{"id":1147,"date":"2026-06-10T18:37:19","date_gmt":"2026-06-11T00:37:19","guid":{"rendered":"https:\/\/celj.cu.law\/?p=1147"},"modified":"2026-06-10T18:37:19","modified_gmt":"2026-06-11T00:37:19","slug":"people-over-paper-the-effectiveness-of-international-agreements-under-treaty-capture","status":"publish","type":"post","link":"https:\/\/celj.cu.law\/?p=1147","title":{"rendered":"People Over Paper: The Effectiveness of International Agreements Under Treaty Capture"},"content":{"rendered":"

People Over Paper: The Effectiveness of International Agreements Under Treaty Capture<\/p>\n

Eric Nicholson<\/p>\n

Table of Contents<\/p>\n

I. Introduction 464<\/a><\/p>\n

II. Background 467<\/a><\/p>\n

III. A Brief Introduction to International Law 469<\/a><\/p>\n

IV. History of Commercial Whaling 470<\/a><\/p>\n

V. The Whaling Moratorium 473<\/a><\/p>\n

VI. Japan\u2019s Departure From the ICRW 475<\/a><\/p>\n

VII. Analysis 476<\/a><\/p>\n

A. Effectiveness of the ICRW at Meeting its Stated Goals 476<\/a><\/p>\n

1. Statutory Interpretation Under the VCLT Framework 477<\/a><\/p>\n

2. Resolving Conflicting Canons of Interpretation Within the VCLT 479<\/a><\/p>\n

B. Effectiveness of the ICRW at Appeasing a Majority of Members 484<\/a><\/p>\n

1. Surviving the Need for a \u201cScientific Basis\u201d 484<\/a><\/p>\n

2. Majority Effectiveness in Passing Resolutions 486<\/a><\/p>\n

3. Majority Effectiveness While Working Within the Treaty\u2019s Framework 487<\/a><\/p>\n

4. Conclusions from a Member Majority Appeasement Approach 488<\/a><\/p>\n

C. Why Capture a Treaty? 489<\/a><\/p>\n

1. Publicity 489<\/a><\/p>\n

2. Capitalizing on Treaty Rigidity 490<\/a><\/p>\n

3. Meeting the Goals of the Capturing Party 491<\/a><\/p>\n

D. Can a Captured Treaty Really Be \u201cEffective?\u201d 492<\/a><\/p>\n

E. Effectiveness from an Outcomes Perspective: the Withdrawal of Japan 494<\/a><\/p>\n

F. Should Treaties be so Open to Attendance that Capture is Possible? 495<\/a><\/p>\n

VIII. Conclusion 496<\/a><\/p>\n

<\/a> I. Introduction<\/p>\n

In 2019, after sixty-eight years of membership, Japan left the International Convention on the Regulation of Whaling, likely for good.[1]<\/a><\/sup><\/sup> \u201cWe tried all means possible but hardly had an influence,\u201d explained Yosuke Tsuruho, a Japanese House representative from the pro-whaling Wakayama prefecture, when asked about Japan leaving the treaty.[2]<\/a><\/sup><\/sup> \u201cThe situation had actually deteriorated. After the general assembly’s decision, we realized the nature of the [Convention\u2019s rulemaking body] had completely changed.\u201d[3]<\/a><\/sup><\/sup> The change Representative Tsuruho references is the shift of the treaty\u2019s identity away from the pro-whaling sentiments he and other politicians represented, and towards total whale conservation regardless of any whaling industry implications. The Convention\u2019s meeting in 2018 had, as many other Convention meetings in the past had done, denied Japan\u2019s motion to resume commercial whaling.[4]<\/a><\/sup><\/sup> In fact, the Convention produced the antithesis instead: even greater whale conservation measures. To call Japan\u2019s advocacy for commercial whaling an uphill battle would be to make molehills out of mountains. It is understandable why politicians within the country found continued membership a conflict of interest.[5]<\/a><\/sup><\/sup><\/p>\n

When a state signs a treaty, it stands to reason that it wants said treaty to be effective at promoting the country\u2019s aims. This is true at the country level, wherein a legislature may ratify a treaty to promote a particular outcome or behavior from its citizenry or political leadership, as well as at the international level, wherein individual countries may ratify a treaty to promote an outcome or behavior among themselves and other signing nations. There is a clear commonality between these two levels of authority: treaties are created to perform the function they were designed for. If a treaty\u2019s effectiveness is defined based on its success in meeting the desires of the ratifying parties, then what are the mechanisms for how those desires can be found?<\/p>\n

Perhaps those desires can be interpreted in the preamble or definitions of the treaties they reside within. There can be no clearer statement of intent for a treaty than the explicit statements of intent written into the treaty itself. A treaty that can carry out the sentiments of its preamble must be effective. Or perhaps those desires are based on the scope of membership or consent to particular provisions. If a majority of members support a change and that change is enacted, then the treaty has successfully facilitated the wishes of its members. Likewise, if a change is not wanted, the majority should be capable of preventing that change from occurring. These desire frameworks may explain the tenuous relationship between pro- and anti-whaling members of the International Convention on the Regulation of Whaling (\u201cICRW\u201d) and its seemingly permanent moratorium on commercial whaling.[6]<\/a><\/sup><\/sup><\/p>\n

The diversity in membership of pro- and anti-whalers may seem strange. Why are member countries eager to whale despite there being a moratorium under the treaty they are currently a part of? Why are some of their peers respecting the moratorium while others are not? Why does a treaty that prohibited commercial whaling still allow ways to profit from taking whales? The answer to all these questions is because the ICRW did not always work in this way, and perhaps was never supposed to. The treaty\u2019s historical purpose was for the whaling nations at the time of ratification to hatch plans to take whales in a sustainable manner, so that commercial whaling would remain profitable for all involved.[7]<\/a><\/sup><\/sup> Over time, however, member nations, former whalers or not, began to support whale stock conservation for its own sake on moral and bioethical principles, culminating in the moratorium\u2019s passage despite objections that the provision did not belong in the ICRW.[8]<\/a><\/sup><\/sup><\/p>\n

Today, the anti-whaling presence in the ICRW is overwhelming, and they have been adamant in protecting the moratorium despite challenges over the years.[9]<\/a><\/sup><\/sup> The impact of the moratorium for the ICRW cannot be understated, with Gerry Nagtzaam\u2014an International Environmental Law Professor at Monash University\u2014arguing that the continuance of the moratorium has altered the treaty \u201calmost beyond recognition.\u201d[10]<\/a><\/sup><\/sup> The clear shift in treaty interpretation and implementation from that of pro-commercial whaling to now championing a total ban for over the last forty years[11]<\/a><\/sup><\/sup> cannot be explained by a change in treaty language, which has not happened.[12]<\/a><\/sup><\/sup> Instead, the shift would be better characterized as a political process that eventually took hold in statutory interpretation. Anti-whaling nations did not want countries to whale anymore, and so they chose to take their stand on the international stage in the most prominent international treaty on whaling\u2014the ICRW:[13]<\/a><\/sup><\/sup> the same treaty, conveniently enough, where many of the world\u2019s major commercial whalers were already members.<\/p>\n

This Note refers to the phenomenon of a treaty being co-opted by its members (whether recent or longstanding) to push an agenda not present within (and often adversarial to) the treaty itself as \u201ctreaty capture,\u201d taking inspiration from similar phenomena (which has been dubbed \u201cregulatory capture\u201d) seen across history in various administrative agencies.[14]<\/a><\/sup><\/sup> It is in the realm of treaty capture that effectiveness is most placed into question, as an affected treaty may still be regulating conduct, only for that conduct to be antithetical to its original purpose. Treaty capture turns an international treaty\u2019s goals on its head, often resulting in outcomes against the founding members\u2019 vision.<\/p>\n

This Note will argue that a treaty\u2019s effectiveness can be measured in one of two ways: successful achievement of its stated goals, or the successful achievement of the goals of a majority of its members. This Note will also explore normative questions on when a treaty should be seen as effective, especially in light of treaty capture, if the ICRW of today has had the impact its members intended, and whether that membership should have restrictions. This normative analysis will pay particular attention to Japan, a former and once-vocal member of the ICRW strongly against the whaling moratorium, to the point of leaving the treaty and forming its own rules on commercial whaling within its borders.<\/p>\n

<\/a> II. Background<\/p>\n

Before international treaty effectiveness can be explored, a more detailed description of this Note\u2019s evaluation criteria is needed. Evaluating a treaty\u2019s effectiveness boils down to two broad categories, each reflecting a different interpretation of a ratifying party\u2019s desires. The first category examines the preamble of the treaty (should it have one) and determines if the treaty as it operates today is meeting the desires of its original signatories when first created. The reasoning for this approach is simple: a treaty\u2019s aims are stated in its preamble and if those aims are being met then the treaty must be effective at producing the results its creators intended. This approach requires exploring the language of the treaty through various interpretive lenses in an effort to gain a full understanding of what each word means in the context of the treaty itself and the conventions of the political realm (whether country or international) that treaty operates within. Only with the context of its time can the treaty\u2019s language be accurately measured against its current operations. Under this framework, an effective treaty is one that continues to uphold the stated purpose of that treaty, as indicated in the treaty\u2019s preamble.<\/p>\n

The second category a treaty\u2019s effectiveness can be measured under is its ability to meet the goals of a majority of its members. A treaty is formed out of a necessity by its signatories to outline preferred conduct among themselves in writing. It follows, then, that a treaty should be serving the interests of at least the majority of its members. The reasoning being that if less than a majority of members were satisfied with the treaty\u2019s implementation and effectiveness, they would use their numbers to amend that treaty to be more accommodating of their true desires. This approach can be in some ways empirical (a simple collection of voting data), some ways political (why votes are cast the way they are, including abstentions), and in some ways legal. This analysis will focus primarily on the legal aspects of measuring majority satisfaction through changes in rulemaking and treaty interpretation over time in order to meet a majority of members\u2019 wants.<\/p>\n

Beyond measurements of effectiveness, a general informational background would be useful to ensure a common understanding of how the ICRW operates, trends of its performance and operational philosophy, and why the treaty occupies the place it does today. This background will begin with an introduction to international law, a brief history of commercial whaling, the creation of the ICRW and the eventual whaling moratorium, and lastly, Japan\u2019s recent departure from the treaty.<\/p>\n

<\/a> III. A Brief Introduction to International Law<\/p>\n

In order to understand the structure and debate over the ICRW, some background on the conventions of international law is needed. International law describes the relationship between states, intergovernmental organizations, and international nongovernmental organizations\u2014among others\u2014at a level beyond the authority of any individual country. This aligns with legal scholar Lassa Oppenheim\u2019s description of international law as \u201ca law between sovereign and equal states based on the common consent of these states,\u201d[15]<\/a><\/sup><\/sup> highlighting the lack of a centralized authority at the international level. Without a centralized authority to create and enforce rules at the international level, countries[16]<\/a><\/sup><\/sup> choose to establish and attempt to enforce policies created among themselves through convention and ratification (as is the case with international treaties[17]<\/a><\/sup><\/sup>) or through consistent behavior among countries over a long period of time (as is the case with international norms).<\/p>\n

Although international treaties follow a largely similar ratification process when compared to an individual state\u2019s legislature, international norms are less intuitively defined. For a norm to have legal force among nations, it must first be \u201cvalidated by the virtue of the doctrine of sources.\u201d[18]<\/a><\/sup><\/sup> That is to say, it must derive its existence from already binding international law to become international law itself, such as by encompassing an international custom.[19]<\/a><\/sup><\/sup> A norm should not be confused with any frameworks for statutory interpretation; an international norm is legally binding, while an interpretation framework is merely the vehicle for enforcing international law.[20]<\/a><\/sup><\/sup> It is within this political environment that commercial whaling and its eventual regulation take place.<\/p>\n

<\/a> IV. History of Commercial Whaling<\/p>\n

Whaling in any form has a history dating back thousands of years in places all over the world. The earliest records of whaling can be traced to depictions within Neolithic cave paintings.[21]<\/a><\/sup><\/sup> Whaling during these early periods was primarily, if not exclusively, for subsistence purposes due to technological limitations.[22]<\/a><\/sup><\/sup> Only after a rise in industry did whaling for commercial purposes begin to become feasible. As was commonplace for commercial hunting until only recently, whale populations were ransacked with wanton abandon.[23]<\/a><\/sup><\/sup> Starting in the eleventh century by the Basque peoples of Spain and France, ideas of commercial whaling began to reach other rising countries of the era as the local whale population in their home territories began to shrink substantially.[24]<\/a><\/sup><\/sup> Japan had been commercial whaling since the 1600s using more traditional and cumbersome methods to take whales.[25]<\/a><\/sup><\/p>\n

However, by the nineteenth century commercial whaling had grown more lucrative and popular among whaling nations, with entire towns owning hundreds of whaling ships and employing thousands of seamen to ensure whaling kept things operational.[26]<\/a><\/sup><\/sup> Japan officially moved away from traditional whaling methods in 1905,[27]<\/a><\/sup><\/sup> and now following the more commercial-minded approaches of its competitors, could potentially match the output of other industrialized whaling nations.<\/p>\n

It was the twentieth century when conversations over whale conservation began to be taken more seriously among countries, especially those with an eye for international cooperation. The League of Nations called for an effort to regulate whaling in 1925.[28]<\/a><\/sup><\/sup> With no way for the League of Nations to provoke action themselves, no serious change was made based on these calls until 1930, when the Bureau of International Whaling Statistics was created to monitor international whale takings, providing some data-driven context to the whale stock.[29]<\/a><\/sup><\/sup> A precursor to the International Convention on the Regulation of Whaling was formed that following year, simply named the Convention for the Regulation of Whaling, which took until 1935 to be ratified.[30]<\/a><\/sup><\/sup> This Convention was rather ineffective at imposing or enforcing any kind of regulation on whale stocks, due in part to lacking members like Germany and Japan, then leading whaling nations.[31]<\/a><\/sup><\/sup> As whale stocks continued to drop closer to extinction,[32]<\/a><\/sup><\/sup> whaling nations with all manner of commercial capacities came together to form the ICRW in 1946, with the agreement being ratified in 1948.[33]<\/a><\/sup><\/sup> The ICRW is an open treaty, meaning that any country that agrees to abide by its provisions can join, regardless of any past or current whaling.[34]<\/a><\/sup><\/sup><\/p>\n

The original members made it clear what they hoped for the treaty to accomplish: \u201cthe proper conservation of whale stocks and [to] make possible the orderly development of the whaling industry.\u201d[35]<\/a><\/sup><\/sup> The intention at the signing was clear: the ICRW was to enable a \u201csustainable exploitation\u201d of whale stocks around the world so that commercial whaling may continue without losing viability.[36]<\/a><\/sup><\/sup> The ICRW was to accomplish this through the creation of another body under the treaty, the International Whaling Commission (\u201cIWC\u201d or \u201cCommission\u201d), which was to serve as the international organization that member states could use to uphold the treaty\u2019s provisions.[37]<\/a><\/sup><\/sup> The ICRW gave the IWC its organizational and enforcement powers under Article IV, allowing members appointed by their nation\u2019s governments to collect and analyze whale stock data, make recommendations on optimal whaling quotas, and advise member countries on their practices with the ICRW.[38]<\/a><\/sup><\/sup> These broad powers over and among the members of the ICRW have resulted in the IWC becoming \u201cthe forum at which the ideological struggle over whales and whaling is played out,\u201d[39]<\/a><\/sup><\/sup> with quotas often being driven by these debates. Japan first joined the IWC in 1951.[40]<\/a><\/sup><\/sup><\/p>\n

The early years of the IWC were largely unsuccessful when it came to enforcement; few members submitted their takings to the IWC and (ignoring the potential for inaccurate reporting) the organization had no ability to enforce any of the quotas it was setting.[41]<\/a><\/sup><\/sup> So many reservations to any take quota were filed that the IWC was rendered \u201cvirtually impotent.\u201d[42]<\/a><\/sup><\/sup> The issue was in the lack of any real enforcement mechanism. The IWC was unable to even impose sanctions as a way of encouraging compliance.[43]<\/a><\/sup><\/sup> The \u201clack of real legal teeth\u201d resulted in member nations underreporting their takings and continuing to hunt whales above IWC recommended levels.[44]<\/a><\/sup><\/sup> For much of the twentieth century ICRW members caught as many whales as they wanted and the IWC had no ability to stop them.<\/p>\n

<\/a> V. The Whaling Moratorium<\/p>\n

While the language of the ICRW did not change over the course of the twentieth century, attitudes toward continued allowance of whaling certainly did. Countries all over the world, whether they had engaged in whaling in the past or not, began to appeal to conservationist principles outside of an economic context.[45]<\/a><\/sup><\/sup> Over the course of the twentieth century, these \u201cactivist states\u201d began to shift the conversation on commercial whaling away from how many to take and instead toward whether any should be taken at all.[46]<\/a><\/sup><\/sup> Demanding for a total moratorium on whaling was a \u201crelatively cost-free way of establishing ‘green’ credentials” for states that already had stopped whaling, or never even started.[47]<\/a><\/sup><\/sup> The anti-whaling members were not without opposition, however. Members that wished to continue commercial whaling waged political war within the IWC over what they perceived to be over-regulation on unscientific grounds.[48]<\/a><\/sup><\/sup> Whalers relied on scientific bases for their continued practices, while anti-whaling members worked to emphasize the treaty\u2019s goals of conservation and a changing political landscape that values the whale as more than a food source.[49]<\/a><\/sup><\/sup> Arguments continued until 1982, when the IWC officially placed a moratorium on commercial whaling.[50]<\/a><\/sup><\/sup> The moratorium was not initially declared to be indefinite; instead, it was meant to begin in the 1985 whaling season and last until 1990.[51]<\/a><\/sup><\/sup> After 1990, the IWC would then perform an impacts assessment and determine an appropriate quota for whale takings based on their findings.[52]<\/a><\/sup><\/sup> As discussed in greater detail below, an impacts assessment never occurred, and since 1985 the moratorium has been indefinite.[53]<\/a><\/sup><\/sup><\/p>\n

Reactions to the moratorium\u2019s successful implementation varied by country and position within the debate. Anti-whaling members, having gotten what they wanted, were content with the direction of the new IWC. For pro-whaling members, responses ranged significantly. Some sought to add exceptions to the moratorium.[54]<\/a><\/sup><\/sup> Other countries asserted outright objections to the moratorium, meaning they can continue to whale and are not bound to that provision made by the IWC.[55]<\/a><\/sup><\/sup> Other countries left the ICRW entirely.[56]<\/a><\/sup><\/sup> Japan initially objected to the moratorium and made a separate deal with the United States to stop commercial whaling by 1988, but ultimately conceded to abide by the IWC\u2019s decision after experiencing economic pressures from the United States.[57]<\/a><\/sup><\/sup><\/p>\n

<\/a> VI. Japan\u2019s Departure From the ICRW<\/p>\n

After years of disputing the moratorium with other whaling nations, Japan formally announced in 2018 it would be leaving both the IWC and ICRW by 2019 and whale in their own territorial waters.[58]<\/a><\/sup><\/sup> As a member to the ICRW, Japan enjoyed the ability to take whales from across the world guilt-free under the guise of scientific research.[59]<\/a><\/sup><\/sup> Japan\u2019s departure from the treaty has now made such takings illegal under international law, confining Japan to a far more limited region to continue its commercial whaling efforts and exacerbating the environmental impact of taking whales in those local waters. Japan received political backlash from all sides: environmental groups, members of the ICRW, and grassroots organizations within Japan denounced the withdrawal, with Greenpeace International decrying that Japan\u2019s decision was \u201cout of step with the international community\u201d and that efforts should be spent toward \u201cconserv[ing] marine ecosystems, rather than resum[ing] commercial whaling.\u201d[60]<\/a><\/sup><\/sup> Japan cites a failure by IWC member states to uphold the aims of the ICRW as the main reason for leaving, arguing that the best scientific evidence available was not taken into account regarding the current moratorium.[61]<\/a><\/sup><\/sup><\/p>\n

Commercial whaling, once exceedingly popular,[62]<\/a><\/sup><\/sup> has few modern practitioners today. The ICRW had regulated the process of international commercial whaling since its inception in 1946, until the formation of the moratorium left little whaling to regulate at all.[63]<\/a><\/sup><\/sup> This leads to a natural question: if there\u2019s no more commercial whaling permitted under the treaty, what does the treaty still do? The answer is not so simple. The ICRW has members from all areas of whaling experience: from those that are openly against whaling in any form, to those who wish to return to whaling, to those who continue to whale despite the moratorium.[64]<\/a><\/sup><\/sup> Membership is unique in another way as well; not every member of the ICRW has engaged in any kind of whaling in the past, yet these non-whalers hold the same membership status as former or current whaling members.[65]<\/a><\/sup><\/sup> Japan believed the treaty failed, while current members continue to champion its success. To understand how such dichotomous interpretations can coexist, the treaty itself must be consulted.<\/p>\n

 <\/p>\n

VII. Analysis<\/p>\n

<\/a> A. Effectiveness of the ICRW at Meeting its Stated Goals<\/p>\n

This portion of the analysis explores the whaling moratorium\u2019s impact on meeting the ICRW\u2019s stated goals, as outlined in the treaty\u2019s preamble.[66]<\/a><\/sup><\/sup> First, an understanding of the conventions of international treaty interpretation is needed. Most treaties will define terms and valid methods of interpretation to ensure effective enforcement of the rules as they were imagined. However, in instances where the treaty-prescribed interpretation is vague, other commonly relied on methods of international treaty reading should be used.<\/p>\n

<\/a> 1. Statutory Interpretation Under the VCLT Framework<\/p>\n

The Vienna Convention on the Law of Treaties (\u201cVCLT\u201d) is one source of international treaty interpretation standards.[67]<\/a><\/sup><\/sup> Article 31(1) of the VCLT outlines that a treaty should be interpreted \u201cin 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.\u201d[68]<\/a><\/sup><\/sup> The ICRW\u2019s context is clear in the preamble: the treaty was made for regulating the whaling industry to prevent overfishing and restore whale populations, but through \u201cwhaling operations\u2026confined to those species best able to sustain exploitation\u201d in order to \u201cmake possible the orderly development of the whaling industry.\u201d[69]<\/a><\/sup><\/sup> The preamble highlights the treaty\u2019s intention to conserve whale stocks insofar as is needed to continue commercial operations, but goes no further in any advocacy for the conservation of whales in and of itself.<\/p>\n

Ordinarily, there would be room to interpret that because commercial whaling no longer plays a role in modern civilization, there is no risk of causing \u201cwidespread economic and nutritional distress\u201d[70]<\/a><\/sup><\/sup> by preventing commercial whaling and allowing whale stocks to rise back to naturally sustainable levels. However, the VCLT prevents such arguments from holding water. The term \u201cwhale stocks\u201d is described in the ICRW as \u201cgreat natural resources\u201d which may be \u201ccaptured\u201d[71]<\/a><\/sup><\/sup> in large volumes without concern for species endangerment. This definition depicts whales as being valuable solely for their food and animal parts, and not, for instance, for their value as natural resources to promote tourism.[72]<\/a><\/sup><\/sup> The ICRW\u2019s preamble does not view a return to naturally sustainable levels as a positive end by itself, but instead as a green light to increase rate of capture and farming.[73]<\/a><\/sup><\/sup><\/p>\n

This consistent focus on whale stocks as a means of commercialization seems to imply that a quota of zero takings\u2014as some ICRW members read the moratorium to create[74]<\/a><\/sup><\/sup>\u2014would be nonsensical. After all, a whaling industry cannot develop if no whales can be taken to develop that industry. Further, whale populations cannot be regulated if no member is allowed to take one. Not even the scientific exception under Article VIII of the treaty would provide an escape for anti-whaling interpretations. Under Section 4 of Article VIII, research conducted is meant to be \u201cindispensable to sound and constructive management of the whale fisheries.\u201d[75]<\/a><\/sup><\/sup> But with a quota of zero whales taken, no management of fisheries is possible. The preamble attempts to strike a balance between \u201c[r]ecognizing the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks\u201d[76]<\/a><\/sup><\/sup> and \u201c[r]ecognizing that it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress.\u201d[77]<\/a><\/sup><\/sup> A balance between whaling now and whaling later would be distinctly impossible if the drafters of the Treaty intended \u2018whaling later\u2019 to ever end without reading serious conservationist intent into the Treaty beyond economic incentives. Too many hurdles are present against a zero-quota interpretation of whale stocks for that interpretation to be valid in the context of the ICRW treaty.<\/p>\n

If we were to understand the treaty as promoting not just conservation for the sake of whaling, but both conservation and whaling simultaneously, this interpretation would still result in an ineffective treaty. Certainly, the whale stock is being conserved under the moratorium, and, as the treaty hoped, whale populations are not being farmed to extinction.[78]<\/a><\/sup> However, commercial whaling under the treaty is almost gone entirely. Can a treaty be said to have failed if it doesn\u2019t meet one of its stated goals while meeting the others? Considering that both conservation and commercial whaling were meant to coexist under the treaty, I would say so. One half of the aims have completely consumed the other. The same conclusion could also be reached if only whaling was permitted but quotas were not, the opposite scenario. In fact, it would be even easier to say that treaty had failed in this scenario, since without any whales to take, not only would conservation goals fail to be met, but eventually any whaling would be impossible entirely.<\/p>\n

<\/a> 2. Resolving Conflicting Canons of Interpretation Within the VCLT<\/p>\n

The issue of the treaty\u2019s purpose becomes less clear when considering another provision of the VCLT: Article 31(2). Article 31(2)(b) states that context for the purpose of a treaty can, in addition to the text, be sourced from \u201cany 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.\u201d[79]<\/a><\/sup><\/sup> The ICRW has such an instrument: the Schedule.[80]<\/a><\/sup><\/sup> The Schedule to the ICRW allows members to alter operations that are to be performed under the treaty\u2019s guidance, including adopting regulations defining protected species, size limits for species, and open and closed seasons for taking whales.[81]<\/a><\/sup><\/sup> These amendments to the Schedule are binding on all members to the treaty unless they choose to object, and are supposed to be \u201cnecessary to carry out the objectives and purposes of [the ICRW],\u201d as well as have a basis in science.[82]<\/a><\/sup><\/sup><\/p>\n

With this context in mind, the 1982 IWC Chairs Report amending the Schedule to create the whaling moratorium seems at odds with some parts of the treaty.[83]<\/a><\/sup><\/sup> Several members, including Japan, spoke out against the lack of scientific basis for the proposal as was required under Article V, finding the proposal in violation of the ICRW.[84]<\/a><\/sup><\/sup> Norway argued that creating a moratorium would nullify the IWC\u2019s ability to manage whale stocks.[85]<\/a><\/sup><\/sup> It was clear to several members that this proposal, regardless of personal interest in commercial whaling, was not supported by the ICRW. Despite this, and despite other arguments against the moratorium\u2019s place in the ICRW, the moratorium was passed overwhelmingly: twenty-five for and only seven against.[86]<\/a><\/sup><\/sup> Article 31(2)(b) of the VCLT suggests this addition of the moratorium to the Schedule should demonstrate the ICRW\u2019s purpose in some way, but not only is the moratorium\u2019s supposed purpose antithetical to the preamble of the treaty (promoting total conservation over any economic or managerial perspective), it also indirectly violates several of the treaty\u2019s provisions. Despite the direction of Article 31(2)(b), the ICRW as written still seems to support commercial whaling on the face of it.<\/p>\n

Another source of statutory interpretation may shine greater light on the issue, namely the International Court of Justice (\u201cICJ\u201d). Although the ICJ\u2019s rulings are not legally binding, they do hold a great deal of persuasive authority in international spaces. What\u2019s more, the ICJ has litigated disputes of statutory interpretation under the ICRW before, making the Court\u2019s holdings on similar matters highly applicable. The Whaling in the Antarctic<\/em> case was brought to the ICJ by Australia against Japan, with Australia claiming that Japan violated the ICRW by failing to meet scientific research standards required under Article VIII, therefore violating the zero catch quota.[87]<\/a><\/sup><\/sup> In arguing, Australia relied on IWC-passed resolutions to inform its definition of \u2018scientific research\u2019 and claimed Japan should be bound by these resolutions as well.[88]<\/a><\/sup><\/sup> Japan asserted that their research standards met Article VIII\u2019s requirements and Japan was not bound by the resolutions because Japan did not subscribe to them.[89]<\/a><\/sup><\/sup> It should be made clear that a resolution and a provision on the ICRW Schedule are not the same thing. Both are provisions created by IWC members with the intention of promoting particular behaviors among members, but each is governed by a different Article of the treaty. As a result, the Court\u2019s reasoning in Whaling in the Antarctic<\/em> cannot be perfectly applied to the moratorium, but the legal principles decided in the case are still valuable insight into how the treaty operates.<\/p>\n

The ICJ made several rulings regarding the binding power of the ICRW\u2019s resolutions, all of which can help to decipher the relevance of the moratorium to the purpose of the ICRW treaty. The Court ruled that unanimous resolutions or those made by consensus \u201cmay be relevant for the interpretation of the Convention or its Schedule\u201d as it relates to the purpose of the Convention only.[90]<\/a><\/sup><\/sup> However, the Court does not commit fully to this answer by claiming unanimous resolutions \u2018may\u2019 be used for uncovering the treaty\u2019s meaning, only outlining that a resolution should not be discounted without prior investigation. The ICJ then goes further, asserting that resolutions bear no legal weight in and of themselves when applied to specific Articles of the ICRW, a member nation must first consent to that resolution.[91]<\/a><\/sup><\/sup><\/p>\n

It is improper reasoning to suggest that because resolutions have no legal weight on their own when applied to any Article, a provision of the Schedule should be treated the same way. The Schedule explicitly outlines that any provisions made under it \u201cshall become effective with respect to the [members]\u201d unless an express objection to a provision is made.[92]<\/a><\/sup><\/sup> In contrast, the IWC \u201cmay\u201d issue resolutions evaluating whale stocks.[93]<\/a><\/sup><\/sup> In other words, they are optional. Instead, I rely on the legal principles upheld by the Court. The notion of assenting to be bound is a hallmark of international law, and that notion is upheld in Whaling in the Antarctic<\/em> when the Court required Japan consent to a resolution before it can be bound by one.[94]<\/a><\/sup><\/sup> This concept is explicitly mirrored in Article V of the ICRW itself, the section concerning enacting changes to the Schedule. A member nation is only bound to a provision of the Schedule if they do not publicly object to its contents.[95]<\/a><\/sup><\/sup> The ICJ also highlights the importance (though not necessity) of consensus when it comes to treaty decisions, especially when discussing the purpose of the treaty itself.[96]<\/a><\/sup><\/sup> Similarly, consensus is highlighted in the preamble of the ICRW, wherein the treaty aims to recognize global interest in maintaining whale stocks and act in the \u201ccommon interest\u201d to achieve optimal levels for commercialization.[97]<\/a><\/sup><\/sup><\/p>\n

Once again, under a lens of statutory interpretation, the moratorium does not hold up to the aims of the ICRW. The moratorium was not met with consensus nor unanimity: aside from the seven members who opposed the provision, five more abstained from voting entirely.[98]<\/a><\/sup><\/sup> Nearly a third of the members did not favor a moratorium. Per the ICJ\u2019s reasoning in Whaling in the Antarctic<\/em>, the moratorium cannot be applied to aid in understanding the ICRW\u2019s meaning, and thus the preamble\u2019s pro-commercialization stance remains firm. Further, the moratorium must be assented to on a per-member basis. While this is not inherently an issue and is in fact commonplace in the world of international law, this opt-in provision within a larger treaty cannot be said to speak for the treaty as a whole. If a provision can be non-binding unless a member decides to bind themselves, it can hardly be considered a core portion of the treaty. The treaty\u2019s purpose cannot rely on a non-binding provision, for if it can be excluded without collapsing the treaty entirely, then that provision is at best an augmentation of the demanded purpose, or at worst, an aberration against it.<\/p>\n

In concluding the analysis of whether the ICRW has met the stated goals outlined in the preamble, particularly in the context of the whaling moratorium, it\u2019s clear that in its current state the treaty is ineffective. The ICRW\u2019s preamble, along with the language within several Articles, suggests a substantial if not total focus on commercialization. Not only does the moratorium seem to completely disband any commercial focus (as no whaling at all can occur outside exceptions for research[99]<\/a><\/sup><\/sup>) but the moratorium is at odds with and potentially defies Article VIII\u2019s requirement that decisions have scientific backing.[100]<\/a><\/sup><\/sup> Further, the treaty interpretation guidelines presented in the VCLT[101]<\/a><\/sup><\/sup> do not outweigh the more focused analysis of the ICRW by the ICJ.[102]<\/a><\/sup><\/sup> The moratorium lacks unanimous support (and can even be objected to), and thus cannot be instrumental to explaining the treaty\u2019s purpose. Based on interpretation of the ICRW\u2019s text and the existence of the moratorium, the ICRW does not represent an effective treaty. The preamble\u2019s aims are not being met.<\/p>\n

Worse still, the Schedule provision seemingly cannot be overwritten due to treaty capture. There\u2019s not enough support to overturn the moratorium. Despite being against the written aims of the treaty, the members have been unable to generate enough support to alter it. The Treaty\u2019s demands and goals seem to give way to the whims of the members\u2014letter of the law be damned. As such, contradictory language controls simultaneously. Japan, a pro-whaling nation willing to constrain itself under the treaty, was frustrated with the inconsistent aims and left to hunt unregulated by the ICRW.[103]<\/a><\/sup><\/sup> Regardless of someone\u2019s interpretation or stance on whaling, members leaving a treaty because they feel leadership is ignoring the letter of the law is undoubtedly evidence that the treaty is ineffective. When members leave, it not only hurts the achievement of the treaty\u2019s goals (all countries working together to regulate whale stocks for everyone\u2019s economic benefit) but also its legitimacy. If a country desperate to be bound by a treaty\u2019s rules feels it cannot effectively do so, is the treaty still valid international law, or a non-committal way to score political brownie points?<\/p>\n

<\/a> B. Effectiveness of the ICRW at Appeasing a Majority of Members<\/p>\n

This portion of the analysis explores the ICRW\u2019s effectiveness based on how much it enables a majority of its members to achieve their own goals. In this instance, that goal is to enact anti-whaling provisions like the whaling moratorium. As hinted at above, this goal was not easy to achieve: the ICRW seems poised to prevent any level of conservation for conservation\u2019s sake by requiring judgements to be based on scientific data, among other barriers.[104]<\/a><\/sup><\/sup> A fundamental shift in how the treaty was understood and operated was required, executed by a large, coordinated group of anti-whalers. Even still, this large, coordinated group needed to remain vigilant, because at any time, the IWC could conduct a scientific assessment of the moratorium\u2019s effects and review (and potentially revoke) the prohibition\u2019s status.[105]<\/a><\/sup><\/sup><\/p>\n

<\/a>1. Surviving the Need for a \u201cScientific Basis\u201d<\/p>\n

Efforts to improve scientific assessments took shape during the initial moratorium period under the IWC Scientific Committee.[106]<\/a><\/sup><\/sup> Over the course of eight years, the Committee created a Revised Management Procedure (\u201cRMP\u201d) that detailed their findings on sustainable catch limits for certain species of whales and was officially adopted in 1994 by the IWC.[107]<\/a><\/sup><\/sup> According to the IWC\u2019s own scientists, Japan was correct:[108]<\/a><\/sup><\/sup> a total moratorium was not necessary, as backed by their data.[109]<\/a><\/sup><\/sup> And in fact, in the listed conservation criteria for the RMP, no deference was given to altruistic conservation efforts.[110]<\/a><\/sup><\/sup> As far as the science was concerned, the moratorium should end, and no desire for purely conservationist action would change that.<\/p>\n

Unable to advocate for whales through scientific data provisions, the anti-whaling members instead chose statutory deadlock. The RMP may have been adopted, but it could not go into effect until an observation scheme was created to facilitate countries following the science shown in the RMP.[111]<\/a><\/sup><\/sup> Over the course of the early 2000s, members for and against commercial whaling argued over how to define provisions of the RMP and its enforcement.[112]<\/a><\/sup><\/sup> One provision, which would have overturned the whaling moratorium, was unable to secure the three-quarters votes in favor it needed to become law, receiving less than half.[113]<\/a><\/sup><\/sup> Anti-whaling members insisted that Article VIII needed alterations before information could be trusted, as there was no way to challenge \u201cscientifically dubious\u201d claims.[114]<\/a><\/sup><\/sup> By the end of the 2007 IWC meeting, the Commission declared that both sides of the debate \u201chad reached an impasse\u201d and debate on the subject was shelved and remains so today.[115]<\/a><\/sup><\/sup><\/p>\n

Ordinarily a stalemate would not be beneficial to either party in a dispute, but when a narrow majority controls the status quo of the treaty, not losing is equivalent to winning. The anti-whaling majority did not have to compromise on their beliefs or reach an agreement. In fact, it was far more beneficial for them not to. With no scientific scheme in place to empirically show (according to IWC data at least) that some whale stocks could be sustainably farmed, pro-whaling members have no scientific basis under the treaty to form their arguments and refute the moratorium. What\u2019s more, these pro-whaling members are unable to even open the door to a review of the moratorium\u2019s effects on whale stocks.<\/p>\n

This is the impact of treaty capture in full force. Pro-whaling nations cannot factually dispute the moratorium\u2019s scientific basis for existing because they cannot get the Commission to agree on how the science should be reviewed. They cannot repeal the moratorium through the Schedule, like how it was enacted, because they don\u2019t have the support needed to reach the voting threshold, even with countries buying votes off of fence-sitters.[116]<\/a><\/sup><\/sup> Having successfully infiltrated the once-commercial ICRW in large enough numbers to pass their amendments to the Schedule, anti-whaling states only need to maintain operations as they were in 1982. The treaty\u2019s purposes evolved to be anti-whaling because enough members wanted it to be that way, and so the ICRW underwent shifts in interpretation to match these new desires.[117]<\/a><\/sup><\/sup> Before 1982, the treaty\u2019s membership was primarily active whalers, and in serving their goals, the ICRW acted like \u201ca cartel designed to protect the interests of the whaling states.\u201d[118]<\/a><\/sup><\/sup> By 1982 the majority of members held anti-whaling beliefs, and were able to make the ICRW serve those new interests by enacting and protecting the whaling moratorium even today. Under this framework, undoubtedly the ICRW can be viewed as effective both before and after the enactment of the moratorium.<\/p>\n

<\/a> 2. Majority Effectiveness in Passing Resolutions<\/p>\n

Even with the moratorium in place, the anti-whaling majority continues to promote whale stock conservation uncontested. Under Articles IV and VI, the IWC has the power to issue recommendations to members of the ICRW on matters of whale science, data collection, and conservation.[119]<\/a><\/sup><\/sup> In-line with the anti-whaling majority within the IWC, a substantial number of the recommendations made by the Commission are to support whale stock conservation and overall species protection, with little to no commercial interest.[120]<\/a><\/sup><\/sup> Although these recommendations are not binding,[121]<\/a><\/sup><\/sup> each one serves to signify the power the anti-whaling majority has over the ICRW and denotes what they believe the treaty\u2019s new purpose should be: conservation and preservation of whale stocks without concern for commercialization.<\/p>\n

<\/a> 3. Majority Effectiveness While Working Within the Treaty\u2019s Framework<\/p>\n

It\u2019s worth noting that the anti-whaling majority has accomplished their goals of transforming the ICRW from a commercial treaty to a conservation-focused one without having to amend the ICRW itself. Article III outlines that any decision the Commission wants to make must pass under a simple majority, unless it relates to Article V (the Schedule).[122]<\/a><\/sup><\/sup> The implication of Article III is that, should the members of the IWC want to amend the ICRW itself, they would only need a simple majority (outside of Article V) to do so. They could clean up any language in the treaty relating to commercialization and change the written identity of the ICRW entirely. The anti-whaling majority, however, has demonstrated that such an internationally public event as re-writing a post-World War II treaty is unnecessary. The majority can pass their recommendations without any issue and continue to hold onto their moratorium no matter how loud the voices of their pro-whaling counterparts. The Commission elects its Chairman and Vice-Chairman from its own members and controls the creation and function of any committees,[123]<\/a><\/sup><\/sup> all of which have equal voting power.[124]<\/a><\/sup><\/sup> Nothing in the treaty can and will change unless the majority coalition demands it do so, or that composition changes. No matter what the preamble may say or what other Articles may allude to, the IWC\u2019s structure, provisions, and mission are defined by, at this time, an anti-whaling majority. The treaty is truly captured.<\/p>\n

<\/a> 4. Conclusions from a Member Majority Appeasement Approach<\/p>\n

Under an approach of member majority appeasement, the ICRW can be called an effective treaty. The anti-whaling majority has been able to continuously fend off attempts to end the whaling moratorium, whether through legislative gridlock in the IWC to prevent enactment of the RMP,[125]<\/a><\/sup><\/sup> or by prevention of direct proposals to rescind the moratorium.[126]<\/a><\/sup><\/sup> Dozens and dozens of pro-conservation resolutions have been passed since the moratorium\u2019s enactment[127]<\/a><\/sup><\/sup>, demonstrating a commitment from the current IWC administration to continue down this purely conservationist path. Thus far, the majority has met little to no setbacks in pushing this agenda. This majority, so long as it remains united by anti-whaling sentiment, can continue to elect members of its own coalition to operate the IWC to meet their desired goals. And they can accomplish all these feats without needing to alter any of the ICRW itself or its original pro-industry rhetoric. While I believe the ICRW has experienced serious treaty capture and is far away from its original statutory intentions, it has been undeniably effective at meeting the majority of members\u2019 wants and as such, is an effective treaty under that framework.<\/p>\n

<\/a> C. Why Capture a Treaty?<\/p>\n

Given the difficulties in coordinating a large enough majority to maintain capturing a treaty, it\u2019s natural to wonder why pro-whaling states would go through the trouble instead of creating their own treaty. There are many pragmatic and political reasons to take over an international treaty like the ICRW, especially when considering the overarching goal of the anti-whaling crowd: to create an international system that conserves rather than exploits its whale stocks. This section is dedicated to exploring some of those reasons.<\/p>\n

<\/a>1. Publicity<\/p>\n

One reason for treaty capture is greater visibility. An already established and widely supported treaty is likely to be known within the international community; its initiatives, provisions, and decisions are sure to be noticed by influential figures. It is likely that people have an idea of what that treaty once represented and will be likely to investigate information that suggests a shift in direction. The ICRW, for instance, is the premier treaty on international whaling regulation. It has members from all around the world, including many prominent members of the \u201cwestern world,\u201d and has had that membership spread for decades.[128]<\/a><\/sup><\/sup> Needless to say, the treaty is well-known in international law spaces.<\/p>\n

In addition, the ICRW has been legitimized by other international law bodies, namely the ICJ (which has been willing to adjudicate ICRW provisions and enforcement)[129]<\/a><\/sup><\/sup> and the United Nations.[130]<\/a><\/sup><\/sup> This further supports the idea that the public would notice a change in procedure at the ICRW and their new commitment to whale conservation for non-commercial purposes. The public takeover signifies that the realm of international whaling is heading in a new direction whether whalers like it or not and could have served to bolster anti-whaling sentiment worldwide. It may also have helped whaling countries begrudgingly accept the end of an era, or double-down as Japan has by continuing to whale commercially, but outside of the ICRW\u2019s influence.[131]<\/a><\/sup><\/sup> When it comes to inciting change on an international scale, publicity is everything. Good or bad.[132]<\/a><\/sup><\/sup> A freshly created treaty, in contrast, has none of these benefits. It would lack the notoriety and perceived legitimacy the ICRW has, and word of its actions would not travel as far as something as prominent in international law as the ICRW.<\/p>\n

<\/a> 2. Capitalizing on Treaty Rigidity<\/p>\n

Another reason to prefer treaty capture over creating a new treaty is to lessen concerns with rigidity. As shown in the impacts of an anti-whaling majority in the IWC since the moratorium\u2019s inception, having the legal and political status quo on your side makes keeping your agenda moving far easier than if you instead had to push against the system to get what you wanted. Treaty ratification is a delicate process influenced by myriad political and legal considerations. They often require a majority of legislators to approve the ratification before anything can be official.[133]<\/a><\/sup><\/sup> And that\u2019s before individual states ratify the treaty in their own legislature. Simply put, it\u2019s very unlikely that a freshly created treaty would receive a large number of signatures from states without many, many years of deliberation among any number of founding members. An even longer period of time would likely pass before states beyond the original creators would join en masse<\/em>. The opposite process is also true. It\u2019s not common for a state to get the numbers it needs to pull out of a treaty either. These factors demonstrate an optimal solution: capture a treaty with many members already.<\/p>\n

Capturing a treaty like the ICRW allowed anti-whalers to capitalize on the rigidity of ratification. Countries that want to form their own anti-whaling treaty would likely spend years drafting and risk their legislature failing to certify any ratification, foiling any plans.[134]<\/a><\/sup><\/sup> Members of the ICRW, in contrast, had already ratified a treaty concerning whale stocks. And with some maneuvering to eventually enact and maintain the whaling moratorium, those same members would then have to challenge the status quo of both the new direction of the ICRW as a conservationist body and of their own membership to the treaty if they wanted to leave. A pro-whaling member may find themselves snared between the unwanted moratorium and a citizenry in support of it, effectively trapping them within the treaty.<\/p>\n

<\/a> 3. Meeting the Goals of the Capturing Party<\/p>\n

A third reason for treaty capture has to do with the goal to be accomplished by would-be capturers. A treaty may be the target of capture because of the nature of its members: their geographical position, political affiliations, and access to resources, among other qualities. If the goal of would-be capturers is to incite a change on the global scale, then targeting people preventing that change in one way or another would be one of the fastest ways to achieve that goal. A capturer could advocate for their position while simultaneously undermining the stance of their opponents.<\/p>\n

Creating a separate treaty to accomplish a goal comes with many potential issues that make it much less effective\u2014the most major being the futility of the legislation. It is exceedingly unlikely that a state would willingly become party to a treaty and give up a portion of its sovereignty if it did not support the provisions of that treaty already. In the context of whale conservation, a treaty which promoted whale stock health would do next to nothing if all of its members would have done such measures on their own regardless of the treaty, and it would do nothing to constrain the people which harm the whale stocks that the treaty intended to target. Another concern is with clarity. On the surface, the ICRW supports whale conservation in its statutory language.[135]<\/a><\/sup><\/sup> If another treaty about whales also concerned whale conservation, it may be difficult for potential members to differentiate between the two on the surface, leading to ineffective messaging. Lastly, a treaty which exists seemingly to oppose the conduct permitted in another treaty forms a directly adversarial relationship between those treaties\u2019 members. Encouraging \u201cus versus them\u201d hostilities is unlikely to result in any positive change for either side.<\/p>\n

The ICRW represented the perfect treaty for anti-whalers to capture. After all, if the anti-whaling plan is to promote conservation of whale stocks, what better way to do so than by barring commercial whaling entirely under a moratorium? Prior to the enactment of the moratorium, the treaty was home to primarily commercial perspectives on whale stocks and against any push to limit commercialization of whale populations.[136]<\/a><\/sup><\/sup> The biggest profiteers of the whaling industry of the era were all subject to the treaty, all in one place and under one set of rules. Effective treaty capture would allow the anti-whaling member states to constrain their commercial whaling adversaries all at once under a set of rules they had already agreed to uphold. Whaling states would then be forced to consider conservation efforts they otherwise would have ignored in favor of greater commercialization, as they have and continue to be under today\u2019s ICRW. I imagine the ability to directly constrict pro-whaling states was a primary driving force for the anti-whaling members of the ICRW choosing to capture the treaty rather than form their own.<\/p>\n

<\/a> D. Can a Captured Treaty Really Be \u201cEffective?\u201d<\/p>\n

It\u2019s a delicate balance. The stalemate in the IWC over the moratorium reflects a growing international sentiment toward total conservation for conservation\u2019s sake. There is substantially more emphasis in IWC recommendations towards conservation efforts for whale stocks, and the preamble to the ICRW has more conservation aims than commercial ones, even if they have a one-way dependency.[137]<\/a><\/sup><\/sup> The IWC members are exercising their treaty-given rights to support a total conservation approach, and there is no language in neither the ICRW nor the IWC that prohibits that approach. Even still, whaling in its entirety has not gone anywhere. Countries opposing the moratorium could file an objection to it and continue to whale commercially.[138]<\/a><\/sup><\/sup> The scientific exception is notoriously lenient in the approval process, requiring all whales taken under such provisions to be \u201cprocessed\u201d and their \u201cproceeds\u201d distributed as the permitting country sees fit: making it feasible to harvest and sell whale meat back in markets, thereby making it commercial whaling by another name.[139]<\/a><\/sup><\/sup> Finally, a country unhappy with the current state of the IWC can simply leave and forge their own path, as Japan has done.[140]<\/a><\/sup><\/sup><\/p>\n

In many ways the IWC stalemate is one-way: the conservationists would lose immense ground if they were to leave the treaty, the pro-whaling adherents now free to restart the quota process. But pro-whaling members can leave at any time and suffer no legal penalties for doing so, although political consequences are still possible. They would have the freedom to choose what rules to implement, how much to catch, and how to sell what parts of their harvest outside of the ICRW\u2019s reach, provided they remained within their territorial waters. Indeed, Japan took these actions when they left the IWC in 2019 and continue to whale commercially to this day.[141]<\/a><\/sup><\/sup><\/p>\n

The concern with accepting the ICRW as successful despite capture by anti-whalers, many of which have never and will never whale, is the erosion of international law\u2019s legitimacy even further. In the words of Jean d\u2019Aspremont, \u201c[i]n a discipline where validity of legal arguments is primarily based on social acceptance, what matters at the end of the day is that the doctrines that are deployed by international lawyers are still able to generate authoritative legal arguments and are not immediately ridiculed by other professionals.\u201d[142]<\/a><\/sup><\/sup><\/p>\n

<\/a> E. Effectiveness from an Outcomes Perspective: the Withdrawal of Japan<\/p>\n

Can the capture and transformation of the ICRW towards opposing commercial whaling still be considered effective when it pushed a former member back to unregulated commercial whaling? In many ways, yes. Japan is learning that commercial whaling may not be as feasible on their own as they anticipated. Whale watching remains more profitable than the hauls from hunting them.[143]<\/a><\/sup><\/sup> Japanese demand for whaling is declining.[144]<\/a><\/sup><\/sup> While in the IWC, Japan was frequently attacked by anti-whaling members on its stances, causing Japan to double-down and create \u201can emblem of national pride\u201d despite the small market for whale meat.[145]<\/a><\/sup><\/sup> Now that they\u2019ve left, this \u201cemblem\u201d has disappeared, and the artificial demand generated by the emblem will fall. The artificial demand decline alongside the natural demand decline will cause the practice to cease economic viability. This is especially true as Japan depletes their own whale stocks (as they are now restricted to their own waters after leaving the IWC[146]<\/a><\/sup><\/sup>) and will have to spend longer hours with more idling ships to catch fewer and fewer whales. This behavior has already been observed by fellow whaler Iceland, who has only objected to the moratorium but remains a member of the ICRW.[147]<\/a><\/sup><\/sup> Furthermore, because Japan was vilified as the whaling boogeyman for so many years, it\u2019s likely many pro-whaling nations are watching how they perform without the IWC\u2019s restrictions. Japan\u2019s slow suspension of whaling practices would send a significant message to other would-be whalers that the practice isn\u2019t worth starting or restarting anymore. In the end, commercial whaling isn\u2019t the economic workhorse it was in the nineteenth or early twentieth centuries, and without a global reserve to utilize to reduce searching costs, whaling efforts will dry up much faster outside of the treaty than under its few remaining whale taking provisions. As whaling disappears from Japan\u2019s shores, undoubtedly other countries\u2019 programs will follow.<\/p>\n

<\/a> F. Should Treaties be so Open to Attendance that Capture is Possible?<\/p>\n

As identified throughout this Note, the ICRW could not have been transformed from a pro-whaling agreement to one promoting total whale conservation without an influx of anti-whaling sentiments from members. The ICRW is an open membership treaty, meaning any country that pledges to meet the obligations within the treaty can join, regardless of any history or continued practice of commercial whaling. The idea of non-whaling members having political power to dictate (and in effect, restrict) the actions of wannabe whalers may seem suspect, or even authoritarian in other contexts; however, I believe the open nature and susceptibility to capture is appropriate under a treaty on a global common \u201cresource\u201d like whales.<\/p>\n

The ocean is not constrained by a country\u2019s borders, and neither are its inhabitants. The ocean itself is one grand ecosystem, with local ecosystems within it. A whale that is hunted along the coastal waters of Japan cannot produce any offspring with another whale in that region, nor can it travel downstream to the waters of Australia to do the same. That is to say, whaling has an unknowable impact not just regionally, but internationally as well. Because any country can be impacted by another\u2019s alteration of the aquatic ecosystem, fairness dictates that they should have a seat at the table when it comes to regulating the activities that happen in the world\u2019s waters. Additionally, if the majority of members want to halt commercial whaling entirely, whether under the interests of scientific, economic, or moral obligations, they should have the power to do so through amendment as guaranteed to them under the treaty itself. Fewer whales mean a disruption to local ecosystems, [148]<\/a><\/sup><\/sup> and creatures native to one habitat may venture to others to survive, potentially creating invasive species or further habitat destruction.<\/p>\n

Should any treaty be so open to attendance that capture is possible? I fail to see why not. Countries always have the option of implementing membership criteria or requirements, which would not be unlike creating a multinational agreement (a requirement of a treaty between the U.S. and Japan is that the parties be the U.S. and Japan, for instance). Further, countries can have a vested interest in regulating behavior they have not performed themselves. The waters of Earth impact all its inhabitants in big and small ways no matter where the act occurs. That includes more than just whales, more than just aquatic species, and more than just non-human animals. As with all matters of international law, countries must police themselves and to the extent they can, each other, to promote truly effective legislation.<\/p>\n

<\/a> VIII. Conclusion<\/p>\n

Treaty effectiveness does not have a one-size-fits-all narrative. From the perspective of statutory interpretation of international treaties, the ICRW is undoubtedly an ineffective treaty. The treaty\u2019s pro-commercial whaling language and provisions have been shelved entirely in favor of a conservationist agenda. From the perspective of meeting a majority of members\u2019 desires, the ICRW is undoubtedly a very effective treaty. The anti-whaling majority has been successful in promoting whale stock conservation with the whaling moratorium, successful in defending that moratorium, and successful in promoting conservationist rather than commercial mindsets on the international stage. By capturing the ICRW, anti-whalers were able to incite real international level change to the treatment of whale stocks: a shift in whaling sentiment that remains to this day. What comes next for the ICRW is entirely in the hands of its members and how they use the powers vested in the treaty to advance their goals for the future. If that unity between members and the treaty they subscribe to isn\u2019t an indication of effectiveness, I\u2019m not sure what is.<\/p>\n

    \n
  1. See Statement by Chief Cabinet Secretary<\/em> Ministry of Foreign Affairs of Japan, https:\/\/www.mofa.go.jp\/ecm\/fsh\/page4e_000969.html (last visited Jan. 9, 2026); Statement on Government of Japan Withdrawal from the IWC<\/em> Int\u2019l Whaling Comm\u2019n (Jan. 14, 2019), https:\/\/iwc.int\/resources\/media-resources\/news\/statement-on-government-of-japan-withdrawal. \u2191<\/a><\/li>\n
  2. NHK World Japan, Why Japan Withdrew from the IWC<\/em> (Feb. 10, 2019), https:\/\/www3.nhk.or.jp\/nhkworld\/en\/news\/backstories\/367\/#:~:text=There%20were%20three%20factors%20behind,IWC%20general%20assembly%20in%20September. \u2191<\/a><\/li>\n
  3. Id.<\/em> \u2191<\/a><\/li>\n
  4. Id.<\/em> \u2191<\/a><\/li>\n
  5. See generally id.<\/em> \u2191<\/a><\/li>\n
  6. The moratorium itself was designed to be temporary, with member states using the period of no takings to establish a more scientifically supported annual takings quota. No consensus on a takings quota has been reached as of the writing of this Note and thus the moratorium remains in effect. See<\/em> Commercial Whaling<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/management-and-conservation\/whaling\/commercial (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  7. David M. Levin, Toward Effective Cetacean Protection<\/em>, 12 Nat. Resources Law. 549, 566\u201367 (1979). \u2191<\/a><\/li>\n
  8. Commercial Whaling<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/management-and-conservation\/whaling\/commercial (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  9. David Child, IWC Rejects Japan\u2019s Proposal to Lift Commercial Whale Hunting Ban<\/em>, Al Jazeera (Sept. 14, 2018), https:\/\/www.aljazeera.com\/news\/2018\/9\/14\/iwc-rejects-japans-proposal-to-lift-commercial-whale-hunting-ban. \u2191<\/a><\/li>\n
  10. Gerry Nagtzaam et al., International Environmental Law: A Case Study Analysis 462 (2020). \u2191<\/a><\/li>\n
  11. The Moratorium was passed in 1982, see<\/em> Commercial Whaling<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/management-and-conservation\/whaling\/commercial (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  12. Although the ICRW Schedule, a series of provisions that dictate and define member conduct has changed, the treaty itself remains the same as it did in 1946. \u2191<\/a><\/li>\n
  13. Nagtzaam et al., supra<\/em> note 10, at 438. \u2191<\/a><\/li>\n
  14. See<\/em> generally<\/em> Ernesto Dal B\u00f3, Regulatory Capture: A Review<\/em>, 22 Oxford Rev. of Econ. Pol\u2019y 203 (2006). \u2191<\/a><\/li>\n
  15. Lassa Oppenheim, International Law 44 (Longmans, Green, and Co. 1905). \u2191<\/a><\/li>\n
  16. Again, among others. But I will stick to countries for the purposes of explanation as this subgroup is most appropriate given the context of this Note. \u2191<\/a><\/li>\n
  17. See<\/em> generally <\/em>United Nations, International Convention for the Regulation of Whaling Dec. 2, 1946<\/em>, 161 U.N.T.S. 74 (1953).
    \n(example of a signed and ratified international treaty which outlines ways in which signatories must operate, what stipulations they are subject to, and any potential remedies they may have access to if another member violates the treaty).     \u2191<\/a><\/li>\n
  18. Jean d\u2019Aspremont, The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation<\/em>, 27 Eur. J. of Int\u2019l L. 1027, 1028 (2016). \u2191<\/a><\/li>\n
  19. North Sea Continental Shelf (Ger.\/Den.; Ger.\/Neth.), Judgement, 1969 I.C.J. 3, at 42 (Feb. 20). \u2191<\/a><\/li>\n
  20. d\u2019Aspremont, supra<\/em> note 18. \u2191<\/a><\/li>\n
  21. Gordon Jackson, Whaling<\/em>, Britannica (Dec. 22, 2025), https:\/\/www.britannica.com\/topic\/whaling. \u2191<\/a><\/li>\n
  22. Subsistence whaling continues to this day in some parts of the world. See<\/em> Aboriginal Subsistence Whaling<\/em>, Animal Welfare Inst., https:\/\/awionline.org\/content\/subsistence-whaling (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  23. This culture of limitless exploitation of animal \u201cresources\u201d was pervasive among many countries until the early twentieth century, although even some nations today continue to view non-human animal populations as premier for thoughtless use. See<\/em> Goble et al., Wildlife Law Cases and Materials 21\u201322 (3rd<\/sup> ed. 2016). \u2191<\/a><\/li>\n
  24. Commercial Whaling<\/em>, Animal Welfare Inst., https:\/\/awionline.org\/content\/commercial-whaling (last visited Apr. 2, 2025); Erwin Vermeulen, Unlimited Slaughter, Criminal Intent: A Small History of Japanese Antarctic Whaling<\/em>, Sea Shepherd Conservation Soc\u2019y (Dec. 23, 2013), https:\/\/seashepherd.org\/2013\/12\/23\/unlimited-slaughter-criminal-intent-a-small-history-of-japanese-antarctic-whaling\/. \u2191<\/a><\/li>\n
  25. From Old Dartmouth to Modern New Bedford<\/em>, New Bedford Whaling Museum, (Apr. 30, 2009), https:\/\/web.archive.org\/web\/20090430105742\/http:\/\/www.whalingmuseum.org\/library\/old_nb\/old_nb_index.html; Robert McNamara, A Brief History of Whaling<\/em>, ThoughtCo (Apr. 20, 2019), https:\/\/www.thoughtco.com\/a-brief-history-of-whaling-1774068. \u2191<\/a><\/li>\n
  26. From Old Dartmouth to Modern New Bedford<\/em>, New Bedford Whaling Museum, (Apr. 30, 2009), https:\/\/web.archive.org\/web\/20090430105742\/http:\/\/www.whalingmuseum.org\/library\/old_nb\/old_nb_index.html; Robert McNamara, A Brief History of Whaling<\/em>, ThoughtCo (Apr. 20, 2019), https:\/\/www.thoughtco.com\/a-brief-history-of-whaling-1774068. \u2191<\/a><\/li>\n
  27. Vermeulen, supra<\/em> note 24. \u2191<\/a><\/li>\n
  28. The History of Whaling and the International Whaling Commission (IWC), <\/em>World Wildlife Fund (June 1, 2005), https:\/\/wwf.panda.org\/wwf_news\/?13796\/The-History-of-Whaling-and-the-International-Whaling-Commission-IWC. \u2191<\/a><\/li>\n
  29. Id.<\/em> \u2191<\/a><\/li>\n
  30. Creation of the IWC<\/em>, Int. Whaling Comm\u2019n, https:\/\/iwc.int\/commission\/creation-of-the-iwc (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  31. World Wildlife Fund, supra<\/em> note 28. \u2191<\/a><\/li>\n
  32. Due to the initial ineffectiveness of the IWC to actually regulate takings and the reluctance of countries to accurately report their catches, accurate data from this period is hard to come by. One way to get an idea of the dire situation of whales during this period is to look back from already bleak projections from later years. A projection of whale stocks in 1970 suggested it would take another 15 years for fin whale populations to stabilize, and another 50 for blue whales. Johanna Matanich, A Treaty Comes of Age for the Ancient Ones: Implications of the Law of the Sea for the Regulation of Whaling<\/em>, 8 Int\u2019l l. Perspectives 37, 40 (1996). Further, by 1975, whale populations globally numbered only 2.1 million in the entire ocean. Andrew Siegel, The U.S.-Japanese Whaling Accord: A Result of the Discretionary Loophole in the Packwood-Magnuson Amendment<\/em>, 19 George Washington J. of Int. L. and Econ.\u00a0577, 579-580 (1985). These data come decades after commercial whaling began to lose profitability for many contributing nations and so it is very likely whale populations were lower in the 1940s and 1950s than they were in the 1970s. \u2191<\/a><\/li>\n
  33. IWC Key Documents<\/em>, Int. Whaling Comm\u2019n, https:\/\/iwc.int\/commission\/convention (last visited Apr. 2, 2025); International Convention for the Regulation of Whaling art. X, Dec. 2, 1946, U.N.T.S. 72. \u2191<\/a><\/li>\n
  34. Nagtzaam et al. supra<\/em> note 10, at 431. \u2191<\/a><\/li>\n
  35. Malgosia Fitzmauric, International Convention for the Regulation of Whaling, 3 (2017). \u2191<\/a><\/li>\n
  36. W.F. Perrin, Dolphins, Porpoises, and Whales, 1 (IUCN, 2nd<\/sup> ed. 1989). \u2191<\/a><\/li>\n
  37. International Convention for the Regulation of Whaling art. III, Dec. 2, 1946, U.N.T.S. 72. \u2191<\/a><\/li>\n
  38. International Convention for the Regulation of Whaling art. IV, Dec. 2, 1946, U.N.T.S. 72. \u2191<\/a><\/li>\n
  39. Matanich, supra<\/em> note 32, at 37. \u2191<\/a><\/li>\n
  40. Erwin Vermeulen, Unlimited Slaughter, Criminal Intent: A Small History of Japanese Antarctic Whaling<\/em>, Sea Shepard (Dec. 23, 2013), https:\/\/seashepherd.org\/2013\/12\/23\/unlimited-slaughter-criminal-intent-a-small-history-of-japanese-antarctic-whaling\/. \u2191<\/a><\/li>\n
  41. Matanich, supra<\/em> note 32, at 44. \u2191<\/a><\/li>\n
  42. Nagtzaam et al., supra<\/em> note 10, at 432. \u2191<\/a><\/li>\n
  43. Japan Whaling Ass\u2019n v. American Cetacean Soc\u2019y, 478 U.S. 221, 224 (1986). \u2191<\/a><\/li>\n
  44. Kacey Hovden, International Whaling: Reframing the IWC Moratorium for the Effective Conservation of Whales<\/em>, 29 Animal L. Rev. 17, 26-27 (2023). \u2191<\/a><\/li>\n
  45. Matanich, supra<\/em> note 32, at 47. \u2191<\/a><\/li>\n
  46. Id.<\/em> \u2191<\/a><\/li>\n
  47. Nagtzaam et al., supra<\/em> note 10, at 438. \u2191<\/a><\/li>\n
  48. Matanich, supra<\/em> note 32, at 38. \u2191<\/a><\/li>\n
  49. Id.<\/em> at 48. \u2191<\/a><\/li>\n
  50. Commercial Whaling<\/em>, Int\u2019l Whaling Comm\u2019n, supra <\/em>note 6. \u2191<\/a><\/li>\n
  51. Siegel, supra<\/em> note 32, at 480. \u2191<\/a><\/li>\n
  52. Id.<\/em> \u2191<\/a><\/li>\n
  53. Int\u2019l Whaling Comm\u2019n, supra <\/em>note 6. \u2191<\/a><\/li>\n
  54. Int\u2019l Whaling Comm\u2019n, 34th <\/sup>Annual Meeting<\/em>, at 21-22, https:\/\/iwc.int\/document_3719. \u2191<\/a><\/li>\n
  55. Hovden, supra<\/em> note 44, at 19. \u2191<\/a><\/li>\n
  56. Id.<\/em> \u2191<\/a><\/li>\n
  57. Japan Whaling Ass\u2019n v. American Cetacean Soc\u2019y, 478 U.S. 221 (1986). \u2191<\/a><\/li>\n
  58. Euan McKirdy et al. IWC Withdrawal: Japan to Resume Commercial Whaling in 2019, <\/em>CNN (Dec. 26, 2018), https:\/\/www.cnn.com\/2018\/12\/25\/asia\/japan-withdrawal-international-whaling-commission-intl\/index.html. \u2191<\/a><\/li>\n
  59. The IWRC allows the taking of whales on grounds of scientific research and study, subject to certain restrictions. See<\/em> International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, U.N.T.S. 72; JARPA II:<\/em>\n

    The Second Phase of Japan’s Whale Research Program under Special Permit in the Antarctic<\/em>, Inst. of Cetacean Rsch., https:\/\/www.icrwhale.org\/QandA2.html (last visited May 1, 2026). \u2191<\/a><\/li>\n

  60. Greenpeace, Greenpeace Condemns Japan Government\u2019s \u201cSneaky\u201d Withdrawal from International Whaling Commission<\/em>, (Dec. 26, 2018) https:\/\/www.greenpeace.org\/international\/press-release\/20208\/greenpeace-condemns-japan-governments-sneaky-withdrawal-from-the-international-whaling-commission\/. \u2191<\/a><\/li>\n
  61. Statement by the Chief Cabinet Secretary<\/em>, Ministry of Foreign Affairs of Japan (Oct. 6, 2025) https:\/\/www.mofa.go.jp\/ecm\/fsh\/page4e_000969.html. \u2191<\/a><\/li>\n
  62. From Old Dartmouth to Modern New Bedford<\/em>, New Bedford Whaling Museum (Apr. 30, 2009), https:\/\/web.archive.org\/web\/20090430105742\/http:\/\/www.whalingmuseum.org\/library\/old_nb\/old_nb_index.html; Robert McNamara, A Brief History of Whaling<\/em>, ThoughtCo (Apr. 20, 2019), https:\/\/www.thoughtco.com\/a-brief-history-of-whaling-1774068. \u2191<\/a><\/li>\n
  63. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72; Int\u2019l Whaling Comm\u2019n, 34th <\/sup>Annual Meeting<\/em>, at 21\u201322, https:\/\/iwc.int\/document_3719. \u2191<\/a><\/li>\n
  64. World Wildlife Fund, supra<\/em> note 28. \u2191<\/a><\/li>\n
  65. Id.<\/em> \u2191<\/a><\/li>\n
  66. See <\/em>International Convention for the Regulation of Whaling Preamble, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72. \u2191<\/a><\/li>\n
  67. See generally<\/em> Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. \u2191<\/a><\/li>\n
  68. Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155 U.N.T.S. 331. \u2191<\/a><\/li>\n
  69. International Convention for the Regulation of Whaling Preamble, supra <\/em>note 66. \u2191<\/a><\/li>\n
  70. Id. <\/em> \u2191<\/a><\/li>\n
  71. Id.<\/em> \u2191<\/a><\/li>\n
  72. David M. Levin, Toward Effective Cetacean Protection<\/em>, 12 Nat. Res. Law.549, 589 (1979). \u2191<\/a><\/li>\n
  73. International Convention for the Regulation of Whaling Preamble, supra <\/em>note 66. \u2191<\/a><\/li>\n
  74. See <\/em>Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 227 (1986). \u2191<\/a><\/li>\n
  75. International Convention for the Regulation of Whaling Art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72. \u2191<\/a><\/li>\n
  76. International Convention for the Regulation of Whaling Preamble, supra <\/em>note 66. \u2191<\/a><\/li>\n
  77. Id<\/em>. \u2191<\/a><\/li>\n
  78. See generally<\/em> Total Catches<\/em>, Int\u2019l Whaling Comm\u2019n https:\/\/iwc.int\/management-and-conservation\/whaling\/total-catches (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  79. Vienna Convention on the Law of Treaties art. 31(2)(b), May 23, 1969, 1155 U.N.T.S. 331. \u2191<\/a><\/li>\n
  80. See generally<\/em> International Convention for the Regulation of Whaling Art. I, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S.; International Convention for the Regulation of Whaling Art. V, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. \u2191<\/a><\/li>\n
  81. International Convention for the Regulation of Whaling Art. V, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. \u2191<\/a><\/li>\n
  82. Id.<\/em> \u2191<\/a><\/li>\n
  83. Int\u2019l Whaling Comm\u2019n, supra<\/em> note 54, at 21. \u2191<\/a><\/li>\n
  84. Id.<\/em> \u2191<\/a><\/li>\n
  85. Id.<\/em> \u2191<\/a><\/li>\n
  86. Id<\/em>. \u2191<\/a><\/li>\n
  87. Whaling in the Antarctic (Austl. v. Japan), Summary of the Judgment, 2014 I.C.J. Reports, 1, 2 (Mar. 31). \u2191<\/a><\/li>\n
  88. d\u2019Aspremont, supra<\/em> note 18, at 1032\u20131033. \u2191<\/a><\/li>\n
  89. Id.<\/em> at 1033. \u2191<\/a><\/li>\n
  90. Id. <\/em>at 1039. \u2191<\/a><\/li>\n
  91. Id.<\/em>at 1033. \u2191<\/a><\/li>\n
  92. International Convention for the Regulation of Whaling Art. V, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. \u2191<\/a><\/li>\n
  93. International Convention for the Regulation of Whaling Art. IV, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. \u2191<\/a><\/li>\n
  94. d\u2019Aspremont, supra<\/em> note 18, at 1033\u20131034. \u2191<\/a><\/li>\n
  95. International Convention for the Regulation of Whaling Art. V, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. \u2191<\/a><\/li>\n
  96. d\u2019Aspremont, supra<\/em> note 18, at 1033. \u2191<\/a><\/li>\n
  97. See <\/em>International Convention for the Regulation of Whaling Preamble, supra<\/em> note 66. \u2191<\/a><\/li>\n
  98. Int\u2019l Whaling Comm\u2019n, supra<\/em> note 54, at 21. \u2191<\/a><\/li>\n
  99. Int\u2019l Whaling Comm\u2019n, 34th <\/sup>Annual Meeting<\/em>, at 21\u201322, https:\/\/iwc.int\/document_3719; International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 72 U.N.T.S. 161. \u2191<\/a><\/li>\n
  100. Id.<\/em> \u2191<\/a><\/li>\n
  101. Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331. \u2191<\/a><\/li>\n
  102. d\u2019Aspremont, supra<\/em> note 18, at 1033. \u2191<\/a><\/li>\n
  103. Statement by Chief Cabinet Secretary<\/em>, Prime Minister\u2019s Office of Japan (Dec. 26, 2018), https:\/\/japan.kantei.go.jp\/98_abe\/decisions\/2018\/_00008.html. \u2191<\/a><\/li>\n
  104. International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 72 U.N.T.S. 161. \u2191<\/a><\/li>\n
  105. Commercial Whaling<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/management-and-conservation\/whaling\/commercial (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  106. The Revised Management Procedure – Further Information<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/rmp2 (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  107. The Revised Management Procedure<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/management-and-conservation\/rmp (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  108. Int\u2019l Whaling Comm\u2019n, supra<\/em> note 54, at 21. \u2191<\/a><\/li>\n
  109. See<\/em> generally Int\u2019l Whaling Comm\u2019n, supra<\/em> note 107 (\u201ccatches should not be allowed on stocks below 54% of the estimated maximum number of whales that the environment can support\u201d suggests some level of catch would be sustainable). \u2191<\/a><\/li>\n
  110. Id.<\/em> \u2191<\/a><\/li>\n
  111. Revised Management Scheme<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/index.php?cID=581&cType=html&zenario_sk_return=zenario__content\/panels\/content_types\/item\/\/html\/\/item\/\/en\/\/html_1 (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  112. Id.<\/em> \u2191<\/a><\/li>\n
  113. Id.<\/em> \u2191<\/a><\/li>\n
  114. Nagtzaam et al., supra<\/em> note 10, at 447. \u2191<\/a><\/li>\n
  115. Int\u2019l Whaling Comm\u2019n, supra<\/em> note 111. \u2191<\/a><\/li>\n
  116. While still a member of the ICRW, Japan was observed to negotiate with several members to the Treaty promising foreign aid money in exchange for aligning their votes with Japan\u2019s aims. See<\/em> I Nagtzaam et al., supra<\/em> note 10, at 455\u201357 (2019). \u2191<\/a><\/li>\n
  117. Id.<\/em> at 425. \u2191<\/a><\/li>\n
  118. Id.<\/em> \u2191<\/a><\/li>\n
  119. International Convention for the Regulation of Whaling arts. IV & VI, Dec. 2, 1946, 62 Stat. 1716, 72 U.N.T.S. 161. \u2191<\/a><\/li>\n
  120. Database of Regulations<\/em>, Int\u2019l Whaling Comm\u2019n, Https:\/\/recommendations.iwc.int\/view (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  121. d\u2019Aspremont, supra<\/em> note 18, at 1033. \u2191<\/a><\/li>\n
  122. International Convention for the Regulation of Whaling art. III, Dec. 2, 1946, 62 Stat. 1716, 72 U.N.T.S. 161. \u2191<\/a><\/li>\n
  123. Id.<\/em> \u2191<\/a><\/li>\n
  124. Id.<\/em> \u2191<\/a><\/li>\n
  125. Revised Management Scheme<\/em>, Int\u2019l Whaling Comm\u2019n, https:\/\/iwc.int\/index.php?cID=581&cType=html&zenario_sk_return=zenario__content\/panels\/content_types\/item\/\/html\/\/item\/\/en\/\/html_1 (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  126. See<\/em>, e.g., Fiona Harvey, Japan\u2019s Attempt to Overturn Commercial Whaling Ban Fails<\/em>, The Guardian (Sept. 14, 2018) https:\/<\/a>\/www.theguardian.com\/environment\/2018\/sep\/14\/japans-attempt-to-overturn-ban-on-commercial-whaling-fails. \u2191<\/a><\/li>\n
  127. Database of Recommendations<\/em>, Int\u2019l Whaling Comm\u2019n, Https:\/\/recommendations.iwc.int\/view (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  128. See <\/em>Malgosia Fitzmaurice, International Convention for the Regulation of Whaling<\/em> Audiovisual Library of Int\u2019l L. (2017), https:\/\/legal.un.org\/avl\/ha\/icrw\/icrw.html. \u2191<\/a><\/li>\n
  129. See<\/em> generally <\/em>Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Summary of the Judgement of 31 Mar. 2014, 2014 I.C.J. Reports (Mar. 31). \u2191<\/a><\/li>\n
  130. IWC Governance<\/em>, Animal Welfare Inst., https:\/\/awionline.org\/content\/governance (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  131. Jackson Ryan, Japan Set to Resume Commercial Whaling, Defying International Ban<\/em>, CNET, (Dec. 26, 2018), https:\/\/www.cnet.com\/science\/japan-set-to-resume-commercial-whaling-2019-defying-international-ban\/; Euan McKirdy et al. IWC Withdrawal: Japan to Resume Commercial Whaling in 2019, <\/em>CNN (Dec. 26, 2018), https:\/\/www.cnn.com\/2018\/12\/25\/asia\/japan-withdrawal-international-whaling-commission-intl\/index.html. \u2191<\/a><\/li>\n
  132. See, e.g<\/em>. BBC, Greta Thunberg: Who is the Climate Activist and What Has She Achieved?<\/em>, (May 9, 2024), https:\/\/www.bbc.com\/news\/world-europe-<\/a>49918719. \u2191<\/a><\/li>\n
  133. Take for instance, the United States Senate, which must see a majority of its members support a resolution of ratification before an international treaty can go into effect for their country. This number isn\u2019t so easy to obtain, whether in deciding to join a treaty, or to leave one. U.S. Senate, About Treaties<\/em>, https:\/\/www.senate.gov\/about\/powers-procedures\/treaties.htm (last visited Apr. 2, 2025). \u2191<\/a><\/li>\n
  134. See, e.g.<\/em>, Milestones: 1914-1920, <\/em>U.S. Off. of the Historian, https:\/\/history.state.gov\/milestones\/1914-1920\/league (last visited Apr. 2, 2025) (highlighting the inability of the United States to join the League of Nations despite presidential and external support). \u2191<\/a><\/li>\n
  135. International Convention for the Regulation of Whaling Preamble, Dec. 2, 1946, U.N.T.C. 161. \u2191<\/a><\/li>\n
  136. Matanich, supra<\/em> note 32, at 43\u201345. \u2191<\/a><\/li>\n
  137. International Convention for the Regulation of Whaling Preamble, supra<\/em> note 136. \u2191<\/a><\/li>\n
  138. Id.<\/em> at art. V, \u00b63. \u2191<\/a><\/li>\n
  139. Id.<\/em> at art. VIII, \u00b61\u20132. \u2191<\/a><\/li>\n
  140. See Statement by Chief Cabinet Secretary<\/em> Ministry of Foreign Affairs of Japan (Dec. 26, 2018), https:\/\/www.mofa.go.jp\/ecm\/fsh\/page4e_000969.html. \u2191<\/a><\/li>\n
  141. Ryan, supra<\/em> note 132. \u2191<\/a><\/li>\n
  142. d\u2019Aspremont, supra<\/em> note 18, at 1040. \u2191<\/a><\/li>\n
  143. Matanich, supra<\/em> note 32, at 53. \u2191<\/a><\/li>\n
  144. BBC Japan Whaling:<\/em> Why Commercial Hunts Have Resumed Despite Outcry<\/em>, (Jul. 1, 2019), https:\/\/www.bbc.com\/news\/world-asia-48592682. \u2191<\/a><\/li>\n
  145. Hovden, supra<\/em> note 44, at 36. \u2191<\/a><\/li>\n
  146. See <\/em>Ryan, supra <\/em>note 132. \u2191<\/a><\/li>\n
  147. Hovden, supra<\/em> note 44, at 19. \u2191<\/a><\/li>\n
  148. Id. <\/em>at 30. \u2191<\/a><\/li>\n<\/ol>\n","protected":false},"excerpt":{"rendered":"

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