EJIL Debate. Thirlway’s Rejoinder

I am grateful to Professor d’Aspremont for his interesting and courteous response to my somewhat critical piece. I think we agree . . . that there is plenty on which we agree to differ! However, may I mention a few points?

A minor linguistic matter: the terms ‘the logic of sources’ and ‘the logic of interpretation’ seem to me unfortunate. I trust that Prof. d’Aspremont will agree that the rules of logic, or if you like of logical argument, are surely identical whatever the subject under discussion. The postulates and the facts are unique to the context and the problem examined, but to arrive at an intellectually correct result, the reasoning processes must follow the universal rules of logic; the expressions quoted seem to undermine this universality.

Prof. d’Aspremont does not find my use of the concept of opposability helpful. Maybe my point will be clearer if expressed in this way: in the relevant part of the ICJ Whaling judgment, the Court was, in his view engaged in a process of interpretation, but applied to it the intellectual approach appropriate to a problem of sources.  But was it a process of interpretation? Before the Court could enquire into what exactly were the obligations of Japan under the Whaling Convention as interpreted by the challenged resolution – a matter of interpretation – it had to decide whether the resolution was relevant at all – a question of sources (consent to a treaty-instrument). If the resolution was relevant, its effect on the reading of the Convention would be a matter of interpretation; but that stage was never reached.

Prof. d’Aspremont denies that he is ‘thinking from the Bench’; but surely whenever a scholar criticises a judicial decision, he is in effect saying ‘This is what the Court ought to have said: this is what my dissenting opinion would have said had I been among the judges?’ And to my mind this is so whether the critic is saying ‘The Court was wrong on its own premises’, or contending that ‘The matter should have been approached in a different way, viz. .  . .’

As for Ms Meguro’s argument, it falls outside the context in which I ventured to criticise Prof. d’Aspremont’s article; it deals with quite different aspects of the Whaling judgment, which I probably have not studied as closely as has Ms Meguro. Nevertheless, it seems to me that, like Prof. d’Aspremont, Ms Meguro is arguing on the basis of something other than the Judgment actually delivered. Once again, I venture, perhaps (as Prof. d’Aspremont suggests) unnecessarily, to defend the Court by urging that it be judged on what it says, and not on the basis of what it might have said.

Did the Court ‘bring back the legal effect of the resolutions’ – i.e., those that lacked Japan’s assent and thus did not bind it  – ‘from the backdoor, that is via the ‘duty to co-operate’? (Meguro, para. 2) To support this contention one would have to show that the Court found that action or inaction by Japan that conflicted with one or more of those resolutions (or with the Convention or other instrument, as interpreted by such a resolution) amounted to a breach of a binding duty to co-operate with the IWC or its Scientific Committee.  It would prima facie seem difficult to show this, given that, so far as I am aware, no specific resolution is mentioned anywhere in the decision as part of the argument supporting a finding against Japan. To establish Ms Meguro’s contention, it is not sufficient to point to the Court’s use in its reasoning of the concept of a ‘duty to co-operate’, nor to quote a passage where it is noted that Japan ‘has accepted that it is under an obligation to give due regard to [not ‘comply with’] such [unspecified] recommendations’ (Judgment, para.137; Meguro, 4^th para). The simple point is that the Court evidently did not see any need, for purposes of its decision, to rely on any particular non-binding resolution, and thus to enter into the question of the extent to which Japan was nevertheless obliged to respect its terms, via a duty to co-operate or otherwise.

The major finding against Japan was that ‘the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the Convention’ (para. 227). Contrary to what is suggested by Ms Meguro, it did not ‘in drawing this conclusion . . . state[] there was Japan’s duty to co-operate with the IWC’ (Meguro paper, 3^rd para., italics added). That duty having been found in para. 83 to exist, its actual application is to be found in paragraphs 240-2 (where Japan was held not to have breached it); it is not mentioned in the argument leading up to para. 227. Had the conclusion in para. 227 similarly been based on the finding in para. 83, the Court would have made this clear.

My concern here is to point out what seems to me a misreading of the decision; I offer no views otherwise on the subject-matter of Ms Meguro’s contribution. But didn’t the Court answer Ms Meguro’s question, as to the source of the obligation to co-operate, in para. 240, where it referred to ‘the duty of co-operation with the IWC and its Scientific Committee that is incumbent upon all States parties to the Convention, which was recognized by both Parties and the intervening State’? Is not consent, even if not spelled out in a treaty, a sufficient source?