Jus Cogens is a peremptory norm from which no derogation is permitted. The norm is regarded as a fundamental principal of international law by the states. These norms turn into obligations and cannot be waived by states. They are absolute in character. Eg: torture prohibition, diplomatic immunities etc.
Erga Omnes is used to describe obligations towards all. Erga Omnes obligations can further enable the ICJ shall go beyond the formal relations or treaty law entered upon by the state parties by consenting to certain international provisions. These become obligations of state parties towards all and go against the sovereignty of the state but are seen as valid law. “In particular, an essential distinction should be drawn between the obligations of a state towards the international community as a whole, and those arising vis-a vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omens. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of human person, including protection from slavery and racial discrimination” –para 33,34 of (Barcelona Traction Case)
These Jus Cogens eventually become Erga Omnes and these change with the passage of time. What might not be considered as Jus Cogen today, might be considered as Jus Cogen in the future. With the passage of time, humans learned the significance of ecosystem and how preserving the environment has become impertinent for the survival of majority of living species on this planet. These concerns have been given global recognition and importance and various agreements and protocols are proof of the same (For ex. Kyoto protocol, Paris agreement etc.). This shows the growing need and concern for the preservation of the ecosystem and environment in the global community. Several countries have enacted laws which regulates or prevents animal hunting. They have accepted it internally. Therefore, these principles and such laws have become norms which can imply that these laws have become Jus Cogens. Jus Cogens give birth to Erga Omnes and the principles like Precautionary Principle are used as fangs and claws to enforce the Erga Omnes. The preservation of environment has become an obligation of the states towards the international community as a whole. Whale are considered as imperative part of marine ecosystem and preserving them would mean preserving the aquatic ecosystem and hence the environment. The problem regarding whaling shall and cannot be seen separately anymore but it comes under the umbrella of bigger jus cogens and erga omnes and the states have become obligated to preserve and conserve the same. This policy can also be seen to emanate from the United Nations Convention on the Law of the Sea which requires that the signatory states “work through the appropriate international organizations for [the] conservation, management and study” of cetaceans on the high seas. Japan’s withdrawal from the IWC membership in 2018 would still make Japan liable under the United Nations Convention on the Law of the Sea.
Therefore the intervention of the state parties to intervene and take the case to International Court of Justice, even in the lacuna of an agreement which prohibit whaling would be valid under the principle of Erga Omnes. Treaty law also played an imperative law in determination of this case. The treaty involved is International Convention for the Regulation of Whaling We need to examine the consequences of this judgment ad interplay of the law with the affected parties and various other stakeholder regarding the same.
Barcelona Traction Case has many shortcomings and the biggest one being that this case wasn’t decided by giving an expansionary view regarding the environmental law but by mere procedural technicalities. The contention raised by Australia under the resolution of 1995 which states that the whale killings shall only be permitted under special circumstances only when certain questions or problems occur which cannot be solved through the existing data or using the non-lethal research techniques. Australia also contended that the subsequent resolutions had to be taken into account and should have been seen as subsequent agreements between the parties and hence shall be used to further interpret the treaty. The interpretation shall also be based on subsequent practices which would form the bedrock of customary practice under the international law which shall be read with Vienna Convention on Law of Treaties. The Court took a negative stance regarding this contention and stated that “Australia and New Zealand overstate the legal significance of the recommendatory resolutions and Guidelines on which they rely. First, many IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan. Thus, such instruments cannot be regarded as subsequent agreement to an interpretation of Article VIII, nor as subsequent practice establishing an agreement of the parties regarding the interpretation of the treaty within the meaning of [VCLT 31(3)(a) & (b).” The case was not decided on some general principal or progressive interpretation of the international law or the principles of environmental law but on the interpretation of the scientific research because the subsequent provisions and amendments were not ratified by Japan. Based on this the ICJ ruled that the Japan’s claim of granting permit to kill whales for scientific research was not valid.
This results in legal lacuma of precautionary principle or a proper precedent to enforce the concerns related to environmental law issues in international law. By adopting a narrow scope of the same, the Court does not want to bring the established environmental law principles under the ambit of the international law. The judgment is being hailed across the globe by the various stakeholders but the reality is very different. Nor did Court bring important elements like precautionary principle, conservation-oriented measures to decide upon the issue. The failure of the Courts to recognize the environment concerns, preservation and obligations as either jus cogens or erga omnes is disheartening and represents a missed opportunity in positive development of international environmental laws despite the clause ‘the functions conferred on the 31 Commission have made the Convention an evolving instrument’ regarding the International Whaling Commission (IWC) regarding ICRW.
Dual purpose were seen as the objective of the ICRW by the Court, i.e., sustainable exploitation and the conservation of whale. The former one being the problematic one. This led to the narrow interpretation and narrower obligations of the states.
Another problem while dealing with these issues occur regarding the forum to raise such issues. The two judges on the bench, i.e., Owada and Abraham suggested that the ICJ did not have the expertise to deal with such matters. The science constitutes an intrinsic part when it comes to the matter like whaling. The judges should have used the precautionary principle instead of the test of ‘objective reasonableness.’ The role of science in the matters related to the environmental law issues is convoluted and requires domain expertise. The lack of review process or dispute resolution mechanism revealed the inherent weakness regarding the same. The views regarding the common heritage of humankind and ecosystem approach were expressed regarding the whaling case and it had been iterated that these give rise to the obligations under the principle of erga omnes and hence shall be resolved and redressed under Article 48 of the International Law Commission (ILC) Articles on State Responsibility.
After this decision, Japan modified its optional declaration giving the compulsory jurisdiction to the ICJ but it has added a covenant that the dispute relating to the marine life and resources cannot be brought to the ICJ in the cases in which Japan is involved.
Common man influence:
The scientific whaling programs would be soon abandoned by Japan and ICR, which has an annual budget of $68 million, will continue to contribute the research on Cetacean Science. Japan would now continue whaling only in its own territorial waters and 320 mile economic radius around it’s territories. Even though the minke population is not ‘endangered’ or ‘threatened’, the area around Japan has unique whale population which reproduce in summers instead of winters. The main question arises whether the endangering of these whale who otherwise would belong to minke population except for the reproduction season would be deemed different and needs to be especially conserved. These populations are called J- stock.
After leaving the convention in 2018, Japan can now use deadly force to hunt the whales. Earlier, 100 minke whales were captured by the Japanese fishermen per year by using nets, which is allowed under IWC moratorium. But the return of harpoon whaling could put serious pressure on the whale population. Japan has said that it would put limit on number of whales being killed but has not disclosed the intricacies regarding the same.
But the commerce and economical considerations may end up settling the issue. The growing environmental concerns and drifting away of taste of whale meat have led to a gradual decline in the Japan’s meat consumption which was 203,000 tons in 1965 to just 4000 tons in 2015 now. This makes the common people the stakeholders and determiners regarding the extent of whaling.
It is well established how Japan has been seen to be overlooking or violating international law on whaling activities while carrying out whaling activities in the North Pacific or by way of its direct/indirect support to the pirate whaling ships in Iceland, Norway and various other destinations. The last time Japan got caught for carrying out commercial whaling in the Antarctic, it took the shed of scientific research. We should consider that the Japanese culture and emotions of the people play a crucial role in Japan’s decision to repeatedly conduct whaling, at times outside the ambit of law and not by lawful recourse.
The tradition and culture of Japan has been a key force in driving the Japanese towards whaling. The practice has been conducted in Japan for over 400 years, as reported by a government official. Whaling became more prominent in the State when whale meat was the only source of food which could be used to feed the impoverished population which comprised of the masses in that nation. Earlier, whaling was a trading of various small
indigenous groups of Japan and is taken to be a natural right of a sovereign state. This is the reasons for Japan’s request on several occasions to be granted ‘Aboriginal Subsistence Whaling’ but the commercial element present in coastal whaling activities carried out seems to over-ride the arguments pertaining to cultural practices.
We can observe a clear line of difference between the ‘pro’ and ‘anti’ whaling countries. Japan refuses to imposition of any cultural imperialism on its people such as dislike of the west of whaling prohibiting the same practice for Japanese. They disagree to bow to the West with respect to what they can eat and what they can’t. This would be an issue of ethics that how can a set of states or the international community at large regulate the diet and food of any nation or their cultural practices. In light of all of the above arguments, can we ever imagine the anti-whaling countries to agree with Japan’s contention or say, with commercial whaling practices? My answer to the same would be in the negative. But still, the culture is one of the things which is influencing the whaling activities throughout the world.
Substantial support for whaling can be found within the ruling Liberal Democratic Party itself apart from hundreds of official employed in the whaling departments. The Abe administration garnered votes of those in favour of whaling in Sunday's election to the upper house by taking a pro-whaling stance. It is interesting to note that Abe comes from the base of Japan's whaling expeditions, Shimonoseki.
Japan's political field seems to have established in itself a circle of vested interests of various parties with a pro-whaling stance. One of the examples of this would be government subsidies in billions being given to research institutes which are regular hosts for retirees from Japan's Fisheries Agency.
Japan’s politics have greatly magnified and intensified the whaling activities.
The whales can be killed under the 1946 ICWR convention which states that “ any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention."
Pursuant to this, Japan gave a license to kill the whales under the JARPA program, the purpose of which was to "resolve the scientific uncertainties and pave the way for the resumption of sustainable whaling".
The criticism of this stems from the whale meat being sold in the open markets. It is further aggravated because it is believed that the numbers which come from the ‘scientific research’ are being reported high so that the whales cannot be deemed ‘threatened’ or ‘endangered’.
The science can also be used as an excuse to hunt the whales and hence is a aggravating stakeholder to give an excuse for whaling by Japan.
International Stakeholders and anti- whaling moment:
Anti-whaling is said to be the practice of ending the various forms of whaling which are carried on domestically and internationally and have been brought under the shed of marine conservation. Anti-whaling activism puts light on organizations and countries which have a pro-whaling approach and have been practicing the same approach in the form of commercial whaling, research whaling and subsistence whaling, latter most being engaged into by indigenous groups.
Anti-whaling activism is a much recent form of activism amongst among other forms which have originated in the interests of environmental protection and awareness. This activism was in direct response to the depletion of whale population throughout the globe due to over-exploitation by the whaling industries/activities and failure of the international whaling regulations.
It was the League of Nations which called for conservation measure in 1925 owing to the over-exploitation of whale stocks during the time period between the two world-wars.. This resulted in the Geneva Convention for the Regulation of Whaling presented in 1931 which was not entered into force until 1934. This was completely ignored by Germany and Japan.
The International Agreement for Regulation of Whaling after the International Conference on Whaling added limits on pelagic whaling in 1937 to prevent excessive exploitation.
In 1946, the International Convention for Regulation of Whaling (ICRW) was created in Washington to properly conserve whale stocks and orderly develop the whaling industry. The ICRW later led to the creation of the International Whaling Commission (IWC) which laid down guidelines for international regulation of coastal and pelagic whaling.
The Convention on Fishing and Conservation of Living Resources of the High Seas took initial steps towards worldwide marine conservation in 1966.
It has been observed in the past that some anti-whaling factions have had to face legal action and receive criticism for extreme acts such as violent direct actions.
The environmental group Greenpeace which was formed in 1970 pioneered anti-whaling activism in the form of direct action. In 1975, the group launched its first campaign confronting Soviet whaling fleets in North Pacific and members of Canadian Greenpeace took its first ever direct action against a certain group of whalers a little far away from California. The activists were unable to stop these Russian whalers but filming of the event and its broadcast was played a major role in increasing public awareness about whaling activities by making Save the Whales movement a front-page news.
In 1978, an independent inquiry appointed by the then Prime Minister of Australia recommended a complete ban in the State on all types of whaling activities which later led to Australia being on the first ant-whaling nation States. This recommendation on banning of whaling was an after-effect of Project Jonah which was carried out by members of the Greenpeace project and French activist Jean Paul Fortom Gouin which had put pressure on the Australian Government to close down their last whaling station.
Nick Carter, a non-government observer at the IWC noted certain activities of unregulated whaling which were being carried out at a massive scale and which the environmentalists referred to as ‘pirate whaling’. A ship-catcher MV Sierra was hunting down various protected and endangered species of whales and fishes throughout the Antarctica and violating various domestic laws. The vessel had changed its name, home port and flag for convenience from time to time to continue with its illegal whaling activities in areas which were forbidden by IWC. In October 1975, Nick submitted his first report of investigation which showed ties of the fish-catcher with Japanese cargo ships and fishing companies and there was also proof of Japanese crew aboard the catcher.
Around 1977, a splinter group of Greenpeace members formed the Sea Shepherd Convention Society to protect sea life as they intended to specifically use radical methods of direct action.
In 1986, a group of activists belonging to the same society drowned two unoccupied whaling vessels and later sabotaged a whale processing station.
It was in 1979 when a former Greenpeace activist Paul Watson prevented any further whaling by the pirate whaler ship Sierra by partially destroying it with his deep-water trawler and getting arrested by the Portuguese authority while doing the said act. Taking down of Sierra by efforts of Nick Carter and Paul Watson, alongside various organizations was of huge help in bringing down various pirate whalers across the world in Chile, Brazil, South Africa and various other states. Over the years, various whaling ship were sunk with limpet mines by saboteurs. In most the cases, the pirate whalers were found to have some connection or another with Japanese companies.
Japan in 1980 ended its grant to the Seychelles government for fisheries research and training vessel after the tiny island nation joined the International Whaling Commission. On being asked to change their stance at IWC towards whaling, the Seychelles government condemned and rejected Japan’s actions of exploiting the marine life.
In 1979 and 1980, unregulated whaling was observed by the Greenpeace activists in South China Sea. This led to seizing of Korean whale meat being illegally imported in Japan from Taiwan. Threat of sanction of US in pursuance of such illegal trade and loss of support from Japan led to the Taiwanese government impounding the pirate whaling ships.
The intersection of culture, ecosystem, science, law, NGOs, States, Commerce, politics, common man and our day to day lifestyle becomes relevant when we need to determine the rights and wrongs of environmental law issues. The stake holders might have different perspectives regarding the environmental law issues and they might see an activity as degrading the environment or the others might interpret the same activity as non- degrading towards the environment. But, the analysis of above text indisputably shows that the whales are imperative to the marine ecosystem and our necessary for the sustenance of the same. And also, we see the influence of whaling and evolution of the relevant treaties and conventions in light of the anti- whaling movement and how this movement is necessary to maintain an eco-centric environmental friendly approach. Even though it can be conceded that the precautionary principle cannot be strictly applied to the environmental law, but the balance of scales should still be in favour of environment and pro-environment approaches and decisions become relevant for the survival of the Earth as a whole.
Therefore, the environmental preservation shall become a part of jus cogens and the obligations to enforce the same shall become the part of erga omnes. Therefore, the preservation of environment and ecosystem, and by extension the mother Earth shall become the sole priority of domestic as well as international law. The same shall be construed keeping three fundamental challenges in minds which are as follows:
1. Human vs Non human’s responsibility (Animate and Inanimate): Even if the whales and the other participants of the ecosystem are not able to interact with the human beings, it is the responsibility of human beings to preserve the same.
2. Intergenerational relationship between current situation and remote situation (Generation) 200 years ahead: The ecosystem shall be treated as a cultural heritage not only for the present generation but for the future generation as well. We shall keep in mind the remote effects of the present activities which might affect the environment.
3. Creating rights and responsibilities across border/ transnational: This is the key principle which justifies the integration of environmental preservation in the principal of erga omnes and jus cogens.
After analysing the interactions amongst the and with the stake holders, the Courts shall give the judgments in light of newly developed jus cogens and erga omnes. The Australia vs Japan whaling case should not have been decided on the merit of treaty law but shall have been used to widen the ambit of international environmental law so that the principles could be used to determine the future conflicts which would relate to the environmental law. The law shall also evolve to incorporate different dispute resolution or judicial mechanism in case the matter relates to the environment. The mechanism shall also consist of proper people who are experts in the field of environmental law.
Only after the implementation of the above we and our future generations would be able to enjoy the Earth. The countries should not be greedy, conservative or progressive, as the goal is one- to protect environment. The whaling is just an issue through which it could be analysed in an international context. As has been rightly said, “The Earth is what we all have in common”- Wendell Berry shall be strictly adhered to. Otherwise, we would cease to exist to bear the consequences.
THIS ARTICLE IS WRITTEN ON THE FACTS BASIS 2020.
 (Simone Borg, ‘The Influence of International Case Law on Aspects of International Law Relating to Conservation of Living Marine resources beyond National Jurisdiction,’ (2012) 23 Yearbook of International Environmental Law 44-79, 67–71. See also, Giorgio Gaja ‘The Protection of General Interests in the International Community,’ (2011) RCADI 364, 171–80).  https://iwc.int/permits  https://www.icrwhale.org/pdf/SC57O1.pdf%20p.%2021