I. Three Mind-Sets

The materials brought together in preparation for this Workshop reflect a striking diversity of viewpoints on the law of whaling and on the behavior of the International Whaling Commission (IWC) over the 50 years of its existence. Today, in the mid-1990's, it hardly seems exaggeration to describe this diversity as a collision of mind-sets.

If the purpose of the Workshop is to collect individual legal opinions in contemplation of a possible resort to litigation, then the most useful approach would be to marshal strictly juridical arguments of the sort likely to influence the judges of an international court or members of an international tribunal. If the Workshop discussions are intended to go beyond this with a view to clarifying the legal aspects of diplomatic strategy in the IWC arena, then it would be helpful to distinguish operational considerations from the perspective of the Commission as a whole or of individual members or of the dominant coalition within the Commission. Possibly it is hoped that the Workshop participants will go even further beyond narrow technical arguments and offer an evaluation of what appear to be the new societal demands on the Commission, which seem to originate in Western cultural settings where they are often held out as universally valid ethical imperatives.

Some preliminary reflections may be offered in this short essay on all three of these levels of analysis, in the belief that each mind-set represents a legitimate viewpoint in the 1990's.

I am not of the opinion that it is sufficient, even for litigational purposes, to confine one's attention exclusively to the text of the 1946 International Convention for the Regulation of Whaling (ICRW) and to its "ordinary meaning" as presumably intended by the original parties. Ultimately it is a matter of political judgment for the government of Japan (and other parties to the Convention) to decide how to balance these three sets of normative considerations in the re-assessment of overall national whaling policy.

II. Strictly Juridical Arguments for Litigational Purposes

A. Non-Conformity

It seems to me very clear that the designation of the Southern Ocean Sanctuary by the IWC is not in conformity with Article V of the Convention. Even although the Commission has such authority and it adhered to the prescribed decision-making procedure, it failed to perform the act of designation in accordance with the rationale of Article V, as argued convincingly by Professor Burke.

For litigational purposes, I would go further and argue that the invalidity of the act of designation is underlined by the fact that it is, on the face of things, part and parcel of a consistent pattern on the part of the majority of the Commission, reflected especially in their dismissive attitude to the work of the Scientific Committee, to convert the Convention into a coercive instrument for the indefinite suspension or termination of virtually all commercial whaling around the world, even in national as well as international waters.

Such a goal is clearly incompatible with the original "object and purpose" of the Whaling Convention, which is to provide for the "conservation, development and optimum utilization of whale resources." One of the dominant motifs of the 1969 Vienna Convention on the Law of Treaties is the imperative of protecting the "object and purpose" of a treaty, as reflected in Articles 18, 19, 20, 31, 58 and 60 of the Vienna Convention, which at least in this matter must be supposed to represent the general international law of treaties. Indeed ascertainment of the "object and purpose" is the principal mode of determining the incompatibility of two or more instruments. It might even be argued that the "transformational" behaviour of the majority of the Commissioners in recent years has undermined the Convention, rendering it dysfunctional.

B. Breach

The above non-conformity and incompatibility arguments provide the juridical foundation for the rather daring proposition that the Commission, or the majority within it, are in breach of the Convention. If such an argument could ever be brought before a court for a declaratory judgment or advisory opinion, the judges would have to be persuaded that a "collective breach" by a permanent majority of the parties, large enough to carry the day for decision-making purposes, is within the contemplation of the general international law of treaties, though not of the 1969 Vienna Convention. If they were prepared to accept this, they might be compelled logically to conclude that the legal consequence of such a fundamental "collective breach" is to render the ICRW a nullity, perhaps by analogy with the concepts of "fundamental change of circumstances" and "supervening impossibility of performance" as described in Articles 62 and 61 , respectively, of the Vienna Convention.

C. Interpretation

Against these arguments, it might be objected that the issue is simply one of treaty interpretation, as suggested by Dr. Birnie. The difficulty with this position is that Article 31 of the Vienna Convention which gives weight to the "ordinary meaning" and "object and purpose" approaches to treaty interpretation, would surely support the non-conformity, incompatibility, and breach arguments applied to the language of Article V of the ICRW. The reference to "context" in Article 31 does not seem to help the legal position of the anti-whaling coalition on the Commission, given the highly restrictive meaning assigned to that term in Article 31 and the narrowly historical meaning given to the concept of "supplementary means of interpretation" set out in Article 32. The strongest interpretation argument available to the anti-whalers is by reference to subsequent commitments created in other areas, but this is not the kind of "gloss" permitted by the backward-looking concept of "context" contained in Article 31.

III. Legal Policy Development Considerations for Diplomatic/Operational Purposes

A. Majority Will

As emphasized by Professor Friedheim, the IWC is a diplomatic arena, not a court of law, and political and economic considerations carry more weight there than technical legal arguments. Yet, in purporting to act within the framework of a legally binding treaty, the Commission is subject to a certain degree of legal restraint, and certainly wishes to be seen as responsive to contemporary legal policy considerations. The shift of mind-set from the litigational to the operational is, in part, a shift from the technicalities of "hard law" to the realities of "soft law" and the processes of "legal development." Central to this latter is, of course, the factor of majority will. The ICRW is a "general multilateral convention," which was assigned from the beginning a decision-making apparatus featured by a very high degree of discretion vested in the Commission. Dissenting minorities are permitted to lodge objections and are not bound by decisions to which they object, but they are not empowered to obstruct procedurally valid decisions by the prescribed majority. The model chosen falls between those of a contract and of a legislature, with elements of both. It was assumed, of course, that the Commission's decisions, even if occasionally controversial among the members from a national policy point of view, would be substantively as well as procedurally valid in law. If a decision, such as the designation of the Southern Ocean Sanctuary, is regarded as procedurally valid but substantively invalid, does the putative principle of majority will still prevail within a quasi-legislative system like the Commission?

B. Characterization

The artificiality of the law of treaties (and especially of the codification provided by the Vienna Convention) is a notorious weakness of contemporary international law. In purporting to deal with virtually all instruments uniformly, in a highly formalistic manner, the 1969 Convention disregards the extraordinarily wide and ever widening variety of negotiated instruments now in existence and the immense differences among them in the functions they are intended to serve as well as in the form they assume. Whatever may be desirable for litigational purposes, those responsible for the making and maintenance of international agreements in the arena - in the bureaucratic and diplomatic sectors of government - have no choice but to make operational distinctions. Appropriate behavior for one kind of treaty is not necessarily appropriate for another kind. Appropriate behavior with respect to the ICRW might be determined in light of the way it is characterized: for example, as an instrument that is multilateral in scope, old (or outdated) in age, constitutive in function, oriented originally to industry but now to "society," focusing once on regulatory techniques but now on prohibitory prescriptions (such as moratoria, sanctuaries, zero catch limits, and humane killing rules). Each of these modes of characterization might be interpreted as an invitation to treat the ICRW not as a static, contract-like instrument, which should be preserved as originally intended, even 50 years later, but rather as the charter for an environmental decision-making institution, which might have to be applied in new ways not intended or foreseen by the original contracting parties. By characterization, the ICRW might be treated as an appropriate vehicle for unprecedented experimentation in environmental preservation (rather than management), although increasingly in practice the IWC seems to be captive to the animal welfare lobby.

C. Emergent Environmental Norms

In the rapidly law, one of the motivating forces at work in the diplomatic arena is the desire to "sensitize" other areas of international law to the need for more effective protection and preservation of the environment. This task of "sensitization" is being taken up in many ways, through a variety of environmental concepts and principles such as environmental impact, ecosystem management, integrated management, sustainability, and the precautionary approach. All of these concepts and principles can be considered relevant in some degree to the work of the IWC and to the way it should interpret its mandate under the changed circumstances of the 1990's. At best they serve to broaden everyone's awareness of the possible or actual environmental consequences of human activities and provide a way of conceptualizing efforts to regulate or prohibit those that seem the most threatening to the environment. However, the extension of these contracts to existing laws and treaties (such as the ICRW) and to other fields (such as the law of the sea, Antarctica, and international trade) complicates the process of legal development and the tasks of treaty making and maintenance. In the case of the ICRW, a new, dynamic interpretation of the old language of the Convention can involve such norms as sustainability (a criterion) and precautionary management (a teleology). The first of these can be, and is, used by Japan, a whaling state, to buttress its advocacy of an improved management framework for the Convention (viz. the Revised Management Procedure), which would consist of enhanced regulations adopted in the light of the best scientific evidence made available by the Commission's Scientific Committee and focused on the newly rearticulated resource conservation goal of sustainability. The precautionary approach or principle can be, and is, invoked by the non-whaling (or anti-whaling) members of the Commission in support of moratorium, sanctuary, and zero-quota policies designed essentially to eliminate commercial whaling, even in the case of those few cetacean species enjoying the biological status of abundance or relative abundance. The effect of emergent environmental norms such as these on the annual IWC negotiations is, apparently, merely to alter the tenor of debate, but, because of the ratio between whaling and non-whaling member states, not to produce a reasoned balance between regulatory and prohibitory measures.

D. System and Process in Environmental Policy Development

One of the most salient characteristics of contemporary international law is the escalation, in most areas of the field, of inter-related treaty and other negotiated instruments at global and regional levels. The scale and pace of such "treaty-making" in the broadest sense (which must now include non-binding but highly significant and influential instruments such as Agenda 21), ensure that a host of legal difficulties arise. Modern treaty congestion of this kind is especially difficult for those committed to legal orthodoxy, which maintains the fiction of a treaty as a kind of contract to which every sovereign state is free to grant or withhold formal consent through discrete acts such as signature and ratification, and thereby has control over the obligations impinging on it. From an operational (as distinct from, litigational) viewpoint, a field such as international environmental law is evolving through inter-related systems or regimes of interlocked commitments, and most nations have little choice but to participate in the processes associated with the making, development, and maintenance of such systems. Because the normative components of these systems are seen, operationally, to consist in large part of emergent (soft law) responsibilities rather than established (hard law) obligations, third party adjudication is not necessarily the likeliest or best way to resolve the disputes which inevitably arise out of the normative strains within these treaty-based systems. It is still possible for a dissatisfied states like Iceland and Canada or Japan and Norway to withdraw from a treaty such as the ICRW, but if that treaty is generally perceived to be conceptually or normatively linked with other treaties which together make up an emergent treaty system or management regime, then withdrawal from that part of the system will offer no real escape from the operational implications of the system or regime in its other parts. Withdrawal from one part of the system may simply weaken that state's influence over decision-making in other sectors of the system that may offer less obstruction to its interest-based diplomacy.

E. Coercion, Persuasion and Cooperation in Environmental Diplomacy

Japan, more than most countries, has been the victim of coercive environmental diplomacy in several contexts, not least in recent whaling and driftnetting arenas. In my view, it is entitled to be angry, even if its handling of these negotiations has been somewhat unimaginative, as Professor Friedheim suggests. It is difficult to judge the role that cross-cultural misunderstanding or insensitivity has played. The truth is that all states, even the United States now and the Soviet Union previously, are subject to pressure from formidable blocs and coalitions on certain kinds of issues. Given the hyperactivity of the global conference arena, diplomacy today is as much a process of coercion as of persuasion. The special frustration of the whaling states today arises from the unremittingly uncooperative attitude of the anti-whaling coalition within the IWC. The whaling states and sympathetic allies could certainly justify by principle a decision to break away from the ICRW and set up their own mini-treaty designed on the basis of genuine commitment to the goal of sustainability, on the ground that the anti-whaling coalition within the Commission has virtually destroyed the hope of good-faith compromise diplomacy. Such a decision by the whaling states, however justifiable under provocation, would no doubt involve severe political costs, certainly more than could be warranted by the economic value of the whaling industry. However, if sufficient notice of such a collective initiative were given, the seriousness of such a strategy might jolt some of the less extreme non-whaling member states into a more conciliatory and reasonable position in the middle of the IWC spectrum.

IV. Ethical Demands for Effecting Social Change

A. Civil Society

The attractive 18th century concept of "civil society" has recently re-entered the literature on political theory. It has also made its first appearance in the modern field of social theory; and in the writing on legal theory it has had an impact through the related idea of "governance," as distinct from government. The derivative concept of "global governance" is frequently invoked by international lawyers and other specialists in international affairs in the 1990's to explain the phenomenon of non-governmental penetration of the nation-state system and of its previously sealed-off sectors of diplomacy and treaty-making. Since the 1972 Stockholm Conference on the Human Environment the professional diplomatic community has become increasingly familiar with the spectacle of a constant "intrusion" of non-governmental observers, lobbyists, and activists at major international conferences. Although the latter cannot normally hold themselves out as elected representatives of the people or of society in general, they may be taken together as agents of participatory democracy as credibly as most government delegations can pass themselves off as agents of representative democracy.

B. The Transnational Ethical Community

Most of those private individuals and associations and non-governmental organizations involved today in the monitoring of intergovernmental conferences are attracted only to those arenas where ethically significant issues are scheduled for negotiation. Indeed most of these non-official participants in modern conference diplomacy now regard themselves as constituting part of an immense network of concerned citizens spanning such diverse issue contexts as human rights (in its numerous categories), democracy, rule of law, social welfare, war prevention, prohibition of weapons of mass destruction, regulation of the use of force in international relations, punishment of war criminals, refugee protection, indigenous rights, self determination of peoples, minority rights, rights of the abused, and many others, including, of course, environmental concerns of many kinds, not least the cause of animal welfare. Because these concerns are essentially ethical, in one sense or another, the network can be considered as a transnational ethical community. Since most of these movements are western in origin, it is not yet clear whether this community is truly global in the cross-cultural sense, or merely global in aspiration. For cultural reasons, it seems that these "intruders" into the world of professional diplomacy are less easy to handle by some delegations than by others, since many of these outsiders exhibit a certain lack of respect for protocol and for government authority in general. At its extreme, the environmental movement is quasi-religious in the intensity of its conviction and commitment. It is missionary in significance, and is as unlikely to enter into compromise diplomacy with the unenlightened as a missionary would be in bending to compromise with an atheist or even a robust sceptic. Like many human rights activists and other passionate adherents of the transnational ethical community, the most emotionally committed environmentalists, at least in the western world, seem to be in quest of sacred text, which would serve a symbolic and spiritually significant role such as that served by the Universal Declaration of Human Rights in that field or the United Nations Charter, or a constitutional charter of freedoms in the bill-of-rights tradition of constitutionalism or of course a sacred scripture in a religion based on the concept of divine revelation. Those in search for an environmentally sacred text may be expected to turn with irrational fury on an old treaty seen to be of pagan origins. The extremists' determination to root out every vestige of commercial taint from a 50-year old treaty intended to regulate an industry - even in the context of small-scale community-based whaling and indigenous whaling - seems the clearest proof of a need for purity that may be unattainable, as far as the whaling cultures are concerned. It may be that the intensity of commitment on the part of the anti-whaling coalition virtually precludes the possibility of negotiating pragmatically designed compromises. The best hope for the whaling states may be that the environmental anti-whaling movement will break up, like so many religions, into liberal, moderate, and fundamentalist factions, yielding leverage to its opponents.

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