Dispute Settlement under the Antarctic Treaty System
Donald R Rothwell
- Environmental disputes — Marine living resources — International courts and tribunals, procedure — Negotiations and consultation
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
A. History and Background
1 Antarctica was the subject of significant international attention in the years following the end of the Second World War. While the Antarctic and adjacent Southern Ocean were not within the theatre of the war, German interests that had been developing in Antarctica during the 1930s could easily have seen the region become the centre of dispute subject to how the war had developed (Day, 2012, 310–30). In the post-war years, however, another scenario arose as a result of the Cold War. While in the late 1940s neither the United States nor the USSR had formally asserted territorial claims in Antarctica, both were active on the continent through scientific activities, and both had a long history of Antarctic engagement through discovery and exploration (Auburn, 1982, 61–83). As the Cold War intensified in the 1950s, there was growing international concern that Antarctica could become the scene of Cold War rivalries between the two superpowers, ranging from the testing of nuclear weapons to polar military exercises, and ultimately to competing Antarctic territorial claims. Some of these concerns were reflected in the disputes that existed over other Antarctic territorial claims, particularly the overlapping claims to parts of the Antarctic Peninsula by Argentina, Chile, and the United Kingdom which resulted in proceedings being commenced before the International Court of Justice (ICJ) (Antarctica, United Kingdom v Argentina, Application Instituting Proceedings against the Argentine Republic, 1955) in 1955, but which were discontinued in 1956 (Antarctica Case, United Kingdom v Argentina, Order to Remove Case from the List, 1956).
2 Against this background, the 1957–1958 International Geophysical Year (‘IGY’) provided an opportunity for States that were active in Antarctic affairs to set aside their political differences and work together on coordinated scientific programmes. This proved such a success that, in an effort to sustain the benefits of scientific cooperation achieved during the IGY, and also to explore mechanisms to set aside Antarctic territorial disputes, the United States offered in 1959 to convene an Antarctic Conference in Washington (Auburn, 1982, 92–94). The Conference resulted in the negotiation of the Antarctic Treaty (‘1959 Antarctic Treaty’, ‘Antarctic Treaty’, or ‘Treaty’), which entered into force in 1961.
3 The 1959 Antarctic Treaty is a relatively short instrument totalling 14 articles. It addresses the key Antarctic issues of the time including the use of Antarctica for peaceful purposes (Art I 1959 Antarctic Treaty), freedom of scientific investigation (Art II 1959 Antarctic Treaty), promotion of international cooperation in Antarctic scientific investigation (Art III 1959 Antarctic Treaty), and the prohibition of nuclear explosions and disposal of radioactive waste (Art V 1959 Antarctic Treaty).
4 Article IV 1959 Antarctic Treaty is one of the most significant provisions in the Treaty as it seeks to address the question of sovereignty in Antarctica as it existed at that time, and its potential to evolve in the future. Provision is made for the seven States that had asserted territorial claims in Antarctica as at 1959 (Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom). The effect is that their entry into the Treaty did not represent a renunciation of their previously asserted territorial rights (Art IV (1) (a) 1959 Antarctic Treaty), and likewise for those other States that became parties their basis of a potential territorial claim was neither subject to renunciation or diminution (Art IV (1) (b) 1959 Antarctic Treaty), thereby making provision for any potential claims that either the United States or USSR may have wished to make. A final element of Article IV makes clear that any activities occurring in Antarctica during the period the Treaty is in force do not constitute a basis for asserting, supporting, or denying a claim to territorial sovereignty in Antarctica (Art IV (2) 1959 Antarctic Treaty).
5 The 1959 Antarctic Treaty did not comprehensively address all Antarctic issues of its time, and subsequent gaps in the Antarctic legal regime have been filled by additional treaties adopted by States either within the framework of the regular annual and now biennial meetings of the Antarctic Treaty Consultative Parties, to which the other States Parties can attend as observers, or in parallel international fora comprised of States with an interest in Antarctic affairs. In total, three additional instruments, either as a Protocol on Environmental Protection to the Antarctic Treaty (‘1991 Protocol’) or as separate Conventions (1972 Convention for the Conservation of Antarctic Seals [‘CCAS’]; 1980 Convention on the Conservation of Antarctic Marine Living Resources [‘CCAMLR’]) have been adopted during the lifetime of the Treaty. These instruments, alongside the Recommendations, Resolutions, Decisions and Measures adopted thereunder have come to comprise what is known as the Antarctic Treaty System (‘ATS’) (Art 1 (e) 1991 Protocol; Auburn, 1982, 147–83). The formal mechanisms for dispute settlement under the ATS will now be assessed.
B. Antarctic Treaty
6 The 1959 Antarctic Treaty contains a procedure for the settlement of disputes between two or more of the Contracting Parties relating to the interpretation or application of the Treaty (Art XI 1959 Antarctic Treaty). There are two mechanisms established. The first is a process of consultation between the relevant Treaty parties in order to seek to resolve the dispute by way of negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement (Judicial Settlement of International Disputes), or other peaceful means (Art XI (1) 1959 Antarctic Treaty). These measures parallel those found in the Charter of the United Nations (United Nations Charter; ‘1945 Charter’) (Art 33 (1) 1945 Charter) with two exceptions: the obligation to consult (Watts, 1992, 90), and the deletion of a reference to regional agencies or arrangements which, as such a reference would include the 1959 Antarctic Treaty, became unnecessary. The consent of parties is required for any of these procedures for the settlement of disputes to be adopted (Watts, 1992, 90).
7 The second mechanism applies if the dispute has not proven itself capable of resolution, in which case with the consent of all of the parties the dispute shall be referred to the ICJ for settlement (Art XI (2) 1959 Antarctic Treaty). Again, consent is critical (Jaenicke, 1986, 165), which would need to be particular to the case in question rather than being of a general nature (Watts, 1992, 90). A failure to reach agreement for referral of the dispute to the ICJ does not absolve the parties from continuing to seek to resolve the dispute by any of the peaceful mechanisms that are otherwise provided for.
8 During the Washington Conference, the United States supported accepting the compulsory jurisdiction of the ICJ, but other States objected (Auburn, 1982, 138–39). At the Final Plenary Session of the 1959 Antarctic Conference, the United Kingdom sought to clarify that ad hoc referral of a dispute to the ICJ was not the only procedure open to the parties if the dispute was of such a nature as to fall within the compulsory jurisdiction of the court (Saul and Stephens, 2015, 46). This intervention was a reference to referral of disputes to the ICJ under the ‘optional clause’ (Art 36 (2) Statute of the ICJ [‘1945 Statute’]), which France also supported. Alternatively, South Africa sought to highlight its reservations to the acceptance of the compulsory jurisdiction of the ICJ (Saul and Stephens, 2015, 46).
9 These two mechanisms are limited to disputes that concern the ‘interpretation or application’ of the Treaty. This would include not only the provisions of the Treaty as they relate to constraints placed upon the activities of the State Parties with respect to scientific or nuclear activities, but also those Decisions, Measures, Recommendations, and Resolutions adopted by consensus at Antarctic Treaty Consultative Meetings.
10 A significant issue is whether the 1959 Antarctic Treaty’s dispute settlement measures apply in the case of territorial disputes. While the Treaty has effectively neutralized those disputes during its lifetime, this has been more of a consequence of the impact of the Treaty’s provisions seeking to set aside questions of Antarctic territorial sovereignty while the Treaty is in force, rather than seeking to actually resolve those issues. If a territorial dispute was to arise, therefore, during the lifetime of the 1959 Antarctic Treaty, subject to how the dispute was characterized, it may or may not fall within the ambit of the Treaty’s dispute settlement mechanisms. A dispute that directly related to Article IV 1959 Antarctic Treaty would clearly fall within these mechanisms (Treves, 1996, 608), while a dispute between two States over the legitimacy of an Antarctic territorial claim may, subject to how the dispute is framed, fall outside of the 1959 Antarctic Treaty’s dispute settlement procedures. The practical impact, however, of this outcome is likely to be minimal given the parallel obligations for peaceful settlement of disputes in both the 1959 Antarctic Treaty and the 1945 Charter, and that the Treaty only anticipates referral of a dispute to the ICJ by way of mutual consent which is also provided for in the 1945 Statute (Art 36 (1) 1945 Statute). Nevertheless, given the need for mutual consent for a territorial dispute to be referred to the ICJ, and the potential that some territorial disputes would involve more than two parties, questions have been raised as to whether it would be possible to achieve the necessary consent from all parties for referral of the dispute to the court (Auburn, 1982, 139).
11 The Treaty also includes a specific procedure for the resolution of disputes over the exercise of jurisdiction, which applies until such time as other measures are put into place. Given that the Treaty seeks to neutralize sovereignty tensions in Antarctica, one of the additional legal issues that it addresses is the exercise of territorial jurisdiction against non-nationals. The Treaty provides that nationality jurisdiction is to prevail over territorial jurisdiction with respect to scientific personnel and other observers (Art VIII (1) 1959 Antarctic Treaty), however, in recognition that limitations of traditional State sovereignty could become the subject of tensions and dispute, the Antarctic Treaty Consultative Parties were given a mandate to adopt recommendations on the exercise of jurisdiction in Antarctica (Art IX (1) (e) 1959 Antarctic Treaty). Pending the adoption of such recommendations, disputes regarding the exercise of jurisdiction in Antarctica are to be the subject of consultation between the parties with a view to reaching a mutually agreeable solution (Art VIII (2) 1959 Antarctic Treaty). No disputes have arisen under the Treaty during the period of its operation.
C. Protocol on Environmental Protection to the Antarctic Treaty
12 The Protocol on Environmental Protection to the Antarctic Treaty (‘1991 Protocol’) was adopted in Madrid in 1991 after a period of debate within the ATS as to whether mining should be permissible in Antarctica or, alternatively, whether Antarctica should be subject to comprehensive environmental protection measures which would include a prohibition on mining. A mining regime had been negotiated in the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (‘CRAMRA’) which, if it had entered into force, would have facilitated Antarctic mining. Ultimately, the latter view prevailed and the ATS rejected mining and placed a prohibition on any activity relating to mineral resources, other than for the purposes of scientific research (Art 7 1991 Protocol), and a comprehensive environmental protection regime was established framed around the need for environmental impact assessment (Art 8 and Annex I 1991 Protocol). This has since been supplemented by additional Annexes addressing conservation of fauna and flora, waste disposal and management, prevention of marine pollution, area protection and management, and liability arising from environmental emergencies (Annexes II–VI 1991 Protocol). An important dimension of the 1991 Protocol that also needs to be taken into account is its interaction with non-ATS treaties (Art 7 Annex II 1991 Protocol). Annex IV dealing with the prevention of marine pollution makes specific reference to not derogating from the rights and responsibilities of the parties under the International Convention for the Prevention of Pollution from Ships (‘MARPOL’ or ‘1973 Convention’) which raises issues regarding the potential interaction of MARPOL dispute settlement mechanisms (Art 10 1973 Convention) and the 1991 Protocol (Treves, 1996, 611–12).
1. General Provisions
13 The 1991 Protocol provides for both general and specific mechanisms for dispute settlement, the basic framework of which duplicates the mechanisms that were envisaged in CRAMRA (Bosco, 1996, 621). The general mechanisms parallel those found in the 1959 Antarctic Treaty (Art 18 1991 Protocol) which in turn duplicate the mechanisms found in the 1945 Charter (Art 33 1945 Charter) other than the referral to regional mechanisms. The procedures apply to disputes arising with respect to the interpretation or application of the 1991 Protocol; thereby making clear the distinction between the 1991 Protocol and the 1959 Antarctic Treaty, though arguably the question as to whether the dispute settlement provisions of the Treaty apply equally to the 1991 Protocol is not settled (Watts, 1992, 106). A procedural distinction with the Treaty is that one of the parties to the dispute must first request that a consultation occur between the parties with a view to possible settlement of the dispute. Ultimately, this is a procedural hurdle which is unlikely to prove burdensome.
2. Compulsory Provisions
14 A compulsory dispute settlement mechanism is provided for in the case of a particular category of disputes as they relate to the prohibition on mineral resource activities, environmental impact assessment, emergency response action, the Annexes to the Protocol (unless otherwise provided), and general provisions with respect to compliance (Arts 19–20 1991 Protocol). Therefore, it can be said that compulsory dispute settlement is limited ratione materiae (Treves, 1996, 604). As many of these provisions are central to the key obligations that arise under the 1991 Protocol, the effect is that this compulsory dispute settlement procedure has broad application across the 1991 Protocol. However, the general provisions for dispute settlement remain applicable to these particular disputes under the 1991 Protocol and only after a period of 12 months has elapsed do the specific procedures outlined below assume a compulsory nature. Annex VI 1991 Protocol dealing with liability arising from environmental emergencies is the only Annex that makes reference to dispute settlement procedures and, in addition to the mechanisms noted below, provides in matters associated with the liability of a party as a State Operator for an enquiry procedure established by the parties, or resolution by the Antarctic Treaty Consultative Meeting (Art 7 (4)–(5) Annex VI 1991 Protocol).
15 Upon becoming a party to the 1991 Protocol, or anytime thereafter, a party may elect to choose referral of a dispute to the ICJ or to an Arbitral Tribunal (Art 19 (1) 1991 Protocol). If the parties have accepted the same means for the settlement of a dispute, then that election will prevail unless the parties otherwise agree (Art 19 (4) 1991 Protocol). If the parties have not accepted the same means for dispute settlement, of if they have accepted both means, then the dispute may only be submitted to the Arbitral Tribunal unless the parties otherwise agree (Art 19 (5) 1991 Protocol). Likewise, if a party has not made a declaration or if the declaration is no longer in force, they will be deemed to have accepted the competence of the Arbitral Tribunal (Art 19 (3) 1991 Protocol). In this manner, reference of a dispute for settlement by the Arbitral Tribunal is the default mechanism for dispute settlement. Declarations made under these procedures may be adjusted and varied, subject to being deposited with the Depositary, though a new declaration will not impact upon pending proceedings before the ICJ or the Arbitral Tribunal (Art 19 (7) 1991 Protocol). Subject, however, to individual State acceptance of the compulsory jurisdiction of the ICJ (Art 36 (2) 1945 Statute) there could arise a conflict between how a party has agreed to the compulsory jurisdiction of the Court under the 1991 Protocol and the 1945 Statute (Treves, 1996, 610).
16 An important aspect of these procedures is to consider the relationship between dispute settlement under the 1959 Antarctic Treaty and the 1991 Protocol. The 1991 Protocol does not seek to amend the 1959 Antarctic Treaty, but rather is stated to ‘supplement’ the Treaty (Preamble 1991 Protocol). Accordingly, the more detailed Protocol provisions for dispute settlement do not apply to disputes that arise under the Treaty. This distinction between the two dispute settlement procedures is reinforced by the 1991 Protocol making clear that its procedures do not confer competence upon the Arbitral Tribunal, or jurisdiction upon the ICJ, to address any matter within the scope of Article IV 1959 Antarctic Treaty (Art 20 (2) 1991 Protocol). This ensures that one of the most contentious ATS issues, territorial claims over Antarctica, is not subject to these dispute settlement mechanisms (Treves, 1996, 607). No disputes have arisen under the 1991 Protocol during the period of its operation.
17 Provision is made for an Arbitral Tribunal under the 1991 Protocol which deals with its composition, competence, and general rules of procedure (‘Schedule 1991 Protocol’). Each party is entitled to designate up to three arbitrators with an up-to-date list maintained by the Secretary General of the Permanent Court of Arbitration (PCA) (Art 2 Schedule 1991 Protocol). The Arbitral Tribunal is composed of three arbitrators with each party to the dispute entitled to appoint one arbitrator, and the third member appointed by agreement between the two parties who shall be the chairperson of the Tribunal (Art 3 Schedule 1991 Protocol). Arbitrators are to be appointed from the list. If the second or third arbitrator has not been appointed within the defined period, the president or vice-president of the ICJ will make the appointments (Art 3 Schedule 1991 Protocol). All decisions of the Tribunal are to be made by a majority of the arbitrators, who may not abstain (Art 12 Schedule 1991 Protocol).
18 The party commencing the proceedings is to notify the other party or parties and the Secretary General of the Permanent Court of Arbitration (Art 4 Schedule 1991 Protocol). Unless otherwise agreed the arbitration is to take place at The Hague, and the Tribunal is to adopt its own rules of procedure. The proceedings are to be conducted expeditiously (Art 5 Schedule 1991 Protocol).
19 The Arbitral Tribunal shall satisfy itself that it possesses competence in respect of the dispute and that it is well founded in fact and law (Art 11 (1) Schedule 1991 Protocol). Decisions are to be based upon the provisions of the 1991 Protocol and other applicable rules and principles of international law that are otherwise not incompatible (Art 10 (1) Schedule 1991 Protocol; Bosco, 1996, 623). The Arbitral Tribunal may decide ex aequo et bono if the parties to the dispute so agree (Art 10 (2) Schedule 1991 Protocol). The Award of the Tribunal, which is to be accompanied by a statement of reasons, is final and binding and ‘shall be complied with without delay’ (Art 11 (3) Schedule 1991 Protocol).
20 The Arbitral Tribunal also has incidental jurisdiction to indicate provisional measures where it considers that it possesses prima facie jurisdiction (Art 6 (1) Schedule 1991 Protocol). Provisional measures may be requested by any party to the dispute and may be indicated to preserve the respective rights and duties of the parties, or where the Tribunal considers it necessary and appropriate to prevent serious harm to the Antarctic environment (Art 6 (1) Schedule 1991 Protocol). The Arbitral Tribunal, therefore, has the capacity to consider either the interests of the parties, or the interests of the Antarctic environment, when giving consideration to the granting of provisional measures. Orders of this nature by the Arbitral Tribunal are to be complied with promptly pending a final award (Art 6 (2) Schedule 1991 Protocol). A separate procedure is envisaged in matters of exceptional urgency to prescribe ‘emergency provisional measures’ which circumvents the 12 month time limitation within the 1991 Protocol (Art 20 (1) 1991 Protocol) and allows for accelerated appointment of the arbitrators and the decision within two months of the appointment of the third arbitrator as chairperson (Art 6 (3) Schedule 1991 Protocol).
21 Unless otherwise decided by the Tribunal, the expenses of the Tribunal including remuneration of the arbitrators shall be equally borne by the parties to the dispute (Art 11 (5) Schedule 1991 Protocol).
22 The Final Act of the meeting at which the 1991 Protocol was adopted (‘1991 Final Act’) recorded an understanding that the Tribunal would not make a determination as to damages until such time as an Annex with respect to liability had been adopted and entered into force (Watts, 1992, 108). Annex VI 1991 Protocol has now been adopted and makes specific provision for liability and also costs arising from environmental emergencies (Art 7 Annex VI 1991 Protocol). The 1991 Final Act also agreed that with reference to Article 18 and the general provisions for dispute settlement that an ‘inquiry procedure’ would be elaborated to facilitate resolution of disputes with respect to the provisions of Article 3 and activities undertaken or proposed to be undertaken in the Antarctic Treaty area (1991 Final Act; Watts, 1992, 106).
D. Convention for the Conservation of Antarctic Seals
23 The CCAS was concluded in 1972 and while not formally adopted within the framework of the ATS was an initiative of the parties to the Antarctic Treaty and over time has become accepted as an ATS instrument. CCAS seeks to provide mechanisms for the protection and conservation of six seal species that are found within the seas south of 60° South Latitude (Art 1 (1) CCAS), which encompasses the maritime areas of the Antarctic Treaty (Art VI 1959 Antarctic Treaty). The Convention contains no particular or specific measures for the resolution of disputes. No disputes have arisen under CCAS during the period of its operation.
E. Convention on the Conservation of Antarctic Marine Living Resources
24 The CCAMLR was adopted in 1980 within the framework of the ATS. The convention is a landmark instrument in international law for its adoption of the precautionary principle of management towards Antarctic marine living resources (excepting whales) and the ecosystem approach towards the Antarctic marine ecosystem. CCAMLR seeks to regulate and promote a range of measures for the conservation of Antarctic marine living resources, including the regulation and monitoring of fishing and related activities, including measures for law enforcement against illegal fisheries, and more recently measures promoting marine parks.
25 CCAMLR includes general dispute settlement procedures that mirror those found in the Treaty with respect to consultation between parties to resolve disputes by way of negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, or other peaceful means (Art XXV (1) CCAMLR). The obligation for dispute settlement applies with respect to disputes concerning the ‘interpretation or application’ of CCAMLR.
26 Disputes under CCAMLR that are not resolved under the general procedures shall with the consent of the parties be referred for settlement by the ICJ or arbitration. Failure to reach agreement upon utilising either of these procedures does not absolve the parties of an obligation to peacefully settle their disputes (Art XXV (2) CCAMLR).
27 If the parties to a dispute arising under CCAMLR elect to refer the matter to arbitration, then an Arbitral Tribunal is to be constituted under procedures provided for in the convention (Art XXV (3) CCAMLR). This arguably extends to any decision by the parties to refer the dispute to arbitration under either of the CCAMLR mechanisms noted above (Watts, 1992, 91). The parties to the arbitration each appoint one arbitrator, and jointly appoint the third arbitrator who shall preside over the tribunal. A default procedure applies if either the second or the third arbitrator has not been appointed in which case the Secretary-General of the Permanent Court of Arbitration is to make the appointment (Annex CCAMLR). The Tribunal is to decide the location of its headquarters, and adopt its own rules of procedure. No provision is made for a Registrar but this could be accommodated as part of the Tribunal’s rules, and if necessary with the consent of the parties (Watts, 1992, 93). Awards of the Tribunal are to be made by a majority and its members may not abstain from voting. An allowance is made for any CCAMLR contracting party to seek to intervene in the proceedings with the consent of the Tribunal. No reference is made to the need for such a contracting party to have any particular interest in the dispute (Annex CCAMLR). The award of the Tribunal is to be final and binding and the parties, including those which may intervene in the proceedings, are to comply without delay. Unless otherwise determined, the expenses of the Tribunal including remuneration of its members is to be borne in equal shares by the parties to the dispute (Annex CCAMLR), which could be extended to include intervening parties (Watts, 1992, 92–93).
28 The Antarctic Treaty and the ATS are unique in that they reflect a diplomatic settlement through international legal mechanisms for dispute settlement. The critical agreement reached via Article IV Antarctic Treaty has held throughout the life of the ATS notwithstanding significant tensions amongst some parties, such as those between Argentina and the United Kingdom during the 1982 Falklands War. That in itself represents the most significant achievement of the ATS, and by setting aside territorial and associated sovereignty disputes it has been possible for the parties and others to go about their scientific research activities in a predominantly neutralized political setting (Merrills 13).
29 The mechanisms for dispute settlement established under the Antarctic Treaty and ATS have never been tested. As they include treaties negotiated over the period from 1959 to 1991, they inevitably reflect an evolution in thinking about dispute settlement generally, and specifically in the context of Antarctica. In that respect, the detailed negotiation of the CRAMRA dispute settlement mechanisms, while ultimately included in a failed and abandoned treaty, proved useful when it came to the negotiation of the 1991 Protocol. The parties are presented with a range of non-compulsory procedures in the Antarctic Treaty, CCAMLR, and the 1991 Protocol which are generally consistent with the 1945 Charter. The measures for dispute settlement under the Antarctic Treaty have been described as ‘simple, perhaps too much so’ by an eminent international lawyer and government legal advisor (Watts, 1992, 90), however this critique needs to be assessed against the backdrop of the diplomatic settlement achieved by the Treaty. Both the Antarctic Treaty and CCAMLR dispute settlement procedures have also been criticized for a failure to address what happens if consent cannot be reached (Bosco, 1996, 615). Here the contrast between these non-compulsory procedures and the compulsory procedures that exist under the Protocol need to be acknowledged, albeit ones that still exclude matters arising under Article IV Antarctic Treaty.
30 Finally, it can be observed that three ATS parties have engaged in dispute settlement with respect to matters arising in Antarctica within the Antarctic Treaty area (Art VI 1959 Antarctic Treaty) but did so by utilising non-ATS mechanisms. In 2010, Australia commenced proceedings in the ICJ challenging Japan’s conduct of its Southern Ocean whaling program (JARPA II) and New Zealand intervened during the course of those proceedings. The ICJ’s 2014 judgment (Whaling in the Antarctic, Judgment, 2014) found in favour of the Australian application which was based upon claims that Japan’s conduct was in violation of the provisions of the 1946 International Convention for the Regulation of Whaling. At no time did Australia seek to raise for consideration by the court ATS legal issues associated with Japan’s whaling conduct. The ATS was therefore quarantined from this dispute and as a result there was no disruption to the harmony of the ATS.
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