EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part I)

Part I of a two-part post opening the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

The article by Professor Jean d’Aspremont, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘, is directed to the decision of the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan; New Zealand intervening) but is, in a number of ways, an unexpected commentary on that decision. The author concentrates his attention on what would seem to be a rather minor aspect of the controversy between the parties, and leaves aside all other elements of the case. He then builds on that point, an analysis of the parties’ arguments, and of the Court’s conclusions on the point, which, one suspects, both the parties and the Court would have great difficulty in recognizing as their own. The result is that Professor d’Aspremont appears to be criticising a wholly suppositious thesis, a chimera of his own construction, rather than the judgment actually delivered.

This criticism centres around what in the title of the article is called a ‘blurring of the lines between sources and interpretation’. In fuller terms, the distinction is between, in the first place, the ‘doctrine of sources’, which is ‘what allows norms and standards to be formally anchored in a legal order and generate therein the highest form of legal effect – that is, bindingness’ (p.1028). Against this, Professor d’Aspremont identifies a ‘doctrine of interpretation’: ‘legal relations between subjects of an international order can also be affected by interpretative effects’, which result from ‘an act of interpretation that is constrained not by the doctrine of sources but rather a doctrine of interpretation’(ibid.). This formulation, apparently unobjectionable, subsequently proves, however, to generate unnecessary problems, to be examined below.

Professor d’Aspremont also criticises the Court (though this is a separate issue) for its handling of the question of interpretation of treaties and the scope of Article 12 of the Vienna Convention on the Law of Treaties; but it will be submitted that that criticism also misunderstands what the Court was doing, and what it had power to do.

The ‘main question’ in the case

The point which is in the article identified as ‘one of the main questions with which the ICJ was confronted’ in the Whaling in the Antarctic case is that of the ‘legal effects that could possibly be ascribed to the resolutions of the IWC’ (the International Whaling Council) (d’Aspremont, p. 1031). Closely linked with this is the question of the role of consent (specifically, that of the Respondent, Japan) in the legal relations to which the judgment is directed. 

The qualification of this issue as a ‘main question’ necessarily contains an element of subjective judgment: what to one eye looks ‘very like a whale’. to another may be no more than ‘backed like a weasel’ (Shakespeare, Hamlet, Act 3, Sc. 2); but this assessment nevertheless looks questionable against the background of the actual pleadings in the case, and the Court’s judgment; as does also the similar reference (p. 1039) to the linked question of the relevance of the consent of Japan, the subject, we are told of a ‘repeated’ finding of the Court. These questions were dealt with in the pleadings of the parties only as a very subsidiary matter; and they are handled in the Court’s judgment merely in two paragraphs (paras. 46, 83), out of 247. It seems, however, that it is on this limited reference to consent, in this very limited framework, that a main thesis of the article is built: that Japan in its argument, and the Court in its judgment, relied on, or made use of, something referred to as ‘sources doctrine’, contrasted with ‘interpretation’; and that this was inappropriate and therefore open to criticism.

The main target of the criticisms in the article is the International Court, but the errors it is suggested that it made were, it is contended, taken over from the arguments presented by Japan. It will be convenient to outline first what the issue was, and secondly what the Court decided in that respect.

The significance of resolutions of the IWC for the case was as follows. An issue – certainly a ‘main’ issue – was whether Japan’s program of whaling, known as JARPA II, allegedly for purposes of scientific research, was in accordance or in conflict with Japan’s obligations under the International Convention for the Regulation of Whaling, to which it was a party, as were Australia and New Zealand; and this depended on whether the program was genuinely ‘for purposes of scientific research’.  Much of the case was fought on technical aspects of whaling and its methods, but on the legal plane Australia invoked, inter alia, a number of resolutions of the International Whaling Council, from the years 1995, 1997, 1998, 1999, 2000, 2001, 2003 and 2007, which condemned Japan’s whaling activities, and rendered them, in Australia’s view, unlawful under the regime of the Convention (Memorial of Australia, para. 4.79). Australia’s specific submission (Submission 3) in this respect was that ‘JARPA II is not a program for purposes of scientific research within the meaning of Article VIII of the International Convention for the Regulation of Whaling’. One of Australia’s arguments was that Article VIII should be interpreted taking into account the ‘subsequent agreement’ or ‘subsequent practice’ of the parties to the Convention, and it invoked the resolutions, inter alia, as an indication of such (Memorial, paras. 4.68-4.69), in accordance with Article 31, para. 3, (a) and (b) of the Vienna Convention on the Law of Treaties. Japan pointed out that the alleged agreement or practice was not shared by all parties to the Convention (since the resolutions were not adopted by consensus, and not all parties had accepted them), and could not therefore have that effect.

What did the Court say?

The Court eventually in effect upheld the claim of illegality of the whaling activities. Specifically, it ruled that the JARPA II permits did not fall within the provisions of Article VIII, paragraph 1, of the Whaling Convention; and that by granting those permits, Japan had not complied with its obligations under paragraphs 10 (e), 10 (e) and 7 (b) of the Schedule to the Convention. The essence of the judgment – the main question – was the finding that Japan’s activities involved ‘scientific research’, but were not ‘for the purpose of scientific research’.

These conclusions were, however, not based on any IWC resolutions; the Court specifically rejected the argument that these represented subsequent agreement or practice of the contracting States (Judgment, paras. 78-79). The weight of the resolutions was as ‘recommendations’ under Article VI of the Convention. As the Court explained (Judgment, para. 46):

Article VI of the Convention states that “[t]he Commission may from time to time make recommendations to any or all Contracting Governments on any matters which relate to whales or whaling and to the objectives and purposes of this Convention”. These recommendations, which take the form of resolutions, are not binding. However, when they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention or its Schedule.

It is to be noted that at this stage of the judgment no reference is made to the existence or non-existence of the assent of, specifically, Japan; there is merely a reference to consensus or unanimous vote, implying the possibility of dissent as excluding, presumably for the dissenters, relevance for interpretation.

It is at a later stage in the judgment (para. 83) that the Court notes that the resolution was one of a number that had been ‘adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan’. This was the basis of the Court’s rejection of a specific argument of Australia, noted above; the Court held that these texts thus could not be regarded as ‘subsequent agreement’ in support of an interpretation of Article VIII, nor as ‘subsequent practice’, establishing an agreement of the parties regarding the interpretation of the treaty, within the meaning of subparagraphs (a) and (b), respectively, of paragraph (3) of Article 31 of the Vienna Convention on the Law of Treaties’ (ibid.).

One other paragraph of the judgment should be noted, because of the reliance on it by Professor d’Aspremont, as defining the Court’s attitude to the significance of Japan’s assent: paragraph 206. The Court there mentions one particular resolution as having been adopted by consensus. However, that paragraph connects reductions in the total annual Japanese catches of whales to the sabotage actions committed by the Sea Shepherd and those associated with it, which Japan had brought to the Court’s attention; the last two sentences of paragraph 206 read:

In this context, the Court recalls IWC resolution 2011-2, which was adopted by consensus. That resolution notes reports of the dangerous actions by the Sea Shepherd Conservation Society and condemns “any actions that are a risk to human life and property in relation to the activities of vessels at sea”.

The reference to ‘consensus’ clearly has nothing to do with the binding quality, or opposability, of the resolution with regard to Japan; the Court does not say – and does not need to say – whether Japan joined in the consensus. It was simply emphasizing the extent of international condemnation of the sabotage activities.  Thus paragraph 206 of the Judgment is wholly irrelevant to the discussion.

What did Japan say – and what did it not say?

The Court was led into error, we are told, by adopting in its decision an approach employed by Japan: it is alleged to have been at fault inasmuch as, in a context that was solely one of ‘interpretative effects’, it adopted a ‘sources-based approach’. Specifically, we are told (at a fairly late stage in the article) that Japan ‘sought to limit the interpretative effects of the resolution of the IWC by embracing a hybrid construction based on both interpretation and sources’ (p.1016, italics added). Japan, we are told, ‘elevated its assent into a condition for the resolution to yield interpretative effects, thereby resorting to a mixture of a logic of sources and a logic of interpretation’. These expressions – ‘interpretative effects’ as distinct from ‘interpretation’, ‘source-based’ and ‘logic of sources – are unconventional and obscure: their precise meaning is not clear. It would be desirable in any event to have had chapter and verse here, that is to say, some reference to Japan’s pleadings and oral argument, where one might trace this recourse to a ‘logic of sources’. In the footnotes to the article there is only one such reference to Japan’s pleadings (fn. 20 on p. 1013, referring to Japan’s Counter-Memorial), and no references whatever to Japan’s oral argument.

What then does this single reference given tell us? What was Japan’s argument? 

Tune in tomorrow for part-two of this post where Professor Thirlway looks at what Japan did and didn’t say, and the interpretation of Article 31 VCLT.