ) initiated by Australia (and New Zealand) (see Fitzmaurice & Tamada, 2016).
The proposed SAWS borders the Southern Ocean Whale Sanctuary in the South and the Indian Ocean Sanctuary in the East. Its northernmost border constitutes the Equator. In the West it follows the coastline of the South American continent while in the East it follows the western African coast up until the Equator.
Based on the proposal tabled at IWC67 in 2018, the SAWS’ primary aim is the promotion of biodiversity, conservation and non-lethal use of whales in the South Atlantic. In order to achieve this aim, the SAWS has the following objectives:
- To maintain or increase current whale stocks levels by mitigating identified threats to whale stocks, as well as to identify and quantify other potential threats;
- In conjunction with the Southern Ocean Sanctuary, promote the long-term conservation of large whales south of the Equator, embracing the entire range of numerous stocks (i.e. ecologically meaningful boundaries), including breeding and feeding grounds, and migratory routes;
- To stimulate coordinated non-lethal and non-extractive research in the region, especially by developing countries, and through international cooperation with the active participation of the IWC.
- To develop the sustainable, non-extractive and non-lethal economic use of whales for the benefit of coastal communities in the region (e.g. whale watching and educational activities).
- To integrate national research, management efforts and conservation strategies in a cooperative framework, maximizing the effectiveness of management actions, taking into full account the rights and responsibilities of coastal States under the UN Convention of the Law of the Sea (UNCLOS).
- To provide an overall framework for the development of localised measures, in order to maximise the conservation benefits at an ocean basin level.
Legally, the establishment of the SAWS follows Article V.1 (c) of the Convention, which allows the Commission to adopt regulations with respect to the conservation and utilisation of whales by establishing “open and closed waters, including the designation of sanctuary areas” by amending the Schedule accordingly. Article V.2, however, establishes that these Schedule amendments should be of such nature as to, first, carry out the objectives and purposes of the Convention; second, be based on scientific findings; third, should not include restrictions on the number of nationality of factory ships or land stations (which has become obsolete since the adoption of the moratorium); and, fourth, should take into account the interests of the whaling industry and of consumers of whale products. Also this latter part has become obsolete after the adoption of the moratorium.
Especially in the past, the first and second requirements have triggered heated discussions amongst IWC Members. Criticism involved the fact that it is not scientifically proven that the establishment of the SAWS would factually benefit the conservation status of whales, given the multifaceted threats (see below) whales face. Second, in light of the fundamental disagreements over the objective and purposes of the Convention, there can be no agreement on a sanctuary being in line these. Crucial in this regard is the last preambular paragraph of the Convention, which identifies the Convention to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.”
One the one hand, the interpretation of this paragraph therefore considers the Convention to protect whales only for the purposes of ensuring a sustainable whaling industry. This view is defended by countries favouring the (potential) lethal use of whales. On the other hand, a different interpretation of this paragraph considers conservation to stand at the centre of the purposes of the Convention, going in line with the ever-expanding mandate of the Commission. This view is shared by the majority of IWC Members, opposing the lethal use of whales. Given the divergences in interpretation of the raison d’être of the Convention, no consensus of whether the lethal use of whales is justified can be found (see Fitzmaurice, 2016). As a consequence, up until now, the 3/4 majority to establish the SAWS could be found since the number of countries in favour of the sustainable use of whales has increased sufficiently since the establishment of the other sanctuaries to effectively block any proposed Schedule amendments.
Threats to whales in the proposed SAWS area
The SAWS area is home to approximately 51 cetacean species, not all of which are under the ambit of the IWC. Most of the species that can be found are small cetaceans, such as orcas (Orcinus orca), false killer whales (Pseudorca crassidens) or long- finned pilot whales (Globicephala melas), the hunt of which is not managed by the IWC. Of the ‘great whales’ the IWC is concerned with, i.e. baleen whales and one toothed whale (sperm whale, Physeter macrocephalus), the majority can, at least sporadically, be found in the SAWS area.
One of the biggest threats to whales in the proposed sanctuary area relate to ongoing fisheries operations. Both small cetaceans and baleen whales, especially the southern right whale (Eubalaena australis) get entangled in gillnets, causing injury and not rarely death. Since bycatch is a problem for whales worldwide, the IWC has recognised this problem. The WWF considers bycatch the primary threat for whales in the world, causing the death of more than 300,000 whales per year (WWF, Undated). In 2016, at its 66th meeting, it finally established a Bycatch Mitigation Initiative, in collaboration with other organisations, in order to actively tackle this issue.
Ship strikes have been identified as constituting a second major threats in the proposed SAWS area. Also in this regard, it is another example for the danger of maritime traffic on the wellbeing of whales. In order to reduce the number of ship strikes, the proponents of the SAWS consider it necessary to better coordinate anti-ship strike initiatives in the sanctuary area. This constitutes a more regionalised initiative of actions taken by the IWC: In 2007, the IWC, established the Global Ship Strikes Database where information on the location and the type of collisions can be entered. In order to further deal with the problem, the IWC convened a workshop in 2017 along with the IUCN and the Agreement for the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS) in order to identify important marine mammal areas (IMMA) and to potentially adjust maritime traffic in these.
A third threat can be related to pollution from land-based sources. On the one hand, contamination occurs through run-off and sewage from human settlements. Given that large swaths of populations live along the coast of both Southern Africa and South America, the level of pollution affects whale propagation, feeding and migration in significant ways. Furthermore, marine mineral exploitation can introduce and release pollutants into the marine environment, affecting the conservation status of whales. Apart from these sources of pollution, also noise pollution from international shipping, localised seismic exploration activities and military operations affect whales.
Finally, the effects of climate change affect whales in a substantial manner, albeit, of course, not only in the proposed SAWS area. Habitat loss, prey availability and associated increased competition (may) cause changes in abundance, distribution, timing and range of migration, prey abundance and distribution, and reproductive success.
In light of these threats, the SAWS aims to strengthen collaboration between the range states, yet without superseding other national and international initiatives to tackle these threats. Even though whales are already protected in most national legislations in the South Atlantic, the proposed SAWS aims to better coordinated research and management of whales in the SAWS area, also with regard to regulation pertaining to whale watching. This is to say that whaling does not constitute a threat to whales in the SAWS area.
The discussion on the proposed SAWS
Supportive views of the proposal
Brazil’s Commissioner noted during the presentation of the proposal that the SAWS concerns merely “whaling and whaling alone with no impacts on fisheries activities.” This approach to the proposal was seconded by Argentina and Uruguay. The former stressed the importance of the non-lethal use whales for coastal communities and their important role as “fertilisers” for ocean ecosystems in order to maintain fisheries. They consequently urged the Commission Members to vote for the proposal.
Especially the Members who are also Members of the European Union (20 states), represented by Czech Republic, welcomed the proposal as being comprehensive and providing for a management plan to tackle all threats to whales in the region. In the EU’s view, the SAWS will also develop sustainable, non-extractive use of whales for the benefit of coastal communities. It will furthermore be supplemental to other international commitments relating to climate change and sustainable development.
Also Latin American states strongly supported the proposal as being in line with the precautionary approach, of being beneficial for coastal communities, for being beneficial for collaborative research, and for being beneficial for other biodiversity and climate change related commitments. This view was furthermore echoed by New Zealand, Australia, India and South Korea. All in all, 35 Members expressed their support for the proposal, including furthermore the UK and the United States.
Opposing views of the proposal
Seven states voiced their opposition towards the proposal: Antigua & Barbuda, Norway, St Lucia, Iceland, Benin, Guinea and Liberia. The main points referred to the existence of the moratorium which already prevents all commercial whaling for all Contracting Parties. A sanctuary which bans commercial whaling in light of the already existing moratorium constitutes a redundancy. It therefore would not provide any benefits for the conservation of whales.
A second crucial point, raised by St Lucia and mirrored by Benin, Guinea and Liberia, referred to the absence of many Parties due to lack of financial means and because of problems in the obtainment of visas. St Lucia therefore proposed to postpone the decision over the proposal to a later meeting when the other countries are present.
Opposing countries highlighted the importance of food security. This is especially relevant in light of a tabled draft resolution on food security by Ghana, Guinea, Gambia and Antigua & Barbuda and a proposal for the lifting of the moratorium by Antigua & Barbuda. Again it was St Lucia that opened the discussion in this regard since in their view the establishment of the sanctuary “makes poorer people poorer and less healthy.” Guinea added that the sanctuary that the proposal leads to “non-nutrition”.
Finally, Iceland noted that the proposed Schedule amendment does not meet the legal requirements of the Convention.
The way forward
Given that there was no vote on the proposal due to the lack of a quorum, the matter could not be resolved at IWC68. However, it appears very likely that another proposal to amend the Schedule to establish the SAWS will be tabled again in 2024. Whether the issue of the quorum will be resolved by then remains to be seen. The strong views by the Latin American countries on the issue of the quorum (on these views, please see the forthcoming issue of The Conservation & Livelihoods Digest) indicate that the IWC faces principal challenges that cause significant dissatisfaction amongst is Members. The lack of quorum and the boycott of the vote shows how seriously especially developing countries consider the matter.
In light of budgetary difficulties, the IWC’s way forward is facing heavy winds. Whether it will ever be able to navigate itself into still waters remains to be seen.
Fitzmaurice, M. (2016). The Whaling Convention and Thorny Issues of Interpretation. In: Fitzmaurice, M. & D. Tamada (Eds.). Whaling in the Antarctic. The Significance and the Implications of the ICJ Judgment, pp. 53-138. Leiden: Brill Nijhoff.
Fitzmaurice, M. & D. Tamada (Eds.) (2016). Whaling in the Antarctic. The Significance and the Implications of the ICJ Judgment. Leiden: Brill Nijhoff.
WWF. (Undated). Catching fish, not flukes and flippers: A global effort to reduce whale and dolphin bycatch. https://wwf.panda.org/discover/knowledge_hub/endangered_species/cetaceans/threats/bycatch/.