Guest Post: Are States Injured by Whaling in the Antarctic?

[Priya Urs has recently received a Master of Law (LL.M.) with a specialisation in International Law from the University of Cambridge, U.K.]

The recent Whaling in the Antarctic decision of the International Court of Justice (ICJ) has unraveled existing debates about the propriety of whaling today, illustrated by the pivotal determination of whether the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) was in line with the object and purpose of the International Convention for the Regulation of Whaling 1946, and what that object and purpose might be. This issue, in turn, raises less discussed questions about the nature of the obligations the Convention imposes on contracting states; specifically, whether it includes an obligation erga omnes to refrain from commercial whaling. In this brief post I describe what the dispute does and does not tell us about the increasingly multilateral quality of state obligations, allowing even non-injured states like Australia to hold others accountable for obligations owed to the international community as a whole.

Multilateralism in International Law

Australia in its application to the Court alleged that the Japanese Government’s authorization of commercial whaling under the guise of scientific research was a violation of its obligations under international law – the Convention in particular, as well as ‘other obligations’ for the preservation of marine mammals and the marine environment. New Zealand (intervening) went a step further, suggesting that Japan’s actions were a challenge to the system of collective regulation established by the Convention, including contracting parties’ duty of ‘meaningful co-operation’. Japan on the other hand insisted that JARPA II was in line with the treaty’s Article VIII exception for scientific research, also claiming that there exists in customary international law a freedom to engage in whaling.

Considered collectively, the tenor of these various arguments raises a larger question about the very nature of state obligations: have multilateral ‘law-making’ treaties become the dominant source of obligations among states in contemporary international law? Professor James Crawford in a recent publication argues that to a large extent, they have. This trend is evident not only from the pleadings of Australia and New Zealand that conservation is a collective interest among states, but from the framework of the Convention itself. The Court’s discussion of the system of regulation set up by the Convention alludes to the cooperative effort among states contemplated during its drafting. In particular, the majority opinion notes the ‘significant role’ accorded to the Whaling Commission in regulating the activities of contracting states. In sum, whether the Convention amounts to a prohibition on or merely the regulation of commercial whaling, its law-making effect is well established.

The obvious conclusion to be drawn, then, is that multilateral agreements – such as the present Convention – are not merely aggregations of bilateral relationships. Their multilateral effect is manifested in the interest of states like Australia and New Zealand in ensuring mutual compliance irrespective of their ability to make claims to specific injury arising out of Japan’s violation. As a result, irrespective of whether the Convention was intended to prohibit commercial whaling as a conservationist effort, or simply to regulate states’ access to a common resource, this emphasis by the Court reaffirms this trajectory in the development of international law.

Obligations Erga Omnes

What is interesting about the proceedings in this dispute, then, is an issue that was not debated at all. Japan made no challenge to Australia’s standing before the Court (only making a challenge to ICJ jurisdiction using Australia’s reservation to the Convention), seemingly accepting as law the proposition that even though Australia was not an injured state in a bilateral relationship with Japan, it had a legal interest in ensuring widespread compliance among contracting states. This conclusion is purely conjecture, yet, regardless of whether this omission was a conscious decision or a glaring mistake by Japan, it is indisputable that all three parties’ positions in the Whaling dispute fall in line with the ICJ’s gradual recognition of obligations erga omnes over the last half-century.

Quick to offer an apology for its rejection of Ethiopia and Liberia’s public interest claim against South Africa in the South West Africa Cases, in 1970 the Court in its famous dictum in Barcelona Traction identified obligations erga omnes for the first time as obligations owed to the international community generally. It was only in 2012, however, that the question of standing was addressed by the Court directly, affirming in Obligation to Prosecute or Extradite that all states – including Belgium, a non-injured state – had a legal interest in ensuring Senegal’s compliance with the Convention Against Torture 1984.

This trend is reflected most clearly in Article 48 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA), a progressive development of the law in which, instead of diluting the definition of an injured state, the ILC ultimately chose to recognise the right of a non-injured state to invoke the responsibility of a state in violation of its international obligations. Though not formally, the ICJ has affirmed the text of Article 48(1)(a) in its 2012 decision in Belgium v Senegal.

It is worth noting, however, that the Court indulged Belgium as a complaining state in a situation where the obligations involved were erga omnes partes only. As a result, its position on the broader category of obligations erga omnes in Article 48(1)(b) – owed to the international community as a whole – remains uncertain. It would appear that Article 48(1)(a) might have been similarly applied in the Whaling decision as involving obligations erga omnes partes on the basis of which Australia could defend its standing before the ICJ. Indeed, the Court seems to have subconsciously restricted itself to its position in 2012, determining the whaling dispute entirely on the basis of the Convention and choosing not to address Australia’s claims to Japan’s ‘other obligations’ outside of it.   

The ICJ’s silence on these developments in the law of standing in the Whaling decision is perhaps an unfortunate result of Japan’s failure to challenge to Australia’s locus standi. It might have been worthwhile for Japan to have argued that Australia had no legal interest in its alleged non-compliance with its treaty obligations, refuting Australia and New Zealand’s characterization of the dispute as involving multilateral obligations of the sort contemplated by Article 48(1)(a).

Conversely, Japan could have taken greater advantage than it did of Australia’s characterization of the Convention as a ‘multilateral regime for the collective management of a common resource’ in its jurisdictional challenge, precluding the need for the ICJ’s resolution of the dispute in the first place. Judges Owada and Bennouna hint at this in their dissenting opinions, each arguing that the self-contained institutional framework created by the Convention should be allowed to take effect in the interest of genuine multilateral cooperation, but stopping short of challenging Australia’s right of standing before the Court.

Is it possible to conclude that the ICJ is inclined towards expanding the content of obligations erga omnes to include efforts towards conservation of common resources? While the peremptory norm against torture might have been persuasive in recognizing Belgium’s claim to locus standi in Obligation to Prosecute or Extradite, strictly speaking, the peremptory status of the norm in question is irrelevant to the determination of whether the obligation to adhere to it is erga omnes. Consequently, it would be inaccurate to suggest that the Court in the Whaling decision has recognized the existence of an international norm against whaling.

Japan’s Obligation of Compliance

Despite the ICJ’s firm ruling and the decline in the demand for whale meat, there are concerns that Japan may in fact continue to carry out commercial whaling behind the façade of JARPA II or an equally dubious alias. While recognizing a right of standing for interested states is not hugely problematic (and seems to some degree to encourage compliance), the drafting of ARSIWA revealed early on the limitations in ensuring that a violating state comply with its obligations in a situation in which there is no injured state. Under Chapter II, only injured states are permitted to use countermeasures to induce compliance. The ILC deliberately restricted itself in this way, leaving interested (but non-injured) states – like Australia and New Zealand – with few options in the event of non-compliance.

While some view this position regrettably, it was a necessary result of the fact that many states continue to object strongly to collective countermeasures, and with good reason. The broad scope of obligations erga omnes in multilateral treaties, if justifying the use of what Professor Martii Koskenniemi has termed spontaneous ‘solidarity measures’ to induce compliance, is likely to be abused by the most powerful states. Understandably, then, the recognition of collective countermeasures by states with merely an interest in compliance proves problematic. Yet, at the same time, those who would argue that recognizing the locus standi of interested states under Article 48 is meaningless without a corresponding right to resort to countermeasures (particularly to address serious breaches of peremptory norms) are not unpersuasive.

The incongruity between these two positions has been resolved elegantly by Article 54, ARSIWA which paves the way for the development of ‘lawful measures’ to induce compliance by a violating state. In this way, Article 54 affords states the time and flexibility to evolve a norm to address violations of obligations erga omnes. Since international law on the point is in flux, this was the best stance for a body like the ILC to have taken, allowing the future accommodation of collective countermeasures, should states accept such a norm in years to come.

To conclude briefly, the culture of multilateralism that the Whaling decision seems to respect certainly warrants the elaboration of these ‘lawful’ measures – collective countermeasures or otherwise – to ensure that the powerful right of standing that has come to be recognized today, and the positive effect it is likely to have in ensuring widespread compliance, is not rendered meaningless.