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

Part II of a two-part post in 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‘.

What did Japan say – and what did it not say? [Cont.]

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What then does this single reference given tell us? What was Japan’s argument?  The text preceding the footnote states that in its Counter-Memorial Japan argues that resolutions of the kind under consideration ‘are not binding, and, therefore, irrelevant for the interpretation of Article VIII’ (d’Aspremont, p.1016). The Chapter of the Counter-Memorial quoted is however more limited: it is addressed to refutation of Australia’s argument that the resolutions rank as ‘subsequent agreement’ or ‘subsequent practice of the parties’ for purposes of Article 12 of the Vienna Convention on the Law of Treaties (an argument which was, as already noted, to be rejected by the Court). Japan’s argument on the point is in no way novel; and the question of Japan’s consent is not central, and not stressed. It is merely present in the reference to the need, under the terms of Article VI of the Whaling Convention, for consensus, if a resolution is to be anything more than a non-binding recommendation. It is hard to see any invocation of the doctrine of sources here.

Nor is there anything recognisable as reliance on sources in the oral argument of Japan, or even any emphasis on the lack of Japan’s lack of assent. In that argument the IWC resolutions were first dismissed (rather casually), not on the basis of lack of assent, but on the grounds that they were obsolete or superseded (see Boyle in CR 2013/15, pp. 54-55). Emphasis was laid on the freedom of a State to disregard resolutions of international bodies that merely recommend (see Pellet in CR 2013/16, pp.53-54, citing Judge Lauterpacht in Voting Procedure [1955] ICJ Rep 114-115), but with no reference to the lack of Japan’s consent as the reason for purely recommendatory status. Three reasons were in fact given by counsel for Japan (Boyle at CR 2013/13, p. 45, and Pellet at CR 2013/16, pp. 57-58 ,para. 53): (1) that the resolutions contradicted the discretion of the government concerned, conferred by Article VIII; (2) that they were adopted without, or in contradiction to, the opinions of the Scientific Committee; and (3) that they were adopted by very limited majorities. No specific reference was made in this latter context to the question of the assent of Japan, or generally of States that did not support the resolutions. In its second round of argument, Japan repeated its contention that member States were not bound by recommendations, but had merely to take them into consideration; again, it was not asserted, or not specifically, that this was due to lack of consent of those States. (In this connection, as Professor d’Aspremont himself notes (p. 1029, fn. 6), it is the Vienna Convention, in Article 31, that refers to the subsequent agreement of the parties as an element of interpretation of a treaty, and the Convention thus has ‘the doctrine of interpretation mak[ing] resort to the doctrine of sources’. Is it then the Convention that should be the target of his criticisms?)

Japan’s agent in closing however recalled in general terms the maxim pacta sunt servanda, and added ‘What you have agreed, you are bound to observe. What you have not agreed, however, does not bind you. That is a core principle of international law’, and added that this was not altered by reference to ‘a series of non-binding resolutions’ (Pellet at CR 2013/23, pp. 16-17,18).

In short, the thesis that the IWC resolutions were not opposable to Japan for lack of its consent was hardly stressed by either party, indeed it was practically taken for granted by both. It is worth emphasizing also that the question of consent was in fact first raised, not by Japan, but by Australia, when it suggested (as already noted) that the resolutions could be regarded as either ‘subsequent agreement’ of the parties to the Whaling Convention, or ‘subsequent practice’, so as to be relevant for the interpretation of the Convention, on the lines of Article 12 of the Vienna Convention on the Law of Treaties.

Let us then turn to what Professor d’Aspremont finds Japan as saying, or implying.  Japan ‘elevated its assent into a condition for the resolution to yield interpretative effects’ (p.1036). To say that Japan ‘elevated its assent’ surely implies that it sought to give that assent (or its absence) a role, or an effect, going beyond what would normally be recognized; but there is no trace of this in Japan’s own argument, written and oral. The idea of ‘elevation’ of its consent into a condition of the resolution having interpretative effects in fact misrepresents the process, the legal structure, inasmuch as Japan’s consent necessarily was a condition, as a matter of what we may call the constitutional law of the organization, expressed in Article VI. It required no ‘elevation’ in order to affect the opposability of the resolution.

It is therefore not at all clear where the reliance on the ‘logic of sources’ (allegedly taken over from Japan by the Court in its judgment) is to be found. It should be borne in mind that if, behind the question of interpretation there was any question of sources, it was simply that the whole debate was framed by the Whaling Convention, in other words a matter of treaty law. Quite late on in the article under discussion, Professor d’Aspremont explains, in connection, not directly with the argument attributed to Japan, but with its alleged adoption by the Court, that:

[T]he requirement of the assent [of Japan] makes the question of interpretation arise exactly like (and on the lines of) a question of the generation of bindingness that is traditionally exclusively addressed from the vantage point of the sources. Indeed, assent has never been a central condition of the operation of interpretation stricto sensu. Rather, it is in relation to the identification of rules of international law (for example, treaties) that questions of assent arise. (p. 1039)

The language is, as frequently in this article, imprecise: what exactly does ‘addressed from the vantage point of the sources’ signify? Presumably, that whether a given obligation exists for a particular State depends on whether it can be shown that it derives from one of the recognized sources of international law; this of course is undeniable.  However, the antithesis between ‘interpretation’ and ‘bindingness’ is perhaps too limitative: it is here suggested that it is more a matter of ‘opposability’ – a term which, it must be conceded, neither the Court nor the parties employed. (See the analysis of the effect of Article VI of the Convention in para. 46, cited above; the term ‘opposable’ is however part of the Court’s vocabulary : see Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge [2008] ICJ Rep 12, at 50, para. 121.)    The results of the resolutions, whatever they might be, were only opposable to the States that had, in effect, agreed that they should be so. If the resolutions in question were intended to be employed in interpreting the Convention, they had ‘interpretative effects’– that was what they were meant for – but by reason of the terms of Article VI, those effects were only opposable to the consenting States.

Thus what Japan was denying was not that the resolutions had, or could have, ‘interpretative effects’, which effects, if they existed, existed independently of the assent of Japan; it was denying that such effects were opposable to Japan, precisely because of the lack of assent, i.e. non-compliance with a condition of opposability. This is a perfectly orthodox argument, which does not need to invoke the ‘doctrine of sources’, however understood.

Similarly to be classed as too limitative is the explanation, already quoted, that: ‘[A]ssent has never been a central condition of the operation of interpretation stricto sensu.’ ‘Operation of interpretation’ may, as just explained, depend on opposability, which in turn may frequently depend on assent. Then the passage continues (p. 1039): ‘Rather it is in relation to the identification of rules of international law (for example, treaties) that questions of assent arise.’ For treaties, that is of course true; but how, one may ask, do questions of assent arise when the alleged rule of law to be identified is not in a treaty text, but is one of general customary law, or one of the general principles of law? These surely are binding irrespective of the assent of any individual State (reserving the position of the ‘persistent objector’). To link assent to sources generally seems too extensive, and to exclude it from any operation in relation to interpretation too limitative.

It is submitted that it is mistaken to suggest that Japan is making the question of interpretation of Article VIII dependent on its assent: that is the alleged ‘elevation’ of consent, and is a great over-simplification.  The real argument runs thus: (1) Whether JARPAII complies with Article VIII of the Convention depends on whether the permit for it is validly based on its classification as ‘scientific research’; (2) Australia and New Zealand contend that it is not, inter alia because the criteria laid down in the IWC resolutions referred to, interpreting Article VIII, are not met; (3) but those resolutions, adopted by consensus, are no more than a ‘recommendation’, and as such only opposable to States that ‘supported’ it (Convention, Article VI); (4) Japan was not one of those States (and has not otherwise accepted the interpretation), so the resolution cannot be invoked against it. If the ‘logic of sources’ or the ‘doctrine of sources’ come into the picture it is because of the underlying Convention, the source of the system of rights and obligations of the parties. The relevance of the assent of a particular State to the effect of a recommendatory resolution was already written in to the Convention; all that Japan was doing was invoking this provision, not postulating its mere consent as having in itself a law-creating effect, which seems to be the assumption on which Professor d’Aspremont’s whole thesis appears to be founded.

In what would appear to be a key paragraph (p.1039, beginning ‘It is this permanent . ..), Prof. d’Aspremont observes that the Court makes a ‘repeated’ finding that ‘interpretative effects’ are conditioned by, depend on, the presence or absence of, the assent of Japan. First, one must question the word ‘repeated’: the only reference to the need for the ‘concurrence’ of Japan is in paragraph 83 of the judgment; paragraph 206, also referred to in this connection, being irrelevant, as demonstrated above. Even in paragraph 83, the Court simply invokes the lack of Japan’s assent in order to refute the argument of Australia that the IWC resolutions can be treated as ‘subsequent agreements’ or ‘subsequent practice’ within the meaning of Article 3 VCLT. The Court takes that view because, rightly or wrongly, it finds that this is the correct reading of the Convention, thus a matter of treaty-law; again, no other source of international law seems to have any relevance. What is conditioned by the assent of Japan is the attachment to certain decisions of the IWC of the weight of Convention obligations, on the basis of the view (right or wrong) that the Convention confers this value upon those decisions provided that consent exists (or existed), The assent of Japan operates, has legal effects, solely insofar as the Convention (as correctly interpreted) makes this possible.  How then does the argument involve the invocation of ‘sources doctrine’?

Professor d’Aspremont’s view is that what moves the debate into the domain of sources is ‘conditioning of interpretative effects to the assent of Japan’, but again, this seems to mis-state the legal situation. As explained above, the effect of the absence of the support of Japan to the IWC resolution is to render that resolution without opposability to Japan, and the fact that it happens to contain an interpretation of Article VIII is incidental.  It is not interpretative effects that are excluded by the absence of assent; it is opposability.  The resolution had interpretative effects – that was its purpose – but effects solely for those to whom, by virtue of Article VI of the Convention, it applied or was opposable. Japan, by its position in relation to the Convention and ancillary instruments, is not saying ‘You shall not impose interpretative effects on me without my consent’, but ‘You shall not impose obligations on me by resolutions to which I did not give consent, because the structure of the underlying Convention makes resolutions of this kind opposable to me only if they have my support’.

Interpretation, within and without Article 31 VCLT

Now as to interpretation of Article 31 VCLT: a criticism addressed by Professor d’Aspremont to the ICJ decision is that (p. 1037) it ‘denies the possibility of generating interpretative effects outside Article 31 of the VCLT’.  Now whether or not Article 31 has, in the context of international law generally, ‘a monopoly on the organization of interpretative effects’ (a view that Professor d’Aspremont rejects), it is submitted that the ICJ’s approach in this case was, for the Court, the only correct one. First. in Kaikili/Sedudu Island it had held, confirming earlier decisions, that ‘customary law found expression in Article 31 of the Vienna Convention’:[1999] ICJ Rep 1059, para. 18, citing Territorial Dispute (Libyan Arab Jamarihiya/Chad) [1994] ICJ Rep 21, para. 41; Oil Platforms (Iran v. USA) [1996-II] 812, para. 23). Then the States concerned in the case, Japan, Australia and New Zealand, are all parties to the VCLT; they have thus agreed, between themselves and other States parties to that Convention, that for the interpretation of any treaty between them, Article 31 governs. Any pair of States parties to VCLT could of course agree between themselves that a particular text should be interpreted in a way not consistent with Article 31 (that article is not jus cogens); but in the absence of such derogating agreement, the Court, when called upon to interpret such a treaty between those parties, is limited to the application of Article 31. As a treaty provision, it binds the parties to the treaty (the VCLT); and a natural reading of it is that, for those parties, it does indeed have a monopoly.

It is thus completely mistaken to suggest that the Whaling decision ‘denies the possibility’ of non-article 31 interpretation. To apply a non-Article-31 system or method of interpretation is something that the Court had no power to do; it could not (for example) give a different effect to subsequent practice than Article 31 contemplates. That possibility is not open to it, and is thus not being rejected or ‘denied’. Rejecting or denying a course of action entails choosing not to follow that course, and such choice is only meaningful if that course could have been followed. Thus nothing can be deduced from the Court’s decision on the question whether ‘generating interpretative effects outside the VCLT’ is a legal possibility.

An interesting question raised by Professor d’Aspremont (at p. 1037, citing Arato, ‘Subsequent Practice in the Whaling Case and What the ICJ Implies about Treaty Interpretation in International Organizations’, EJIL:Talk!, March 2013),  in connection with subsequent practice as relevant to interpretation is whether the effect given by the Court to the absence of Japan’s consent in relation to resolutions is consistent with the case-law of the Certain Expenses and Palestine Wall cases, where the Court accepted General Assembly resolutions as equivalent to subsequent practice for interpretation of the Charter, despite several of the resolutions having been adopted by majority over strong dissent. However, those resolutions were accepted as subsequent practice of the Organization as an entity, as distinct from the subsequent practice of the parties to the Charter as a treaty, whether severally or collectively. The distinction was noted at the time of the Expenses case, and, by some observers, deprecated (see Arato, ‘Treaty Interpretation and Constitutional Transformation : Informal Change in International Organizations’, 38 Yale Journal of International Law, 289, at 319-20, who also draws attention to the inclusion, in the Wall case, of a statement of the UN Legal Counsel in the category of ‘practice of the Organization’; this would surely be inacceptable if it were to be classified as ‘practice of the States Members as parties to the Charter as treaty’).

While the Wall case confirmed the legitimacy of equating the two forms of practice, it is however arguable that the distinction remains, or should remain, in the following sense: a decision of a UN organ within its Charter powers is a decision of the organization, however limited the majority by which it is adopted, and is effective as such.  But it would be unrealistic to see it also as ‘agreement’ or ‘practice’ of the parties to the Charter, ut singuli, if a large percentage – or even a mere majority –  of them had made clear their dissent. This consideration is reinforced when the resolutions under examination are constitutionally given the status of ‘recommendations’, as they are in the Whaling Convention. In short, the Whaling case does not appear diverge from this previous case-law.

Respice finem : the alternative outcome.

Outlined above are the considerations urged by Professor d’Aspremont to suggest that the ICJ decision in the Whaling case was mistaken or unsound; what then should, in his view, the Court have decided?  It should not have made ‘interpretative effects’ subject to the assent of Japan; therefore it should not have excluded the Council resolutions from having such effects simply because they were ranked, by Article VI of the Convention, as mere ‘recommendations’, and Japan had not in any way supported them. It was then open to the Court to uphold the contention of Australia as to interpretation of Article VIII by the resolutions as ‘subsequent practice of the parties’. The result would still have been a condemnation of JARPAII by the Court, but in terms corresponding more closely to the criticisms expressed in the resolutions.  On the other hand, the distinction in terms of effects, existing within the Convention structure, between binding decisions of the Council, and recommendatory resolutions, would have been nullified, with all the authority of the ICJ.  Would this have been a more satisfactory outcome?