I am assuming, for purposes of this brief paper, that among its options, the Government of Japan (GOJ) might want to (i) continue hunting minke whales (app. 300-400 per annum) under a scientific justification; (ii) to resume commercial hunting of minke on the scale of 2,000 per annum and (iii) to challenge the legitimacy of the IWC's Southern Ocean Sanctuary.

Withdrawal from the IWC

One route would be for the GOJ to withdraw from the ICRW. It would appear to be free to do so under the ICRW.¹

If this course were adopted, several lines of inquiry would have to be pursued. First, what would be the strategic advantages and disadvantages in terms of realizing options (i) - (iii)? The answer is not clear. For example, option (i) would not be affected; while a majority of the IWC has recommended a restructuring of its research program, GOJ's ultimate discretion is clear from the treaty.² And it might be better to work for (ii) and (iii) within the IWC or by other routes (discussed below). Second, are there other sources of international law (outside the ICRW) that would impinge upon the exercise of these options even if the GOJ withdrew?

There are other sources of international law that could affect the hunting of minke. These range from Declarations, such as Agenda 21 , to conventions, including the Convention on Biological Diversity (CBD), Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), UNCLOS, and perhaps in particular the Agreement (sub UNCLOS) on Straddling Stocks and Highly Migratory Species. But certainly none of these can be read as invoking limits that are more stringent than those the IWC has proposed, i.e., more restrictive than a moratorium, sanctuary, and exhortation to restrict lethal scientific research; and, indeed, there is defensible reason to read in each a plausible basis for more whaling activity. For example, GOJ's position on scientific research would appear to gain a boost from Agenda 21's 17.58 and 17.63, which exhort cooperative efforts to develop profiles of high seas resources and of cetaceans.

Third, what is the status under international law of responses that other nations might make in reaction to a withdrawal, and to the resumption of the aforesaid activities, should they occur?

It is harder to predict, and assess, the range of reactions by others to a withdrawal. These range from private boycotts fostered by NGOs (for which there is little redress beyond a publicity campaign of, at best, damage control) to domestic retaliation, as, for example, U.S. action under the Pelly and Packwood Amendments. Would the U.S. administration (which is under increasing pressure from its frustrated environmentalist constituency) be apt to construe withdrawal as diminishing the effectiveness of the IWC? If so, would U.S. courts uphold retaliatory measures? And what quality of unilateral retaliation by the U.S. would pass challenge in the World Trade Organization (WTO) in the wake of the Tuna-Dolphin procedures? None of this is clear. But certainly a chain of events could be triggered that would be in no party's interests.

Working Within the IWC

For GOJ, there are distinct benefits in continuing to work within the IWC. Indeed, the wish of Japan is not to reject the basic principles of the IWC, viz., the conservation, development and optimal utilization of whale resources but rather, in cooperation with other nations, to see that these principles, as it construes them, are advanced. If Japan were to withdraw from the IWC and go its own way, it would not only not be to the advantage of Japan's international reputation, but it would impede its efforts, and the efforts of all nations, to foster an international legal regime conducive to sustainable resource conservation and management generally. However symbolic whaling has become, all nations, and all those with an interest in environmental preservation, have to recognize that even more momentous issues are looming, e.g. with respect to deep fisheries.³

The development of effective regimes in the area of international environmental law and resources depends upon trust - in other nations and in science. Japan's dilemma, unresolved, may reinforce the wariness of other nations to enter into international regimes. At its worst the moral of the IWC's history could be this: Will any nation that signs a global environmental or resource convention find itself ensnared in a regime that appears to discard its original premises and to pay little heed to its own scientific advisors? This would not be a good lesson. Hence, one hopes that Japan will recognize that the better course, not only for Japan but for world government and the environmental movement, is to work to improve the IWC, not to reject it. But, at this point, what can Japan do within the IWC? It can of course, as a first step, reinstitute objections under Article V(3) of the ICRW, resume commercial whaling in all areas in full face of the Commission's contrary stances, and dedicate itself to winning over converts within the Commission in the longer term (a tactic that could include ushering in new members more sympathetic to Japan's position). But the obvious drawback here is that realistically, the chances of a major shift in membership sentiment are not large. Thus, the more viable alternative is to remain within the IWC but to institute an independent challenge to certain positions.

Instituting Review of Adverse IWC Rulings

In fact, the GOJ has already expressed itself anxious to secure an outside review. IWC/47/45 requests the IWC Secretary to refer Japan's objections to the Southern Ocean Sanctuary to relevant international legal institutions, to determine whether the decision to establish the Sanctuary conforms to the ICRW.

But even if the IWC, through its Secretary, should be persuaded to act affirmatively on this request, it is not clear. What are the relevant legal institutions to which the IWC might apply to render an opinion?

And, if the IWC refuses to advance the request, through what independent avenues could a process of review be initiated?

Both are crucial points to examine. The answer to the first question is not clear. Japan's request is of a character that is widely regarded, under western law, at least, as meriting an Advisory Opinion (or declaratory judgment in the terms of U.S. law). Japan believes the IWC has acted ultra vires its powers under the ICRW. In doing so (continuing with how Japan might frame its case), the membership has denied Japan its right under the ICRW to get an allocation of whales consistent with sustained management principles. For all practical purposes, Japan has exhausted its internal remedies within the IWC. Both Japan and the organization are at a potential breaking point at which an authoritative declaration of their respective rights and obligations is essential. Ergo, an advisory opinion would be appropriate.

The apparent defect with this approach is that, while Article 96 of the United Nations Charter empowers the U.N. General Assembly and certain other international organs and agencies to request an advisory opinion from the ICJ, the IWC's standing is not provided for. Assuming not amendment of the U.N. Charter endowing the IWC with its own standing, Japan would be in a position of proposing that the General Assembly submit the question to the ICJ. That could be tried.

Perhaps a superior alternative is this. It might be possible for Japan (perhaps joined by Norway) and another member or members of the IWC that has (have) been voting on the other side of Japan to submit a controversy to the ICJ in the form of a compromise. Some thought would have to be given to the framing/phrasing of the dispute. The parties might maintain that they have long been bound in a treaty to each other that ran through the ICRW; that they agreed to honor their obligations in good faith; but that they now require an interpretation of what is in good faith required.

A limitation on this procedure is that the ruling, could one be extracted, would be binding only among the parties to the arbitration. That is to say, if an arbitrator were to rule in the case of Japan v. Member X that the Southern Sanctuary was ultra vires, then, presumably, X would have either have to vote against or abstain from voting on the sanctuary, if it were to honor the disposition. But another Member Y, unincluded in the arbitration, would not be bound. (Note, however, that a member not a party to the arbitration might yet be persuaded to abide by the ruling from good faith.)

Another alternative arises from the fact that other conventions overlap with the IWC, thus creating the potential for conflicting positions that would render mediation or arbitration crucial. Consider the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) whose membership overlaps, but is not identical with, the membership of ICRW.⁴ (See also the new Straddling Stocks and Migratory Species Agreement under UNCLOS, which Japan has perhaps not yet signed).

CCAMLR is designed to deal with the life, including specifically cetacean life of the Southern Ocean. Indeed, CCAMLR expressly addresses itself to the questions of harvestable species and areas - the issue that the IWC has stepped into with the Southern Ocean Sanctuary. The CCAMLR states (Article V) that nothing in that convention "shall derogate from the rights and obligations of" Parties under the IWC. But this would not, on its face, debar the CCAMLR from permitting a minke whaling in the Southern Ocean, particularly if it were persuaded that sustainable yield did not derogate from IWC rights and obligations, correctly construed, under the ICRW. Moreover CCAMLR Article XXV includes, what ICRW lacks, a moderately fleshed out dispute settlement mechanism.

What I am suggesting is that Japan might consider initiating a process within the framework of the CCAMLR leading to a determination in that forum (appealing to CCAMLR's Scientific Commission) that a moderate level minke harvest is not incompatible with conservation as defined in CCAMLR Article II. On its face, Article IX(2) empowers the CCAMLR to designate allowable harvests, designate protected species, and so on. What would happen if Japan were to apply for a harvest? First, suppose Japan's proposal were to be opposed by another member of CCAMLR. Second, suppose that Japan's proposal were to lead to a harvest that was mutually acceptable internally.

In the first case, if Japan were to meet opposition by other members (presumably invoking the IWC's Southern Ocean Sanctuary), the resolution of the dispute would move along the route indicated the CCAMLR Article XXV: mediation, arbitration, and ultimately, if required, submission to the ICJ.

If, on the other hand, the membership of the CCAMLR were to reach an outcome mutually acceptable to them, but at odds with the resolutions of the IWC, the international community would be left with a disagreement between the membership of two international conventions. With the dispute in such a posture, the chances of securing international arbitration would rise correspondingly. For example, even if the prospects of the U.N. General Assembly requesting an ICJ clarification of the IWC impasse were low, it would be quite logical for the U.N. to refer to the ICJ a confrontation between the IWC and CCAMLR over global commons resources.

Indeed, from the perspective of achieving review, it would be preferable for the issues to arise from a clash between contesting bodies, as compared with securing a review directly out of the IWC. In the former case, the record would include independent findings of another scientific body, that of the CCALMR.

One cannot anticipate the full range of rulings that are possible. An arbitration would not necessarily result in the ICRW dominating the CCALMR or vice-versa. Conceivably, a tribunal might hold that the question of the Southern Ocean Sanctuary cannot be decided by either regime independently, and they must act in consultation with one another and with others: with FAO and UNCLOS, for example.

The Question of Ultra Vires

A final reason to explore some such alternative is that the ultra vires argument (that the Southern Ocean Sanctuary and perhaps even moratorium on minke are outside the powers of the IWC) is perhaps a stronger argument in truth than it is in law. In truth, a strong case can be made: indeed, Professor Burke has done so forcefully. Surely, one can question whether a sanctuary is really (in good faith, and invoking ordinary attitudes towards risk) necessary for the preservation of the species. And one can well we skeptical about how much the IWC decisions were really based on scientific data, rather than moral and political considerations.

In law, however, the answers are more complex. A reviewing body, such as an international arbitral tribunal, is likely to be highly deferential to the decisions of a specialized expert agency, such as the IWC. This is merely a conjecture based on the U.S. appellate practice, which I invoke here as much because it is the practice with which I am familiar, not because I believe it would or ought to control in international forums. But in the U.S., at least (for whatever this is worth) if those defending an agency's decision can demonstrate a rational basis for the decision, the reviewer is inclined to accept the decision under review even if the tribunal members entertain personal reservations as to, e.g., (i) whether they would have come to the same conclusion had they been on the IWC, (ii) whether the predominant real motives of the IWC are what they are publicly stated to be (intra vires its powers) or are unabashedly moral (which would be presumably ultra vires).

My judgment is thus that anyone considering further measures, including instigating a process of review, needs not only to look at the evidence, but needs to look at the evidence in the light of some burden (whether that which a U.S. court would apply or otherwise) that any nation seeking to overturn the judgment of the IWC would - in my judgment face. (A problem that, as I have indicated, is mitigated if the controversy were to come out of another expert body that saw matters in a different way).

To illustrate, the IWC, if forced to defend its rulings as intra vires, could sidestep the charge that it had ignored its scientists in the following way. It could concede the capacity of the minke population to withstand a culling on the magnitude deemed safe by the scientists, but claim that a moratorium was nonetheless required in order to stifle trade in illegally harvested meat, and thus necessary to achieve optimum utilization (Article V sec. 2, consistent with LOS Article 62, at least until more were known. This is not sheer science - but then, again, the IWC is a political body and risk assessment is as much policy and politics as science. It is not apparent that a reviewing body would find the IWC's judgment, thus defended, to be so clearly erroneous, or so unfounded in its chartered powers, as to reject the Commission's rulings. Instituting any such process of review would be, of course, a calculated risk.

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