Lilian del Castillo

I. Introduction

When deciding in the Whaling in the Antarctic Case that “Japan shall revoke any extant authorization, permit or license granted in relation to JARPA II, and refrain from granting any further permits in pursuance of that programme”(operative clause 7),2Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), Judgment of 31 March 2014, I.C.J. Reports 2014, p. 300. [hereinafter “Judgment”]the International Court of Justice (hereinafter “ICJ” or “the Court”) reinforced the principle of good faith as the constitutive element of pactasunt servanda and as the general rule on the interpretation of treaties.3As codified by the Vienna Convention on the Law of Treaties, the principle of good faith saturates both the observance (Article 26) and interpretation of treaties (Article 31.1) .The Court reached the decision asserting that JARPA II pretended to be a programme for“scientific research” in Antarctic waters while it was in fact a whaling activity further breaching the Southern Ocean Sanctuary. As a consequence, unduly authorizing special permits for killing whales for alleged purposes of “scientific research”, Japan breached its obligations regarding the 1946 International Convention for the Regulation of Whaling (ICRW).4Judgment, p. 299.With this decision, banning whaling disguised as “scientific research,” which is contrary to the object and purposes of the Convention, the Court privileged good faith in the interpretation of treaties and opened new ground for the legal protection of whales, in any case, an issue not addressed by the Court. While the judgment is a welcome contribution to the protection, a lower stage than conservation, of whales in the Antarctic area and had an immediate acceptance by the International Whaling Commission(IWC) (Resolution 2014-5), it is necessary to be aware that it is only applicable to Antarctic waters, where the Japanese programme was meant to apply, and does not rule whaling in other oceans or for other programmes.

In the Whaling in the Antarctic Case, the Court approached the interpretation and implementation of the ICRW as an isolated self-contained and self-sufficient regime. While this approach is unquestionably a valid methodology to provide the grounds for the Court’s decision, it could be argued that the case would have been an opportunity to explore a more integrative interpretation of treaties,5Malgosia Fitzmaurice, Dynamic (Evolutive) Interpretation of Treaties, The Hague Yearbook of International Law, Vol. 21, 2008, pp. 101～156; Han van Gellecum, Environmental Law in the Context of Article 31(3)(c) of the Vienna Convention on the Law of Treaties:Reconciling Treaty Interpretation and Progressive Environmental Norms: The Pulp Mills Case and Beyond, at https://ssrn.com/abstract=1989468 or http://dx.doi.org/10.2139/ssrn.1989468, 5 July 2017; Oliver D?rr and Kirsten Schmalenbach eds., Vienna Convention on the Law of Treaties: A Commentary, Berlin: Springer, 2012, pp. 553～568.an avenue impinging especially on international law through the systemic formulation of Article 31(3) of the Vienna Convention on the Law of Treaties (VCLT). It was recognized by the ICJ in the Namibia Opinion that “An international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.”6Legal Consequences for States of the Continued Presence of South Africa in Namibia(South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, para. 53.Accordingly, the general rule of interpretation formulated in Article 31(1) is completed by other instruments to be taken into account for that purpose, namely, “any subsequent agreement between the parties” (Article 31.3.a), “any subsequent practice in the application of the treaty” (Article 31.3.b), and “Any relevant rules of international law applicable in the relations between the parties” (Article 31.3.c).

In the Whaling Case, a more inclusive view of the body of international law ruling the Antarctic, its ocean and environment would have linked the regulation of whaling to the present law of the sea embedded, although not exclusively, in the UN Convention on the Law of the Sea (UNCLOS), to the Antarctic system and to the rules of international law for the environment in a complementary chain of rules and institutions. A broader view would have allowed the Court to include limits imposed by other instruments binding on Japan to curb its discretional granting of permits “for scientific research” which is unlimited under Article VIII(1) of the ICRW, in addition to considering that the permits were not “for purposes of scientific research.”7Judgment, para. 227.Because even if it had been for those purposes, it would have been in violation of other applicable norms of international law.

II. The Legal Framework of Whaling: Past and Present

A. The Early Instruments Addressing Whaling Activities (1927–1946):The Divided Purpose of Protecting Whaling and Whales

Following the end of World War I, States involved in whaling activities became aware of the unsustainable progression of catches, which depleted most stocks and threatened some species with extinction.8Patricia W. Birnie, International Regulation of Whaling: from Conservation of Whaling to Conservation of Whales and Regulation of Whale Watching, London: Oceana, 1985,two volumes; for the history of whaling, see Vol. I, chapters 1～3, pp. 1～142; for history of American whaling, see Alexander Starbuck, History of the American Whale Fishery from Its Earliest Inception to the Year 1876, published by the author, 1878, p. 768.In 1927 the Whaling Committee of the International Council for the Exploration of the Sea recommended establishing a licensing system and in 1930 set up the International Bureau of Whaling Statistics.9Anthony D’Amato and Sudhir K. Chopra, Whales: Their Emerging Right to Life, American Journal of International Law, Vol. 85, 1991, p. 30.That year, the industry reached an annual volume of more than 43,000 whales producing 3.5 million of whale oil barrels10A whale oil barrel amounts to 35 gallons (approx.), at http://www.petroleumhistory.org/OilHistory/pages/Whale/whale_barrel.html, 5 July 2017.and its stock depletion effect induced the beginning of conversations among some of the most important whaling countries.11This was not, however, the largest known number of whales killed, but the devastating figure of 66,000 whales killed in 1961.

Within the framework of these ongoing negotiations, on September 24, 1931,twenty-two countries adopted at Geneva the Convention for the Regulation of Whaling, which was ratified by eighteen States and entered into force on January 16, 1935. Japan, one of the more active whaling countries, did not attend the conference and never joined the convention. The agreement not only regulated whaling but established that “[t]he taking or killing of right whales, which shall be deemed to include North-Cape whales, Greenland whales, southern right whales,Pacific right whales and southern pigmy right whales, is prohibited” (Article 4).Other relevant provisions include the need for vessels of any of the Parties engaged in whaling to have an authorization license (Article 8) thus limiting unreported taking, and the obligation to collect “the most complete biological information practicable with regard to each whale taken [...]” (Article 10). Also worth noting is the ambit of the Convention, establishing that,

The geographical limits within which the articles of this Convention are to be applied shall include all the waters of the world, including both the high seas and territorial and national waters (Article 9)

It is worth recalling that at that time the oceans were divided only into two zones, the territorial seas and the high seas, the high seas being an unregulated space. The Geneva Convention had the primary purpose of regulating whaling,and it was a remarkable achievement, considering that the departure stage was the historical free use of resources on the high seas. Although regulation is the first stage to address wild fauna and flora, the Convention also included protection measures and the IWC strove to adopt conservation measures, which are the second and third stage respectively to deal with the survival of species, e.g., banning the killing of certain whales. Protection, however, is not inspired by conservation,and there is a conceptual distinction between protection and conservation. While the aim of protection is to maintain the stock of species for the benefit of their profitable exploitation, measures of conservation are adopted in the interest of ecosystems and biodiversity, without further goals. Finally, the higher stage to deal with species consists in preservation measures, adopted with the object and purpose of safeguarding nature, its wild fauna and flora, its environment and landscapes,irrespective of economic usefulness.12Anthony D’Amato and Sudhir K. Chopra, Whales: Their Emerging Right to Life, American Journal of International Law, Vol. 85, 1991, p. 22, footnote 8..

On March 19, 1937, the British Government invited the governments of the United States, Germany, Portugal and Norway to take part in a conference convened with the purpose of taking measures “beyond the restrictions included in the Whaling Convention of 1931” to limit whaling in Antarctica for the 1937–1938 season.13At http://images.library.wisc.edu/FRUS/EFacs/1937v01/reference/frus.frus1937v01.i0022.pdf, 5 July 2017.The invitation note added that it “is the more important in that Japan, who has not yet acceded to the 1931 Convention is largely increasing her whaling fleet in the Antarctic, and that Germany took part in whaling for the first time last season and will probably operate more ships next season.”14International Conference for the Regulation of Whaling, London, May 24-June 8, 1937,Foreign Relations of the United States Diplomatic Papers, General, Volume I, Washington DC: U.S. Government Printing Office, 1937, p. 921, at http://digital.library.wisc.edu/1711.dl/FRUS.FRUS 1937v01, 5 July 2017.Japan declined the invitation and Portugal sent no reply, while Argentina, Canada, New Zealand, the Union of South Africa and the Irish Free State accepted the invitation.15International Conference for the Regulation of Whaling, London, May 24-June 8, 1937,Foreign Relations of the United States Diplomatic Papers, General, Volume I, Washington DC: U.S. Government Printing Office, 1937, p. 922, at http://digital.library.wisc.edu/1711.dl/FRUS.FRUS 1937v01, 5 July 2017.

The International Agreement for the Regulation of Whaling was signed in London on June 8, 1937, and it applied “to all waters in which whaling is prosecuted by such factory ships and/or whale catchers” (Article 2). The agreement forbade taking or killing “Grey Whales and/or Right Whales” (Article 4), as well as “any Blue, Fin, Humpback or Sperm whales below” the established lengths(Article 5). It was forbidden as well “to take or kill calves, or suckling whales or female whales which are accompanied by calves or suckling calves” (Article 6).The agreement likewise established certain areas in the Atlantic, Pacific and Indian Oceans where factory ships or whale catchers attached thereto were forbidden(Article 9).

Another provision (Article 10) allowed contracting Parties to grant special permits for purposes of scientific research which “shall be exempt from the operation of this Agreement”, a provision replicated in the 1946 Convention(Article VIII) whose interpretation was the core issue in the 2014 Whaling in the Antarctic Case. The Convention requested the parties to communicate all whaling operations under their jurisdiction to the International Bureau for Whaling Statistics at Sandefjord, Norway. The 1937 Agreement was amended by the Protocol signed on June 24, 1938, and by the Protocol signed on June 29, 1938, extending the duration of the agreement after 30 June 1938.

On February 7, 1944, the Agreement was amended by the governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland, Canada, Eire, Mexico, New Zealand, and Norway. On October 5, 1945,the amended 1937 Agreement entered into force through the signature of a Supplementary Protocol for the entry into force of the 1944 Protocol. Another amending Protocol was signed at London on November 26, 1945; this time included the authorization to operate for factory ships and established maximum catches for the 1946–1947 season. A subsequent Protocol of amendments was entered into at London, on March 15, 1946, extending the catching season due to the demand for whale oil at the end of World War II. A new Protocol of Amendment to the 1937 Geneva Agreement was subscribed on December 2, 1946, this time at Washington D.C., regulating the season March–October 1947.16Ronald B. Mitchell, International Environmental Agreements Database Project (Version 2014.3), at http://iea.uoregon.edu/, 5 July 2017.On the same day, under the initiative of the United States, fourteen whaling and non-whaling countries adopted at Washington the new International Convention for the Regulation of Whaling(ICRW).

B. The 1946 ICRW System: The International Whaling Commission(IWC) and the Schedule

The 1946 ICRW is a general convention which non-signatories could have access to, thus allowing a wider membership than the previous whaling agreements.Along with the proper management of whales, the ICRW provides for whale protection. However, neither the ICRW nor the attached Schedule which is part thereof forbids any catches as the previous agreements did, even if they were not successful in this regard.17The introductory paragraphs state as its goals: “Desiring to establish a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks on the basis of the principles embodied in the provisions of the International Agreement for the Regulation of Whaling, signed in London on 8th June, 1937, and the protocols to that Agreement signed in London on 24th June, 1938, and 26th November, 1945; and, Having decided to conclude a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry[...].”The ICRW is the only agreement with the purpose of regulating whaling in general and applicable to all the world oceans. A shortcoming of ICRW is that it lacks a definition of “whale” and it was unclear from the beginning if cetaceans like dolphins are comprised in that term.18Patricia W. Birnie, International Regulation of Whaling: from Conservation of Whaling to Conservation of Whales and Regulation of Whale Watching, London: Oceana, 1985;Patricia W. Birnie, International Legal Issues in the Management and Protection of the Whale: A Review of Four Decades of Experience, Natural Resources Journal, Vol. 29,1989, p. 903. The almost sixty years of implementation of the ICRW and the IWC includes the discussion of many issues, each worthy of a specific review.

Following the criteria of the 1931 and 1937 agreements, the ICRW applied to all waters where whaling takes place (Article I.2). There were two important additions to the previous whaling conventions: (1) The Schedule, which was part thereof (Article I.1),19ICRW, Article I.1: “This Convention includes the Schedule attached thereto which forms an integral part thereof. All references to ‘Convention’ shall be understood as including the said Schedule either in its present terms or as amended in accordance with the provisions of Article V.” Article I.2: “This Convention applies to factory ships, land stations, and whale catchers under the jurisdiction of the Contracting Governments and to all waters in which whaling is prosecuted by such factory ships, land stations, and whale catchers.”and (2) the IWC (Article III), which is empowered to modify the Schedule, according to Article V, while only the Parties may amend the Convention. The Schedule is modified according to the decisions adopted in each meeting of the Commission. The Parties shall continue to collect all the information regarding whaling activities under their jurisdiction and transmit it to the IWC,which will publish the data by itself or in collaboration with the International Bureau for Whaling Statistics at Sandefjord, Norway, the institute linked to the former London’s whaling agreement, or with any other qualified institution (Article IV).

The IWC met regularly on an annual basis since 1949 until it decided, at the 2012 Panama City meeting, that it would be convened bi-annually for ordinary sessions and at any time for specific meetings.20The 65th session of the IWC took place in Portoro?, Slovenia, 2014.The Commission, with a permanent Secretariat in Cambridge, United Kingdom,21The Secretariat is headed by the Executive Secretary and its senior staff includes the Head of Science and the Head of Statistics.established in 1950 a Scientific Committee and both hold meetings yearly. According to Article 30 of the Schedule,the Scientific Committee is the organ of the Convention in charge of approving the special permits for killing whales under programmes of scientific research (Article VIII.1 of ICRW), and thus it adopted Guidelines for that task duly endorsed by the Commission. The Guidelines were identified as Annex Y of the Schedule(Guidelines for the Review of Scientific Permits Proposals) and later modified as Annex P (Process for the Review of Special Permit Proposals and Research Results from Existing and Completed Permits). The Annexes are important elements for the inclusion of programmes of scientific research within the exception of Article VIII.1 of ICRW and, for that reason, for consideration in the Whaling in Antarctic Case.

The ICRW entered into force in 1948 comprising ten members, namely,Australia, France, Iceland, Netherlands, Norway, Panamá, Russian Federation(former USSR), South Africa, the United Kingdom and the United States, the government of the United States being the depositary of the Convention. The ICRW admits accession before or after the effectiveness of the Convention, and on account of that open nature of the Convention, it has at present eighty-eight parties. Even if the object of the Convention is the regulation of whaling, as proclaimed in its title, which embeds at the same time whaling and the protection of different stocks of whales, its fluctuating membership has had different approaches about how to fulfill that initial purpose. They have departed from the practical economic target of preventing complete depletion of whale stocks, which was the early meaning assigned to the terms “regulation” and “protection”, to the moratorium, or temporal banning of commercial whaling. The moratorium means that the Commission has partially assimilated the term “protection” to the term “conservation”, a partial assimilation subject to the erosion of new members in favor of resuming commercial whaling.

The moratorium on commercial whaling has been the matter of concrete requests from the Stockholm Conference on the Human Environment. In 1972,it addressed a petition to the Commission asking for a ten-year moratorium on commercial whaling. Although there was not an immediate reaction, in 1976, for that reason or another, a selective moratorium was established according to the Commission’s New Management Procedure. The weakness and poor results of this moratorium may be explained by the fact that it was calculated on an estimated Maximum Sustainable Yield (MSY), a numeric standard deprived of conservation inputs. However, it was not useless. In 1982 it was followed by an overall moratorium of zero catch for commercial whaling, with effect as from the 1986 coastal and the 1985/86 pelagic seasons.22ICRW Schedule, Article 10, [...] (e) Notwithstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits. See ICRW Schedule, as amended by the Commission at the 65th Meeting,Portoro?, Slovenia, September 2014, p. 5, at https://archive.iwc.int, 5 July 2017.

However, the present commercial moratorium, as mentioned, is not a complete ban of whaling but a limitation. In fact, the moratorium has exceptions, one is whaling for aboriginal subsistence23IWC/66/ASW Report – Report of the IWC Expert Workshop on Aboriginal Subsistence Whaling (ASW). The US continues whaling for aboriginal subsistence, as well as Greenland and St. Vincent and the Grenadines, and is authorized to kill: Bering-Chukchi-Beaufort Seas stock of bowhead whales (taken by native people of Alaska and Chukotka) – A total of up to 336 bowhead whales can be landed in the period 2013–2018, with no more than 67 whales struck in any year (and up to 15 unused strikes may be carried over each year); Eastern North Pacific gray whales (taken by native people of Chukotka and Washington State) – A total catch of 744 whales is allowed for the years 2013–2018 with a maximum of 140 in any one year. At https://iwc.int/catches, 5 July 2018.and another is lethal scientific research.24Judgment, para. 10.1.Hence, the exception of special permits for purposes of scientific research allowed by Article VIII, paras. 1, 2, 3 & 4 of the ICRW still persists. In addition,the moratorium does not include all whale species. The moratorium is not a permanent ban on whaling, and it could be overcome by the vote of a ? majority of members. Two parties to the Convention, Iceland and Norway, have objected to the moratorium and do not apply it.25Iceland’s instrument of adherence to the International Convention for the Regulation of Whaling and the Protocol to the Convention deposited on 10 October 2002 states that Iceland “adheres to the aforesaid Convention and Protocol with a reservation with respect to paragraph 10(e) of the Schedule attached to the Convention”. The governments of Argentina, Australia, Brazil, Chile, Finland, France, Germany, Italy, Mexico, Monaco,the Netherlands, New Zealand, Peru, San Marino, Spain, Sweden, UK and the USA have lodged objections to Iceland’s reservation to paragraph 10(e), Schedule.The commercial moratorium has been acceptably successful since its implementation in the 1985/1986 season. From that time to the 2014 season, 44,762 whales were killed under objection, 10,132 due to aboriginal subsistence whaling and 32,470 as a result of special permits for purposes of scientific research, amounting to a total catch of 91,369 whales for the period,excluding dolphins and other cetaceans, which shows a significant reduction as compared to the pre-moratorium figures. In any case, the figures of unreported whaling are unknown and make the total catches listed by the IWC not the final figure but the reported catches.26At https://iwc.int/catches and https://iwc.int/table_objection, 5 July 2017.

According to the reports of the Scientific Committee, some whales and cetaceans are facing extinction. That is the case of the “vaquita” of the Gulf of California, Mexico, with only about 100 animals remaining, and of the Boto,hunted without restriction on the coasts of Brazil, Colombia, Peru and Venezuela.In the same situation is Japan’s Dall porpoise. It is also against conservation that since 2009, following the 61st session of the IWC, the United States, the Russian Federation, Denmark and St. Vincent and the Grenadines have obtained quotas for whaling native cetaceans.27Jean-Pierre Beurier and Alexandre Kiss, Droit International de l′Environment, Paris:Pedone, 2010, p. 379.New challenges to the moratorium have recently arisen from developing countries which consider whales a threat to food security on account of the large amount of food they consume.28Matthew Scully, Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy, London: Souvenir Press, 2011, also explaining how Japan through aiding projects influenced support for its whaling policies from Caribbean countries.

Nevertheless, at the 65th meeting of the Commission, held in Portoro?,Slovenia on 15-18 September 2014, with 64 Contracting Governments in attendance, no modifications were made to the zero catch limits for commercial whaling. On the contrary, a resolution was passed regarding the implementation of the International Court of Justice award of March 31, 2014 (Resolution 2014-5).

The IWC is endowed with the faculties of establishing zones of total prohibition of whaling designated as sanctuary areas (Article V.1.c of the ICRW).At present, the Commission has established two whale “sanctuaries,” namely, the Indian Ocean Sanctuary, originally proposed by the government of Seychelles and approved in 1979, which has been renewed indefinitely from 1992 onwards; and the Southern Ocean Sanctuary, proposed in 1992 by France and in force since 1994,comprising all Antarctic waters south of the Antarctic Convergence, and renewable every ten years. Japan violated this Sanctuary when the moratorium for commercial whaling started in 1985 and it devised a way to bypass it by means of two fake research programmes, JARPA and JARPA II, until the Court declared in its 2014 decision that the former having concluded, the latter should be terminated. A new whale sanctuary was proposed by Brazil in 1998, extending from 0o to 40o South latitude in the South Atlantic Ocean. The proposal had the support of Argentina and South Africa, and that of other IWC members as well. A revised version was presented again in 2005, but it has not been accepted so far. The adoption of a Third Whale Sanctuary in the South Atlantic would be important to prevent the interruption of the commercial moratorium and to avoid the implementation of other permissive programmes for whaling. The Buenos Aires Group, a group of Latin American ICRW Parties starting in 2005, made up by Argentina, Brazil,Chile, Colombia, Costa Rica, Ecuador, México, Panamá, Perú, the Dominican Republic and Uruguay, is in favor of the conservation of marine mammals and supports the establishment of the South Atlantic Sanctuary.29Latin American Strategy Cetacean Conservation (2007), at http://www.icb.org.ar/Reportes/Reporte-Ingles-web.pdf and http://us.whales.org/issues/in-depth/america-latina-en-la-cbi, 5 July 2017.In Argentina, whales are considered not only a natural but also a cultural resource, and whale watching has flourished off the coasts of Patagonia. Stemming from this conservation policy,in 1984 the Southern Right Whale (Eubalaena australis) was declared by Argentina a national natural monument (Statute No. 23.094) and the species is fully protected in Argentina’s jurisdictional waters. The possibility of another sanctuary has been proposed by Australia and New Zealand, which in 1998 sought to discuss a South Pacific Whale Sanctuary, without results so far.

At the regional level, there are two conventions addressing whales, not whaling, for the Baltic and North Atlantic oceans. One of those treaties is the 1992 Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (1992 Small Cetaceans Convention), negotiated in 1991 within the ambit of Article IV.4 of the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (ASCOBANS) and aimed to “achieve and maintain a favorable conservation status for small cetaceans.”30Convention was in force since 29 March 1994, with ten Parties, and amended in 2003, at http://www.ascobans.org/, 5 July 2017.The other is the 1992 agreement between the Faroe Islands, Greenland, Iceland and Norway establishing the North Atlantic Marine Mammal Commission(NAMMCO). Its members being whaling countries, the goal of the commission is not the conservation but the proper management of marine mammals in their regions to foster commercial objectives.31NAMMCO, at www.nammco.no, 5 July 2017.

III. The 2014 Judgment on the Whaling in the Antarctic Case: Construing the Limits of “Granting Special Limits for Purposes of Scientific Research” in Japan’s JARPA II

A. Facts of the Case

On May 31, 2010, Australia instituted proceedings against Japan, both countries being members of the IWC, alleging that the large-scale lethal research programme in the Antarctic implemented by Japan in accordance with JARPA II was in breach of its obligations as a State Party to the ICRW and of “its other international obligations for the preservation of marine mammals and the marine environment.”32Judgment, para. 1.It is clear that Australia focused primarily, but not exclusively,on Japan’s obligations as a Party to the ICRW and did regard other binding and applicable instruments.

Both countries had accepted the jurisdiction of the ICJ according to Article 36.2 of the Court’s Statute. With regard to its jurisdiction, the Court rejected Japan’s objection that it was a case of maritime delimitation of a disputed area which, according to Australia’s declaration, was excluded from the jurisdiction of the Court. The Court asserted that the dispute was “about whether or not Japan’s activities were compatible with its obligations under the ICRW”33Judgment, para. 40.and defined at the early stage of the procedure its approach to the case.34The Court expressed that “The present proceedings concern the interpretation of the International Convention for the Regulation of Whaling and the question whether special permits granted for JARPA II are for purposes of scientific research within the meaning of Article VIII, paragraph 1, of the Convention.” Judgment, para. 42.On November 20, 2012,New Zealand requested to intervene as a non-party in the case and was admitted.

Australia, thus, had to produce evidence before the Court to prove that JARPA II was not a programme for purposes of scientific research within the meaning of Article VIII of the Convention, but a commercial whaling activity, and that its implementation had breached three decisive obligations included in the Schedule:1) the obligation to respect the moratorium of zero catch limits for the killing of whales from all stocks for commercial purposes (para. 10(e)); 2) the obligation not to kill fin whales for commercial purposes in the Southern Ocean Sanctuary (para.7(b)); and 3) the obligation not to kill whales, except minke whales, by factory ships or whale catchers attached to factory ships (para. 10(d)).35Judgment, para. 48.Japan replied to those allegations saying that those restrictions did not apply to JARPA II because it was a programme of scientific research and as such covered by the exception provided for in Article VIII.1 of the Convention. Japan also replied that it did not incur in any breach of the procedural requirements established by paragraph 30 of the Schedule (para. 49). Japan considered that the “special permits” authorized by Article VIII were exceptions falling outside of the scope of the Convention,36Judgment, para. 52.while Australia sustained that conservation measures were also applicable to whaling under scientific purposes.37Judgment, para. 53.

B. The Interpretation of Article VIII, Paragraphs 1, 2, 3 and 4 of the ICRW

Article VIII.1 of the Convention states that “the killing, taking and treating of whales in accordance with the provisions of this Article”, that is, for purposes of scientific research with a special permit from a member country of the ICRW,“shall be exempt from the operation of this Convention.”38Article 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 subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.”Equally relevant are paragraphs 2, 3 and 4 of Article VIII, establishing limits and imposing conditions on these exceptional lethal sampling methods of scientific research. According to the exception, whaling activities carried out under a special permit for purposes of scientific research, abiding by the conditions of Article VIII, are excluded from the obligations of the Convention. The Court considered that the provision had to be construed taking into account the object and purpose of the Convention,enunciated in its Preamble, recalling especially that in its last paragraph the Parties declared that they had “decided to conclude a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.”39Judgment, para. 58.The interpretation has to take into account the Schedule,which forms part of the Convention, and the other instruments adopted by the Commission, namely, Annexes Y and P dealing with the review of the programmes of scientific research.

The Court subsequently addressed the degree of discretionary capacity of State Parties to grant special permits to its nationals authorizing the killing, taking and treating of whales for purposes of scientific research under Article VIII.1 of the Convention. The Court delved into the standard of review used by the Court for the exercise of such permissive concession, a point which became perhaps the core issue for it to decide. Separate opinions of Judges Keith, Sebutinde,and Charlesworth added relevant arguments strengthening the decisive nature of this issue. The exercise of such permissive concession encroaches upon the jurisdictional power of the Court. Scrutinizing this point, Judge Xue argued that,

[A]s it is true with every right, discretion under Article VIII, paragraph 1, as a corollary, also means a duty on every authorizing party to exercise the power properly and reasonably by virtue of the principle of good faith under the law of treaties. For these reasons, it cannot be said that Article VIII has bestoweda self-defined right on the Contracting Parties.40Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), Separate opinion of Judge Xue, para. 9.

The Court, being conscious of the challenge it had to face, concluded that,

Article VIII gives discretion to a State party to the ICRW to reject the request for a special permit or to specify the conditions under which a permit will be granted. However, whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that State’s perception.41Judgment, para. 61.

The IWC had established in that regard standards of review for granting special permits for purposes of scientific research. Japan argued in its presentations that the Court has the competence to review whether a special permit has been granted “for purposes of scientific research” but limited to the process to adopt the decision and not to the decision itself. On the contrary, the Court had no doubts about its own competence to review the granting of special permits “for purposes of scientific research” and to prove this it would make use of objective standards,e.g., to evaluate whether the programme involves scientific research and whether the use of lethal methods is “for purposes of scientific research”, something which should be explained by the State granting the special permit.42Judgment, paras. 67～69.

Australia, on its part, underlined that the term “scientific research” was not defined in the Convention; however, the resolutions of the Commission, although recommendatory in nature, and the Guidelines adopted by the Scientific Committee and included in Annex Y and Annex P, provided criteria to that end, and supported the conclusion that lethal methods can only be used when non-lethal methods are not available.43Judgment, para. 78.

The Court recalled that “Article VIII expressly contemplates the use of lethal methods”44Judgment, para. 83.but there should be reasons to justify its use. Australia contended that maintaining employment and infrastructure is not acceptable as a purpose of scientific research.45Judgment, para. 95.Thus, according to Paragraph 30 of the Schedule, every special permit requires the prior review by the Scientific Committee, which should assess whether the special permit is requested for purposes of scientific research.Additionally, Annex P indicates that the Scientific Committee will conduct reviews of ongoing and completed programmes.46Judgment, para. 84.The next point to be elucidated by the Court was the content of the phrase “for purposes of scientific research”,which should be disaggregated in its two elements, “scientific research” and “for purposes of scientific research.” Because these elements are cumulative, it was not considered enough that a whaling programme involves scientific research. In other words, the killing, taking and treating of whales pursuant to such a programme does not fall within Article VIII unless these activities are “for purposes of scientific research within the meaning of Article VIII.”47Judgment, paras. 87 & 97.The Court, conclusively,stated that it would not be necessary to devise alternative criteria or to offer a general definition of “scientific research”.48Judgment, para. 86.The meaning of the expression “for the purposes of scientific research” in relation to the killing of whales in Article VIII.1,will become the conclusive factor to adjudge whether the JARPA II fell, or failed to fall, within the requirements of that provision.49Judgment, para. 88.The Court concluded that the“research objectives alone must be sufficient to justify the programme as designed and implemented.”50Judgment, para. 97.

C. Japan’s JARPA II in the Light of the Conditions Required by Article VIII to Grant Special Permits for Purposes of Scientific Research

The analysis of the Court to decide whether the JARPA II fulfilled, or did not fulfill, the conditions imposed by Article VIII, involved delving into the content of the programme and detecting its key elements.51Judgment, para. 112.After reviewing the four objectives of the programme, the Judgment recalled that the programme operated “within the Southern Ocean Sanctuary” established in paragraph 7(b) of the Schedule to the Convention.52Judgment, para. 120.

The Court had already concluded that Japan’s JARPA II addressed the categories established by the Scientific Committee in Annex Y, applicable at the time of the presentation of the programme, and later in Annex P, binding at the time of the evaluation of the programme. Consequently, according to the evidence provided by the Parties, the Court concluded that “JARPA II activities involving the lethal sampling of whales can broadly be characterized as ‘scientific research’.”Notwithstanding this partial conclusion, and even if accepting that lethal methods could be used as a tool for “scientific research,” the Court had to further examine whether the JARPA II used this method in a reasonable way according to the described research objectives53Judgment, para. 127.and to accurately review the facts as presented before it.54Judgment, paras. 126 & 205.

The Court noted that the programme foresaw 850 minke whales lethal samples sizes, 50 fin whales and 50 humpback whales,55Judgment, para. 136.a larger number than the previous JARPA, and that the programme ignored the possibility of non-lethal methods in order to reduce the lethal sampling following the recommendations and Guidelines of the IWC.56Judgment, paras. 137 & 144.Moreover, Japan started JARPA II without the final review of JARPA by the IWC, revealing that there were no “strictly scientific considerations” in the special permits granted under JARPA II. The Court consistently argued that to ignore the IWC and Scientific Committee guidelines for special permits con firmed what Australia asserted about Japan’s intention of drawing up JARPA II not “for purposes of scientific research” but in order to maintain “whaling operations without any pause.”57Judgment, para. 156.After detailed analysis of the evidence submitted by the Parties regarding the implementation of JARPA II and the larger number of whales killed, the Court concluded that “no single reason can explain the gap between the target sample sizes and the actual take.”58Judgment, para. 206.

JARPA II was an open-ended programme, a condition admitted by Article VIII.4 only when it is “indispensable to sound and constructive management of the whale fisheries.” However, there was no evidence before the Court of this circumstance, and this was another fact undermining the alleged character of a “scientific research” for JARPA II. Moreover, there had not been a review of the programme by the Scientific Committee after six years of implementation of JARPA II, and the first evaluation of results was scheduled to be conducted in 2014.59Judgment, para. 214.The implementation of JARPA II was then contrary to Article 30 of the Schedule, stating that proposed special permits should be reviewed by the Scientific Committee before they are issued in order to analyze if they comply with the Scientific Committee criteria.60Article 30 of the Schedule states that “A Contracting Government shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them”.The most recent guidelines to that end were adopted by the Scientific Committee and the IWC in 2008 (Annex P), and more than twenty- five resolutions of the IWC confirmed that the parties should not proceed with a special permit programme if it did not satisfy the criteria of the Scientific Committee.61Separate opinion of Judge Ant?nio Can?ado Trindade underlines the legal effect of IWC resolutions in a system of collective regulation under the ICRW. See Separate Opinion of Judge Can?ado Trindade, para. 14.Another circumstance weakening the “scientific research” character of JARPA II was that during the period of implementation of both programmes,JARPA and JARPA II, no results were shared by Japan with other scientific institutions working on Antarctic ecosystems or on other research projects.62Judgment, para. 222.The Court reached the conclusion, which became one of the operative parts of the decision, that according to the evidence before it, JARPA II was not a programme“for purposes of Scientific research” under Article VIII.1 of the Convention.63Judgment, para. 227.

D. The Court’s Reasoning for Rejecting the “Purpose of Scientific Research” of JARPA II

The Court’s decision was based mainly on an analysis of facts describing the implementation of JARPA II. Although to analyze the facts is necessary to reach the decision, the legal reasoning should be the most important part in the adjudication of the dispute.64Separate opinion of Judge Xue, para. 2.

Even if the facts were decisive, the long history of the difficult road pursued by the Commission to approve the moratorium and its alleged illegality for certain member States, including Japan, were scarcely taken into account. The binding character of the decisions of international organizations for their member parties and the legal nature of recommendations adopted by the majority of members, were relevant issues worth being addressed by the Court, and the instant case was a good opportunity to that end. There were in the dispute clear breaches of the Convention and its bylaws that did not need any factual support, e.g., the lack of prior review of special permits by the Scientific Committee before they could be granted. This was a clear breach of the Convention and the IWC instruments that needed no further demonstration.

The Court checked whether those facts fulfilled the conditions established by the Convention and decided in operative paragraph 2 of the judgement that “the special permits granted by Japan in connection with JARPA II do not fall within the provisions of Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling”,65This paragraph was adopted by twelve votes to four, voting against Judges Owada,Abraham, Bennouna, Yusuf.this being the pivotal paragraph of the decision because the nonconformity of JARPA II with Article VIII.1 constituted a breach of the ICRW. Then, the breach of the ICRW brought the illegal quality to JARPA II,illegality that in a rippling effect dragged the illegal character of all the activities performed under it. Accordingly, in operative paragraph 3 the Court found that “by granting special permits to kill, take and treat fin, humpback and Antarctic minke whales” Japan had breached its obligations under paragraph 10(e) of the Schedule.

For the same reason, in operative paragraph 4 of the decision, the Court stated that Japan had breached “its obligations under paragraph 10(d) of the Schedule [...]in relation to the killing, taking and treating of fin whales”, and ruled in operative paragraph 5 that Japan had breached “its obligations under paragraph 7(b) of the Schedule [...] in relation to the killing, taking and treating of fin whales in the‘Southern Ocean Sanctuary’”. In denying the scientific research nature of JARPA II, which could have justified the noncompliance with the general prohibition of killing fin whales and the absolute prohibition of killing fin whales in the Southern Ocean Sanctuary, the Court quashed the legality of any whaling activity performed by Japan under that programme. As a consequence, the Court ruled “that Japan shall revoke any extant authorization, permit or license granted in relation to JARPA II,and refrain from granting any further permits in pursuance of that programme.”66Judgment, operative para. 7.

Contrary to all predictions, and against the evidence before the bench, the Court considered that “Japan has complied with its obligations under Article 30 of the Schedule,” [operative paragraph 6] a conclusion thoroughly rejected by Judge Sebutinde in her separate opinion. She argued that paragraph 30 of the Schedule establishes the procedure to comply with Article VIII, including objectives of the research programme, prior review by the Scientific Committee, number, sex,size and stock of the animals to be taken, effects on the stocks, participation of scientists of other countries, among others. These conditions had not been fulfilled by Japan, since it provided neither the required information nor the opportunity for participation by non-Japanese scientists. As a consequence of those breaches which in her opinion meant a breach of the duty of co-operation with the IWC incumbent to all members, Judge Sebutinde felt unable to join on this point the majority of the Court, a vote deserving praise.

Although enjoying from unanimity to large majorities, the judgment was accompanied by four dissenting opinions – Judges Owada, Abraham, Bennouna and Yusuf, and seven separate opinions – Judges Keith, Can?ado Trindade, Greenwood,Xue, Sebutinde, Bhandari and Judge ad hoc Charlesworth (Australia). While the seconding of Japan’s position by the dissenting opinions will not be developed, it is worth mentioning that the arguments of the separate opinions joining the majority are very rich and deserve being included in the decision.

E. The Principle of Good Faith and the Abuse of Rights in the Whaling Case

Principles of law represent the general rules which inspire other rules and give rise to the development of more specific rules. Principles anchor the dispersed and detailed rules of different branches of law with a unified legal thinking. Among them, the principle of good faith is one of the pillars of a legal system. In the law of treaties, an essential component and source of the pacta sunt servanda rule, among other rules also derived from it.67Robert Kolb, The International Court of Justice, Oxford and Portland: Hart Publishing,2013, p. 917.Hence, the principle of good faith applies in the law of treaties to all the stages of the formation of a treaty, its negotiation, adoption,interpretation and application. In this connection, due to the fact that the principle of good faith is an essential component of the pacta sunt servanda rule, abiding by a treaty means complying with and interpreting a treaty in good faith.68According to Article 26 (VCLT): “Pacta sunt servanda. Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”It could even be deduced that if good faith may be defined as the intention of the parties to apply a treaty which they are entering into, pacta sunt servanda is the consequence of the good faith of the parties.69Bing CHENG, General Principles of Law as Applied by International Courts and Tribunals,Cambridge: Grotius Publications, 1987, pp. 112～114.The failure to comply with an obligation arising from a treaty is, for that reason, the breach of a treaty and, at the same time, the nonobservance of the principle of good faith. This rule was emphasized by the ICJ when it asserted that,

One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based in good faith, so also is the binding character of an international obligation assumed by unilateral declaration.70Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Report 1974, para. 49.

In a subsequent decision the Court, with a reasoning fitting perfectly with the circumstances of the Whaling in Antarctic Case, reiterated that,

Article 26 [VCLT] combines two elements, which are of equal importance. It provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” This latter element, in the Court’s view,implies that, in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application.The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.71Gab?íkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, para. 142.

Going back to the Whaling in Antarctic Case, New Zealand argued in its final summary that,

In summary, the provisions of Article VIII must be interpreted in good faith in their context and in light of the object and purpose of the Convention,taking account of subsequent practice of the parties and applicable rules ofinternational law, as confirmed by supplementary means of interpretation.72Judgment, para. 26.

Australia, for its part, understood that the power of review by the Court “should not be limited to scrutiny for good faith, with a strong presumption in favor of the authorizing State”.73Judgment, para. 63.However, good faith is still the decisive element, as pointed out by Judge Xue in her separate opinion,74Whaling in the Antarctic (Australia v. Japan, New Zealand intervening), Separate opinion of Judge Xue, para. 9.because the result of scrutinizing whether the special permits had been granted “for purposes of scientific research”or not, would qualify Japan’s behavior as legal or illegal, in other words, as performed in good faith, or not. Japan, on its part, contended that the role of the Court is not to review the decisions of the Governments, but only “to secure the integrity of the process by which the decision is made”.75Judgment, para. 65.The Court, nevertheless,did not take into consideration the good or bad faith of Japan in the implementation of the Convention. The principle of good faith and one of its corollaries, the illicit nature of the abuse of rights, were a decisive argument to adjudge a deceitful attitude on the defendant’s part. In this perspective, the abuse of rights leads to a not-so-evident breach of the treaty.76Elisabeth Zoller, La bonne foi en Droit International Public, Paris: Ed. A. Pedone, 1977,pp. 111～114, and case law and legal doctrine cited.In the Whaling in Antarctic Case, Japan’s lack of co-operation with the IWC, which is the most important obligation imposed to the parties by the Convention, amounted to bad faith behavior. It would be a welcome obiter dictum of the Court to underline the importance of complying in good faith with the duties agreed in a treaty.

F. Implementation of the Judgement

After the Court’s decision in 2014 banning Japan’s whaling in the Antarctic,the Japanese Government canceled JARPA II and the 2014 Antarctic hunt season,without committing itself not to resume Antarctic whaling in the future.77At http://www.theguardian.com/environment/2014/apr/03/japan-confirms-cancellationannual-whale-hunt, 5 July 2017.Moreover,the Japanese Government immediately submitted a consultation to the Commission members to consider authorizing it to start commercial whaling in Japan’s coastal waters. The IWC Buenos Aires Group (Grupo Buenos Aires), representing 14% of the ICRW membership,78About the Buenos Aires Group, at https://iwc.int/futuredocs, http://us.whales.org/issues/indepth/america-latina-en-la-cbi and http:///www.cethus.org/newsletter/octubre_2009/english/articulo_3_ok_english.html, 5 July 2017.answered the consultation by expressing that,

With regard to the letter dated 21st January 2015, submitted by the Government of Japan together with an attached list of questions, circulated to all IWC Commissioners and Contracting Governments, on Small-Type Coastal Whaling, the Governments of Argentina, Brazil, Chile, Colombia, Costa Rica,Ecuador, Mexico, Panama, Peru, the Dominican Republic and Uruguay,member States of the International Whaling Commission (IWC) and members of the so-called Grupo Buenos Aires (GBA) [Buenos Aires Group], would like to reaffirm its traditional commitment to the conservation of cetaceans and its engagement with a constructive and positive agenda for the IWC.

The Buenos Aires Group seized this opportunity to reiterate the arguments that were put forth during the IWC 65. In this regard, the GBA firmly supported the continued enforcement of the moratorium on commercial whaling, established by the IWC in 1982, and categorically opposed to the resuming of international trade in whale products. On the same trend was the answer from the United States on May 15, 2015, and the response from Australia, which concisely asserted that,

The International Whaling Commission recognizes only three types of whaling: aboriginal subsistence whaling, commercial whaling, and whaling under Special Permit for research. Australia welcomes Japan’s statement that proposal for small-type coastal whaling falls under the definition of commercial whaling. Australia remains opposed to all forms of commercial whaling and is a strong supporter of the global moratorium.79At http://uk.whales.org/sites/default/files/iwc6616_discussion_paper_on_ways_forward_on_stcw.pdf, 5 July 2017.

Regrettably, on December 1, 2015, Japan’s whaling fleet, although reduced in number, set sail for Antarctica, in defiance of the ICJ’s ruling of 2014.80BBC News, 30 November 2015.A statement from Australia, New Zealand, the US and other governments condemned Japan’s decision to renew whaling in Antarctica, pointing out that,

Our Governments remain resolutely opposed to commercial whaling, in particular in the Southern Ocean Whale Sanctuary established by the International Whaling Commission. We do not believe that Japan has sufficiently demonstrated that it has given due regard to the guidance found in the 2014 International Court of Justice judgment on ensuring that lethal research whaling is consistent with the obligations under the International Convention for the Regulation of Whaling. On December 7, 2015, our Governments joined 29 other nations to protest Japan’s decision. We urged Japan to respect the International Whaling Commission’s procedures and the advice of its Expert Review Panel and Scientific Committee. The science is clear: all information necessary for management and conservation of whales can be obtained through non-lethal methods.81New Zealand and Australia Lead Japan Whaling Protest, at https://www.enca.com/world/new-zealand-and-australia-lead-japan-whaling-protest, 5 July 2017.

Discouraging news indeed, which deserves to be carefully watched for its rippling effects on international jurisdictional dispute settlement.

IV. Other Substantial and Pertinent Subsystems Ruling Antarctic Activities

The 1946 ICRW is a specific convention for the regulation of whaling,concomitantly dealing with the protection of whales. Although in 1948, at the time of its entry into force, this Convention was the only treaty addressing whales, an exceptionally important marine living resource, and whaling, this legal emptiness was gradually evolving into a variety of legal regimes. New instruments were adopted addressing the Antarctic, the law of the sea, marine life, including the conservation of marine mammals, cetaceans and whales, the demands for the protection of the environment or the rights of new generations to the world’s biodiversity. Some of these legal frameworks have more parties than the ICRW and a comprehensive perspective of marine life and the protection of the environment.

A. The Antarctic Treaty System as Mandatory Antarctic Regime

Turning first to the Antarctic, at the time of the adoption, in 1946, of the ICRW, the geographical ambit of the present case was a continent and an ocean deprived of any legal regime. This situation changed completely when some years later, the Antarctic Treaty was signed at Washington, on December 1, 1959. This Treaty had twelve original signatories, the Consultative Parties82The Treaty has at present 29 Consultative Parties and 24 Non-Consultative Parties.– Australia, Japan and New Zealand among them, and entered into force in 1961.83Antarctic Treaty, United Nations Treaty Series, Vol. 402, p. 71.Following a political understanding which made the agreement possible, the Antarctic Treaty set up a legal framework for the area south of 60o South Latitude (Article VI)prioritizing that the Antarctic will be used exclusively for peaceful purposes and will promote cooperation for scientific research. Among its peaceful and scientific goals the Treaty included the preservation of the Antarctic ecosystem, which is listed in the measures to be adopted by the Parties “in furtherance of the principles and objectives of the Treaty, including measures regarding: [...] (f) preservation and conservation of living resources in Antarctica” (Article IX.1.f). The Treaty did not make any special reference to marine mammals and whales, in order not to overlap the competence of the IWC. On February 11, 1972, the Convention for the Conservation of Antarctic Seals adopted at London, Australia and Japan being parties. The new agreement was negotiated at and recommended by the Antarctic Treaty Consultative Meetings (ATCM), with the purpose “to promote and achieve the objectives of protection, scientific study and rational use of Antarctic seals,and to maintain a satisfactory balance within the ecological system.”84Convention for the Conservation of Antarctic Seals, 1 June 1972, United Nations Treaty Series, Vol. 1080, p. 176.The 1972 Antarctic Seals Convention applies to the seas south of 60o South Latitude and entered into force in 1978.85Text of the Antarctic Seals Convention, at http://www.ats.aq/documents/recatt/att076_e.pdf,5 July 2017.

The Parties to the Antarctic Treaty likewise adopted, for the fulfillment of its objectives and as new States became parties, different measures for the protection and conservation of the Antarctic environment, in particular the Agreed Measures for the Conservation of Antarctic Fauna and Flora.86Text of the Agreed Measures, at http://www.ats.aq/documents/recatt%5Catt080_e.pdf, 5 July 2017.A new negotiation on marine living resources resulted in the adoption at Canberra on May 20, 1980, of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).The latter, in particular, stressed in the Preamble that the Contracting Parties will adopt the convention “Recognizing the prime responsibilities of the Antarctic Treaty Consultative Parties for the protection and preservation of the Antarctic environment and, in particular, their responsibilities under Article IX, paragraph 1(f) of the Antarctic Treaty in respect of the preservation and conservation of living resources in Antarctica”. Though the convention does not address whales, they are an indivisible part of the Antarctic environment. The ATCM has adopted measures for the protection of those resources in different recommendations.87See Antarctic Treaty Secretariat website for the relevant documents on the Antarctic environment including the Protocol on Environmental Protection to the Antarctic Treaty(Madrid, 1991) and the Agreed Measures for the Conservation of Antarctic Fauna and Flora,at www.ats.aq/e/ats.htm, 5 July 2017.

B. Binding Instruments Dealing with the International Protection of the Antarctic Environment.

Taking next into account the emergence of the law for the protection of the environment, it should be recalled that in 1972 the United Nations Conference on the Human Environment adopted the Stockholm Principles88The United Nations Conference on the Human Environment (Stockholm Conference),proclaiming in its 21st plenary meeting on June 16, 1972 the guiding 26 Principles, states in“Principle 4. Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperiled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development.”which laid down the foundations of the international law for the environment. The 1972 Stockholm Principles shyly advanced the need to replace the economic label of “natural resources” with the more regardful of “human environment,” targeting the sound use of the natural world and its protection. The principles for the protection of the human environment strove to replace the looting concept of “exploitation” with a new approach of “sustainable use of natural world,” becoming aware that in its true essence nature embeds the “great possessions” of our planet.89Aldo Leopold, A Sand County Almanac and Sketches Here and There, New York: Oxford University Press, 1949.The unaccomplished goals of that Conference raised awareness regarding the exhaustion and deterioration of the natural world that supports the biota, life on earth and,recognizing whales as an iconic species called for the ten-year moratorium on commercial whaling already mentioned.90See Part II, Section 2 above.

A relevant step towards the protection of natural fauna and flora was attained by the adoption on March 6, 1973 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),91Convention on International Trade in Endangered Species of Wild Fauna and Flora, United Nations Treaty Series, Vol. 993, p. 243.which includes in the list of the most endangered species threatened with extinction (Appendix I) Cetacea –dolphins, porpoises and whales, and “prohibits international trade in specimens of these species except when the purpose of the import is not commercial.” Almost all whales not included in CITES’ Appendix I, appear listed in CITES’ Appendix II(endangered species). Thus, almost all whale species are included in one of the two CITES lists, either facing extinction or in danger of extinction. Australia (1976),Japan (1980) and New Zealand (1989) became members of CITES, which set up organs for the implementation of its goals, and was influential in the monitoring of the commercial moratorium approved by the IWC. With the cooperation of the parties, CITES keeps records of the trade in whale products in an effective way.

The CITES framework, sharing in its membership most of the parties to the IWC, cannot be disregarded when dealing with the implementation of the ICRW and the regulations approved by the IWC. This is one of the conventions that the ICJ should have at least mentioned, taking into account that Japan commercialized whaling products during the many years of implementation of its so-called scientific research activity under JARPA and JARPA II, in open breach of its obligations as a CITES Party. In addition to the importance of good faith in the application of a treaty, it is necessary to recall that CITES is a treaty qualifying as a relevant rule “of international law applicable in the relations between the parties” (Article 31.3.c,VCLT) with regard to the ICRW.92Convention on International Trade in Endangered Species of Wild Fauna and Flora, United Nations Treaty Series, Vol. 993. p. 340.

The former European Economic Community (EEC) was a member of CITES and was supportive of the adoption of the commercial whaling moratorium. The EEC complied with CITES regulations banning the trade of whale products and implemented the prohibition to import whale products of species included in Appendix I of the Convention from January 1, 1982 onwards (Article 1, Council Regulation No. 348/81).

The 1979 Convention on Migratory Species of Wild Animals (CMS), known as the Bonn Convention, also lists in Appendix I, enumerating endangered migratory species, different Cetacean, including whales, dolphins and porpoises. However,while Australia has been a member of the Convention since 1991 and New Zealand has been one since 2000, Japan is not a party.

The parties to the present case, Australia, Japan and New Zealand, are parties as well to the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR), in force since 1982, which applies “to all Antarctic populations of finfish, molluscs, crustacean and sea birds” within the “Antarctic Convergence” drawing up the Convention area. However, the CAMLR excludes from its object whales and seals, which are the object of specific conventions,namely, the ICRW and the Convention for the Conservation of Antarctic Seals,even if all species interact in the Antarctic ecosystem.

The 1992 Convention on Biological Diversity, in force since 1993, prescribes that all States should share the benefits of biodiversity and states that the continuous predation of cetaceans prevents non-whaling countries from sharing a natural resource common to all nations. Australia, New Zealand and Japan are parties to the Convention. The Convention parties later adopted the Cartagena Protocol on Biosafety, in force since 2003, which Japan (2004) and New Zealand (2005) are parties to but Australia has not subscribed so far.

Last but not at all least, the 1982 UNCLOS, the outcome of the Third United Nations Conference on the Law of the Sea, incorporated decisive provisions for the conservation of whales. In the background of the Third Conference was the resolution approved by the 1958 United Nations Conference on the Law of the Sea calling for “Humane killing of marine life” and requesting States “[...] to prescribe,by all means available to them, those methods for the capture and killing of marine life, especially of whales and seals, which will spare them suffering to the greatest extent possible.”93Anthony D’Amato and Sudhir K. Chopra, Whales: Their Emerging Right to Life, American Journal of International Law, Vol. 85, 1991, pp. 21～62.The resolution addressed the behavior towards whales disregarding the IWC, asserting implicitly that the UNCLOS had a comprehensive jurisdiction on all marine affairs.

Back in 1970, at the early stages of convening a new United Nations Conference on the Law of the Sea, the United Nations General Assembly stated in a declaration that it was “Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole.” This Declaration defined the object and purpose of drafting, for the first time, a comprehensive agreement for the law of the sea, and led to the all-embracing approach faithfully followed by the future Third Conference on the Law of the Sea. On April 30, 1982, after ten years of negotiations, the Conference adopted the UNCLOS, starting a new regime for the world oceans. The new UN Law of the Sea Convention transformed not only the world oceans’ regime but international politics as well, a perspective emerging almost immediately after the adoption of the Convention and validated after the Convention entered into force in 1994. The Exclusive Economic Zones and the extended continental shelves greatly enlarged national jurisdictions and significantly shrank the high seas and the seabed zone. Yet, polar waters were comprised in the new oceans’ regime. Nothing was left aside.

Regarding marine mammals, especially cetaceans, UNCLOS establishes that,in their Exclusive Economic Zones,

Marine mammals. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation,management and study. (Article 65)

This provision is replicated for the high seas, UNCLOS stating that,

Marine mammals. Article 65 also applies to the conservation of marine mammals in the high seas.94UNCLOS, Article 120.

The UNCLOS imposes on States the duty to co-operate towards the conservation of marine mammals, a general duty applicable to all mammals,certainly including whales. To some extent, the Convention supersedes the IWC.The conservation of marine mammals is the ultimate goal of the UNCLOS provisions, superseding the constrained goal of protection of whales that the ICRW implements. Then, taking into account the operative character of the IWC and the existence of other regional organizations dealing with whales management (e.g.the Convention and Plan of Action for the Protection of the Marine Environment and the Coastal Zones of the Southeast Pacific entered into force in 1981 by Chile, Peru, Ecuador, Colombia and Panama95Plan of Action for the South Pacific, at http://cpps-int.org/cpps-docs/pda/mamiferos/docs/Plan.de.accion.mamiferos.marinos.PSE.pdf, 5 July 2017. (in Spanish)) UNCLOS establishes that States may fulfill the duty of cooperation for the conservation of cetaceans through the appropriate international organizations if that were the case. The duty is cooperation toward conservation, not only protection, of whales, and includes all States Parties to UNCLOS, certainly a larger number than the IWC membership. It further establishes on what grounds non-parties to the IWC could disregard that the Commission is the only international body having competence to regulate living species inhabiting all oceans, hence pointing to a common heritage of mankind and not at all an asset of rapacious States looting the world oceans.

The duties that the cited UNCLOS provisions impose on States are parallel to the competence of the IWC and not limited nor subsidiary to it; on the contrary,they are mandatory for all States Parties. The UNCLOS does not admit reservations(Article 309) and, above all, clarifies its hierarchy regarding other treaties to which its member States are parties by stating that,

The Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.96UNCLOS, Article 311(2).

The IWC does not seem to be aware of UNCLOS’s superseding nature to the ICRW, in the first place as a later convention modifying a previous one on the same subject, marine mammals and cetaceans; secondly, out of the codified nature of UNCLOS and, thirdly, from its special hierarchy as a treaty without a termination date, not allowing reservations and, above all, with the express condition that the rights and obligations deriving from other agreements should be compatible with the UNCLOS. UNCLOS upgrades itself as the ocean code, and when it deals with whales this is irrespective of the existence, or not, of other conventions or international organizations. If these organizations exist, they are the appropriate means to comply with the obligations imposed under Articles 65 and 120; yet, they are the ones to adapt to UNCLOS and not the other way around.

It is worth noting that Australia (1994), Japan (1996), and New Zealand(1991), are parties to the UNCLOS. They are likewise parties to the 1995 Agreement for the Implementation of the Provisions of the Convention of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement).97Text of the Agreement, at http://www.un.org/depts/los/convention_agreements/texts/ fish_stocks_agreement/CONF164_37.htm, 5 July 2017.

V. Final Remarks

In brief, the interpretive process carried out by the Court,98Judge Julia Sebutinde voted against the decision of the Court in operative point 6, stating that “having regard to the duty incumbent upon States parties to meaningfully co-operate with the IWC, I am unable to join the majority in finding that ‘Japan has complied with its obligations under paragraph 30 of the Schedule to the [ICRW] with regard to JARPA II’.”definitely correct,only takes into account the provisions of the ICRW System. The choice of this methodology by the Court was adopted not in the absence of other conventions relevant in number and content to both the Antarctic and whales. On the contrary,it arises out of considering the ICRW and its complementary instruments to be a self-sustainable and self-contained regime. The ICRW becomes a subsystem of international law regulating all aspects of whaling and whales protection, applicable to all oceans and to the largest part of cetaceans, and is recognized in that capacity by other conventions.99Annex II to the Protocol on Environmental Protection to the Antarctic Treaty Conservation of Antarctic Fauna and Flora, Article 7, Relationship with other agreements outside the Antarctic Treaty System: Nothing in this Annex shall derogate from the rights and obligations of Parties under the International Convention for the Regulation of Whaling.As a side effect of this approach, the Court disregarded the evolutionary rule embedded in Article 31(3)(c) of the VCLT, although it remarked that it paid due regard to that essential interpretive rule.1100See para. 79 of the Judgement, which states that: “Australia claims that IWC resolutions must inform the Court’s interpretation of Article VIII because they comprise ‘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’, within the meaning of subparagraphs (a) and (b), respectively,of paragraph 3 of Article 31 of the Vienna Convention on the Law of Treaties.”

With regard to the legal capacity of the IWC, it is most disappointing how the Court dismissed the relevance of the Commission’s resolutions, not only in terms of the non-binding nature regarding the States Parties unless adopted by unanimity or consensus,101Judgment, para. 46.but also downgrading the mandatory nature of the resolutions for the Commission itself, which is the means that multilateral institutions have for the fulfillment of their duties.102Judge ad hoc Charlesworth in her well-founded separate opinion underlines the importance of the status of IWC resolutions and its importance as an element of interpretation of the ICRW in accordance to Article 31(3)(a), VCLT, especially “with respect to the use of lethal methods ‘for purposes of scientific research’ under Article VIII.” In this regard,the Court wrote in para. 83 of the Judgement that: “Article VIII expressly contemplates the use of lethal methods, and the Court is of the view that 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 subparagraphs (a) and(b), respectively, of paragraph (3) of Article 31 of the Vienna Convention on the Law of Treaties.”Certainly, the bodies created by multilateral treaties are able to construe the meaning of their constitutive treaty provisions, at least of those provisions describing the tasks of the implementing organ. Even if the collegiate interpretation may be non-binding for a party, it is binding for the organization when adopted according to its decision-making process.103Henry G. Shermers and Niels M. Blokker, International Institutional Law, The Hague:Martinus Nijhoff Publisher, 1999, p. 745. “Duly adopted internal rules will bind all lower organs, and many indeed bind the organization itself.”

The case was the opportunity for the Court to support the view expressed in other treaties which the parties in this case are parties to, namely, the time is ripe for shifting from regulation and protection to conservation of cetaceans and whales.Together with the reaffirmation of the principle of good faith for the interpretation and application of treaties, that statement would have been another welcome obiter dictum of the Court.

Rules of law are empty formulations which in turn need to be shaped to fit a given reality. The task of a judge is to adapt legal rules to a given situation, to make a rule work, looking for the interpretation and application of the existing rules. Interpretation is the wealth of law; it is the possibility to give density, depth and content to an abstract rule. The evolving social context creating law requires interpretation to reflect such a changing nature. As Professor McDougal clearly stated,

The important question we must now confront, the principal question posed by the call for this Conference [the Vienna Conference on the Law of Treaties,1968–1969], is by what value criteria an applier should guide his inescapablycreative and responsible judgment.104Myres S. McDougal, Harold D. Laswell and James C. Miller, The Interpretation of International Agreements and World Public Order, The Hague: Martinus Nijhoff Publishers, 1994, p. 407.

For that reason, we respectfully disagree with Judge Bennouna when in his dissenting opinion he correctly points out that the task of the Court is to do justice by applying international law, but he fails to consider that international law is not a single isolated provision of the 1946 ICRW, but the intertwined fabric of binding rules which construes its content. As such it was clearly expressed by the Court when it declared that a rule of international law “[…] does not operate in a vacuum; it operates in relation to facts and in the context of a wider framework of legal rules of which it forms only a part.”105Interpretation of the agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, para. 10, at http://www.icj-cij.org/docket/files/65/6303.pdf, 5 July 2017.Article 31 of the VCLT nurtures interpretation with a teleological, temporal and flexible capacity, ensuring that a legal instrument will not be deprived of future developments. Moreover, the codifying and customary nature of VCLT Article 31 has been recognized by the ICJ case law.106Arbitral Award of 31 July 1989, ICJ Reports 1991, paras. 48 & 70, at http://www.icj-cij.org/docket/files/82/6863.pdf, and subsequent case law.Would it then be possible to disregard the Antarctic regime, the law of the sea, the law for the environment and other relevant international conventions when construing Article VIII.1 of the 1946 ICRW? According to international law,it would not be.

The case would have been the opportunity for the Court to shift from the regulatory target of the ICRW and the IWC towards a wider and more complex legal framework, where other interests are taken into account outside the whaling caucus that for too many years some States have endowed themselves with. In addition, the ICRW does not allow access by organizations, a shortcoming that limits the implementation of the IWC’s resolutions.

If a party to a dispute alleges that another party is breaching a convention of any sort, regional or general, bilateral or multilateral, the Court has the competence to decide on the matter. Moreover, even if the parties did not make any reference to a treaty applicable to the dispute, but it is a relevant and pertinent one, the Court ought to take into account its provisions to adjudge the case according to the general principle iura novit curia.107The Case of the S.S. “Lotus”, Judgment No. 9, PCIJ Series A No. 10, 1927, p. 31;Handyside Case, Judgment of 7 December 1976, European Court of Human Rights Series A No. 24, para. 41. Cited in Godínez Cruz vs. Honduras, Decision of January 20, 1989,(Merits), Corte IDH Serie C No. 5, para. 172, at http://www.corteidh.or.cr/docs/casos/articulos/seriec_05_esp.pdf, 5 July 2017.Otherwise, the parties would have the discretionary power of choosing the rules on which a Court should rely to reach its decision. The Court, which has the capacity to complete the flawed or incomplete reasoning of the parties, could have argued in the Whaling in the Antarctic Case that UNCLOS, the prevailing regime for the world oceans, stated a duty of cooperation for the conservation of mammals and whales, irrespective of other conventions, and that CITES imposes the obligation not to trade whale products,adding that the defendant was breaching those obligations as well, among other pertinent legal frameworks.108On the same line, the relevant reasoning of Judge Can?ado Trindade, Separate Opinion of Judge Ant?nio A. Can?ado Trindade, paras. 25, 26, 44.

Nonetheless, a question arises: Would a different jurisdiction, if available,have made a difference in this regard? Would another court or tribunal have ignored the UNCLOS and a number of other instruments dealing with the circumstances of the case? Even if the answer to these queries is unknown, a more evolutive and integrative reasoning of the Court would have fostered the intricate task the IWC is carrying on for the continuation of the moratorium and the protection, inspiring conservation, of whales.