Evolution Through the Duty to Cooperate: Implications of the Whaling in the Antarctic Case at the International Court of Justice

Abstract

International courts and tribunals face a special challenge when the treaty underlying a dispute was agreed in a distant past. How does (and should) the judicial branch allow for an evolution of international law that is responsive to major legal and social changes whilst remaining faithful to the intention of the treaty parties? We argue that there are two main methods: first, adjudicators may allow for evolution through treaty interpretation, for example by drawing on a treaty’s object and purpose or subsequent practice; secondly, adjudicators may focus on the institutional specifics of the relevant regime to which the treaty belongs, for example by drawing on the obligations of parties to give due regard to emerging resolutions even if they are not binding. In resolving the dispute between Japan and Australia (New Zealand intervening) over whaling in the Antarctic, the International Court of Justice engaged primarily with the second method, focussing particularly on procedural arrangements overseen by the International Whaling Commission. This article demonstrates that the Court’s formulation of a ‘duty to cooperate’ has major implications for states, international organisations and other actors in a fragmented legal order, especially in complex commons or shared-resource regimes involving scientific and technical matters updated through institutional or administrative arrangements. We evaluate related developments in the law of the sea, water management and climate regimes.