Subsequent Practice in the Whaling Case, and What the ICJ Implies about Treaty Interpretation in International Organizations

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Today the ICJ delivered its long-anticipated judgment in the Whaling Case (Australia v. Japan: New Zealand Intervening), finding Japan’s whaling program in breach of the Whaling Convention on several counts. It is a rich judgment, which will be more fully digested over the next few days.

In this post I want to draw attention to one specific point on the ICJ’s approach to the interpreting the Whaling Convention – specifically the Court’s approach to subsequent agreement and practice in relation to its prior advisory jurisprudence on the interpretation of the U.N. Charter. The relevant aspect of the Whaling Judgment concerns the Court’s assessment of the weight of resolutions issued by the International Whaling Commission (IWC).

The IWC is a supervisory body established by the Whaling Convention. It has the capacity to amend certain provisions of the Convention by three-fourths majority vote (though amendments will not bind any State Party that objects). It can also render non-binding recommendations. The Court indicates at the outset that while such resolutions are non-binding, when “they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention.” (¶46). The Court notes that the Commission has amended the Convention several times, and that “the functions conferred on the Commission have made the Convention an evolving instrument” (¶45).

Key to the dispute was whether Japan’s use of lethal means in its whaling program could be justified under the Convention’s exceptions clause for scientific research. Article VIII(1), of the Convention reads:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research

 One of the questions the Court faced was how to interpret the undefined term “scientific research.” (¶73). The issue was when and to what extent the concept might justify lethal means.

Australia and New Zealand argued that the Court should rely on certain resolutions by the IWC offering a restrictive view of the permissible scope of lethal means in scientific research. Among others, Australia pointed to Resolution 1995-9, which recommends that the killing of whales “should only be permitted in exceptional circumstances where the questions address critically important issues which cannot be answered by the analysis of existing data and/or use of non-lethal research techniques.” Australia claimed that the resolutions had to be taken into account in interpreting the Convention because they comprised “subsequent agreement between the parties regarding the interpretation of the treaty” and “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” in the sense codified by the Vienna Convention on the Law of Treaties (Articles 31(3)(a)-(b)).

Crucially, only some of the relevant resolutions were adopted by consensus. Others, including Resolution 1995-9 in particular, were adopted by mere majority, and notably without the concurrence of Japan.

This facet proved critical. The Court concluded that those resolutions adopted by consensus did not sufficiently establish Australia and New Zealand’s restrictive interpretation of the scope of permissible lethal means in scientific research. While others, like Resolution 1995-9, may have seemed more to the point, they could not be accepted here as authoritative guides to the interpretation of the Convention. In the Court’s words:

… Australia and New Zealand overstate the legal significance of the recommendatory resolutions and Guidelines on which they rely. First, many IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan. Thus, such instruments cannot be regarded as subsequent agreement to 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 [VCLT 31(3)(a) & (b)]. (¶83).

Thus, to generalize, while unanimous or consensus resolutions of a supervisory treaty body might be considered subsequent agreements or practice relevant to the interpretation of the underlying convention, resolutions adopted by disputed majority will not count under the general rule of interpretation.

This approach represents a natural reading of the requirements to establish subsequent agreement and practice, and sits neatly with the traditional view requiring the common practice of all of the parties. In a jurisprudential vacuum, this cautious approach would hardly be noteworthy. But in light of the ICJ’s past jurisprudence this aspect of the Whaling Judgment is jarring – even if ultimately correct.

The crucial comparator is a line of advisory opinions in which the ICJ interpreted provisions of the U.N. Charter in light of what it took to be the consistent “practice of the organization” – most relevantly, here, the opinions in Certain Expenses (1962) and Construction of a Wall (2004). I’ve excavated the cases on this point at length in a recent Article so I won’t belabor the details here (See Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations, 38 Yale J. Int’l L. 289 (2013)). What’s essential is that in both Certain Expenses and Wall, the ICJ expressly relied on resolutions of the General Assembly as a proxy for the subsequent practice of the membership, and thus as authentic criteria for the interpretation of the U.N. Charter – despite the fact that in both cases several of the key resolutions were taken by majority vote, with heavy and representative dissents. In Wall, the Court went so far as to rely on such (disputed) “practice of the organization” to hew dramatically from the Charter’s plain text, thereby recognizing what some consider an informal modification of the U.N. Charter.

The Court was never explicit about the fact that certain resolutions it invoked as the “practice of the organization” were disputed. Nor, of course, did it have to be. The idea that the resolutions of a duly constituted body of an international organization are entitled to interpretive weight in determining the meaning of its constituent instrument – whether unanimous or by mere majority – could be a perfectly valid alternative reading of the requirements of VCLT 31(3)(a), or at least (b). This view is certainly plausible, if perhaps unsettling to strict consensualists. But it takes on a different color in the face of the ICJ’s explicit language in today’s Whaling Judgment – that resolutions adopted without unanimous support “cannot be regarded as subsequent agreement … nor as subsequent practice”, or any other authentic criterion of interpretation. (¶83).

What is to be made of this apparent divergence? Since the full scope of the ICJ’s approach to the “practice of the organization” in interpreting the U.N. Charter is left implicit in the advisory jurisprudence, and those opinions are nowhere mentioned in the much clearer Whaling Judgment, we are left to our own devices.

I’ll mention just three possibilities here.

The first, which seams least likely, is that the opinion represents a change of course – that the ICJ simply shifted gears, adopting a more transparent and sovereigntist approach to treaty interpretation. By this view, the Whaling case would signal a reversion to requiring evidence of all the parties’ agreement – in other words, rejecting its earlier case-line by refusing to recognize the relevance of any treaty body practice that does not reflect the will of every member state, be it in the IWC or the UNGA. I suspect this reading is too strong, and would take the Court’s commitment to the autonomy of the U.N. Organization insufficiently seriously.

Another interpretation might be called the suspicious gloss. It would treat the advisory jurisprudence as opportunistic, adopting a less voluntaristic approach in the context of the UNGA because it is an organ of the U.N. On this reading, the ICJ seems to treat its own organization as a special case – based perhaps on a commitment to the flexibility and dynamism of the U.N. system of which it forms a part, even if at the expense of its members’ sovereign prerogatives. But where other treaty bodies are concerned, the Court reverts to the usual consensualism, on principle or strategically. One might feed such suspicions by contrasting the explicit language of the Whaling case on the question of contested practice with the shrouded approach in Certain Expenses and Wall. But while this reading might be more plausible than the change-of-course interpretation, it is not the only alternative.

A third, principled interpretation of the cases is also possible. This viewpoint draws a critical distinction between the institutions at issue in the advisory opinions and the Whaling case. The issue might not be simply that the ICJ treats the U.N. as sui generis. Perhaps in the Court’s view these cases entail an important difference in kind: between an organization characterized by international legal personality (the U.N.), and a treaty body with certain functions bearing no autonomous personality on the international stage (the IWC). I stress that at no point in these cases is the issue of international legal personality tied to the justification for relying on the non-consensual output of treaty bodies. And of course the boundaries of personality are not black and white. But the concept may still provide critical insight into the Court’s willingness to relax its dogged search for the consent of the parties in the context of the United Nations by contrast to today’s statement on the IWC.

On this last reading, which seems to me the most plausible, the interpretive value of any particular organ’s non-binding resolution vis-à-vis its constituent instrument will be strictly tied to evidence of the acceptance or acquiescence of all states parties in the context of treaty bodies with no independent personality; but vis-à-vis the autonomous organizational person, the output of its organs may be entitled to significantly more weight.

For further clarity we’ll have to wait and see. But for now the Whaling case provides plenty to think about.

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Dan Joyner says

March 31, 2014

An excellent examination. I'm already thinking about the relevance of this judgment for the context of the International Atomic Energy Agency, which has a 35 member-state Board of Governors, which exercises some monitoring and verification duties under the IAEA Statute, to which a total of 162 states are parties.

The IAEA Director General, as well as some observers, have argued that the IAEA Board of Governors has the authority to interpret the IAEA Statue as well as the bilateral safeguards treaties signed between the IAEA and member states, e.g. to determine the scope of the IAEA's authority to investigate and assess member states' nuclear programs. See a discussion of this in a piece of mine here:

I have long argued that this is not a correct understanding of the competency of the IAEA BOG - i.e. that the BOG does not have any special grant of interpretive authority in any of the relevant treaty sources, and that, particularly with regard to the bilateral treaties which the IAEA has signed with states, decisions of the 35 member BOG have no particular interpretive weight. I think that this new ICJ judgment validates my analysis.

Markus Gehring says

March 31, 2014

Many thanks for a great post. The sustainable development lawyer in me feels there is more to explore in this judgement on the level of potential regulatory control in environment and scientific decision-making. The ICJ sounded today a bit like the WTO AB in Asbestos when it referred to a 'reasonable health official'. I think a surprisingly clear decision in favour of international cooperation concerning shared natural resources setting clear limits on unilateral regulatory decisions.

Julian Arato says

April 1, 2014

Many thanks, Dan and Markus, for the kind words and comments.

Dan, that's a fascinating analogy to the IAEA. One indeed has to wonder whether, were the issue to appear before the ICJ - framed as an issue of organizational practice - the Court would follow its reasoning here in the Whaling case or whether it would adopt a more flexible approach as it does in Wall and Certain Expenses. The interesting thing about Wall, for your analogy, is that there the Court actually gives weight to the practice of a very selective organ - the UNSC - whose miniscule membership is a far cry from the general membership of the organization. The Court uses lack of protest from the general membership as a link - but as a link to consent, such acquiesence within institutions is as thin as it gets.

But of course usually these things don't reach the ICJ, and each organization winds up deciding the issue of the weight of organ practice or inconsistent state practice for itself. International judicial organs other than the ICJ have taken drastically different approaches to the issue of contradictory practice in establishing subsequent agreement and practice for the purposes of interpreting their own constituent treaties. In the Article linked above I flesh out the differences between the WTO-AB (which strictly rejects any inconsistent practices) and the ECtHR (which is much more comfortable relying on majority practice under 31(3)(b) in the face of actively contrary minority conduct). But a much more comprehensive examination of the approaches of special regimes on this precise question can be found in Georg Nolte's ILC Report on subsequent practice in special regimes. Georg Nolte, "Second Report for the ILC Study Group on Treaties over Time," in TREATIES AND SUBSEQUENT PRACTICE, 210, 305, Georg Nolte, ed. (CUP: 2013).

Of course the issue could also take a variety of other guises that get around some of these interpretive constraints (e.g. the theory of implied powers, etc.) - but that raises different questions.

Markus - I have to agree. This issue of subsequent practice barely scratches the surface of the Whaling Judgment. I like the analogy to the WTO-AB, and agree that the Court's recourse to an objective reasonableness standard is absolutely critical. It is particularly important that the Court refused to truck in the vague and malleable language of the "margin of appreciation" - adopting instead a fairly common and specific (if relatively deferential) standard of review. At least it comes off that way to common law trained ears. I can only agree that there is much more to plumb in this opinion, not least on this crucial issue.

Dr. Benarji Chakka, Associate Professor of Law, National Law University and Judicial Academy, Assam, India says

April 1, 2014

Dear Julian

It is an excellent analysis of ICJ judgement on whaling case. The Court has addressed much crucial issues in this judgement. You have done a great job by bringing some of the pertinent issues such as the role of treaty bodies in providing binding sources of international law, interpretation of treaty obligation and its interpretation as material source of international law. I agree that the ICJ has shifted its focus towards more traditional, statist approach while interpreting the treaty law. It is also important to see that the ICJ’s interpretation of the U.N. Charter in light of aspects relating to “practice of the organization” with regard to treaty obligations.

It is an excellent contribution to the development of international law and I appreciate your valuable comments on the judgement.

Mohammad Rubaiyat Rahman says

April 1, 2014

The decision of the ICJ is a winning thump for protection of marine living resources. No doubt, from morrow, scholars of international law would be preoccupied themselves regarding how Japan, the country that has tradition of consuming whale meat since 7th century, would treat the Judgment in the following days. Judge Owada's dissenting opinion would be helpful during mulling as to the issue.
Interested reader can read my analysis of the Judgment in SSRN page:

Laura Rockwood says

April 3, 2014

Julian, I found the article very interesting and informative. Re Dan's posts, however, perhaps he overlooked your later post, and the last paragraph in your article, which reads:
"On this last reading, which seems to me the most plausible, the interpretive value of any particular organ’s non-binding resolution vis-à-vis its constituent instrument will be strictly tied to evidence of the acceptance or acquiescence of all states parties in the context of treaty bodies with no independent personality; but vis-à-vis the autonomous organizational person, the output of its organs may be entitled to significantly more weight."
The IAEA is in fact recognized as a treaty body with independent juridical personality.

Dan Joyner says

April 4, 2014

Laura should note that the text to which she is referring is not part of the holding of the court, but rather Julian's own preferred theory - one of several he notes as possibilities - for explaining how this most recent judgment should be understood relative to previous judgments of the court. And with regard to his preferred theory, Julian makes a point of saying: "I stress that at no point in these cases is the issue of international legal personality tied to the justification for relying on the non-consensual output of treaty bodies."

My own view of how the new whaling case should be understood relative to previous ICJ decisions, is closer to Julian's second described theory; i.e. that the ICJ has in previous decisions treated UN organs differently than organs of other international organizations due to a specialness which the court attaches to UN organs. Whether or not the court was right to do this is a separate question. But I don't see in the whaling decision any evidence supporting the idea that the legal personality of the international organizational organ in question is material to determining how much weight to give to that organ's interpretation of relevant treaties. Nor does this distinction make any intuitive sense to me.

Even if there were something to this idea, however, as Laura well knows in the IAEA context specifically we are talking about the IAEA BOG's interpretations of bilateral treaties (safeguards agreements) signed between the IAEA and individual member states. In this context it seems particularly inappropriate and unpersuasive to accord to one treaty party to a bilateral treaty, special prerogative in interpreting that treaty, regardless of the legal personality of that party.

Timo Koivurova says

April 6, 2014

Great analysis. One thing I was left wondering. How would you analyze the importance of this sentence from the same para. of the Judgment:

"The Court however observes that the States parties to the ICRW have a duty to co-operate with the IWC and the Scientific Committee and thus should give due regard to recommendations calling for an assessment of the feasibility of non-lethal alternatives. The Court will return to this point when it considers the Parties’ arguments regarding JARPA II (see paragraph 137)."

How would you evaluate this "due regard" prescription from the part of the ICJ, which seemed to have relevance in its study of the reasonableness of the research program? See also that paragraph 137.