1. introduction
In ‘Size Matters, Although It Shouldn’t: The ICRW and Small Cetaceans. A Reply to Stephenson, Mooers and Attaran’,Footnote 1 Ed Couzens responds to our earlier article on the status of small cetaceans in international law.Footnote 2 We thank Couzens for the opportunity to reflect further on the sound global management of small cetaceans.
At the outset, we must state that while we agree with several of the points raised by Couzens, we starkly disagree with his conclusion that open-ended, ongoing negotiation within the International Whaling Commission (IWC) is the best way forward.
Our article, ‘Does Size Matter?’, argued for putting a limited legal question before the International Court of Justice (ICJ) for interpretation: does the word ‘whale’ as used in the International Convention for the Regulation of Whaling (ICRW)Footnote 3 include small cetaceans? We argued that this was the only foreseeable way of breaking a stalemate at the IWC, which has struggled ineffectually with the question for decades.
Couzens argues, in contrast, that instead of litigation, diplomacy is the better way to figure out what a ‘whale’ is. Specifically, he writes that the ‘Future of the IWC’ project, which began in 2007, and which has failed several times to achieve its goal of a diplomatic ‘package deal’ on this and other vexing IWC conundrums, represents ‘the most realistic … course forward’.Footnote 4
This argument fails under the weight of numerous contradictions, but none more glaring than those offered by Couzens himself. Accordingly, we quote him extensively in this reply.
2. recourse to the icj ‘unlikely’?
Couzens argues that ‘the idea of the ICJ being seized of the issue of small cetaceans is unlikely, given the nature of the Court and the nature of international diplomacy’.Footnote 5 He provides no reasoned evidence for assessing the likelihood or otherwise of ICJ litigation at all, except for the vague ‘nature’ of things.
Current evidence quite clearly contradicts Couzens. He gives short shrift to the fact that, just months ago, the ICJ was seized of and ruled favourably in Australia’s case against Japan’s scientific whaling (the Whaling in the Antarctic judgment).Footnote 6 Couzens writes that he and others found that ICJ case ‘surprising’.Footnote 7 Perhaps so, but now that it is a reality, a view that ICJ involvement is ‘unlikely’ seems simply out of date.
3. size matters
Couzens argues that ‘Size Matters, Although It Shouldn’t’. While it is correct as a political statement to argue that ‘size matters‘ for the IWC’s treatment of cetaceans, Couzens cites not a single authority for the proposition that, as a matter of international law, the size of a cetacean affects whether it is a ‘whale’ for ICRW purposes. It is a mistake to conflate the IWC, which is the political institution, and the ICRW, which constitutes the law.
Imagine, hypothetically, that the conversation did not concern whales and the ICRW, but instead dogs and the national (and notional) Dogcatcher’s Act, which for unexplained reasons left the word ‘dog’ undefined. Would anyone with a straight face argue that because a Chihuahua is a small dog, it is therefore not a dog? This is implausible: the scientific fact, and therefore the legal reality, is less convoluted than that. There could be noisy political disagreements, but these would be just that – noise.
As explained in our article, longstanding and unbroken phylogenic knowledge, beginning with 17th century morphological studies and stretching to 21st century genetic studies, holds that both small and large cetaceans constitute a single biological order. This is the order of Cetacea, (that is, the whales) and it is not further subdivided into small and large species.Footnote 8 That this fact is not politically palatable in the IWC is beside the point. Wishful thinking does not law make.
4. ongoing iwc negotiations
The most puzzling aspect of Couzens’ reply is his optimism that the IWC can be left to solve its own problems, without ICJ intervention. Indeed, Couzens’ blow-by-blow account of how the ‘Future of the IWC’ process is unravelling seems designed to bolster our argument that outside intervention is required.
Couzens often admits that the IWC is not equipped to deal with this issue. In his own words, it is a legal regime so unable to work with others that it is ‘isolated – leprous even’.Footnote 9 On the regulation of species, he states, ‘problems abound’,Footnote 10 which is perhaps not surprising given ‘[t]he confrontational nature of the IWC’.Footnote 11 Concerning the Future of the IWC process, he admits that despite extensive diplomatic efforts in 2010–11 ‘consensus was not found’.Footnote 12 Diplomatically a ‘bitter battle’ took place, followed by crude efforts by some countries ‘to break the quorum’ before a key vote, which led to ‘an even more bitter battle’.Footnote 13 Couzens also admits that the process appeared ‘defunct’, and that a subsequent effort in 2012 to restart it did not succeed.Footnote 14 Of this formidable record of woe, Couzens argues:
What is most important about the ‘Future’ process … is that … although to date unsuccessful, the contracting governments to the ICRW have attempted since 2007 to reach compromise.Footnote 15
This is Sisyphean logic: a process that has failed year upon year to deliver a good outcome is important because it failed.
To be clear, the ‘Future of the IWC’ was a process initiated in 2007 that was supposed to end with an agreement in 2010.Footnote 16 This did not happen. In fact, the 2011 Chair’s Report for the 63rd IWC meeting states that the ‘chair concluded that the commission was not in a position to come to a consensus agreement’ and that ‘there had been support for a period of pause and reflection on work undertaken during the “Future of the IWC” process. […] This pause for reflection took place between IWC/62 in 2010 and IWC/63 in 2011’.Footnote 17 This was followed up by a weakly worded revival of the process in 2011 when the Commission agreed to the following:
[… ](1) encourage continuing dialogue amongst Contracting Governments regarding the future of the International Whaling Commission; (2) continue to build trust by encouraging Contracting Governments to coordinate proposals or initiatives as widely as possible prior to their submission to the Commission; and (3) encourage Contracting Governments to continue to cooperate in taking forward the work of the Commission, notwithstanding their different views regarding the conservation of whales and the management of whaling.Footnote 18
Notwithstanding this void, states have continually voiced their support for small cetacean regulation. For example, at the 64th meeting of the IWC in 2012, Australia, the Netherlands, Argentina, Monaco and India all stated their support for the subject.Footnote 19
Additionally, in other writings, Couzens has criticized the IWC in strong terms. He has asserted that the IWC is poisoned by ‘conflict in unexpected places’,Footnote 20 that arguments in the IWC are ‘not always on substance’,Footnote 21 and that the IWC’s debate over small cetaceans ‘frequently owes rather more to political considerations than biological credentials’.Footnote 22
We agree with those criticisms. Where we differ is on Couzens’ belief that, despite these problems, the IWC should be trusted to do the right thing. No rational person should willingly continue on a path in which ‘conflict’ is frequent, and decisions based on ‘substance’ or ‘biological credentials’ are subordinated to ‘political considerations’.
5. why judicial recourse
In contrast to Couzens, we look on the IWC’s ugly politics and conclude that it would be salutary to remove the small cetaceans problem to a courtroom, where clear rules of procedure and evidence lend themselves to rationally ascertaining questions of law and fact, and conflict is mitigated by the submissions of legal counsel. As is so often true of embittered conflicts, seeking outside help from the ICJ may help to soothe and de-escalate tensions, and is much better than the bluster-and-bare-knuckle passions that now wrack, and may yet wreck, the IWC. If the intellectual goal of both law and science is to arrive at evidence-based truth, surely this is more likely to be achieved at the ICJ than at the IWC.
Further, and of importance to the ongoing discussion, recourse to the ICJ and a judicial decision on whether ‘whales’ include small cetaceans does not usurp the place of diplomacy or the plenary powers of IWC Member States. Those states remain international law actors, capable of deciding whether the IWC wants to govern small cetaceans. A judicial decision would simply clarify where the IWC’s authority starts and ends, without dictating to Member States how they must exercise that authority.
6. conclusion
In sum, we believe that the most prudent and practical way to resolve the issue of small cetacean management is through judicial dispute resolution. This will reduce tensions, not heighten them. In ‘Does Size Matter?’, we canvassed various potential international dispute resolution forums in which this dispute could be brought. The ICJ appears to be the most appropriate. We cannot agree with the ‘business as usual’ approach that Couzens advocates. The IWC will continue to negotiate on the range of subjects identified in the ‘Future of the IWC’ process. However, given the history of the debate on small cetacean regulation, this issue may be isolated from the others and de-escalated through an open and fair judicial process.
