Regulation collective resources under multilateral treaties: the decision in whaling in the Antarctic (Australia v Japan)
Article by Nicola Strain published in Melbourne Journal of International Law.
With Japan’s recent announcement of its withdrawal from the International Whaling Commission, it is timely to reconsider what can be learned from the International Court of Justice’s decision in Whaling in the Antarctic (Australia v Japan) (‘Whaling’) on the regulation of collective resources. The Court’s approach to the collective resources issue in Whaling may indicate a more activist role for the Court, beyond the traditional sphere of bilateral dispute resolution. This article considers whether Whaling demonstrates a move towards providing a mechanism for regulation of state conduct under multilateral treaties, moving towards a more domestic style of administrative review, by analysing certain aspects of the Court’s procedural and evidential approach. In light of the parties’ submissions, previous jurisprudence of the Court as well as other international tribunals’ jurisprudence, the analysis of this dispute suggests that the Court may be willing to move to a more ‘regulatory’ role in reviewing state decision-making. However, the Court missed an opportunity to clearly define its role in reviewing state decisions that affect collective resources. The Court failed to provide clear reasoning for its developing a ‘review’ role, likely as a result of its reliance on the parties’ agreement on the approach. As such, Whaling provides only limited guidance on whether the Court will continue to provide such a role in the regulation of collective resources.
Nicola Strain is a Doctoral Research Fellow at PluriCourts. Her research interests include trade law, investment law and international dispute settlement.