Opinion on the Legality
of the Designation of the Southern Ocean Whale Sanctuary
by the International Whaling Commission.

by Professor P. Birnie, BA (Hons) Oxon., Ph.D.Edin.,
Visiting Fellow, London School of Economics., UK delegate to the International Whaling Commission

The "Memorandum of Option on the Legality of the Designation of the Southern Ocean Whale Sanctuary by the IWC" written by Professor William T Burke, submitted by Japan raises question concerning the correct interpretation of the International Convention for the Regulation of Whaling (ICRW) and concludes that in adopting this Sanctuary the Commission exceeded the power accorded to it under that Convention.

This conclusion is arrived at without specific reference to the general of international law governing interpretation of treaties as laid down in the relevant articles of the Vienna Convention on the Law of Treaties 1969 1 to which Japan is party. The Convention is not retroactive but its provisions in this respect are regarded by leading commentators as constituting a general expression of the principles of customary international law on the subject.2 Article 31 ⁽¹⁾ of the Vienna Convention states that "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to terms of the treaty in their context and in the light of its object and purpose."

Article 31 ⁽²⁾ makes it clear that "The context for the purpose of interpretation of a treaty shall comprise, in addition to the text, its preamble and annexes", inter alia, and Article 31 ⁽³⁾ requires that "There be taken into account, together with this, (a) any subsequent agreement between the parties regarding the interpretation of the treaty as the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation."

Only if to confirm the meaning resulting from the above process or if interpretation on the above basis leaves a meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable, does Article 32 permit recourse to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion. The two articles should be operated together 3 and the meaning should emerge from the treaty as a whole. According to international law the language of the treaty must be interpreted in the light of the rules of general international law in force at the time of its conclusion, and also in the light of the contemporaneous meaning of its terms. 4 The doctrine of ordinary meaning, in effect, involves only a presumption and another meaning can be established if there is evidence to support it. Moreover, parties can agree on a particular interpretation, or, under Article 31 ⁽⁴⁾ accord a special meaning to a term, if the parties intend this.

When a treaty establishes an institution such as the IWC, the subsequent practice of that institution can also be taken into account, insofaras it has legal relevance, in arriving at an interpretation. In general, good faith requires that an interpretation giving effect to the convention's objects and purposes will be preferred, although the Vienna convention does not specifically provide for this. The International Court of Justice has supported the application of the principle of effectiveness and developments in some regional courts have shown both an "effective" and an "evolutionary" approach to interpretation of their constitutive instruments. ⁽⁵⁾

Institutions such as the IWC are not confined to a narrow interpretation of articles such as Article V based on purely grammatical or linguistic grounds. The IWC can in interpreting such ambiguous phrases as "scientific findings" in Article V (2) (b), adopt an interpretation that fulfils the ICRW's preambular objectives. Moreover contracting governments will now be required to take into account in good faith the UNCED Rio Declaration and Agenda 21 which require application of the precautionary principle or approach and emphasise the rights and needs of future generations.

It is for the Commission to adopt an interpretation that to the board general principles reflected in the Vienna Convention which themselves require an interpretation that conforms to the ICRW's objectives and purposes. As the ICRW makes no provision for dispute settlement by independent means, the Commission's decision on the Sanctuary, taken through use of the normal voting procedures laid down in Article V, is determinative, and must be regarded as having taken account of all the relevant factors, guideline and its own relevant practice in this field.

1. _{Text in I Brownlie ( 3rd. ed.) Basic Documents in International Law, Clarendon Press, Oxford (1983).}
2. _{I Sinclair, The Vienna Convention on the Law of Treaties, (2nd revised ed.), Manchester University Press (1984)}
3. _{Yearbook ILC (1966), ii, 219-20.}
4. _{I Brownlie, Principles of Public International Law, Clarendon Press, Oxford, (4th ed.) 1990, 629.}
5. _{Brownlie, supra n. 3, 632.}