2.1. Modern International Whaling Regulation: A Brief Review

The history of modern whaling regulation has been well documented elsewhere and does not need extensive review here.^{Footnote 8} However, it is useful to provide a brief historical overview of the establishment of the definition of the term ‘whale’.

The 1931 International Convention for the Regulation of Whaling^{Footnote 9} and the 1937 International Agreement for the Regulation of Whaling^{Footnote 10} are antecedents to the current ICRW. Both of these treaties defined the species and the geographical scope to which they applied and were noted and briefly described in the recent ICJ case of Australia v. Japan on whaling in the Antarctic.^{Footnote 11} For example, Article 5 of the 1937 Agreement singles out blue, fin, humpback and sperm whales by name, and prescribes acceptable hunting methods by location.

Both of these instruments have had limited success in regulating whaling. The shortcomings of the 1931 Convention fuelled concerns over the imminent extermination of certain species, and soon thereafter the 1937 Agreement and the 1946 ICRW^{Footnote 12} were put into place. Japan was compelled to join the ICRW in April 1951 while under post-war occupation, probably unwillingly, for it tried to withdraw from the Treaty not long after gaining independence – a factor that may contribute to Japan’s aggressively nationalistic attitude toward whaling today.^{Footnote 13}

Although the ICRW superseded the previous agreements, the underlying diplomatic tensions and conflicts remain. The Preamble to the ICRW sets out the simultaneous but competing objectives of whale conservation and the economic management of commercial whale stocks, but structural shortcomings make reconciliation difficult.^{Footnote 14} The ICRW regime has no dispute settlement resolution mechanism, and any major changes are made by consensus, although states may opt out through objections or even formal withdrawals.^{Footnote 15} Further, because the ICRW is open to all, some of the Member States who might block consensus are not whaling nations – for example, the landlocked countries of Austria, Laos, Mali and Mongolia. This misguided – even absurd – governance structure has worsened contentious debates, rather than providing the means to resolve them.

Despite its faults, the ICRW regime is an improvement on its predecessor. Notably, it created the IWC, an international organization with committees and sub-committees to organize and implement the work of the IWC.^{Footnote 16} Although, at the outset, proposals were mooted to place the IWC under a United Nations (UN) body such as the Food and Agriculture Organization (FAO), the Commission remains autonomous and independent.^{Footnote 17} The ICRW is also broader in scope than its predecessors, and its jurisdiction extends to ‘factory ships, land stations, and whale catchers’ and not solely to the high seas and territorial waters.^{Footnote 18} The work plan of the IWC is guided by its Member States, which also vet any major decisions of the secretariat. Currently, the IWC sets annual hunting quotas and seasons, regulates whaling practices and methods, conducts research, and monitors the compliance of Member States with the ICRW.^{Footnote 19} Five committees and one working group support this work plan, with the Scientific Committee being the most prominent.^{Footnote 20} The Scientific Committee has 12 sub-committees, including one dedicated to the status of small cetaceans.^{Footnote 21}

2.2. Small Cetaceans and the ICRW

At present, the IWC is the only international organization that might feasibly regulate small cetacean hunts globally. While other organizations and agreements refer to small cetaceans thematically through characteristics such as migration, or by regulating their hunting on a regional basis, none has the global reach of the IWC.^{Footnote 22} Paragraph 17.62 of Agenda 21 (otherwise known as the Report of the UN Conference on Environment and Development) specifically recognizes the IWC as competent for the conservation of whale stocks.^{Footnote 23} Further, the IWC accepts that it is ‘universal[ly] recognized [as the] competent international organization’ with regard to cetaceans,^{Footnote 24} and its Scientific Committee states that ‘the IWC was the logical agency to develop a program of international management of small cetaceans’.^{Footnote 25}

These statements, however, are not implemented in practice. The IWC’s competence to regulate the catch of small cetaceans is often questioned by a small band of countries, with Japan positioning itself as the leader. What becomes clear in the analysis that follows is that, legally, this diplomatic rebellion should have little effect, and the IWC does have this competence.

Regulating the catch of small cetaceans was not much of an issue in the first two decades of the IWC. The issue became more prominent in late 1960s and peaked at the 1972 Stockholm Conference on the Human Environment, in particular because of increasing interest in environmental and conservation causes. Additional conservation-minded states joined the IWC as members, rebalancing power from the whaling-minded states that had dominated.^{Footnote 26} Since then, small cetacean regulation has been continuously debated, with neither side gaining the upper hand.

The battlegrounds are many: IWC resolutions throughout the 1970s concerning small cetaceans,^{Footnote 27} regulatory recommendations by both the Scientific Committee and its newly created sub-committee on small cetaceans,^{Footnote 28} a draft text produced by Member States proposing amendments to the ICRW that included small cetaceans,^{Footnote 29} and various resolutions throughout the 1990s.^{Footnote 30} Certain of these actions specifically targeted Japan, including a 1990 resolution aimed at reducing Japan’s annual take of 29,000 Dall’s porpoise.^{Footnote 31} This resolution noted the sharp increase in the Japanese hunt, calling it ‘not sustainable’, and requested Japan to heed the advice of the Scientific Committee.^{Footnote 32} However, as all debates and resolutions regarding small cetaceans took place without prejudice to the state parties’ legal position on the issue, these steps did not resolve the problem so much as provide a reminder of the intractable nature of the problem.

More recently, as a result of the breakdown in negotiations between the parties on a variety of issues, parties to the IWC adopted the St. Kitts and Nevis Declaration at the 2006 annual meeting.^{Footnote 33} This was intended to launch a renewal effort, and resulted in a three-year process known as the ‘Future of the IWC’, focusing on 33 issues that Member States struggled to come to terms with.^{Footnote 34} Among these was the regulation of small cetacean catches.^{Footnote 35} However, as before, Member States could not find common ground, and at the end of the 62^nd meeting the Chair ‘concluded that the Commission was not in a position to come to a consensus agreement on the measures proposed’.^{Footnote 36} A decision in 2011 to extend the Future of the IWC process has produced no breakthrough.^{Footnote 37} After four decades of sharp, unassuageable differences, it is hard to imagine a consensus on small cetaceans emerging in the near future.

Moreover, recent allegations of corruption have given rise to the perception that Japan acts in bad faith, thereby making consensus more difficult. In June 2010, The Sunday Times (London) published an exposé in which undercover journalists caught officials of several smaller and weaker IWC states openly admitting that they took bribes from Japan.^{Footnote 38} Reportedly, by giving these smaller countries (including landlocked ones) foreign aid, paying for their delegations to attend IWC conferences, and various dubious payments – which ranged from cash-in-hand, to private luxury trips, to prostitutes – Japan has sought to exert its influence on foreign public officials in a way that arguably is criminal under Article 1 of the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.^{Footnote 39} These revelations prompted the IWC parties to pass Resolution 2011:1 on improving the effectiveness of operations within the International Whaling Commission, which aims to stop such corrupt practices through ‘enhanced transparency’.^{Footnote 40} While Japan’s alleged bribery was the trigger, it is asserted that the anti-whaling countries also resort to dirty tactics, and transparency all around is welcome.^{Footnote 41}

What this unsatisfactory history makes clear is that the IWC Member States have failed for decades to deal with the problem of small cetaceans and that the diplomatic tone is hardly improving. Still unresolved are the questions posed in a 1980 IWC resolution on small cetaceans, which was tabled and debated and yet which failed to reach consensus on any of these three options: (i) that the IWC has authority to regulate the catch of small cetaceans as a group; (ii) that the regulation of the catch of small cetaceans should be pursued on a case-by-case basis; and (iii) that the regulation of the catch of small cetaceans should be left exclusively to coastal states or not at all.^{Footnote 42} Decades later, this trilemma remains unresolved and is a testament to the unbridgeable fault lines that separate Member States and make the IWC ungovernable. Only a judicial resolution, in accordance with the rules of treaty interpretation, seems likely to be able to resolve it.

3.1. The ICRW and International Treaty Interpretation

‘Whale’ is not a defined term in the ICRW, although clearly an interpretation of whether or not it includes small cetaceans is needed. As a starting point, Article 31 of the Vienna Convention on the Law of Treaties (VCLT)^{Footnote 43} states that treaties shall be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.^{Footnote 44} In English, which is the official language of the treaty, a ‘whale’ in the ordinary, dictionary meaning is ‘any of the larger fish-like marine mammals of the order of Cetacea’. ^{Footnote 45} The dictionary definition, however, is too vague to be of any normative guide as the word ‘larger’ offers no cut-off; for example, many whales look quite small compared to an 11 metre long giant oarfish.

Attention must therefore shift to the context of the ICRW which, according to the VCLT, includes the text, the preamble, any annexes, ‘any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty,’ and finally ‘any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’.^{Footnote 46} The Preamble to the ICRW notes the 1937 Agreement and specifically recalls the ‘basis of the principles embodied in [its] provisions’. Thus, this prior treaty may be viewed as forming part of the context of the ICRW. This is especially helpful because, unlike the ICRW, both the 1937 Agreement and the 1931 Convention that it replaced expressly define the types of whale that are covered. The 1931 Convention states that it ‘applies only to baleens or whalebone whales’, and therefore not the toothed whales such as dolphins or porpoises.^{Footnote 47} Similarly, the 1937 Agreement defines ‘baleen whale … [as] any whale other than a toothed whale’.^{Footnote 48} Toothed whales are expressly excluded from protection in both of these older treaties.

In sharp contrast, Article 1 of the Schedule to the ICRW, entitled ‘Interpretation’, contains a list of both toothed and baleen whales, and even some small species. The only logical inference of this shift is that the ICRW, unlike the 1937 Agreement and 1931 Convention that preceded it, was intended to apply to all whales – baleen or toothed, large or small – to enable Member States to establish which species to regulate. Notably, in the ICJ’s recent Australia v. Japan decision, the Court was not asked to, and did not delve into the question of what constitutes a whale. In the paragraphs referring to the 1931 and 1937 Treaties, as well as the ICRW, the Court simply used the term ‘whale’ with no definition.^{Footnote 49} Hence, the case sheds no further light on this matter.

Other than context, facts extrinsic to the legal text may be considered when engaging in treaty interpretation. The Eritrea-Ethiopia Boundary Commission in the Eritrea-Ethiopia Boundary case weighed the principle of contemporaneity.^{Footnote 50} While treaties should generally be interpreted to give effect to the intention at the time at which they were negotiated, interpretation is not frozen in time. The Permanent Court of Arbitration considered it to be important to take account of the ‘present-day state of scientific knowledge as reflected in the documentary material submitted by parties’.^{Footnote 51} Applying this principle, scientific facts, more than any other, indicate that small cetaceans are within the scope of the ICRW.

For centuries, it has been scientifically accepted that that there is no basis on which to parse the taxonomic order Cetacea (or cetaceans) by size into large and small whales. As long ago as 1758, when Carl Linnaeus authored what is considered to be the first modern taxonomic classification, he described the taxon Delphinus (today the family Delphinidae) as animals having ‘teeth in each jaw’ and a ‘tube in the head’.^{Footnote 52} These are the defining characteristics of all toothed whales with a single blowhole.^{Footnote 53} The taxonomic homogeneity between small and large toothed whales established by Linnaeus remained unchallenged through the centuries and was a well-established scientific fact when the ICRW was negotiated.^{Footnote 54}

Moreover, today’s more advanced DNA-based techniques of molecular phylogeny have confirmed the scientific correctness of not driving an artificial wedge between the small and large whales. The family Delphinidae is a discrete evolutionary group nested within the toothed whales and comprising both ‘small’ oceanic dolphins and ‘large’ killer or pilot whales.^{Footnote 55} Just as the family of cats (Felidae) includes everything from small domestic cats to large lions, so too does the Delphinidae include both small- and large-bodied species. The family Delphinidae continues to reside firmly within, rather than be sister to, the larger group of all toothed whales, including the sperm whales, the beaked whales, the river dolphins, the narwhal and beluga.^{Footnote 56}

Hence, neither the old Linnaean taxonomy nor modern molecular phylogeny recognizes any biological distinction between small and large cetaceans. Positing one is arbitrary and without scientific basis. In several centuries science has located no bright line separating small ‘dolphin-like’ and large ‘whale-like’ cetaceans; it does not exist.

These factors make it all but untenable to argue for a legal distinction between large and small cetaceans. Article 5 of the ICRW reads that regulations introduced by way of amendment to the Schedule ‘shall be based on scientific findings’. This provision can be honoured only by accepting that ‘whales’ can be large or small.^{Footnote 57} Further, Articles 61 and 119 of UNCLOS^{Footnote 58} hold that the exploitation of living resources within the exclusive economic zone or on the high seas shall be based on the best scientific evidence available.^{Footnote 59}

What is more, the Schedule to the ICRW, which contains the regulations for whaling operations, has already resulted in a state practice in which size and nomenclature do not matter for cetaceans originally in or subsequently added to the Schedule.^{Footnote 60} At present, the Schedule regulates the hunting of the pygmy killer whale (Feresa attenuata) but not the Risso’s dolphin (Grampus griseus), despite the facts that, firstly, the latter is larger than the former (typically 2.6 metres versus 3.8 metres, respectively) and, secondly, the so-called whale belongs to the scientific family of dolphins (Delphinidae).^{Footnote 61} If it were the intent or opinio juris of Member States to exclude small cetaceans and animals of the dolphin family from the Schedule and the attendant moratorium on commercial hunting, then on both counts Feresa attenuata does not belong there. Yet, it is there.

Nor does the English language sustain the vernacular notion that ‘dolphins’ and ‘whales’ are distinct and different. The dolphin family (Delphinidae) includes animals that are called ‘whales’, such as the short-finned pilot whale (Globicephala macrorhynchus), and animals that are called ‘dolphins’ and ‘whales’ at the same time, such as the Northern right whale dolphin (Lissodelphis borealis). One searches in vain for a normative, legally useful basis to separate the ‘small’ dolphin-like and ‘large’ whale-like cetaceans, for neither science nor linguistics possesses a serviceable distinction.

The lack of a distinction between the terms has consequences for regulation. The Schedule, which is amended from time to time using the procedures set out in Article 5 of the ICRW, currently has a moratorium on commercial hunting (Article 10(e)).^{Footnote 62} That moratorium, adopted by the IWC in 1982, sets ‘catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter’ to zero.^{Footnote 63} If it were to be decided as a legal question some day that small cetaceans are ‘whales’ within the competence of the IWC, this moratorium would make their commercial killing illegal.

It could be argued that when the IWC amended the Schedule in 1982 to introduce the moratorium, it was not intended to conserve all small cetaceans, but only those already in the Schedule. That is true, but not especially meaningful. As argued by Gillespie, it is common for environmental treaties to evolve based on the needs of the parties, and the original interpretation is not frozen in amber.^{Footnote 64} In whaling regulation, historically the needs of the parties related to species that were actually exploited on a commercial scale.^{Footnote 65} Predictably, the 1982 moratorium on commercially killing large cetaceans caused the hunting of small cetaceans to increase, which as a result creates a new need to regulate them.^{Footnote 66} It would therefore be an error of legal reasoning to regard the fact that most small cetaceans were excluded from the moratorium as a precedent against including them now.

The work of the IWC’s Scientific Committee and its sub-committee on small cetaceans also needs to be considered in relation to treaty interpretation. Although Member States entered into this enterprise on the understanding that it would not prejudice their legal position on small cetaceans under the ICRW, it is at the least incongruous to grant the Scientific Committee and other committees competence to study small cetaceans while at the same time denying competence to regulate them. Under Article IV(1)(a) of the ICRW, the IWC may enter into ‘studies and investigations relating to whales and whaling’, but not other animals.^{Footnote 67} The role of the Scientific Committee was specifically addressed in the ICJ’s Australia v. Japan decision. In that case, the ICJ stated:

Based on the Committee’s role and the scope of Article IV for the Committee to have lawfully studied small cetaceans, it is necessary for them to be considered ‘whales’ under Article IV. Otherwise one has to conclude that the Scientific Committee would have carried out its studies unlawfully, which is difficult to reconcile with the fact that the studies were committed with the agreement of IWC Member States.

It is also necessary to consider that the ICRW is no ordinary treaty, but the constitutive instrument of the ICW. Treaties that are constitutive instruments are interpreted somewhat differently from other treaties, and there is a lex specialis for doing so. As the ICJ ruled in the case on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Nuclear Weapons):

As stated by Shaw, and in line with Article 31(3) of the VCLT, the interpretation of constitutive instruments is subject to the practice of the institution, its members and others in relation to it.^{Footnote 70} The text of such treaties can therefore be said to be more of an initial offering that governs the organization rather than an ossified determination of the organization’s activities.^{Footnote 71} For example, the UN Charter has evolved with the recognition of additional powers, as other provisions become disregarded or reinterpreted through practice.^{Footnote 72} Treaty evolution through practice has been recognized in past cases before the ICJ, including the Competence of the General Assembly for the Admission of a State to the United Nations case, the Second Admissions advisory case and the Namibia case.^{Footnote 73} It should be noted that recurring practices are likely to be more persuasive than one-offs, although nothing in these cases states that such practices must be recurring.^{Footnote 74} In the Danube case as well as in the IMCO case, the practice that was relied upon by the Court had only occurred once.^{Footnote 75}

The past practice of the IWC indicates that whale species of all sizes are already regulated in the Schedule. The case of the smaller-than-some-dolphins whale (Feresa attenuata) has already been mentioned, but there are further examples regarding animals which the IWC terms ‘smaller cetaceans’, such as the Shepard’s beaked whale (Tasmacetus shepherdi), Baird’s beaked whale (Berardius bairdii), Cuiver’s beaked whale (Ziphius cavirostris), Northern bottlenose (Hyperoodon ampullatus), Southern bottlenose (Hyperoodon planifrons), killer whale (Orcinus orca), and the shortfinned pilot whale (Globicephala macrorhynchus).^{Footnote 76} Calling these ‘smaller cetaceans’ is something of a misnomer – the Baird’s beaked whale is a formidable 11 metres – but the fact remains that Member States have from time to time amended the Schedule without fastidious attention to an animal’s size. For example, killer whales were added to the Schedule in 1977 and placed under Article 10(d) of the Schedule in 1980.^{Footnote 77} Similarly, the Baird’s beaked whale was incorporated into the Schedule in 1977.^{Footnote 78} The variance in the size of whales regulated under the ICRW was specifically noted by the ICJ in the Whaling in the Antarctic case between Australia and Japan (New Zealand intervening):

As a matter of law, should Member States be desirous of including small dolphins or porpoises, they could.

In sum, no bright line exists in plain English, scientific taxonomy, size measurement, or in the IWC’s past practice for use in distinguishing small dolphin-like and large whale-like cetaceans. To argue that such a bright line exists and delimits the competence of the IWC is fiction, from which no good law can be made.

3.2. The Case against Regulation

If the case for small cetaceans being covered by the ICRW is so strong, what is the rebuttal? Pro-whaling states commonly put forward two arguments. As limitations on the competency of the ICW they cite: (i) the Final Act of the 1946 International Whaling Conference, and (ii) coastal states’ sovereignty in territorial waters. Certain pragmatic arguments are also made in support of the position.

The Final Act of the 1946 International Whaling Conference, which resulted in the creation of the ICRW, contains an Annex in the form of a chart on the Nomenclature of Whales, comprising 16 species in their scientific (Latin) names and their translations into the leading languages of the time. It could be argued that if a species of whale was not among those 16 – a list limited to the baleen, sperm and bottlenose whales – then it is outside the jurisdiction of the ICRW. This argument gains support from the VCLT, which states that ‘any agreement relating to the treaty’, but not the treaty itself, ‘which was made between all the parties in connection with the conclusion of the treaty’ may be considered in treaty interpretation.^{Footnote 80}

There are several frailties to this superficially attractive argument. As noted by various authors, and as stated in the Final Act of 1946 itself, the Annex on the Nomenclature of Whales is simply a guide to the terminology used to describe the whales in the ICRW.^{Footnote 81} Such nomenclatures are a common feature of biological treaties to ensure understanding and compliance.^{Footnote 82} Gillespie notes that, despite differing approaches to changes to nomenclature in environmental law treaties, in all situations it is assumed that nomenclature may be amended.^{Footnote 83} Similarly, Birnie points out that the Annex was never intended to be a definitive statement on the species that are regulated by the Convention, evidenced by a verbatim record of the 1946 conference.^{Footnote 84} Indeed, opinio juris in the IWC has been that the Annex does not limit jurisdiction: the killer whales are not among the 16 species in the Annex, but Member States decided in 1977 to regulate them in the Schedule.^{Footnote 85} Today, the IWC regulates many more species than were contemplated by the Final Act.^{Footnote 86}

The second legal argument often advanced by pro-whaling states is that the regulation of the catch of small cetaceans would infringe the sovereignty of coastal states, particularly in cases concerning territorial waters.^{Footnote 87} While true, the point is not very persuasive, because it is settled international law that international organizations may regulate the exploitation of cetaceans notwithstanding such sovereignty, and the coastal states must work with international organizations for the purposes of conservation, management and study. Article 65 of UNCLOS addresses these points and states:^{Footnote 88}

Article 120 of UNCLOS states that the same rule applies to ‘the conservation and management of marine mammals in the high seas’. Marine mammals are thus a special category in international law, for which sovereignty does not trump the IWC’s power to regulate. This is true for both small and large cetaceans: Articles 65 and 120 of UNCLOS do not differentiate between them. As noted above, when discussing jurisdiction in the Australia v. Japan case, the ICJ stated that it was ‘significant that Australia alleges that Japan has breached certain obligations under the ICRW’ and did not relate to whaling in certain maritime zones.^{Footnote 90}

Lastly, Japan asserts that regional organizations are capable of regulating the catch of small cetaceans and that the IWC does not have the requisite amount of resources to regulate such a large number of species.^{Footnote 91} While possibly correct, these are factual arguments against the desirability of the IWC’s involvement, not legal arguments against its jurisdiction. As such, they are not probative of the institution’s legal competence. Moreover, the factual argument remains speculative, as it cannot be assumed that regional organizations would be capable of generating more resources than the IWC.

4.1. Small Cetaceans, the ICRW, and Dispute Resolution

The IWC has a history of avoiding litigation and preferring softer options to resolve legal differences. In 1977 and 1979 the IWC sought to settle internal disputes by seeking legal advice from a neutral third party, D.W. Bowett.^{Footnote 93} It could seek similar advice on the question of whether small cetaceans are ‘whales’, although the resulting ad hoc legal opinion would not have binding authority. Member States might choose to disregard it or, worse, might cynically insist on it as a delaying tactic. In any case, there is no indication that the IWC has ever sought a legal opinion on this question, so it is entirely speculative.

Another option is consensual arbitration, but this faces two major difficulties. Firstly, obtaining consent is improbable, for while there are arbitrators who could be called on – for example, the International Tribunal for the Law of the Sea – nothing in the ICRW requires Member States to submit disagreements to arbitration. Secondly, arbitration rarely sets systemic precedent and is limited to resolving the immediate dispute between the two parties to the arbitration. This argument is especially relevant where the parties elect to have the arbitration heard in camera and the judgment delivered confidentially, as often happens in arbitral practice. Since the ICRW is silent on arbitration, the modalities are not prescribed but remain ad hoc.

All of this leads us to prefer the option of recourse to the ICJ; in fact, it is submitted that there is no suitable alternative. The ICJ has jurisdiction not because it is prescribed in the ICRW, but because it obtains general jurisdiction over interpreting and applying international law under the UN Charter, which is binding on all UN Member States. It is the highest authority of its kind; its judgments are accorded wide recognition, and it is the only global adjudicator. Some critics, especially from right-wing America, seek to deny its authority, but their views are marginal outside the United States (US) and are not widely shared.^{Footnote 94} Moreover, Japan favours judicial dispute resolution over whaling matters, as its lawyer admitted during oral argument before the ICJ in the Australia–Japan case,^{Footnote 95} and Japan has agreed to abide by the decision of the ICJ in that case.^{Footnote 96} Hence, compliance would most likely not be an issue in future decisions.

4.2. Small Cetaceans, the ICRW, and the ICJ

There are three ways to bring the small cetacean question in front of the ICJ: (i) by intervention in an existing and related case, where one is ongoing; (ii) by way of advisory opinion; and (iii) by litigation proper between two states. We consider these in turn.

Australia and Japan recently argued before the ICJ over the latter’s alleged abuse of the Article VIII scientific exception in the ICRW to engage in commercial whaling otherwise prohibited under the moratorium. Since this case was not about whether small cetaceans are ‘whales’, there is little direct bearing on the issues discussed in this article.

From a political standpoint, however, the litigation signals that the taboo against resolving IWC disputes outside the IWC has now been broken. We believe it is likely that future disagreements in the IWC will more readily make their way to the ICJ for resolution, especially given that the judgment was in favour of Australia. It seems likely, therefore, that other whaling cases will be brought before the ICJ in the future. When this happens, states that are concerned about the status of small cetaceans will have an opportunity to intervene before the Court on the question of whether or not they are ‘whales’.

There are two ways to intervene before the Court. Article 62 of the Statute of the International Court of Justice (ICJ Statute) provides for intervention by a state with leave of the Court where it can demonstrate a direct legal interest based on international law.^{Footnote 97} Article 63 provides for intervention as of right where the interpretation of a treaty is in issue.^{Footnote 98} These are two different pathways, which are supplemented by the Court’s Rules (Rules 81 and 82, respectively). Both have been used.^{Footnote 99}

An Article 62 application to intervene could plausibly succeed in a future case concerning commercial whaling. With many cetaceans being migratory, many states could share a legal interest in their conservation, and not just the two states locked in litigation. The ICJ has held that intervention under Article 62

For example, had a third country applied to intervene in the Australia–Japan case against Japan’s killing of small cetaceans near to shore, it could have argued that this issue was legally related to Japan’s killing of large cetaceans in the Antarctic. Indeed, both concern the applicability (or not) of the moratorium on commercial killing in Article 10(e) of the Schedule. However, there is no guarantee that the Court would have regarded this nexus as sufficient, as it grants interventions only sparingly.

An easier way to intervene might be found under Article 63 of the ICJ Statute. This allows any state party to the ICRW to intervene in matters relating to the interpretation of the Convention, without the need to demonstrate a direct legal interest if the interpretational question has a general interest to all Member States.^{Footnote 101} This is arguably true with respect to the meaning of the word ‘whale’ in the ICRW: all Member States have an interest in knowing how far that word reaches and which animals fall within the Convention’s legal framework. Article 63 therefore comes close to creating an ‘as of right’ intervention, though exceptions exist. In the Military and Paramilitary Activities in and against Nicaragua case, El Salvador’s intervention was rejected by the Court because of certain reservations to its jurisdiction lodged by the respondent (the US).^{Footnote 102} Short of such a jurisdictional objection, any ICRW Member State could invoke Article 63 and Rule 82 to intervene in a germane whaling case – even if it had no direct legal interest.^{Footnote 103}

A case may also be brought to the Court through a reference for an advisory opinion. This is a particularly attractive option where the legal question is inextricably bound up with politics – which certainly is the case with small cetaceans. In its advisory opinion in Nuclear Weapons the Court held that ‘the fact that [the nuclear weapons] question also has political aspects … does not suffice to deprive it of its character as a “legal question”’.^{Footnote 104} Thus, the political stalemate at the IWC over the small cetacean question raises no problem of justiciability and, on the contrary, suggests that an advisory opinion may be an appropriate mechanism.

Under Article 65 of the ICJ Statute, advisory cases may be referred to the Court only by certain authorized UN organs and agencies.^{Footnote 105} For example, the World Health Organization (WHO) referred the Nuclear Weapons case. Three criteria must be met: (i) the agency requesting the advisory opinion must be among those authorized to do so; (ii) the question must be legal in nature; and (iii) the question ‘must be one arising within the scope of the activities of the requesting agency’.^{Footnote 106} The third criterion depends on the nature of the activities conducted by the referring organization and the exact question that it requests the Court to answer; there should be some congruence between the two. For instance, the Court rejected the WHO’s request for an advisory opinion on the legality of using nuclear weapons as ultra vires because it saw health as too far removed from war – but a similar request by the UN General Assembly (UNGA) was accepted. In short, whether the Court will accept a request for an advisory opinion has much to do with the referring organization’s constitution and rules.^{Footnote 107}

A number of UN organs and agencies could possibly refer a question on small cetaceans to the ICJ. In his research on the IWC, Bowman outlines the relationship between whaling and various international organizations.^{Footnote 108} The FAO – which, in 1946, was initially proposed to be the parent organization of the IWC – is authorized to request advisory opinions of the Court.^{Footnote 109} Article 1.1 of the FAO’s Constitution defines ‘agriculture’ to ‘include fisheries [and] marine products’.^{Footnote 110} Article 1.2 of the Constitution also states that ‘[t]he Organization shall … recommend national and international action with respect to … the conservation of natural resources and the adoption of improved methods of agricultural production’.^{Footnote 111} Additionally, the FAO has a Fisheries and Aquaculture Department and supports numerous treaties on fishing, some of which expansively define ‘fish’ to include all living marine resources, including marine mammals (which scientifically are not fish).^{Footnote 112} A reference by the FAO for an advisory opinion is therefore very likely to be accepted by the Court.

Possibly, the canniest way to launch an advisory opinion would be through the UNGA or the UN Economic and Social Council (ECOSOC). Both bodies have a mandate to champion sustainable development, and both have broad representation – 54 Member States in ECOSOC, and nearly 200 in the UNGA – which illustrates that the countries engaged in the commercial killing of small cetaceans are a small minority, as are the countries that are cajoled or bribed to join their side. Furthermore, Japan’s current term on ECOSOC expires in 2014, after which it would not be present to participate in debates. The roughly 3,500 non-governmental organizations (NGOs) accredited to ECOSOC, however, would be present and could participate to a limited extent.^{Footnote 113} Unlike the situation in the IWC, Japan and its allies do not enjoy disproportionate influence in ECOSOC: they would not succeed in blocking a request for the Court’s advisory opinion on whether small cetaceans are ‘whales’ subject to the commercial killing moratorium.

Finally, under Article 36 of the ICJ Statute, a case may be brought to the Court through the contention of two states.^{Footnote 114} This scenario would directly pit a pro-whaling state against an anti-whaling state in actual litigation. For the Court to have jurisdiction to adjudicate, both states must declare acceptance of the Court’s jurisdiction for the instant case, or must have previously declared acceptance on matters of treaty interpretation under Article 36(2), which most states have done.^{Footnote 115} Further, the states would have to be locked in a ‘disagreement over a point of law or fact, a conflict of legal views or of interests’.^{Footnote 116} That criterion is met where the litigant states hold opposing views;^{Footnote 117} it is not necessary for these views to lead to international friction.^{Footnote 118} The threshold is therefore fairly low.^{Footnote 119} A case between Japan and another state that has consistently supported small cetacean regulation would meet these requirements.

As with advisory opinions, legal questions intertwined with political aspects are justiciable in contentious cases and will not deter the ICJ from proceeding and rendering a decision.^{Footnote 120} Moreover, and of particular importance considering the ongoing discussions and renewal efforts in the IWC, the Court’s competence in a contentious case is not affected by ongoing negotiations between parties.^{Footnote 121} Therefore, once a state has submitted to the ICJ’s jurisdiction, changing factual circumstances do not divest the Court of jurisdiction (save possibly in the case of mootness).

Filing a contentious case is conditional on locus standi, or standing. The applicant state must satisfy the Court that a real nexus exists between itself, the respondent state, and some international law rule in dispute.^{Footnote 122} This usually implies that the applicant state is directly affected by the act or omission of the respondent state. The concept of standing vis-à-vis a direct breach of international law is outlined in Article 42 of the International Law Commission’s (ILC) 2001 Articles on State Responsibility.^{Footnote 123} Here, the distinction is drawn ‘between injury to an individual State or possibly a small number of States and the legal interests of several or all States in certain obligations established in the collective interest’.^{Footnote 124} In the matter at hand, it could be alleged that commercially killing small cetaceans in breach of the moratorium causes injury to specific coastal states. For example, there would be specific injury if migratory small cetaceans from an applicant state’s territorial waters were killed in a respondent state’s territorial waters, or if they were killed by its flagged vessels. In this case, the Convention on the Conservation of Migratory Species of Wild Animals^{Footnote 125} would be a relevant consideration.

It is also arguable that Article 48 of the ILC’s Articles on State Responsibility provides an enlarged conception of standing.^{Footnote 126} The article was drafted in response to the ICJ’s judgment in Barcelona Traction,^{Footnote 127} in which the Court grappled with the concept of erga omnes obligations, being obligations owed to the international community as a whole. Article 48 provides for two circumstances where ‘any State other than an injured State’– in this case, a state with no particular stake in small cetaceans – may ‘invoke the responsibility of another State’.

The ILC’s Article 48(1)(a) addresses the situation where an obligation established in the collective interest of a group of states, including the complaining state, has been breached. In this situation, in order to have standing to sue, the state invoking the breach need not be directly affected or ‘injured’ by the act or omission in question. An example of an obligation in the collective interest of IWC states is the moratorium on commercial hunting. Arguably, any Member State could sue for its breach, and if the Court follows the ILC’s views on state responsibility (which it probably would), the state would have standing.

Article 48(1)(b) of the ILC Articles covers the even broader situation where ‘the obligation breached is owed to the international community as a whole’– that is, it is a true erga omnes obligation. As stated in the Barcelona Traction case, these are obligations that ‘by their very nature […] concern all states’.^{Footnote 128} Arguably, Article 3 of the Convention on Biological Diversity (CBD)^{Footnote 129} imposes an erga omnes responsibility on states ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’. The scope of the Convention is therefore not limited by international boundaries but encourages a global environmental or ecosystem approach. Article 5 of the CBD obliges states to cooperate with one another ‘through competent international organizations’, such as the IWC, ‘in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity’. Article 10(b) similarly obliges states to ‘adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity’. Taken together, Articles 3, 5 and 10(b) arguably reposition small cetacean conservation not as a matter of narrow national interest, which is how it has been treated by the IWC, but rather in the broadest international interest, for which states have erga omnes responsibilities. Although this legal argument is less well established than the others discussed above, it is also potentially the most potent and most far-reaching, as the Court could clarify the meaning of environmental erga omnes obligations. This argument could be worth pursuing, precisely because it is less well established.

In summarizing, we believe that the ICJ is the most, and arguably the only appropriate adjudicative forum to decide on the competence of the IWC over small cetaceans. The issue may be brought to the ICJ in the form of an intervention, an advisory opinion, or a contentious case. We consider the latter two options to be more likely but, since all are possible, determining which option is preferable will depend largely on the political or tactical considerations of the state sticking its head above the parapet to confront the pro-whaling states, particularly Japan.