{"id":4525,"date":"2015-05-08T00:00:00","date_gmt":"2015-05-08T06:11:20","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/owada-and-the-whale-a-rejoinder\/"},"modified":"2020-12-09T13:51:43","modified_gmt":"2020-12-09T12:51:43","slug":"owada-and-the-whale-a-rejoinder","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/owada-and-the-whale-a-rejoinder\/","title":{"rendered":"Owada and the whale: a Rejoinder"},"content":{"rendered":"

The arguments provided by James Harrison<\/a> as to why the ICJ conducted an inversion of the burden of proof in the Whaling Case appear sound and conclusive; but they are also widely speculative. As he himself underlines, even though the award of the Court implies an interpretation of the ICRW notwithstanding clause as put forward by one of the parties in trial \u2013 namely the applicant \u2013 it does not do it expressly and unequivocally. It is precisely because of this lack of acknowledgeable motivation in the text of the award that an interpreter \u2013 as any dissenting judge \u2013 can criticize the perils of \u201clegal acrobatics\u201d in international justice.<\/p>\n

<\/p>\n

For an inversion of the burden of proof not to lead to an unreasonable rebuttal of the presumption of good faith, the reasoning underlying the decision to do so must be clear and precise; what is more, such a decision must be founded on the merits of an explicit legal argument and not on some implicit references to the WTO Appellate Body interpretation of notwithstanding clauses (even less when it did not have in mind the issues at stake in the ICRW). Failure in exposing this reasoning (or any better one) prior<\/em> to the application of the reasonability test over Japan\u2019s program not only allows for speculation in the legal blogosphere. Much more importantly, it also diminishes the full normative effect any legal decision must bear upon the parties involved. Indeed, if the Court had explained the reasoning to its interpretation of the notwithstanding clause, it would have necessarily highlighted the due reverence towards the \u201cobligation in another provision\u201d (EC \u2013 Tariff Preferences, Document WT\/DS246\/AB\/R<\/a>, 2004, \u00a788). We are convinced that by having done so, the Court would have given some substance to the reasons \u2013 and the reasonability \u2013 underlying its decision to invert of the burden of proof and hence the criticism of Judge Owada would have been unfounded.<\/p>\n

In this award, however, the motivations for the inversion of proof provided by the majority are too obscure for, as we submitted, \u00a751-55<\/a> provides a very insufficient legal justification for such an important procedural deliberation. This obscurity casts a mantle of doubt over us interpreters \u2013 and more importantly over the applicants and the respondent \u2013 that should not bear upon any binding legal decision, let alone in international law where the presumption of good faith signifies reverence to national sovereignty. Hence, what can be learned from this award is that a lot remains to be done in international justice at the procedural level, namely in cases involving scientific evidence. Unfortunately, the majority did not take hold of this case as an opportunity to contribute towards the clarification of the international legal principles of proof bearing. This was surely something this Court could have resolved.<\/p>\n

 <\/p>\n

Nelson F. Coelho<\/em><\/a> is a PhD candidate at Utrecht University.<\/em><\/p>\n

Cite as: Nelson Coelho, \u201cOwada and the whale: a Rejoinder\u201d,\u00a0V\u00f6lkerrechtsblog<\/em>, 8 May 2015, doi: 10.17176\/20170421-171231.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The arguments provided by James Harrison as to why the ICJ conducted an inversion of the burden of proof in the Whaling Case appear sound and conclusive; but they are also widely speculative. As he himself underlines, even though the award of the Court implies an interpretation of the ICRW notwithstanding clause as put forward […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[3889],"article-categories":[6000],"doi":[3893],"class_list":["post-4525","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-nelson-coelho","article-categories-article","doi-10-17176-20170421-171231"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20170421-171231"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4525","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4525"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4525\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4525"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4525"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4525"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4525"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4525"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4525"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}