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Customary International Law and Whaling

            International customary law is the original source of law that governs the behaviour of sovereign States. This was codified as a source of law in Article 38(1)(b) of the Statute of the International Court of Justice The role of international custom has significantly changed in the modern day as the compass of treaty law has grown and expanded. The process of identifying universal custom with over 200 independent States and varying political and legal orientations is difficult and troublesome. One area of customary law that has generated debate is commercial whaling for human consumption. Proving custom amidst the backdrop of objecting nations, ineffective institutions, pirate States, coercion and no clear universal acquiescence is challenging. .
             For the purposes of this essay, aboriginal subsistence whaling will not be considered as it does not come under the definition of a "national fishing fleet.".
             The necessary test to establish international customary law is empirical rather than a normative approach. Consequently it draws the distinction between lex lata and lex ferenda. A court must establish a general acceptance of the rule, firstly by proving that State practice is both extensive and virtually uniform, including those States that will be affected by the norm , and secondly that compliance to the rule is derived from a sense of legal obligation rather than comity - opinio juris necessitates. This former element was first enunciated by the Permanent Court of International Justice in the Lotus Case. .
             Historically, the right to whale for human consumption has been a part of international customary law. The massive depletion in whale stocks brought about the 1946 International Convention on the Regulation of Whaling (ICRW) which duly established the International Whaling Commission (IWC). The convention has 48 parties which are all members of the IWC. .
             A proposal by the Republic of Seychelles at the 34th annual meeting of the IWC in 1982 established a moratorium on commercial whaling.

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