Robert L. Friedheim, Chairman
Robin Friedheim, Rapporteur
I. Introduction
The fate of the great whales has fascinated many people, especially in the Western world, in the late 20th century. Many know of the ferocious plunder of the whale stocks in the 18th to mid-20th century and assume that drastic measures are still needed to prevent whales of all species from becoming extinct. Indeed, whales have been embraced by a number of environmental and animal rights groups as a symbol of their movement. They have been anthropomorphized that is, proponents allege that whales share with us such human attributes as communications (including abstruse mathematical poetry), sentient feelings, the ability to create, and, because of the size and fizzured cortex of their brains, intelligence and reasoning ability. This has led to a claim that they must be treated as "special creatures" and not subject to the same human rules governing other wild creatures. In short, they are "charismatic megafauna." In the eyes of more extreme proponents of animal rights, each whale must be preserved no matter how detrimental to those highly dependent upon the consumption of whale meat for dietary or cultural reasons.
It is not well known that since the early 1980s because of the work of the International Whaling Commission (IWC), there has been little chance of extinction caused by future human predation. By that time, almost all of the stocks of great whales had been classified as either Initial Management Stocks (IMS) or as Protection Stocks (PS) and not subject to capture by commercial whalers. Moreover, this prohibition is not likely to be lifted in the foreseeable future, if ever. All that is left for potential exploitation are minke whales (smallest and most abundant of the baleen whales), and a limited number of gray, bowhead, and fin whales whose exploitation by aboriginal peoples is allowed by the International Convention for the Regulation of Whaling (ICRW, Schedule, para. 13).
The IWC has completed work on a Revised Management Procedure (RMP) which theoretically would allow for the exploitation of minke whales under conditions of sustainability. But opponents of the resumption of commercial whaling - now a majority of states participating in the IWC - have enforced delays, insisting that a Revised Management Scheme (RMS) with detailed rules be implemented first before the RMP is used to calculate quota, as well as voting to impose a Southern Ocean Sanctuary, which would effectively terminate commercial whaling in the marine region of the greatest whale abundance. These actions seem to turn their back on the original purposes of the ICRW, which was formed to oversee "the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry" (Preamble, ICRW). Some proponents of the new direction are explicit in their demand that, as a result of a new moral imperative which they claim is shared by the peoples of the world, commercial whaling be terminated forever, whether or not extinction of the species is threatened. In short, it has been deemed legally permissible to turn the IWC in a direction not explicitly authorized by the ICRW, effectively terminating the rights of states supposedly protected by the original treaty.
The proposition that a majority under an existing treaty can transform the treaty and terminate the rights of some state parties has been questioned by some states party to the IWC, as well as some members of the scholarly community. They question whether specific rights of the parties can be terminated legally, and question whether it is within the scope and powers of an international organization to alter its mandate without the consent of all of its members. Not only legal, but political and ethical questions that go far beyond the exploitation of whales are also raised.
As the last remaining major state wishing to resume commercial whaling for human food, Japan is one of the principal states disturbed by the seeming change of direction of the IWC. Since the imposition of the moratorium in 1986, it has questioned the legality of a number of particular measures imposed by a majority in the IWC, and enforced by one state - the United States - supposedly through its domestic legal powers. At least as it related to the Southern Ocean Sanctuary, Japan requested that the IWC "refer the matter to relevant legal institutions." (IWC, Chairman's Report of the 47th Annual Meeting, Item 13.4). The proposed recommendation was tabled, and therefore no action on the item can be taken until the next IWC meeting.
Japan's Institute of Cetacean Research, which conducts scientific cetacean research, decided to seek advice on the legal issues from both Japanese and non-Japanese experts on international environmental law. It requested Dr. Robert Friedheim, School of International Relations, University of Southern California, USA, to assemble a panel to meet in a Workshop. The group of foreign experts recommended by Dr. Friedheim, as well as all other participants, were invited. Senior Japanese international lawyers, senior scientists from the Institute, and representatives of the Japanese Government also participated in the Workshop, which was held on January 7-9, 1996. What follows are: (1) an account of its considerations and its findings; (2) the short preparatory papers written by the invited outside experts (Appendix) were distributed to the Workshop prior to the meeting. Several previous legal analyses had been made available to the IWC.
While the panel ranged broadly over the issues, it was asked specifically to consider the following questions:
Within the constraints imposed by a Workshop format, the participants examined the first set of questions reasonably systematically with materials generated by the second set of questions often being incorporated in their comments and analyses.
Before proceeding, the reader should be warned of a number of limitations that the participants understood concerning their work. First, because the group was asked by one of the parties at issue to examine the problem, and the panel had access to their experts and data, it could not be expected to give equally balanced consideration to the "other side's" case. It did not have access to the other side's experts and much of its data. Naturally, the panel did examine IWC documents stating the majority case, and legal analyses favorable to the claim that the majority has acted within its legal mandate. Second, the panel is neither judge nor jury. Its opinions are therefore not "authoritative" or "determinative" of the outcome. Third, the views expressed should not be taken as a forecast of the outcome if the problems examined are ever submitted to a conciliation, arbitration, or judicial panel. In sum, the purpose was to provide information and analyses by a group of knowledgeable but private individuals.
II. Have the Rights and Duties of States Under the ICRW been Violated?
Introduction
The legal ramifications of recent actions of the IWC and some of its member states were commented upon in preparatory papers and discussed extensively at the Workshop. In particular, the 1982 moratorium, the 1994 Southern Ocean Sanctuary, national efforts to enforce IWC recommendations as binding requirements, and general decision-making procedures of the IWC were reviewed. There was no effort to require that the group reach consensus or agreement, but a remarkable degree of commonalty of views emerged in discussion. All felt that Japan, and other states aggrieved by recent actions of the IWC have a plausible "case" that their treatment is not in accordance with established principles of international law. Such a case does not depend exclusively upon a reading of the original International Convention for the Regulation of Whaling, but must be construed in the light of the Vienna Convention on the Law of Treaties, which describes how states should understand the obligations they undertake in treaties, and "trends" in international environmental law of recent years. That case will be described below.
Prior to stating the "case," several preliminary observations should be made that will help illuminate the context of the problem. First, the states objecting to current IWC policy, especially the moratorium, including Japan, Norway, and Iceland, have scrupulously avoided deliberate breaches of international law in the actions they have taken in response to IWC policies they deemed illegal. Japan believes it is legally correct in continuing lethal scientific whaling, Norway in whaling for minke whales under its objection, and Iceland (who dropped out of the IWC) in not resuming whaling. If the United States attempts to punish Japan under the Pelly Amendment, it will do so under the self-proclaimed American right to punish any state "for diminishing the effectiveness" of the IWC's mandate, and not because the offending state violated international law.
Second, the group recognized that the underlying problem that members of the IWC faced in recent years was how to bring a 50-year-old treaty up to date. All agreed that the ICRW as written was inadequate for dealing with today's ocean management problems. Although the ICRW can be interpreted as being oriented toward "sustainability," a consistent policy mandate is not spelled out in the treaty. It lacks dispute-settlement features. It has few enforcement features. But it does have a feature relatively rare in multilateral treaties decision-making by three-quarters majority on important issues rather than by consensus. The question was raised: in attempting to update the IWC, did the majority using its voting rights go beyond what was permissible in transforming a treaty binding upon sovereign states, and create a new treaty with different obligations and rights without the consent of all of the parties? Workshop participants recognized that there were at least two divergent schools of thought on how far an international organization can go in transforming itself one camp claimed that "updating" was permissible under the concept of "progressive development," the other believed that if the transformation is fundamental, that all parties must consent before they are bound.
Different Legal Perspectives
Each of the invited legal experts approached the basic legal problems from a somewhat different perspective. Professor Johnston noted that he took "refuge" in legal theory. He pointed out that the problems in the IWC could be viewed as a clash of three different mindsets. The first was juridical or litigational. It implies a possible wish to litigate and therefore to establish a case that would influence judges. The second perspective was operational or diplomatic. Here legal considerations related to how international organizations operate in the diplomatic arena. Advice offered from this perspective combines legal arguments with consideration of both national and international policy. The third mindset reflects advanced or enlightened public opinion, reflecting ethical or societal values and raising questions about the IWC's responses to the value demands of "civic Society."
As part of the discussion of the first mindset, Professor Johnston thought one could say that designation of the Southern Ocean Sanctuary was not in conformity with the Convention. The Commission failed properly to designate the area as required in Article V(2). The current interpretation of Article V by the majority could be seen as motivated by anti-whaling sentiment, which works to undermine the mandate of the IWC as intended in the Convention. Obviously the majority wishes to eliminate commercial whaling, but the Convention calls for "the conservation, development and optimum utilization of the whale resources." The majority has transformed the Convention and this might be viewed as a breach of the treaty by a majority - a "collective breach." However, to block the majority on strictly juridical grounds, a minority state would need to persuade a court to invalidate the illegal acts. It would require clever counsel and receptive judges. Professor Johnston also pointed out that some lawyers defending IWC actions may claim that majority actions even of this kind are permissible as a legitimate mode of treaty interpretation. But the ordinary meaning approach of Article 31 of the Vienna Law of Treaties, and the context within which the ICRW was negotiated, belies this defense. The Vienna Law of Treaties gives great weight to the "objective and purpose" of a treaty as deserving of special protection, and this clearly has been lacking in recent majority decision-making within the Commission.
If the problems in the IWC are viewed as operational problems with legal consequences - diplomatic rather than meant for a court of law, the matter must be viewed as a question of majority will. Because the IWC is allowed to make important decisions on the basis of a three-quarters majority, it has quasi-legislative status. While the IWC gives a minority special rights to dissent, their dissent cannot invalidate majority legislation. Under the influence of subsequent "soft law" developments, it might be possible to reconstruct the Convention ex post facto. Some may view the Southern Ocean Sanctuary decision as substantively invalid and yet procedurally valid. The International Law Commission in preparatory work for the Vienna Law of Treaties, was highly formalistic and as a result provided an inadequate guide to future decision-makers concerning appropriate behavior within the framework of new or "atypical" kinds of treaties that have been negotiated in recent years. In this light, proponents could say that it was appropriate for the IWC as a multilateral organization to act as a constitutive body, reorient the organization from an "industry" to a "society" focus, and move from regulatory techniques to prohibitory prescription as the strategy of "management."
The clash of interpretations of recent IWC actions might also be viewed, Professor Johnston observed, in terms of his third category of ethical imperatives. He noted a revival of the 18th century category of civil or civic society, and its derivative notion of "global governance." He pointed out that scholars and activists who fall into this category believe they are part of a growing "transnational ethical community." They attend meetings of international organizations as representatives of Non-Governmental Organizations (NGOs) and claim to be agents of participatory democracy. For them, law must be made to serve ethics, but since most represent Western cultural groups their view of ethics is culturally derived. But their commitment is intense and they certainly have affected public opinion in Western states.
Professor McLaughlin dealt with a different aspect of the legal problems in the IWC. Although persuaded by Professor William Burke's analysis, which had been made available to the 47 IWC by Japan of the basic legal situation, he was not sure that even a mountain of legal opinions leading to similar conclusions would change the majority position. Instead, he turned to an avenue of legal recourse and examined the possible use of trade sanctions to enforce the Southern Ocean Sanctuary. He pointed out that Professor Friedheim, in a previous article, noted that Japan had the traditional (a la Fred Ikle) three options in the IWC - stay in the IWC and continue to negotiate; capitulate (acquiesce in the will of the majority); or defect (leave the IWC). Professor McLaughlin wanted to demonstrate that there is a fourth option - remain in the IWC, continue to negotiate, but make it clear that they will defend their legal rights if trade sanctions are imposed. That option is essentially new since the World Trade Organization's birth in January 1995. The WTO Agreement has new adjudicatory options and rigorous dispute settlement machinery.
Under GATT (General Agreement on Tariffs and Trade), WTO's predecessor, it was not likely that Japan could get relief, since a losing party could block implementation of a decision. But both WTO and the Law of the Sea Convention (which the United States has not ratified) have binding dispute settlement provisions under which Japan could protest any Pelly/Packwood trade sanctions. The prospects look good since, even under GATT, the U.S. lost on most issues relating to the Tuna/Dolphin case. The GATT dispute panel opined that the US violated Article XI of GATT. Under WTO, a Dispute Settlement Board panel must be established in a trade dispute unless the Board decides unanimously not to establish a panel. Japan's prospects seem good under these circumstances. [editor's note: Within a week of the workshop, WTO announced that a Dispute Resolution Board panel ruled against the United States in a dispute with Venezuela and Brazil concerning a U.S. set of differential environmental standards for foreign as compared with domestic oil producers. Los Angeles Times, January 19, 1995, p.Dl]
Japan has a second option - using the dispute settlement machinery of the U.N. Law of the Sea Treaty. Naturally, to make this work both the United States and Japan must accede to the Convention. The Convention reasserts the freedom to harvest marine living creatures on the high seas subject to the limitations imposed by Articles 116-120. In order to establish conservation measures for living resources on the high seas, including cetaceans, states have a duty to cooperate and may not "discriminate in form or in fact against fishermen of any state." If Japan remains a member of IWC and complies with its legal obligations, the United States should be prevented from relying on unilateral sanctions rather than multilateral cooperation to protect whales on the high seas. Professor McLaughlin noted that this was a controversial approach. The U.S. State Department claims that unilateral trade sanctions are not international concerns but matters wholly of domestic jurisdiction. Professor McLaughlin disagrees. Nevertheless, Japan should think carefully before it embarks upon a course of challenging the United States. It must calculate political and economic, as well as legal costs involved in confronting a major trading partner. But at least a mechanism now exists where a third party can examine the dispute.
Professor Stone spoke as a lawyer rather than a diplomat. He saw his role as giving legal advice. He pointed out that Japan had several options. For one, Japan could legally withdraw from the IWC. But withdrawal would not enable Japan to achieve its goals that were colorably lawful under the ICRW, i.e., to take whales for scientific purposes. After all, Japan did not presently wish to hunt blue whales or do other acts clearly against the ICRW.
Therefore, despite its freedom to withdraw, Professor Stone urged Japan to remain in the IWC. There are considerations beyond whaling that influence his judgment. The oceans are extremely important to Japan. Japan's consumption of ocean-derived protein is, per capita, triple that of the United States. Japan has more of an investment in the ocean than other countries and it is important that she remain in the IWC to help stabilize ocean governance generally. While there is little reason to be optimistic about favorable changes in the IWC, there is always some chance.
Professor Stone presented some legal options for Japan consistent with continued membership. It would be possible to refer the disagreement over the Southern Ocean Sanctuary to another body. But what body? It is not clear, but he hoped that the issue might go to mediation. In the United States, this type of dispute would be ripe for a declaratory judgment. It might be possible to go to the United Nations General Assembly and request the General Assembly to appeal to the International Court of Justice to issue an advisory opinion. Of course, there would be stiff resistance on the part of the anti-whaling states who are members of both the IWC and United Nations. It is also possible to submit the issue directly to the International Court of Justice as long as another state party to the dispute agrees to go to the Court. This is the compromis process. It would be very difficult getting an anti-whaling state to agree to, in effect, be sued, and consent to the Court's jurisdiction, but it may not be impossible. More likely is getting a friendly state such as Iceland or Norway to join in an appeal to the Court. But a ruling of the Court only binds the parties in the case. Nevertheless such a ruling might be influential with other states.
Another option Professor Stone pointed to is appealing to either the decision body or dispute-settlement machinery of the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR). It might be possible to bring the dispute to CCAMLR Commission by asking that body to hand down a ruling concerning how many minke whales can be safely taken. It was noted that the opinion of the CCAMLR Scientific Committee already had been solicited concerning the Southern Ocean Sanctuary, and they politely declined, stating they had no advice (Report of the Eleventh Meeting of the Commission for the Conservation of Antarctic Marine Living Resources, IWC/45/SAN 9). A more promising scenario is going to the CCAMLR dispute-settlement body. This would be a no-lose situation for Japan. But Japan should be warned that Courts often defer making their own judgments when expert bodies have expressed an opinion. They might defer to the IWC.
Professor Stone also cautioned about Professor McLaughlin's suggestion of using WTO. The conditions of the tuna/dolphin and whaling are different. GATT criticized the U.S. for unilaterally attempting to control tuna-catching practices. In the whaling case, if it came to a WTO Panel, the U.S. could argue that it was not acting unilaterally, but was using domestic sanctions on behalf of an international organization in support of its mandate. The case would be similar only if the IWC lifts the moratorium, Japan resumes commercial whaling and the U.S. certifies Japan for diminishing the effectiveness of an international fishery conservation program. He also expressed caution about going to the UN General Assembly, since Articles 65 and 120 of the UNCLOS III Convention defer to the IWC on whales. Finally, he remarked that even if it was possible to get the issue before the International Court of Justice, the outcome was not certain. While he too agreed with Professor Burke's analysis on many issues, he was not sure that a pro-whaling opinion would be forthcoming. He pointed again to the notion of "deference" to specialized or expert bodies.
Professor McLaughlin responded that a WTO dispute settlement panel would likely distinguish between trade sanctions that are authorized by multilateral agreements such as the Montreal Ozone Protocol and the Basel Convention versus unilateral trade sanctions that are imposed by the United States based upon a domestic statute such as the Pelly Amendment.
The Legal Status of IWC Resolutions
Drs. Ohsumi and Nagasaki raised the question of the legal status of IWC resolutions, especially those which demanded that Japan give up her right to conduct lethal research under Article VIII of the ICRW. They wondered if resolutions created legal requirements, and even if they did not, whether it would be possible to normalize relations again in the IWC.
The Chair pointed to the explicit language of Article VIII, including in section 1, provisions authorizing Contracting Governments to grant permits to their nationals "to kill, take, and treat whales for purposes of scientific research..." and that such actions are "exempt from the operation of this Convention." Further, in Section 2, whales taken "shall...be processed and the proceeds shall be dealt with in accordance with directions issued by the Government...." The only restriction is found in Section 3 where governments are enjoined to report the data they collect. Article VI, which authorizes the Commission to make recommendations, presumably via resolutions, contains no language to indicate that those negotiating the original ICRW intended to make recommendations anything more than advisory in nature.
Professor Stone began the discussion. Was it appropriate for the IWC to issue resolutions? The answer is yes, it is not inappropriate. Japan itself has proposed resolutions, as have other states including Norway which object to the requests of the majority. What about resolutions about lethal method of research? These are also not inappropriate as long as they are in the form of a request that nations not conduct lethal research. Are such resolutions legally binding? They do not purport to be a matter of law. They are only requests.
Professor McLaughlin agreed with Professor Stone. Every request must comply with the Charter of the organization, in this case Article VIII. If they are contrary to Article VIII, and the majority wishes to have such resolutions have binding authority, they must amend the charter of the IWC. While Japan should consider the content and purpose of the requests, they are not legally bound by them.
There was a general discussion of the role of resolutions in the activities of the IWC. Professor Kawakami felt that many IWC resolutions used language that was too circuitous to be clearly understood. Dr. Nagasaki felt that resolutions are not binding, but wanted clarification on whether, in the eyes of the sponsors, different wording of resolutions might create different levels of demand for compliance.
Professor Stone replied that the wording of recent resolutions indicated that the majority in the IWC recognized that it was not in a position to bind Japan. Although the majority is suspicious that scientific whaling is a facade for limited commercial whaling, they are not in a position to judge Japan's motives, which, in the minds of sponsors, are presumably mixed. The legal system would be hesitant to make such a judgment also. Both must rely upon trust.
Professor Johnston suggested the matter is more complicated. A pattern of requests accumulating over the years might acquire legal significance if they can be considered sufficiently coherent as to represent organizational policy. From his perspective, it could be viewed under his Level 2 category, giving legal weight to the policy of the Commission. If that policy is within the authority of the Convention, concordance creates considerable moral obligation to obey.
The Chair raised the problem of the Pelly/Packwood certifications being based on states' failure to acquiesce to demands objectors claim to be of dubious legal authority. He asked whether U.S. Courts might take the international legal status of the resolutions into account in any proceeding. Professor Stone guessed that U.S. Courts "would not be quick" to assume that the requests were not binding, that the protesting state was "undermining" the agreement as stated in the U.S. legislation. But U.S. Courts do not always uphold administrative interpretations.
Dr. Andresen pointed out the unique role played by the United States as an enforcer. The IWC has an objection procedure, and resolutions carry some weight, but both should be seen in relation to the underlying "power-basis," where the U.S. plays a crucial role.
A GOJ official brought up circumstances under which IWC resolutions are presented. He stated that as a result of IWC rules of procedure, there is no time to consider the implications of resolutions. They are introduced only 24 hours before they are voted upon in plenary sessions. Often they are drafted by "green" NGOs with no notice to those who might be in opposition. There is no time for the Scientific Committee to give its advice on the contents of the resolution. Consequently, many resolutions are contrary to ICRW requirements.
The Chair remarked that the problem of the IWC being manipulated by certain groups is a political and not a legal question, and the solution must be political. The politics of the IWC is interesting to social scientists precisely because various groups in international society claiming to "represent" interests not fully represented by governments try to foster policies which diminish state sovereignty. This is especially the case in the IWC because of the three-fourths majority decision rule. NGOs and allies in some governments use the resolution route to put political pressure on governments they disagree with to give up sovereign rights.
Professor Stone reminded the group that what has occurred in the IWC is typical of what goes on in many governments - non-elected groups with an interest in the outcome, intervene to influence the political process.
Professor McLaughlin returned to the question of sanctions. He was not confident that a challenge to a Pelly certification would be dismissed by a U.S. Court. It might "defer" to the judgment of an administrative agency, or it might not.
Responding to the GOJ official's point, Professor Johnston turned to his Level 2 analysis of the legal status of resolutions. He indicated that concordance depended upon the intensity of debate and commitment. Legitimacy could be acquired if the level of intensity is sufficiently high. There is an overlap here of legal and political considerations, but in the light of the GOJ official's complaints, if resolutions are viewed as unconsidered, it would reduce their legitimacy. The GOJ official's complaint needs to be documented, as well as objections made by states that the resolutions were given cursory treatment. This could be the basis of legal argument.
Professor Ando addressed the legality of IWC Resolutions. He observed that the main legitimate purposes of the Commission were listed in Article V - the creation and updating of the Schedule. It is the only article of the Convention with binding force. Scientific whaling listed in Article VIII was specifically exempt from the Schedule. Article VIII' s reporting provision was to monitor and therefore prevent the abuse of scientific whaling. If warranted, on the basis of reports, the Commission can amend the Schedule. But the regime as a whole must be looked at. The purpose of the Convention is sustainability. It is the central point in evaluating anything the IWC does under the Convention. Under the current regime, resolutions that do not carry out the central purpose have no legal force. If the anti-whaling forces do not accept the avowed central purpose they must establish a new regime more strictly binding upon governments.
How should Japan respond to requests to do what it does not want to do? This question was raised by Professor Stone. He advised that Japan should welcome requests for its Government to explain once more its position on scientific research. Be positive, he suggested. Point out that the ICRW is a sustainable-use document, and make whatever case can be made that lethal research may be necessary to carry out the regime's purposes. Japan should lay out the array of scientific papers, data, etc. This is more likely to win over public opinion. It is a better posture. Professor Johnston stated that this positive approach is consistent with what he said earlier. It reinforced the demonstrated support of Japan for the original purposes of the Convention.
The Chair noted that the majority in the IWC acknowledged the weakness of their position in the language they used in several of their most demanding resolutions. For example, in a resolution on whaling under special permit, the resolution acknowledged a contracting state's right to conduct scientific whaling under Article VIII, but goes on to state that the contracting government "should fully respect the Commission's arrangements..." (Resolution on Whaling Under Special Permit, IWC Resolution 1995-9). This seems to confirm that the majority recognized a dissenting state's rights under the Convention. Similarly, after the Scientific Committee opined that there would be little advantage in modifying the Catch Limit Algorithm to account for environmental change, a resolution sponsored by Australia, Finland, Germany, Netherlands, South Africa, Spain and the United States claimed that "nevertheless" some workshops they insisted take place before the RMS is implemented may have an impact upon it (IWC Resolution 1994-5).
Ms. Misaki drew attention of the participants to IWC Resolution 1995-2 ("Resolution on Method of Killing Whales") which calls for suspending the use of the electric lance while an alternative secondary killing method is being developed. The issue of humane killing was raised in the early 1980s in relation to the cold harpoon method then used for commercial whaling. This issue was resolved by Japan's development of the "penthrite grenade" which was accepted by the majority in the IWC. The technology was transferred to whalers in other locations such as Norway and Alaska. However, in 1992 the issue of human killing was again raised in the IWC. A secondary killing method, the electric lance, employed in Japanese research catches was then the issue. Since there is no provision in the Convention for a gauge with which to assess humaneness, Japan considers the issue of humane killing a matter outside of the competence of IWC, and lodged an objection. However, with a Resolution 1995-2 requesting Japan cease using the electric lance, termination of its use could jeopardize continuation of Japan's research program. The electric lance is used because it works in the difficult sea conditions of the Antarctic. Development of an alternative method would not be easy. A seemingly easy alternative - use of firearms - a secondary killing method employed by Norwegian whalers, is not possible for Japanese whalers because Japanese domestic law prohibits the use of firearms by laypersons.
Once again Professor Ando noted that only if resolutions relate to the issues included in the Schedule are they binding on state parties. Otherwise they are informational and not binding.
Professor Stone noted that the U.S. has an inconsistent position on the question of humane killing. There is a dispute between the U.S. and Canada on the one hand and the European Union on the other concerning fur taken from animals killed in leg traps. The European Union has kept out such products. The U.S. has announced that if the European Union persists in banning such imports, it will join Canada on the issue. This seems to be the opposite of the U.S. position on whale products.
Role of the Vienna Convention on the Law of Treaties
Professor Johnston outlined for the Workshop the Vienna Convention on the Law of Treaties (VCLT) and its applicability to current IWC problems. He noted that at least ten articles of the Vienna Convention were relevant to the ongoing discussion: Article 5 (treaties constituting international organizations and treaties adopted within an international organization), Article 31 (general rule of interpretation), Article 32 (supplementary means of interpretation), Article 49 (fraud), Article 51 (coercion of a representative of a state), Article 52 (coercion of a state by the threat or use of force), Article 53 (treaties conflicting with a peremptory norm of general international law [jus cogens]), Article 61 (supervening impossibility of performance), Article 62 (fundamental change of circumstance), and Article 64 (emergence of a new peremptory norm of general international law [jus cogens]). Professor Ando added that, while Article 4 (Non-retroactivity of the Convention) should preclude the application of the Vienna Convention as such, rules of customary international law were relevant to the application and interpretation of the Whaling Convention.
Professor Johnston noted that most observers concede that the IWC is an international organization as described in Article 5 (VCLT). It is analogous to many fisheries commissions, which were based upon a consumption rather than a preservation principle. While Article 18 technically is not applicable because it relates to states' obligation not to defeat the objective and purpose of a treaty prior to entry into force, it might by analogy and extension be brought into consideration and applied to parties to the Whaling Convention. Proponents of the new direction of the IWC might claim that those objecting to that direction are trying to defeat its revised purpose, while those same parties objecting to the new direction might see measures taken to carry out the new direction as calculated to defeat the original, binding objective of the treaty. It cannot be both ways. Static interpretation favors the original object and purpose; dynamic interpretation might support an emergent purpose that displaces the original, but this view of things is extraordinarily difficult to reconcile with the "object and purpose" rationale of the VCLT.
Article 31 of the Vienna Convention is critical - the general rule of interpretation. It requires that the ordinary meaning be given to the text, preambles and annexes of a treaty. This can be modified by subsequent agreements and practice, if accepted by all parties. Professor Johnston noted that in negotiating the Vienna Convention there was an attempt at balancing between textualist and contextualist approaches to treaty interpretation. Those emphasizing "ordinary meaning" are essentially textualists while those who rely upon subsequent practice and agreements are contextualists. In the current situation, those objecting to the new direction of the Commission are likely to take a textualist approach, their opponents a contextualist approach. Article 32 has also been used in the current debate on the Moratorium and the Southern Ocean Sanctuary. Proponents of these measures must refute the claim under Article 32 that the preparatory work and circumstances of concluding the original ICRW can be used only for limited purposes such as determining of language that is obscure or "manifestly absurd."
It would be difficult to apply the notion of fraud found in Article 49 of the Vienna Convention to some actions of some of the current majority members of the IWC. Article 49 refers to fraud used to induce the conclusion of a treaty, not its transformation. However, by analogy, the principle of fraud might be invoked if the facts so justify. This is also true of Articles 51 and 52 - the coercion of representatives of a state or the threat or use of economic force. Again, it would require argument by analogy and extension, since these articles apply specifically to treaty formation. But Japan might argue that its representatives have been coerced in IWC proceedings, and that a US sanction is an economically and diplomatically forceful threat under the U.N. definition of "aggression." Professor Stone demurred on this point stating that Article 52 of the UN Charter in his view is restricted to the threat or use of physical force (military coercion). Professor Johnston conceded that "coercive diplomacy" is a fact of life (witness the handling of the driftnet issue) and difficult to bring under legal control.
Professor Johnston pointed out that Article 53, relating to peremptory norms or jus cogens is the most controversial article in the Vienna Convention. It refers to norms so widely shared by all peoples and governments that states cannot agree in a treaty to undermine them. There are many differences of opinion between international lawyers and governments about the content of the body of norms that might be characterized as jus cogens. When negotiated in 1946, the ICRW did not under any conceivable circumstances undermine a peremptory norm, so this article is not directly relevant. But Article 64 might be applicable; it refers to the emergence of a new peremptory norm, which voids a previous treaty obligation. It is very likely that some advocates for the majority position might claim that because of the special characteristics of whales as intelligent creatures, the right to total protection of whales or the complete prohibition of commercial whaling has emerged as a new jus cogens. But it is plausible to argue that what has emerged as a new peremptory norm is not prohibition, but sustainability. The argument for either position is too vague to be considered definitive.
A GOJ official pointed out that proponents of the Southern Ocean Sanctuary have used arguments based upon Articles 31-33 of the Vienna Convention to justify its imposition. He disagrees and believes that such a measure must be agreed to by all contracting parties.
The Chair noted that there was another article of the Vienna Convention that might be invoked to give legal meaning to the GOJ official's position. One could claim that the moratorium, if it becomes permanent, and the Southern Ocean Sanctuary have so altered the nature of states' obligations that the ICRW has been amended de facto, violating Article 40 of the Vienna Convention which states that "the amending agreement does not bind any state already a party to the treaty which does not become a party to the amending agreement..."
Professor Johnston suggested that there were several more articles of the Vienna Convention that might be significant in the current situation. Article 60 refers to material breach. Japan might invoke breach of the ICRW as "a ground for ... suspending its operation in whole or in part" since the majority has repudiated the original treaty or violated a provision essential to its implementation. Japan also might invoke Article 61 concerning supervening impossibility of performance and consider terminating or withdrawing temporarily from the ICRW because the majority breached their obligations by imposing new conditions. Those objecting to "preservation" replacing "conservation" could also cite Article 62 concerning a fundamental change in circumstances not foreseen in the original treaty as a ground for withdrawing from the ICRW, the "object" of change being the "philosophy" of decision making.
An Argument for the Illegal Behavior of the Majority in the IWC
Participants agreed that Japan and other contracting parties objecting to many majority actions in recent years had reason to believe that these measures were of dubious legality. They could complain that their legal rights were violated. Indeed, a pattern of violations was evident. A judgment about the shaky legal grounds upon which the majority operated begins with, but is not restricted to, a close reading of the ICRW. Such a judgment must also take into account the Vienna Convention on the Law of Treaties and many other recent international environmental treaties which propound principles that should also govern this situation.
The Chair summarized what a "case" in defense of minority rights might look like. It is generic and not all participants necessarily agreed with the details. As lawyers, they might argue the case differently, but all agreed that what is found below are assertions that Japan and others might make in defense of their rights and as an understanding of their obligations under the ICRW.
1. The Right of an International Organization to Transform
Itself
The ICRW, negotiated in 1946, created a set of rights and duties to which its signatories are bound under the legal doctrine of pacta sunt servanda (Preamble, Vienna Convention on the Law of Treaties; hereafter VCLT). They accepted these rights and duties by their signature, ratification, and accession (Articles 11-6, VCLT). The ICRW was "the constituent instrument" of an international organization (Article 5, VCLT); the IWC is an organization with legal personality. (D. W. Bowett, The law of International Institutions 4th ed., London: Stevens, 1982, p.339). "It draws its authority, therefore, not from the general rules of international law but from the specific agreement of the parties to the treaty; and there is no question of its claiming rights or exercising functions beyond the strict terms of the agreement." (Charles G. Fenwick International Law 4th ed. New York: Appleton-Century-Crofts, 1965, p.247.)
In recent years a majority, using the three-quarter rule required to make certain specific binding agreements under the ICRW, e.g., to uphold or alter the Schedule, has tried to bind signatory states to fundamental changes in the constitutive document without their consent. The majority amended the original 1946 agreement, transforming a treaty based upon conservation principles into a treaty based upon preservation principles. Such a transformation is permissible only if the amendment occurs as a result of a formal process described in Article 40 of the Vienna Convention on the Law of Treaties. Moreover, the majority cannot claim that bringing a 50-year-old treaty up-to-date by formal amendments was not feasible, since the ICRW has already been formally amended with the consent of the parties. In 1956 a right of inspection was added, a not insignificant strengthening of the powers of the Commission. By their persistent protest over the denigration of their rights, Japan signaled that she did not consent to be bound by the new obligations. She expressed her "different intent" and her determination to be bound only by the unamended treaty. (Article 40(5)).
2. Good Faith and Ordinary Meaning
A treaty must be "interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty..." (Article 31, VCLT) It is difficult to see interpretation of the majority as a good-faith interpretation of the meaning and purposes of the ICRW. The proper interpretation, in clear, ordinary language can be found in the preamble to the ICRW. Its purpose was "safeguarding for future generations the great natural resources represented by the whale stocks" and "permit increase in the number of whales which may be captured without endangering these natural resources" and is devoted to development of the "optimum level of whale stocks." In short, the ICRW is a conservation treaty based upon a principle of sustainable use, one of the earliest ones in modern times. It was specifically designed to "establish a system of international regulation..." That it has not always worked as well as its designers intended is no reason to abandon its original purpose, especially since the Revised Management Procedure, once put into operation, is very likely to create the conditions of success that have long eluded the organization. Although supporters of the revised version of state obligations under the ICRW considered that they have demanded their changes for what they claim as "moral" reasons, they have not acted in good faith as defined by the Vienna Convention.
Since the objective of the ICRW was neither obscure, incapable of being implemented (given the Revised Management Procedure), or unattainable, the original purposes of the ICRW were neither "absurd or unreasonable." It is not permissible to claim that supplementary means of interpretation can change them. Indeed, the preparatory work of the ICRW clarifies even more what the purposes of the treaty are. In the light of the clear intent of the ICRW, any interpretation which turned the treaty on its head is "absurd."
Professor Patricia Birnie claimed that the provisions of Article 31(3) of the Vienna Convention on the Law of Treaties allows a treaty to be interpreted in the light of subsequent agreement between the parties and subsequent practice. But Japan and others have clearly demonstrated that they did not agree; that they viewed the measures being imposed upon them as beyond the legal powers (ultra vires) of the majority to bind them; and that they were not bound. Further, the practice to which Professor Birnie refers was based upon coercive measures. Although the Vienna Convention deals with coercion in the context of the negotiation of treaties, by analogy, its principles also should govern the interpretation of treaties. Japan can show ample evidence of its representatives being harassed at IWC meetings, actions that might fit under the requirements of Article 51 of the Vienna Convention. The attempt by the United States to force Japan to carry out IWC resolutions which have no legal standing, may constitute coercion of a state by the threat of force (Article 52, VLT), depending upon whether economic coercion is viewed as a forceful threat. Japan also complained of IWC acts being promulgated by illegal procedures, such as through voting in which individuals without proper delegate qualifications for credentials were used to vote. These complaints could not be verified, but if evidence exists, Japan may also be able to pursue this line of complaint.
3. General Principles of International Law
That whales are special, sentient beings and deserve total protection is the line of defense of the new approach pursued by the new majority. They claim that such a value judgment represents a new moral requirement in international affairs, that it is a new general rule of law, perhaps akin to jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties. Several sources, including Professor Johnston and Sir Ian Sinclair, noted that the concept of jus cogens was a very controversial one during the preparation and negotiation of the Vienna Treaty, and it remains so today. It is not defined with precision, and is readily subject to misuse. Sir Ian Sinclair noted, "it would be only too easy to postulate as a norm of jus cogens a principle which happened neatly to serve a particular ideological or economic goal." (Sir Ian Sinclair, The Vienna Convention on the Law of Treaties 2d rev ed., Manchester: Manchester University Press, 1984, p.222). Japan complains that is precisely what has happened in the attempt to postulate a new moral order through reinterpretation of the ICRW. In doing so, the states who insist that Japan is bound by rules made contrary to the requirements of the ICRW have pushed their ideological agenda, one that is discriminatory to Japanese culture, the values of Japan's and other peoples who see no moral failure in eating the flesh of whales. This is a form of European-based value imperialism that violates Japan's sovereignty.
Law is related to values, and such a connection is understood by all. But the moral values that are embedded in a treaty are those which all of its signatories share. When the ICRW was negotiated, the notion of sustainability was not fully articulated, but its fundamental principles are found in the whaling treaty. The ICRW's commitment to "regulation" to "protect all whale stocks from overfishing" is manifest, to conserve is a duty. The morally repugnant act is to exploit to the point of driving a particular whale stock into extinction. All states share a duty to avoid such an outcome, and the IWC was devoted to carrying out this fundamental principle, and should be again. If the designers of the Revised Management Procedure are correct, it is possible to achieve such an outcome.
While being wary of a jus cogens claim, the assembled legal experts saw events in the Commission today as anomalous in relation to trends in international environmental legal norms. Since the Bruntland Commission, sustainable use is the shared world standard of conduct in international environmental affairs. (World Commission on Environment and Development, Our Common Future, Oxford: Oxford University Press, 1987, pp.43-46) It runs throughout the work of the United Nations Conference on Environment and Development, including the Rio Declaration on Environment and Development and Agenda 21 which refers, in Section 17, to the "sustainable development of the marine and coastal environment and its resources" as the standard to be achieved (Agenda 21, Rio Declaration, Statement of Forest Principles New York: United Nations, 1992, p.147). Sustainability can also be inferred as a standard in the "optimum utilization" and "conservation of the living resources" principles of the United Nations Convention on the Law of the Sea (Articles 61-62, 117-119, UNCLOS III). In the case of both of these documents, neither of which is currently binding upon Japan, those who claim the right to impose a total ban on whaling claim that Articles 65 and 120 of the Law of the Sea Convention language authorizing states or international organizations to prohibit or regulate "more strictly" give them the right to ban whaling permanently. But the right to prohibit must be seen as a right to prohibit temporarily until circumstances return where sustainable use might again be possible. The words "more strictly" cannot be read to authorize total prohibition of acts which are permitted under the notion of sustainability.
The "precautionary principle" is also often invoked to justify both the Moratorium, and Southern Ocean Sanctuary. This principle must be viewed as having the aim of reducing, not eliminating, risk. Those who wish to impose it must refer back to its definition in the Straddling Stocks Agreement, a controlled-consumption agreement. The precautionary principle is not infinitely elastic as sometimes proclaimed. Article 6 of the Straddling Stocks Agreement defines it with care and requires that stock specific reference points be exceeded before it can be invoked. (Agreement for the Implementation of the Provisions of the United Nations Conference on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, A/Conf. 164/35, 8 September 1995)
4. Moratorium and Sanctuary
Several speakers addressed the specific legal issues in dispute. Did the IWC have a right to impose a moratorium in 1986? Yes, since it was addressed to the purposes of the ICRW - the obligation to conserve. It was claimed that time was needed for stocks to recover and to develop a new catch algorithm. When the algorithm was developed to the satisfaction of the Scientific Committee and the data showed that some stocks could withstand sustainable exploitation, it should have been lifted, based upon "the best scientific advice." (Schedule 10(e), ICRW)
But scientific advice was ignored, and the Revised Management Scheme was added to the requirements. The ICRW is clear, amendments to the Schedule "shall be based on scientific findings" and "shall take into consideration the interests of the consumers" (our emphasis). The majority has ignored both. And the majority manipulated the time limit stated in the Schedule, claiming that the Commission was obligated only to "undertake a comprehensive assessment..." by 1990, not complete it.
A legal device is available to a state party to the Convention to avoid being required to implement an amendment to the Schedule with which it disagrees: it can file an objection within 90 days (Article V(3), ICRW). Both Japan and Norway filed objections. Norway has sustained its objection and is not bound by the Moratorium, while Japan withdrew its objection. Therefore, unless Japan can demonstrate that its withdrawal was either coerced or induced through fraud, it is bound by the Moratorium. It would be incumbent upon Japan to demonstrate that coercion or fraud played a role in withdrawing its objection. It has been said that Japan withdrew its objection upon the inducement of the United States; that the U.S. offered to replace the animal protein lost by Japan by stopping commercial whaling through granting Japan fish quotas in the U.S. 200-mile Exclusive Economic Zone. Later, all foreign fishing in the U.S. 200-mile Exclusive Economic Zone was terminated. Since the details of the negotiation and subsequent interactions on fisheries between the United States and Japan are not public information, it is impossible to assess whether Japan was fraudulently induced to drop its objection. Japan should examine its own records, assess whether such a charge is viable, and make a decision as to whether it wishes to pursue a claim of fraud or coercion, a charge that is extremely serious and fraught with difficulties.
Despite the fact that the Commission is empowered in Article V(1)(c) of the ICRW to designate sanctuary areas, in the terms introduced by Professors Johnston and Stone, the Southern Ocean Sanctuary is ultra vires (that which is beyond the power authorized by law). The majority breached the treaty. Its actions on the Southern Ocean Sanctuary were in nonconformity with the rationale of Article V. This is not a matter of mere interpretation allowed by Article 31 of the Vienna Convention on the Law of Treaties.
In the matter of the Southern Ocean Sanctuary, majority actions were part of a consistent pattern of ignoring the legal requirements of the ICRW. First, they reinterpreted the concept of "sanctuary" to mean an area in which there would be a permanent ban on commercial whaling. This ignored a report of the Technical Committee Working Group on Whale Sanctuaries which stated that a prime objective of sanctuaries was to "provide for the conservation and utilization (our emphasis) of whale resources in accordance with the Preamble to the Convention...." (Report of Technical Committee Working Group on Whale Sanctuaries, IWC/34/14, p.1). A total ban obviously does not foster utilization. The language allowing the Sanctuary to be reviewed at 10-years intervals mocks the purpose of the ICRW when a Southern Ocean Sanctuary "applies irrespective of the conservation status of baleen and toothed whale stocks." But what should be discussed at 10-year intervals the status of the stocks when it was studiously ignored during the time the sanctuary was being enforced? (Paragraph 7(b), Schedule, ICRW).
The Southern Ocean Sanctuary was established without it being "based on scientific findings and without "taking into consideration the interests of consumers of whale products and the whaling industry." Indeed, it ignored the recommendations of its own Scientific Committee as well as the advice of the Scientific Committee on Antarctic Research, which stated "that there is little scientific justification for the establishment of the whole of the Southern Ocean as a whale sanctuary." (Comments on the Resolution on a Whale Sanctuary in the Southern Ocean, Scientific Committee on Antarctic Research, IWC/45/SAN 13). Indeed, as Dr. Phillip Hammond noted in his letter of resignation as chair of the Scientific Committee, "what is the point of having a Scientific Committee if its unanimous recommendations on a matter of primary importance are treated with such contempt?" (Resignation of the Chairman of the Scientific Committee, Circular Communication to Commissioners, Contracting Governments, and Members of the Scientific Committee, 1 June 1993). In sum, as Professor Kawakami, a specialist in European continental legal approaches put it, the Southern Ocean Sanctuary, based upon "soft law" concepts not recognized in European legal systems, is a breach of the ICRW. A scientific rationale is required, and one was not offered.
III. Law, Values, Morality, Human Rights and Cultural Diversity
It is impossible to discuss issues relating to recent IWC actions that brought forth concerns about possible illegal behavior by a majority without also discussing the moral, ethical, cultural, and human rights dimensions of the problem.
Some representatives of the new majority claim that they changed the rules in the IWC because it was ethically correct to eliminate forever the killing and use of whales and whale products. For them the ethical and moral principle - that because of their special attributes whales should never be killed by humans - is a universal principle, applicable to all people. Everyone in the world must conform to the same ethically-based rule regardless of culture, religion, other values, and different circumstances, such as living in a remote region with no or few replaceable resources to exploit or few other opportunities to make a living. Some anti-whaling groups acknowledge that "aboriginal" peoples may have a right to take whales, but it must be under very strictly controlled conditions, including that aboriginal peoples live under conditions of strictly defined "subsistence" and have no recourse to a money economy. No others would be allowed to harvest whales even if there were some similarities to the circumstances of aboriginal peoples.
The views summarized above raise many ethical, cultural, and human rights issues. Many of these considerations pervaded the discussions on the legal issues. There was also spirited but limited discussion of the human rights and ethical issues per se. They are reported below. The issue cries out for systematic treatment. A future workshop on the subject of ethical, moral, human rights relationship to the legal issues in the IWC would pay significant dividends in terms of clarifying the issues. Professor Stone began the discussion by raising the possibility that the United States may be challenged on the question of whether it acted in bad faith on some issues relating to cultural diversity. Has the U.S. kept its promises? Cultural diversity and how to protect it while maintaining universal rules is a powerful problem. The international system now contains groups of cultures whose affinities transcend nationalities, for example, Islam. The IWC must deal fairly with value considerations. What happens in the IWC is important not only for whales, but for people. The IWC may be seen as a model for other interactions.
In particular, Professor Stone pointed to U.S. willingness to sacrifice bowhead - a scarce resource - but deny native villagers in Japan the right to take nonendangered minke whales. This policy does not make sense, but then the distinctions in the Schedule recognizing rights for indigenous people but not other artisanal whalers also does not make sense morally. He also pointed out that one of the key notions of the animal rights movement - the specialness of whales - is more romantic than scientific. Whales are used as symbols.
Dr. Nagasaki raised the question of whether the intelligence of whales can be used as a criterion determining whether they can or cannot be killed. But what is intelligence? How is it measured? Even if it is measured correctly, Professor Ando noted that if we use intelligence as a criterion, then we discriminate against the less intelligent. The Chair pointed out that in many cultures there are religious and ethical mandates to protect and foster the weak and helpless, not the strong and the intelligent.
Professor Kawakami asked whether human rights applied to apes. When captive they are confined to cages. Why should they not be treated as human, especially since they too can be judged as intelligent? What about the rights of dogs? Should we criticize the Chinese for eating dogs? In some culture people are condemned for eating pork. Eating whale meat is part of traditional Japanese culture. Japan has a fish-eating culture and whales are the only mammals that were eaten before modern times. He saw events in the IWC as an attack on Japanese culture. It was Japan "bashing."
The Chair raised the question of how cultural diversity issues are treated in international law. Professor Ando replied that there were many examples of the protection of the cultural rights of minorities in international and regional law. He pointed to the case of the Sammi in Sweden. The Sammi or Laplanders are a semi-nomadic people that breed reindeer for a living. This requires very large land areas. Land scarcity forced a reduction in the number of breeders. A rule was imposed that if a breeder did not breed reindeer for three years, he lost his rights. They could be restored by the group, but the person who wished to have his rights restored had to pay a fee. He claimed - and his claim was sustained by the court - that being forced to pay a fee for restoration of traditional rights was discriminatory. Another relevant case is Canada. In Alberta, it was government policy to set some land aside for exploration and exploitation of natural gas. The native occupants of the land were offered substitute land as compensation. The Government's action was sustained by the court as proper and adequate compensation.
A more general discussion of compensation as a proper ethical and legal response to a loss of rights ensued. Professor Johnston remarked that Canada has provided compensation to native and other peoples in remote regions to allow them to avoid depravations imposed upon them by modern conservation laws; for example, when native peoples' rights to take salmon were restricted or Newfoundland fishermen were prohibited from sealing. Often their economy collapsed and they had to be compensated, sometimes generously. This is more a matter of policy than law. Another alternative is to allow resumption by the affected people of the right to take the natural resources. Canada did this recently, restoring sealing rights in Newfoundland. Often a peripheral people or geographic region is especially vulnerable and least likely to be able to withstand the pressure to comply with emerging norms in the mainstream.
Professor Stone noted that compensation is needed in many areas of the world, especially for those whose way of life is being extinguished by development. One cannot truly compensate for destruction of a way of life, but compensation as a policy is attractive. We have a strong moral obligation to replace losses.
The Chair remarked that environmental policy can be broken down into four related categories: (1) prevention; (2) regulation; (3) mitigation, and (4) compensation. But while a number of new environmental treaties are based upon the notion that the polluter pays, he wondered if there is an international legal obligation to compensate those who lose if rights are taken away or restricted? Professor Stone thought that compensation should be viewed as a serious option. Professor McLaughlin reminded the group that any international legal requirement for compensation must be based upon a treaty. Consider the Climate Change treaty requiring the developed to compensate the developing to get them to agree to reduce carbon emissions. It is necessary to have consent of all parties, winner and losers.
Compensation is only one type of corrective justice, claimed Professor Johnston. One can find a number of examples of corrective justice. But many treaties do not compensate for losses, for example, loss of historic fishing rights, or the extensions of exclusive economic zones that eliminate or reduce the high-seas use rights of others. They might be identified as situations where compensation might have been a useful policy approach, but where the principle was not applied, except nominally in the limited "displacement" situations envisaged by Articles 51, 69, and 70 of the 1982 UN Convention on the Law of the Sea.
There were some examples of both public and private compensatory actions. Professor Stone pointed to a private fund set up by the World Wildlife Fund. The Chair reminded the group of "Debt-for-Nature" swaps. Dr. Nagasaki reported on Japan's experience with compensation of inshore fisherman for loss of fishing rights. The local fishermen's cooperative controls the right to fish. He thought that compensation was a useful short-run, but not long-run solution to taking of rights situations. The Chair reinforced Dr. Nagasaki's observation. He previously studied the installation of a nuclear power plant in the coastal region of Onagawa, near Sendai. The power company bought up the right of local fisherman to fish in the vicinity of the plant. But too soon afterwards, the fishermen had spent the compensation money and were left without a way of making a living.
The right to make a living arguably may be a basic human right. Some view it as an aspect of security, including state security, since it involves a right of a state to control its own food supply. This issue arose in the FAO-sponsored Conference on Food Security. Japan was the host country. A GOJ official described what was accomplished. He said that the purpose of the conference was to acquaint urban dwellers with the problem of food security. The conference's mandate was to show how food security through sustainable management of ocean resources could be achieved. He pointed out that until the year 2010 there is not likely to be much of a gap between supply and demand, but after that, a gap could grow. Inland aquaculture can contribute significantly to narrowing the gap, but there is a need to reduce a growing gap in terms of ocean resources. Multispecies management is needed. The Conference also discussed respect for culture. It tried to avoid the misuse of the precautionary principle. Almost all states present gave support to the principles enunciated, especially multispecies management. Ninety-one states signed the Kyoto Declaration. They asked Japan to bring the Declaration to the next FAO Assembly and to the attention of the U.N. General Assembly. However, several states were suspicious of Japan's motives at the Conference, notably the U.S., Australia, Argentina and New Zealand which were afraid that Japan was using the FAO-sponsored conference to undermine the ban on whale catching.
Is Sustainability a New Moral Standard?
A GOJ official raised the question of what would be the legal status of the Kyoto Declaration with its emphasis on sustainable use. He was aware that it was a non-binding document, but with endorsement from FAO and UNGA he thought it would be considered an important document. Was sustainability a new moral standard?
Was it jus cogens?
Professor Johnston began the discussion by noting that there is an emerging hierarchy of norms ranging from the least impressive to the most fundamental, judged by the criterion of universality. But this discussion should not pivot on the concept of jus cogens. The IWC could be asked where it considers the principle of sustainability to stand on this continuum: how basic is it to the objective of the Whaling Convention? The notion of optimum utilization in the UNCLOS III Convention might at one time have been a candidate for consideration as a universal norm. Now, after two decades of neglect in state practice, it is probably a dead letter. Yet food security is intellectually fashionable, and Japan might introduce a resolution in the IWC on the universal right to food security.
Food security is a concept important to moral philosophy, according to Professor Stone. Stewardship of the global commons is implied in the Kyoto Declaration. Sustainability is a most important norm, but survival of individual species is still seen by many as the key value. Others push total preservation as a universal norm.
Professor Ando stated that he agreed that the discussion on the role of principles in international law should not be couched in terms of jus cogens. Perhaps a better approach would be to emphasize what is shared. This is particularly important because most international organizations are responsible for a particular subject and do not know what other organizations are doing. It is important for governments and international organizations to see the larger picture. The notion of sustainability is being discussed in a number of organizations as a guiding principle, perhaps indicating that it is an appropriate candidate for a universal principle. Cultural diversity is another value. When we speak of human rights as universal we need to specify which rights are common to all, and therefore universal, such as the right to life. Cultural diversity can be built on top of the minimum requirements.
Professor Johnston pointed out that in recent writings some international lawyers who specialize in human rights are finding that they must temper universality with cultural diversity. They have become more sensitive to cultural relativism. Therefore, it might be argued, the IWC should embrace standards in which cultural diversity is protected.
Professor Ando replied that if cultural diversity is taken to an extreme there would be no universality. Human rights values can be translated into economic activities but many of these are above a minimum. But community whaling is a subtle human rights problem, how it should be handled is moot.
IV. International Law and International Politics
The problems Japan has faced in the IWC are intensely political. While there is some hope of a legally based solution - a restoration of Japan's rights through conciliation, mediation, or judicial settlement - it is likely that Japan will need to find a solution using legal-political rather than purely legal means. Considerable discussion was focused on: (1) problems associated with Japan remaining in the IWC and trying to resolve the problems by negotiating with the present majority; (2) what needs to be done to "transform" the IWC into the organization it should be, either through internal reform or constitutional change; (3) inducing the majority to allow the passage of the legal review of the IWC proposed by Japan; and (4) Japan's withdrawal from the IWC and establishment of an alternative regime. Although points 1 and 2 can be separated conceptually, the discussion of the two issues overlapped and are therefore presented together.
Japan Remaining in the IWC and Transforming It
A GOJ official asked the group to address the question of what steps Japan could take in the immediate future to deal with a number of practical problems. The first was, should Japan go to the U.N. General Assembly or try to appeal to the International Court of Justice? Second, if Japan failed in getting the General Assembly or Court to consider its case, or having considered its case, did not rule in its favor, should Japan hang on and continue to negotiate in the IWC? Was there much chance of persuading environmental groups to approve the RMP? Third, what should Japan do concerning the attacks on its scientific whaling? Finally, what should Japan do to foster its coastal whaling claims? These were all "front-line" issues.
Another GOJ official hoped the group could help in creating good arguments for the next IWC meeting, especially concerning the Southern Ocean Sanctuary. He was also looking for long-term benefits; for a long-term strategy to challenge the IWC.
The Chair, instead of putting these questions first to the outside legal experts, asked the government participants for their maximum hope for the next IWC meeting, as well as their realistic expectation. A GOJ official responded by saying he really could not answer, but he did not think much could be achieved at the next meeting. What is the minimum Japan can hope to achieve? He said that keeping the agenda open for some time might be possible. Anti-whaling nations, especially the U.S., are beginning to worry a bit about being challenged. They showed this at the last IWC meeting. Perhaps Japan's arguments could convey the abuses of the majority to world publics. This has already been somewhat successful, but strong arguments are needed for the future.
Professor Stone asked, what is to be gained, even if Japan was successful on the Sanctuary, there would still be the Moratorium. There is a risk of trying to develop an argument that tries to turn around the perceptions of the general public of many states. He noted that NGOs had already used their own information to influence many states. Getting mind-sets to change is difficult. But if Japan was to go this way, she should openly argue that she has a right to a sustainable yield.
Some previous speakers referred to both similarities and difference between Japan and Norway, and Iceland's situation. Dr. Andresen commented that whaling decisions are important for Japan. She must do a cost-benefit analysis of her options and the results of that analysis are more important than any comparison to the strategies chosen by others in choosing her own strategy. The politics of the situation for an individual country are decisive. Norway restarted commercial whaling in 1993. This was a surprise to many. It had very interesting effects. When the Moratorium went into effect in 1986 whaling was not a big issue in Norway. But it became a big issue in 1993 when Norway was "condemned by big states." Because of the domestic outcry over the condemnation, the issue became one of principle. While the U.S. had threatened Norway with punishment under the Pelly Amendment, it has never really materialized.
Professor Ando pointed out three conditions for Japan remaining in the IWC. First, as a minimum, commercial whaling rights must be maintained. Second, there must be a balance between the international organization and sovereign states. Japan's current efforts are not to make Japanese sovereignty absolute. Japan has been cooperating to the maximum extent possible. But cooperation must be based on science. The other side must propose constructive countermeasures. Third, science is the criterion legitimizing decisions in the IWC. Only if the anti-whaling environmentalists can demonstrate through scientific data that whale stocks could be wiped out, would it be permissible to ban whaling.
There is a practical distinction between Moratorium and Sanctuary, claimed a GOJ official. A Moratorium can be terminated if the Revised Management Procedure is adopted. A Sanctuary is permanent. As to withdrawal versus threat to withdraw, not many people take Japan's threat to withdraw seriously. Such a threat is effective only if Japan is prepared to go to full commercial whaling. But Japan has other interests to protect that she can best protect within the IWC, in particular, scientific whaling. Would her scientific whaling rights be strengthened outside the IWC?
The Chair pointed out that there are costs and benefits to every course of action. Even if Japan is not interested in proposing a thorough constitutional-type revision of the ICRW, she needs to present a vision of what a properly run IWC should look like. This is not because of any realistic hope that such a plan would be adopted, or states be willing to go to a new IWC constitutional treaty-making meeting, but because it establishes a bargaining position that is positive. It says whaling can be resumed without worrying about it getting out of control; civilized conduct can be the hallmark of interactions within the IWC. At present, because of Japan's stance, the world sees Japan's position as a negative one - Japan seems to be saying, We feel wrong, restore our rights! While this basic posture is deeply felt because Japan has lost rights, it does not give others a sense that whaling would remain under control if Japan's rights were restored. Japan must present a plan that says, here is how the IWC should operate because it is based upon a recognized principle sustainability; and it will work under civilized rules of conduct.
Japan must recognize that the coalition arrayed against her is not of one voice, of one point of view. It is a coalition of states, organizations, and individuals who fear the resumption of unrestricted whaling. It is composed of persons, many in positions of governmental authority in Western states, who are taking what they believe is a responsible position, as well as those who could be defined as environmental extremists. The responsible opposition to Japan works with, but does not necessarily believe in the "moral vision" of many of the more extreme animal rights individuals and groups. But as long as Japan seems to be saying only "restore my rights," this does nothing to convince them that they must pay the political costs of splitting with the extremists. And, they will pay a political price if they abandon the extremists. But unless political values change drastically in major Western states (and as we know after the 1994 U.S. Congressional election that is happening to some degree) Japan cannot succeed in the IWC without splitting the responsible opposition from the animal-rights extremists. It must have a plan to do so.
The GOJ official was afraid that the Chair's remarks concerning a reform "plan" might be viewed as advice that Japan should sponsor a rewrite of the Convention. This is an intractable issue. The Chair assured him that was not his intention, the plan should be viewed as a bargaining tool.
Another GOJ official returned to the question of Japan's immediate goal for the next IWC meeting. He was concerned that the Southern Ocean Sanctuary would be viewed as a precedent and there would be an attempt to create an Arctic Sanctuary. He wanted to explore ways of heading off such a debate.
The group considered the likelihood that the Moratorium would be lifted. A GOJ official remarked that completing the Revised Management Scheme does not necessarily mean lifting the Moratorium. The RMS's sponsoring states proposed it to protect themselves from pressure from environmentalists. They don't want to lift the Moratorium, although it is not impossible that it could happen.
Professor Stone observed that the Southern Ocean Sanctuary resulted from the fears of environmentalists that the Moratorium might be lifted. Japan's case is strong now. He too thought there was little chance to rewrite the Convention. Revision might be worse for Japan, since the antiwhaling majority would be in a position to dominate a new version of the ICRW.
A GOJ official asked how Japan could attract other states to support sustainable whaling? Allies are needed. Perhaps new regional bodies might be formed to do the actual regulation of marine mammals tied to an IWC. He thought that some potential partners might be Canada, the Solomon Islands, Namibia.
A cautionary note on regional marine mammal organizations was sounded by Dr. Andresen. He said that the North Atlantic Marine Mammal Commission (NAMMCO) has not lived up to the expectations of some of its founding fathers. It has not materialized into an alternative to the IWC as some had hoped.
A Legal Review
Japan requested that relevant institutions review the legal issues associated
with the Southern Ocean Sanctuary.
The proposal did not pass.
But the issue was tabled, and therefore not defeated.
As a result, it remains on the IWC Agenda and must be considered again at the
48th meeting.
The proposal did not specify what institutions should be involved in such a
review, and beyond the general question of whether "the decision to establish
the Southern Ocean Sanctuary conforms to the provisions of the International
Convention for the Regulation of Whaling", the draft resolution did not
provide details of how, when, where, and why such a review should be
conducted. (Resolution on Legal Matters Related To The Adoption of The
Southern Ocean Sanctuary, IWC/47/45).
If the matter is to be seriously discussed, Japan must be prepared to fill in
the details even if the odds are not very favorable that such a proposal
would be adopted.
Japan may also find it helpful in preparing for the next IWC meeting to
consider whether it might be in her interest to have a fallback position
prepared.
For example, while it may well be that delegates would resist going to an
outside organization for a "hearing about," or "determination" of an issue
of central importance to the IWC, they might be willing to establish, say, a
legal committee or subcommittee.
The Chair noted that Japan must think about four matters related to a legal review, if it hopes to have a positive response to its appeal. First, the goal of the review must be specified with great care. Is it to provide advice? Make a determination? Try to conciliate or mediate between disputants?
Second, how a reviewing group should be constituted should also be spelled out. Related to this is the question of to whom they should report. To the IWC plenary? To a special IWC legal committee, or some other body? Third, what should the product be? Fourth, when should the group report? What would be its deadline? By laying out sensible and reasonable conditions, Japan will give the proposal a chance of consideration. But even if it fails, Japan can make helpful "dissemination" by showing her sincerity.
A GOJ official thought that the goal of the review should be to bring about "normalization" within the IWC. Discussion should focus on the original purpose of the Convention. The reviewers should report to the Plenary Session of the IWC. He proposed that the Plenary set up a new Working Group to deal with legal issues. He hoped that this would be possible for this year's IWC meeting.
Professor Johnston recommended that, for the Aberdeen meeting, the Japanese Government change the Preamble of its proposal to provide a better rationale for the legal study. It needs more than is now shown. Japan should change the language referring to relevant legal institutions. It seemed to him that what Japan should try to set up was a new ad hoc body to examine the legal issues. It should be outlined in some detail in an appendix or annex to a revised draft resolution.
Professor Stone thought that preparatory work for a legal review should provide a portfolio of options for Japanese negotiators, not a rigid course of action. Since the GOJ official and other Japanese participants used the term "normalization," that might be a candidate for the mandate of the legal group. But he, as well as several other foreign participants, was not sure what Japanese speakers meant when they used the term "normalization."
He also thought that if a new IWC Legal Working Group was established, it might preclude any form of action.
Professor Ando noted that when Japanese speakers heard the term "normalization" it is clear to them what is meant. However, it can be vague to others. Normalization is understood to mean eliminating the cause of an objection by a member to changes in a system with which it did not agree. In the case of the Southern Ocean Sanctuary, Japan should in its revised resolution set out its objections to a measure that goes beyond the notion of sustainable use of resources and indicate that it wishes to take the issue to a relevant legal institution.
Professor Johnston observed that an IWC Legal Working Group would "run into sand." He proposed an alternative: an independent review body run by independent experts appointed by the IWC, but not subject to it. Also, this body should be given a one year time limit to report. The GOJ official agreed with Professor Johnston on the difficulties concerning third party review. He thought that it should be up to the Japanese Government to decide whether it should propose an independent or in-house review.
The Chair pursued the question of how to constitute the panel. One technique recommended by Professor Johnston was to suggest a nominee based on the advice of the FAO or some other reputable external source. Another technique suggested by Professor Ando was to have those in favor of a Southern Ocean sanctuary propose two names, those against two names, and then appoint a fifth neutral person. Professor Stone suggested another possibility - propose to an organization like the International Union for the Conservation of Nature (IUCN) or even national bodies like the U.S. Academy of Sciences, that it make findings.
There were two approaches to this problem of outside review. The first, as seemed to be implied in Professor Stone's suggestion, was scientific or juridical; it would seek a definitive outcome. The other, as implied in Professor Ando's suggestion, would be oriented toward conciliation. What he had in mind here was a panel of representatives of both sides, plus a neutral. It would be quasi-political in purpose; it would seek to bring the two sides together. The key is the effective work of the neutral. Dr. Andresen thought that a conciliation-based scheme would be most realistic. Japan could appoint an expert body, but it had to have a balanced and credible representation. Although this would be extremely difficult, it could be worth the effort. Norway appointed an independent scientific body somewhat along these lines in 1986 that proved to be quite important.
On the question of what issues should be put to a conciliation body, the Chair suggested the legality of the Southern Ocean Sanctuary, plus an examination of what measures might be taken to engender greater cooperation. Professor Ando was skeptical about the latter, worrying that it might dilute the question of the legality of the Sanctuary. Timing delays also worried some, particularly Dr. Ohsumi. He feared that constituting such a group might further delay decisions. But Professor Ando remarked that the document to be prepared based on our Workshop could be used in the 1996 IWC meeting.
Withdrawal from the IWC and Establishment of an Alternate
Regime
Professor Johnston asked early in the Workshop whether Japan had ever threatened withdrawal from the organization, or at least, withdrawal of its funds? He suggested that Japan might challenge the other side by giving notice of withdrawal. Japan might seek diplomatic support from like-minded states for the development of a de novo organization, in which Japan would be willing to invest heavily. The new organization must attract the support of at least a dozen states. But can the new organization keep out states that would subvert it?
The Chair noted that there was a suboption to Professor Johnston's conjecture - instead of giving notice of withdrawal, he suggested that Japan go to the next meeting of the IWC with its full list of complaints drawn up and ask the majority to convince Japan not to withdraw. Put the majority on the spot for providing reasons why it is in Japan's interest to remain in the organization. Professor Ando remarked that the burden of proof is on those who wish to take away the rights of others. Professor Stone was a bit more cautious. He did not see how "nations who might subvert it" could legitimately be excluded from a new organization, although he recognized that Professor Johnston pointed to organizations that have qualifications for membership, e.g., actively conduct scientific research.
The question of Japan withdrawing from the IWC and persuading other states to establish a de novo convention, appropriately updated and based upon the principle of sustainability, did not die after a brief early discussion. It arose again on the last day of the Workshop when Professor Johnston re-introduced the idea. He suggested that Japan might recruit states interested in resuming whaling under controlled conditions, states with active whaling research programs or whale-watching industries. It also might focus more broadly on marine mammals so that those interested in sealing might join. His reasons for giving the idea serious consideration included:
Canada is one state might conceivably be attracted to such a treaty. Canada has withdrawn from the IWC ostensibly on the grounds of indigenous whaling, and is about to resume commercial sealing because of the special problems afflicting the economy of Newfoundland since the collapse of the Atlantic ground fish fishery. Recently Canada has taken bold action against Spain for overexploiting the ground fish stocks off Canada's coast, and she is prepared to go to the International Court of Justice to assert her right to take that action. Moreover, Canada is not always constrained to keep in alignment with the United States. There is occasionally a domestic political benefit for Canadian Government to be seen opposing the United States. The present Canadian Government is electorally secure, outside Quebec. It is unlikely to be influenced by U.S. environmentalists, and there is no wide-spread anti-whaling feeling in Canada itself. In addition, he pointed out, the U.S. Government is now less responsive to extreme environmental positions, and seems unlikely to take diplomatic action against Canada for wishing to negotiate an effective regulatory regime for whales. For these reasons, Professor Johnston speculated that Canada might be interested in exploring the creation of a new organization of this kind. He also thought it is possible that Iceland and Norway might be receptive. While he is less certain of their response in the short run, the Russians too might ultimately be interested in such an initiative. In any case, he continued, if Japan might transferred its research funds to the new organization, others might follow. In this scenario the new organization's research funding would soon exceed that available to the IWC. A new organization based on sustainability would be in a strong position to enter into liaison with other conservation organizations and treaties, in particular CCAMLR and Biodiversity networks.
Professor Kawakami thought the idea of bringing about the demise of the IWC and its replacement ideas worth exploring. His concern was that under the present situation in the IWC, Japan, Norway or other nations wanting to resume whaling are denied their rights in violation of the ICRW. Most important, if such a ban is seen as successful, it might be used as a precedent in other international conventions relating to marine resources.
Dealing with the situation requires a two-step process. First, to shift current policy from a preservationist to a more utilization-oriented direction, Japan could cause the IWC to die off slowly even if Japan remains within the IWC. This may be done by: (1) paying no more levies; (2) stopping technical assistance; (3) sending a much smaller delegation to the IWC meetings, e.g., one or two delegates only; and (4) the small delegation continuing to insist quietly that the IWC must pursue the original objectives of the ICRW.
In the meantime, Japan could take the initiative in organizing another global or regional "users' organization" with a mandate of managing marine resources, including whales. The new organization would be "political" in the right way, that is, decisions would be supported by sound science and legal, sociological, economic, and anthropological expertise. Professor Kawakami indicated that "political" has been used wrongly as a synonym of "disregard of science" and "disregard of legality." It should be a comprehensive term for a sound decision-making process which takes into consideration balance of power, respect for minority rights, and so forth. Professor Kawakami would invite any nation that takes whales, from only one to a few thousand, to become a member of the new organization. They may join and request a quota which would be given only if scientists could certify that the species were nonendangered, together with anthropological and cultural studies. From his perspective, Prof. Kawakami observed that the current ICRW is in the hands of non-user states who dominate IWC. It cannot function properly and, in his view, there is little hope of improvement. Therefore a slow and merciful death for the IWC is the best strategy. There were many uncertainties concerning the feasibility of establishing a new organization. Dr. Andresen addressed some of them, in particular the reaction of the United States. He thought the U.S. might consider an attempt to establish a new organization as a provocative step. The U.S. regarded the IWC as the steward of whales. He urged caution because he perceived the IWC slowly evolving in a more moderate direction. He regarded slow evolution in the right direction as a likely scenario. The whaling debate is toning down. A new organization would escalate it again. Concerning Norway's attitude to establishing a new whaling organization, he thought Norway would be skeptical. Norway's strategy within the IWC has been successful.
Professor McLaughlin agreed with Dr. Andresen's analysis. In the U.S., as a result of the 1994 elections, the Administration has become less sensitive to the demands of environmentalists. However, a provocative action such as Japan's withdrawal from the IWC and the attempted establishment of a new marine mammal organization would provide ammunition to a variety of special interest groups and would likely escalate trade conflicts. He cautioned Japan about undertaking such a diplomatic initiative.
Dr. Nagasaki thought that the IWC currently may be going through a self-purification process. This workshop is useful in showing what revisions the IWC charter needs, but the new situation must be taken into account. A new organization outside the framework of the IWC is a good idea. But there are possible problems with other international conventions as well as the domestic acts of others, e.g., the U.S. Marine Mammal Protection Act. Thus, there are obstacles in the way of establishing a new organization.
A GOJ official stated that the potential was large for creating a new organization. The very act of starting a new organization will result in some good. While the effort to create a new organization may fail, it will signal the IWC that Japan is serious. That alone is a half-way gain. Concerning creating conflict with the U.S. - the worst scenario - Japan has nothing to lose since it has already been forced to give up commercial whaling.
The Chair noted that we have gotten to the point of considering a new organization not just as a solution to the problem, but as a bargaining issue. Bargaining consists of two actions, offers and threats. Both are needed and Japan must work out (1) what Japanese officials could offer others, if they join a new organization or what offers from others they require for Japan not to attempt to develop a new organization and remain in the IWC; and (2) what threats they will make if they choose to operate outside of the IWC. These might include a resumption of full-scale commercial whaling, and a trade war. But any threat must be "credible," so that the opponent must perceive the threatener has the capability of carrying out the threat and gives indications of a willingness to carry out the threat. Thus, a key issue for Japan in the immediate future is to determine how "salient" the whaling issue is to Japan as a whole. If it is highly salient, Japan can and must take greater risks, recognizing the costs of getting her way may be high. Bluffing is a bad strategic posture.
However, there is one ploy that might be useful that is relatively low cost. It might be useful to allow a "leak" that Japan is seriously considering leaving the IWC and establishing a new organization. It might help to establish an official "study group" to assess the alternatives and make sure that IWC representatives from states hostile to Japan "know" that Japan is waiting for its report before Japan makes a major move. Remember, others would find the effort of fighting a Japanese defection and an effort to establish a new marine mammal organization costly as well, and they have many incentives to keep Japan in the organization. What this move should do is to generate offers from Japan's opponents to keep Japan in the IWC. It might help in starting a real dialogue on the future of the IWC. Unless Japan presents some level of threat, her opponents have no reason for making concessions.
Professor McLaughlin noted that the Pelly Amendment was amended in 1992. It now applies against products other than fisheries products. The costs of conflict with the U.S. might be higher. Japan dropping out of the IWC and setting up a new organization might trigger actions against more strategically important products.
Radical moves by Japan might be waking up the sleeping baby, stated Professor Ando. He opined that it might be better to try to work within the existing organization. He proposed the idea of continuing to try to get the IWC to agree to the establishment of a committee of legal experts that would report back to the plenary. The Legal Committee could assess the legality of the measures being imposed by the majority. The effort to establish a committee of legal experts would show Japan's willingness to work within the IWC. If this fails, then it might be worth trying to establish a new organization.
Professor Kawakami supported both Professor Johnston's and Professor Ando's approaches. Both should be pursued in parallel. Japan's and Norway's positions are different because of the scale of Japan's proposed whaling. But the legal committee should be pursued and notified that Japan considers what has occurred is illegal, and if nothing is done about it, Japan should resume whaling and leave the organization.
The discussion reverted to the question of the costs of the alternative moves. Professor Stone, agreeing with the Chair, said that what is gained and what is lost by each alternative must be assessed. Japan must decide how salient a few thousand Minke whales are to her. Does Japan have a fundamental objection to the IWC? He thought that Japan agreed to abide by with most of IWC decisions. The salient issues must be refined further if sensible moves are to be taken. The Pelly amendment now could apply to other products, for example, automobiles. Such an escalation could cause hardship on powerful industries.
Dr. Ohsumi observed that the new majority of the IWC was using its numbers to get its own way. They are now able to reject the efforts of others. Other organizations should be considered.
Ms. Misaki noted that there was an internal balance in Japan concerning perceptions of the Pelly Amendment. There are industries now sponsoring anti whaling organizations. If Japan took bold measures on whaling, internal conflict in Japan on this issue might grow.
Dr. Nagasaki thought supporting an effort to explore a new organization was worthwhile. But Japan's problems in the IWC do not justify establishing it now. Japan should have a more global view. Science needs a voice in the IWC.
A discussion ensued on the problems associated with the participation of scientists in other international organizations. Professor Stone remarked that in the negotiations concerning the Biodiversity Convention diplomats wanted to exclude scientists from a role in policy-making. The Chair noted that the problem of negotiators ignoring scientific advice in the IWC is not unique. In recent years, there has been a mixed record of negotiators depending upon scientific advice. In the negotiation of the Mediterranean Action Plan and the Ozone Treaty, scientists who formed an "Epistemic Community" (by developing a consensus on the nature of the problem and its solution) played major roles in the outcomes. On the other hand, when scientists clashed with environmentalists who had other matters than finding the technically best solution on their agenda, scientific advice was ignored. This happened in the ocean dumping negotiations as well as in the IWC.
At the end of the discussion on the possibility of Japan sponsoring a new marine mammal organization and withdrawing from the IWC, Professor Johnston spoke to some of the objections to his idea. First, to the argument that it was too bold a stroke, he felt the discussion got a bit distorted because it was focused upon the bilateral relationship of Japan with the United States. What he had in mind was more multilateral in nature, and any scenario describing the costs and consequences should be multilateral. Second, the concern that if a new organization would be created it would be in conflict with the IWC is not a realistic worry. In his scenario, if Japan withdraws, the IWC would die on the vine and not be a factor. Third, concerns have been expressed that such a move would have a disturbing effect on the scientific community. Perhaps, but right now marine scientists in Canada, the United States, and other countries are demoralized by recent resource management decisions which have been taken by ignoring the scientific evidence. A new organization, PISCES, has been formed recently, and it might promote collaboration of the kind required for an effective regulatory regime for whales and other marine mammals. In sum, a new network for marine scientific cooperation is building in the Pacific Ocean along the lines of ICES in the Atlantic. The prospects for a new approach to the conservation of marine mammals seems favorable.
V. Legal Recourse Under The ICRW
Professor Ando succinctly summed up the situation for Japan concerning recent IWC actions with legal consequences - Japan had a good case concerning the violation of her rights, but there were few avenues of purely legal recourse available to pursue actions that looked promising. This conclusion was shared by other participants, though a number of lines of approach were proposed and discussed. In particular, one of the ICRW' s weaknesses is that it had no dispute-settlement agreement built into the basic agreement negotiated in 1946. And, it is very unlikely that any proposed formal amendment to create conflict-resolution machinery would be successful in the present IWC. Some ad hoc machinery might appeal to a sufficient number of states if it looked like a last resort effort to prevent the IWC from self-destructing through key defections, but that is not guaranteed if the majority is more interested in a Pyrrhic Victory than a sensible solution. The idea of appealing directly to the International Court of Justice was discussed, as was an appeal to the ICJ via the United Nations General Assembly. There were difficulties with those courses of action as well as with an approach to the dispute-settlement machinery of CCAMLR. Finally, the conflict resolution machinery of the Straddling Stocks Agreement was not available, noted a GOJ official, because the agreement concerned straddling fish stocks and did not include cetaceans. Despite not finding a "quick fix," the discussion was useful to Japanese decision-makers who must decide on a course of action, and is therefore reported below.
Professor Johnston liked the middle ground on the issue of dispute settlement. He pointed out that because negotiation within the IWC was constrained and not productive, it might be time to try conciliation. An ad hoc conciliation panel might be used in the absence of dispute settlement machinery in the IWC. He preferred conciliation - a form of non-binding third-party intervention - because of its flexibility. In that regard it is better than arbitration. He proposed that a panel of three to five experts be formed to consider the issues. They should produce a non-binding report on a new strategy for the IWC in the light of UNCLOS III, the Kyoto Declaration, and Agenda 21, and other relevant instruments. He suggested that the IWC should be asked to form the panel with representatives chosen from both inside and outside the IWC, but chaired by a neutral person. He noted this methods succeeded in finding a solution to the Norway-Iceland dispute over the boundary off of Jan Mayen Island. In that case, a three-person panel of Elliott Richardson (U.S.), Hans Anderson (Iceland), and Jens Evensen (Norway), did excellent work.
Professor McLaughlin agreed, but noted that political will is significant here. It may be necessary to create a real political incentive for the majority to agree. As it stands, if they agree to conciliation they agree to risking their dominance. He thought that attempting to propose a formal amendment to the ICRW to create compulsory settlement machinery should not be dismissed out of hand. There probably will be no legal settlement without a compulsory dispute settlement requirement. While the proposal might fail, it might trigger real negotiation, and as the Chair added, might demonstrate Japan's sincerity in trying to find a fair solution.
Professor Kawakami was concerned about trying conciliation in a multilateral negotiation situation. Most conciliations are on bilateral problems. Who would be a "neutral" Leader? Professor Ando added, since disputes in which Japan is put at a disadvantage occur at each yearly IWC meeting, a conciliation panel would have to be a permanent body.
Professor Johnston replied that while most conciliation efforts are bilateral, the idea of multilateral conciliation is not new. As an example, he cited the ASEAN Treaty of Amity. Dr. Andresen brought to the group's attention a previous situation in the IWC that was like a conciliation. In 1961, three "Wise Men" were brought in to solve a situation of acute conflict within the Scientific Committee of the IWC. But in the present situation, members of the majority have no incentive to do anything to placate the minority, including agreeing to conciliation efforts.
A GOJ official agreed with Dr. Andresen. He also observed that the Anti-Whalers have little incentive to agree to using any dispute settlement technique that would rob them of the fruits of their ability to dominate decisions within the IWC. He was not certain whether the dispute settlement provisions of UNCLOS III are restricted to disputes arising out of the application of the UNCLOS III Convention, or whether the ICRW could be brought under its purview. He opined that the Straddling Stocks Agreement might be read to include the IWC, but the title of the Agreement referring to Fish might be read to exclude whales.
Skepticism concerning the use of a conciliation approach was also expressed by Professor Stone. He thought conciliation was a weak technique that worked best in its application to bilateral disputes where most states are neutral. That is not the situation here. He suggested examining three approaches: (1) ask the U.N. General Assembly to request that the International Court of Justice issue an advisory opinion, one especially focusing on an interpretation of whether the ICRW is a preservation or sustainability treaty; (2) Compromis or find a party to the ICRW who will agree to go to the ICJ with Japan to ask for an interpretation of the parties' legal rights; or (3) go to CCAMLR and ask for an application of the dispute-resolution machinery. Unfortunately, it appears that Japan has already tried a version of appealing to CCAMLR. It approached the Scientific Committee of CCAMLR for an interpretation and CCAMLR's scientists successfully avoided getting entangled with IWC decisions. This may be an indicator that any appeal to the dispute-settlement machinery would suffer the same fate. But trying to bring the dispute to CCAMLR might be a "no-lose" situation. The worst that could happen would be being turned down.
A GOJ official disagreed with Professor Stone. Article VI of the CCAMLR Convention defers to the IWC on issues relating to whales.
Given the possible constraints mentioned by a number of speakers on the alternatives so far examined, Professor Johnston brought the discussion back to a direct approach of asking the Court to make an resolutive decision concerning the legal issues at stake. Another method is to ask the Court to restrict itself to a declaratory role, merely clarifying the applicable principles of international law. A third approach is to ask the Court to be facilitative, that is to do what they did in the North Sea Continental Shelf case and not only state what international law principles are relevant, but also suggest how these principles could be used by the parties to resolve their dispute. It is not likely that a resolutive would be acceptable on principle, but that still leaves the other two options.
It was Professor McLaughlin's opinion that a UNCLOS III-based Dispute Resolution Panel would refuse jurisdiction over a dispute concerning interpretation of the ICRW. For it to accept jurisdiction, the dispute would have to relate to an UNCLOS III interpretation. As he described earlier, it might be possible to deal with the problem as a trade dispute under WTO and invoke its dispute-settlement machinery, but that would also have its risks.
Professor Ando noted that because the ICRW is a treaty, the Vienna Law of Treaties provides that if other parties breach the treaty, an aggrieved party can either terminate the treaty or withdraw. The most relevant case concerns the European Union, where if a member state objects to an EU decision, the issue has to go to Court. But the ICRW has no such provision. As aggrieved party can only raise an objection. Theoretically, the dispute might be settled by the World Court. But Professor Ando wondered if the Court would accept jurisdiction. In sum, he was pessimistic about third party settlement, but he would encourage small Japanese whaling communities to bring a domestic law suit claiming that their human rights have been violated.
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