Corrigé
Corrected
CR2013/11
International Court Cour internationale
of Justice de Justice
LAHAYE THE HAGUE
YEAR2013
Public sitting
lteld on Friday 28 June 2013, at JOa.m., at Ille Peace Palace,
President Tomka presiding,
in Ille case conceminWhaling in the Antarctic (Australiav.Japan:
New Zealand intervening)
VERBATIM RECORD
ANNÉE2013
Audience publique
tenue le vendredi 28uin 2013,à 10 /teures, au Palais de la Paix,
sous la présidencedeM. Tomka, président,
en l'affaire relatàvlaChasse à la baleine dans l'Antarctique
(Australie c. Japon; Nouvelle-Zélande(intervenant))
COMPTE RENDU -2-
Present: President Tomka
Vice-President Sepulveda-Amor
Judges Owada
Keith
Bennouna
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judge ad hoc Charlesworth
Registrar Couvreur - 3-
Présents: M. Tomka, président
M. Seplllveda-Amor, vice-président
MM. Owada
Keith
Bennouna
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
Mme Charlesworth, juge ad hoc
M. Couvreur, greffier -4-
Tlle GtJvemmeut tif Austrttlit1 is represeutetl hy:
The Honourable Mark Dreyfus Q.C., M.P., Attorney-General of Australia,
as Counsel and Advocate;
Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,
as Agent, Counsel and Advocate;
H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Justin Gleeson, S.C., Solicitor-General of Australia,
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government Solicitor,
Mr. Philippe Sands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Ms Laurence Boisson de Chazournes, Professor oflnternational Law at the University ofGeneva,
as Counsel and Advocates;
Ms Kate Cook, Barrister, Matrix Chambers, London,
Dr. Makane Mbengue, Associate Professor, University ofGeneva,
as Counsel;
Ms Anne Sheehan, Acting Assistant-Secretary, Attorney-General's Department,
Mr. Michael Johnson, Principal Legal Officer, Attorney-General's Department,
Ms Danielle Forrester, Principal Legal Officer, Attorney-General's Department,
Ms Stephanie lerino, Acting Principal Legal Officer, Attorney-General's Department,
Ms Clare Gregory, Senior Legal Officer, Attorney-General's Department,
Ms Nicole Lyas, Acting Senior Legal Officer, Attorney-General's Department,
Ms Erin Maher, Legal Officer, Attorney-General's Department,
Mr. Richard Rowe, Senior Legal Adviser, Department of Foreign Affairs and Trade,
Dr. Greg French, Assistant Secretary, Department of Foreign Affairs and Trade, - 5 -
Le Gouvemement ciel'Australie est représentépar:
L'honorable Mark Dreyfus, Q.C., M.P., Allorney-Genera/ d'Australie,
comme conseil et avocat ;
M. Bill Campbell Q.C., General Counsel (droit international), serv1ces de l'Attorney-General
d'Australie,
comme agent, conseil et avocat ;
S. Exc. M. Neil Mules, A.O., ambassadeur d'Australie auprès du Royaume des Pays-Bas,
comme coagenl ;
M. Justin Gleeson, S.C., Solicitor-Genera/ d'Australie,
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l'Université de
Cambridge, titulaire de la chaire Whewell, membre de l'Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Henry Burmester, A.O., Q.C., Special Counsel, Solicitor du Gouvernement australien,
M. Philippe Sands, Q.C., professeur de droit au University College de Londres, avocat,
Matrix Chambers (Londres),
Mme Laurence Boisson de Chazournes, professeur de droit international à l'Universitéde Genève,
comme conseils et avocats ;
Mme Kate Cook, avocat, Matrix Chambers (Londres),
M. Makane Mbengue, professeur associéà l'Universitéde Genève,
comme conseils ;
Mme Anne Sheehan, secrétaireadjoint par intérim,services de l'Attorney-General,
M. Michael Johnson, juriste principal, services de l'Attorney-Genera/,
Mme Danielle Forrester,juriste principal, services de l'Attorney-General,
Mme Stephanie lerino,juriste principal par intérim,services de l'Attorney-General,
Mme Clare Gregory, juriste hors classe, services de l'Attorney-General,
Mme Nicole Lyas, juriste hors classe par intérim,services de l'Attorney-Genera/,
Mme Erin Maher,juriste, services de l'Attorney-General,
M. Richard Rowe,juriste hors classe, ministère des affaires étrangèreset du commerce,
M. Greg French, secrétaireadjoint, ministère des affaires étrangèreset du commerce, - 6 -
Mr. Jamie Cooper, Legal Officer, Department of Foreign Affairs and Trade,
Ms Donna Petrachenko, First Assistant Secretary, Department of Sustainability, Environment,
Water, Population and Communities,
Mr. Peter Komidar, Director, Department of Sustainability, Environment, Water, Population and
Commun ities,
Dr. Bill de la Mare, Scientist, Australian Antarctic Division, Department of Sustainability,
Environment, Water, Population and Communities,
Dr. David Blumenthal, Senior Adviser, Office of the Attorney-General,
Ms. Giulia Baggio, First Secretary, Senior Adviser, Office ofthe Attorney-General,
Mr. Todd Quinn, First Secretary, Embassy of Australia in the Kingdom of the Netherlands,
as Advisers;
Ms Mandy Williams, Administration Officer, Attorney-General's Department,
as Assistant.
Tlle Government of Japan is represented by:
Mr. Koji Tsuruoka, Deputy Minister for Foreign Affairs,
as Agent;
H.E. Mr. Yasumasa Nagamine, Ambassador Extraordinary and Plenipotentiary of Japan to the
Kingdom of the Netherlands,
as Co-Agent;
Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, President of the
Société française pour le droit international, associate member of the Institut de droit
international,
Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of International Law,
Oxford University, associate member of the Institut de droit international,
Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, member of the
English Bar,
Mr. Yuji Iwasawa, Professor of International Law at the University of Tokyo, member and former
Chairperson of the Human Rights Committee,
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International Law, McGill University,
member of the Bar ofNew York and the Law Society of Upper Canada,
Mr. Shotaro Hamamoto, Professor oflnternational Law, Kyoto University,
Ms Yukiko Takashiba, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
as Counsel and Advocates; - 7-
M. Jamie Cooper, juriste, ministère des affaires étrangèreset du commerce,
Mme Donna Petrachenko, premier secrétaire adjoint, ministère du développement durable,
de l'environnement, de l'eau, des populations et des communautés,
M. Peter Komidar, directeur, ministère du développement durable, de l'environnement, de l'eau,
des populations et des communautés,
M. Bill de la Mare, scientifique, division de l'Antarctique australien, ministère du développement
durable, de l'environnement, de l'eau, des populations et des communautés,
M. David Blumenthal, conseiller principal, services de l'Attorney-General,
Mme Giulia Baggio, conseiller principal, services de l'AIIorney-General,
M. Todd Quinn, premier secrétaire,ambassade d'Australie au Royaume des Pays-Bas,
comme conseillers ;
Mme Mandy Williams, administrateur, services de l'Attorney-General,
comme assistant.
Le Gouvernement du Japon est représentépar:
M. Koji Tsuruoka, ministre adjoint des affaires étrangères,
co1mneagent ;
S. Exc. M. Yasumasa Nagamine, ambassadeur extraordinaire et plénipotentiaire du Japon auprèsdu
Royaume des Pays-Bas,
comme coagent ;
M. Alain Pellet, professeur à l'Université Paris Ouest, Nanterre-La Défense,présidentde la Société
française pour le droit international, membre associéde l'Institut de droit international,
M. Vaughan Lowe, Q.C., membre du barreau d'Angleterre, professeur émérite de droit
international à l'Universitéd'Oxford, membre associéde l'Institut de droit international,
M. Alan Boyle, professeur de droit international à l'Université d'Edimbourg, membre du barreau
d'Angleterre,
M. Yuji Iwasawa, professeur de droit international à l'Université de Tokyo, membre et ancien
présidentdu Comitédes droits de l'homme,
M. Payam Akhavan, LL.M., S.J.D (Harvard), professeur de droit international à l'Université
McGill, membre du barreau de New York et du barreau du Haut-Canada,
M. Shotaro Hamamoto, professeur de droit international à l'Universitéde Kyoto,
Mme Yukiko Takashiba, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
comme conseils et avocats ; - 8 -
Mr. Takane Sugihara, Emeritus Professor of International Law, Kyoto University,
Ms Atsuko Kanehara, Professor of International Law, Sophia University (Tokyo),
Mr. Masafumi Ishii, Director-General, International Legal Affairs Bureau, Ministry of Foreign
Affairs,
Ms Alina Miron, Researcher, Centre de droit international de Nanterre (CEDIN), University of
Paris Ouest, Nanterre-La Défense,
as Counse/;
Mr. Kenji Kagawa, Director-General, Resources Enhancement Promotion Department, Fisheries
Agency,
Mr. Noriyuki Shikata, Minister, Embassy of Japan in the United Kingdom of Great Britain and
Northern lreland,
Mr. Kenichi Kobayashi, Director, International Legal Affairs Division, Ministry of Foreign Affairs,
Mr. Joji Morishita, Director-General, National Research lnstitute of Far Seas Fisheries,
Mr. Akima Umezawa, Ph.D., Director, Fishery Division, Ministry of Foreign Affairs,
Ms Yoko Yanagisawa, Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Naohisa Shibuya, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Ken Sakaguchi, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Ms Akiko Muramoto, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Masahiro Kato, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Takaaki Sakamoto, Assistant Director, International Affairs Division, Fisheries Agency,
Mr. Shigeki Takaya, Assistant Director, Fisheries Management lmprovement Division, Fisheries
Agency,
Mr. Toshinori Uoya, Assistant Director, Fisheries Management Division, Fisheries Agency,
Mr. Shinji Hiruma, Assistant Director, International Management Division, Fisheries Agency,
Mr. Sadaharu Kodama, Legal Adviser, Embassy of Japan in the Kingdom of the Netherlands,
Mr. Nobuyuki Murai, LL.D., First Secretary, Embassy of Japan in the Kingdom of the Netherlands, -9-
M. Takane Sugihara, professeur éméritede droit international de l'Université de Kyoto,
Mme Atsuko Kanehara, professeur de droit international à l'Université Sophia (Tokyo),
M. Masafumi lshii, directeur généraldu bureau des affaires juridiques internationales, ministère
des affaires étrangères,
Mme Alina Miron, chercheur, Centre de droit international de Nanterre (CEDIN), Université Paris
Ouest, Nanterre-La Défense,
co1mneconseils ;
M. Kenji Kagawa, directeur général du département de la promotion de la valorisation des
ressources, agence des pêcheries,
M. Noriyuki Shikata, ministre à l'ambassade du Japon au Royaume-Uni de Grande-Bretagne et
d'Irlande du Nord,
M. Kenichi Kobayashi, directeur à la division des affaires juridiques internationales, ministère des
affaires étrangères,
M. Joji Morishita, directeur généralde l'Institut national de recherche sur les pêcheries en eaux
lointaines,
M. Akima Umezawa, Ph.D., directeur à la division des pcheries, ministère des affaires étrangères,
Mme Yoko Yanagisawa, directeur à la division chargée de l'affaire de la chasse à la baleine devant
la CIJ, ministère des affaires étrangères,
M. Naohisa Shibuya, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
M. Ken Sakaguchi, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
Mme Akiko Muramoto , division chargée de l'affaire de la chasse à la baleine devant la CIJ,
ministère des affaires étrangères,
M. Masahiro Kato, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
M. Takaaki Sakamoto, sous-directeur à la division des affaires internationales, agence des
pêcheries,
M. Shigeki Takaya, sous-directeur à la division de l'amélioration de la gestion des pêcheries,
agence des pêcheries,
M. Toshinori Uoya, sous-directeur à la division de la gestion des pêcheries,agence des pêcheries,
M. Shinji Hiruma, sous-directeur à la division de la gestion internationale , agence des pcheries,
M. Sadaharu Kodama, conseiller juridique à l'ambassade du Japon au Royaume des Pays-Bas,
M. Nobuyuki Murai, LL.D., premier secrétaire de l'ambassade du Japon au Royaume des
Pays-Bas, - JO-
Ms Risa Saijo, LL.M., Researcher, Embassy ofJapan in the Kingdom of the Netherlands,
Ms HéloïseBajer-Pellet, member of the Paris Bar,
as Advisers;
Mr. Douglas Butterworth, Emeritus Professor, University of Cape Town,
Ms Judith E. Zeh, Ph.D., Researcher Professor Emeritus, University of Washington,
Mr. Dan Goodman, National Research lnstitute of Far Seas Fisheries,
Mr. Luis Alberto Pastene Perez, Ph.D., Director, Survey and Research Division, lnstitute of
Cetacean Research,
as Scientific Advisers and Experts;
Mr. Martin Pratt, Professor, Department ofGeography, Durham University,
as Expert Ac/viser;
Mr. James Harrison, Ph.D., Lecturer in International Law, University of Edinburgh,
Ms Amy Sander, member of the English Bar,
Mr. Jay Butler, Visiting Associate Professor of Law, George Washington University Law School,
member of the New York Bar,
as Legal Advisers.
The Government of New Zealaml is represented by:
The Honourable Christopher Finlayson Q.C., M.P., Attorney-General ofNew Zealand,
as Counsel and Ac/vocale;
Dr. Penelope Ridings, International Legal Adviser, Ministry of Foreign Affairs and Trade,
as Agent, Counsel and Advocate;
H.E. Mr. George Troup, Ambassador ofNew Zealand to the Kingdom of the Netherlands,
as Co-Agent;
Ms Cheryl Gwyn, Deputy Solicitor-General, Crown Law Office,
Ms Elana Geddis, Barrister, Harbour Chambers, Wellington,
as Counsel;
Mr. Andrew Williams, Legal Adviser, Ministry of Foreign Affairs and Trade, - Il -
Mme Risa Saijo, LL.M., chercheur à l'ambassade du Japon au Royaume des Pays-Bas,
Mme HéloïseBajer-Pellet, membre du barreau de Paris,
comme conseillers ;
M. Douglas Butterworth , professeur éméritede l'Universitéde Cape Town,
Mme Judith E. Zeh, Ph.D., chercheur, professeur éméritede l'Universitéde Washington,
M. Dan Goodman, Institut national de recherche sur les pêcheriesen eaux lointaines,
M. Luis Alberto Pastene Perez, Ph.D., directeur à la division des enquêtes et de la recherche,
Institut de recherche sur les cétacés,
comme conseillers et experts scientifiques ;
M. Martin Pratt, professeur au département de géographie de l'Universitéde Durham,
comme conseiller expert ;
M. James Harrison, Ph.D., chargéde cours en droit international à l'Universitéd'Edimbourg,
Mme Amy Sander, membre du barreau d'Angleterre,
M. Jay Butler, professeur associé invité de droit à la faculté de droit de l'Université George
Washington, membre du barreau de New York,
comme conseillers juridiques .
Le Gouvernement de la Nouvelle-Zélande est représentépar :
L'honorable Christopher Finlayson, Q.C., M.P., Attorney-General de Nouvelle-Zélande,
comme conseil et avocat ;
Mme Penelope Ridings, conseiller juridique pour le droit international, ministère des affaires
étrangèreset du commerce,
comme agent, conseil et avocat ;
S. Exc. M. George Troup, ambassadeur de Nouvelle-Zélande auprès du Royaume des Pays-Bas,
comme coagent ;
Mme Cheryl Gwyn, Solicitor-General adjoint, Crown Law Office,
Mme Elana Geddis, avocat, Harbour Chambers (Wellington) ,
comme conseils;
M. Andrew Williams, conseiller juridique , ministère des affaires étrangèreset du commerce, - 12-
Mr. James Christmas, Private Secretary, Attorney-General's Office,
Mr. James Walker, Deputy Head of Mission, Embassy of New Zealand in the Kingdom of the
Netherlands,
Mr. Paul Vinkenvleugel, Policy Adviser, Embassy of New Zealand 111the Kingdom of the
Netherlands,
as Advisers. - 13-
M. James Christmas , chef de cabinet, services de I'AIIorney-Genera/,
M. James Walker, chef de mission adjoint, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
M. Paul Yinkenvleugel , conseiller politique, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
cmmne conseillers. - 14-
The PRESIDENT: Good morning, Please be seated. This sitting is now open.
Judges Abraham and Skotnikov, for reasons duly explained are unable to take their seat on
the Bench today. The Court will hear this morning the conclusionalia's first round of oral
argument. 1give the floor to Professor Crawford to continue his pleading. You have the floor, Sir.
Mr. CRAWFORD: Thank you, Mr. President.Yesterday 1 demonstrated that JARPA Il
meets none of the requirements for a program of scientific research within the meaning of
x ArticleVI the I94~Convention. There are two points which are supplementary to that, which
1should make or, rather, three.
First, even some initial lethal research might have been justified, it could not possibly have
~\""'&CICI('.i-iC.
)f taken 18 years to formulate a hypothesis that would be te7l0~whales. This in response
to the question asked by Judge Bennouna yesterday.
Secondly,in response to the question asked by Judge Cançado Trinidade, as pointed out by
our experts, non-lethal methods are now generally available.e they are not cost-free, but
Antarcticais not cost-free. Any State which has the capacity to engage and sustain a mission in
Antarctica has access to the relevant technlt is fatal to the Japanese case, fatal, that after
18years of JARPA, there was no pause, no stock-taking, no analysis, no response to criticism, no
peer review, no considerationalternatives, no hypothesis; just lethal business as usual, times
two, with extra species, times three.
And itis fatal again that what then happened bears no relationship to the special permit
which was the alleged trigger and alleged justification forthisIf 1 built a house with
M. Poincaré'sstones, which bore no relationship to the blueprint, it would be a pretty rough house,
1can tell you. If 1carried out a scientific program that bore no relationship to the permission to
engage in the science, it could not be considered science.
2. JARP A ll is commercial whaling
45. Mr. President, Members of the Court, that might be thought sufficient to establish
Australia's case under the ConventBut thereis more. Not merely is JARPA Il not justified - 15-
under Article VIII, it is an outright case of commercial whaling prohibited by the Moratorium. Let
me establish thisin three propositions:
First, the Convention contemplates three types ofwhaling. The only one that fits JARPA Il is
commercial whaling.
Secondly, JARPA Il, and its predecessor, JARPA 1, continue Japan's commercial whaling
practices in the Southern Ocean, albeit on a smaller scale.
Thirdly, the commercial character and purpose of JARPA Il are clear from its design and
implementation.
(a) Tlle classification ofwllaling under tite Convention
46. First of ali, the Convention establishes a comprehensive régimefor the regulation of the
conservation and management of whales. ln doing so, it contemplates three and only three types of
whaling:
(1) whaling under special permit;
(2) aboriginal subsistence whaling; and
(3) commercial whaling.
There is no fourth type, for example, there is no recreational whaling.
47. For the reasons 1have explained, JARPA Il is not a program of whaling for purposes of
scientific research. lt is self-evident that it is not aboriginal subsistence whaling. lt falls within the
remaining category of commercial whaling. And that's not just an accident of classification: it
corresponds to the reality.
(b) JARPA & JARPA II continue Japan's commercial wllaling practices
48. ln its Counter-Memorial, Japan asserts that seven characteristics of a program of whaling
are relevant in determining whether that program is conducted for commercial or scientific
1
purposes • We do not endorse these in ali respects, but it is useful to see what happens when you
apply them.
1CMJ par a.~2.- 5.138. - 16-
49. The first characteristic Japan identifies is the area of operation and trackline. On the
question of the area of operation, JARPA and JARPA Il have largely been conducted in the same
productive whaling grounds where Japan conducted its commercial whaling before 1988.
50. ln its JARPA proposai, Japan claimed that it was "more efficient" to undertake JARPA
in these productive whaling grounds 2• JARPA Il is likewise largely conducted in those areas. ln
fact, Japan narrowed its area of operation for JARPA Il even further on the basis that there was a
lower density of minkes in the abandoned area 3. Now this may be "more efficient", but only from
the perspective, only if you are measuring efficiency in terms of the number of whales kilied per
unit of effort, CPUE. lt doesn't hold if you are measuring efficiency in terms of acquiring new
scientific knowledge, when you need to survey Jess populated areas, as weil as more populated
51. The second distinguishing characteristic identified by Japan is target species and number
of whales taken. The species that was the sole target of JARPA, and which has represented 99.5
per cent of Japan's take under JARPA Il -the Antarctic minke whale- was the primary focus of
commercial whaling operations in the decade before 1988.
52. The third characteristic is the selection of individual whales killed. Japan contends that
in research whaling operations, "individual animais taken are based on random sampling
5
procedures" • There are several problems here. First of ali, as to fin whales, it only targets the
smaller fin whales, because it can't take the larger ones. Asto minkes, the position is somewhat
the reverse, there is an underrepresentation of the smaller minkes. One wonders why. These facts
raise serious questions about Japan's purportedly random sampling procedures in the conduct of
JARPA Il.
53. The fourth and fifth distinguishing characteristics cited by Japan are the information or
data obtained and the tissue samples collected by the whaling operation. Scientific whaling can be
distinguished, it is said, from commercial whaling on the basis that scientific whaling programs
2
JARPA Proposa/1987, 8 [MA, Ann. 156].
1CMJ, para. 5.38.
4Mangcl, Original Expert Opinion, paras. 5.47-48 [MA, App. 2].
'CMJ, para. 5.134. - 17-
collect more data, information and tissue samples than commercial whaling operations 6• Now, if
that's right, one can justify whaling for the purposes of restaurant menus, by taking earplugs on the
way.
54. The collection of additional data does not signify that the whaling operation has a
7 8
scientific purpose , unless the data is actually used, used to confirm or deny a hypothesis • Japan
equates the conduct of scientific research with the accumulation of data. But science is not stamp
collecting: JARPA Il is an activity which collects data on whales in the Southern Ocean without
end or objecë.
55. ln terms of the sixth distinguishing characteristic identified by Japan- the personnel
involved - the mere fact a whaling vessel has designated scientists or researchers on board does
not serve as a criterion for the scientific character of the operation. Otherwise the presence of
eminent scientists in this room would be sufficient grounds to classify my presentation as an
activity conducted for purposes of scientific research, which 1can assure you it is not!
56. Finally, for its seventh distinguishing characteristic, Japan cites the Article VIII (2)
requirement that proceeds from the sale of whale meat be dealt with in accordance with directions
of the sponsoring Government. Commercial whaling has a scale and scope indicative of an
intention to provide whale meat for commercial purposes.
57. But the fact that proceeds are dealt with in accordance with directions of the relevant
Government will not deprive a whaling operation of its commercial character. 1cite my restaurant
example. The IWC noted in 2003, this is in tab 106 of your folder:
"Article VIII of the Convention is not intended to be exploited in order to provide
whale meat for commercial purposes and shall not be so used." 10
6CMJ, paras. 5.135 and 5.136.
7Mangel, OriKinal E.xpertOpinion, para. 6.1 [MA, App. 2].
8Mangcl, Supplementmy Expert Opinion, para. 3.3.
9
Mangcl, Original Expert Opinion, paras. 6.1 and 6.19 [MA, Appendix 2]: Mange), Supplementmy Expert
Opimon, paras. 3.10 and 7.1-7.5.
10
Whaling under Special Permit, Resolution 2003-2, Ann. F, Chair's Report of the Filly-Fifth Meeting, Annual
Report of the International Whaling Commission 2003, 102 (Resolution 2003-2) [MA, Ann. 38]. - 18-
(c) JARPA & JARPA JI: fimr imlicitt of commercial purpose
58. Mr. President, Members of the Court, the design and manner of implementation of
JARPA Il indicate the true commercial character of this whaling program. Continuing to whale for
the purposes of the provision of whale meat accounts for JARPA Il in a way that science does not.
Consistent with the interpretationof the term "commercial" or "for commercial purposes" adopted
11
in other international environmental treaties, such as CITES , let me identify four indicia of the
commercial purposes of JARPA Il.
59. First, JARPA Il is directed towards production, sale and distribution of whale meat.
(Tab 107) [Screen on] Japan's "scientitic" whaling business madel, implemented in 1988, is a
commercial scheme whereby the cast of continued whaling has been mainly covered by incarne
generated from the sale of that meat. You can see the "by-products" sale and distribution chain for
)0whale meat on the screen. lt is considerabl commplexethan the unseen scientitic distribution
scheme emerging from JARPA Il. ln addition to wholesale markets, sorne whale meat is
distributed to tishery co-operatives and other processing operators. lt is distributed for public use,
including for school meats, butwe understand it is not very popular in school meats. [Screen off]
60. As recently as October 2012, the Director of the JFA openly admitted to a Japanese
Parliamentary Subcommittee that maintaining its purportedly "scientitic" whaling program in the
Southern Ocean was necessary to perpetuate the market in minke whale meat. (Tab 108):
"Minke whale meat is prized because it is said to have a very good tlavour and
aroma when eaten as sashimi and the like ...
[T]he scientitic whaling program in the Southern Ocean was necessary to
achieve a stable supply ofminke whale meat." 12
61. ln fact sales of whale meat are declining. Whale meat consumption in Japan peaked in
1962 at about 400,000 tonnes. lt has dropped to about 4,000 tonnes in recent years 1• As of
January 2013, there were 4,355 tonnes of refrigerated whale meat in the market's distribution
11
CITES Resolution Conf. 5.10 (Rev. CoPI5), Definition of "primarily commercial purposes ", adopted at the
Fiflh Meeting ofthe Conlèrence of the Parties, Buenos Aires, Argentina, 22 April-3 May 1985.
12
Govemment of Japan, Minutes of Meeting of the Subcommittee of the l-Iouse of Representatives Committee on
Audit and Oversight of Administration, 23 Oct. 2012, Statement by Kazuyoshi Honkawa, Director, Japan Fisherics
Agcncy.
13
"Antarctic scientiftc whaling program at a crossroads. Over-supply ofwhale meat. Ending the program also an
option", Asahi Shimbun, 19 Feb. 2011, p. 3. - 19-
stoc' •hat is a lot of refrigeration. To counter the decline in sales, the ICR has undertaken a
numberof new sales promotion activities.
62. Secondly,PA Il is directed towards providing economie use or benefit to the
Japanese whaling industry and key sSo-calledrs.ntific" whaling permits Japan to
maintain the institutions and personnel necessary to maintain long-term pelagie whaling operations,
with the aim enabling Japan to transition back into commercial operations if and when the
moratorium is lifted. As noted by a former Director-General9): "Scientific
whaling is enabling whaling facilities and technical crews to be retained, making it possible to
respond quickly to any decision to resume [authorized commercial]
63. Thirdly, JARPA Il is conducted on a commThe level of operations of
JARPA and JARPA Il can only be described as consistent with commercial whaling, albeit on a
smaller scale than before 1988. The sample sizes are not based on scientific considerations. They
were establishedthe light of industry confirmation that they would enable a self-sustainable
whaling industry to continuet•ly
64. Mr. President, Members of the Court, 935 minke whales, 50 fin whales and 50 humpback
whales are more than could reasonably be required for the conducttific research,
evenif there was a legitimate scientific research program. These sample sizes have been set with
the aimf maximizing revenue fromof'by-ple enurote uocili~t'contue><
whaling on a sustainable basis.
65. The reason Japan's actual annual catch underecreased in recent years is
falling consumer demand, it remains far in excess of what would reasonably be required for the
purposesf scientific resif any lethal take was required. But lethal research methods are
no longer required to obtain new information relevant to the conservation or management of whales
and this is not a developmentst couple ofyears.
\o\...""\uo:.1.. .l'.·~11-p ·:nd/-:kd.f>/i~:./CA_
fd.-~\. /p~-~"""'Yc. "_.·_:._:.~...-
1. Sakuma, '"Profitable ComhcriesBld dicns xthtutuof Rcscarch Wh)oing",
lruka & Kujira (Dolpin & Whalc) Actio!dlspe1~iu;eel ali5June 2013.
1
1SMA, Ann. 78, /la/fa Centwy in Pursuit of the a New Era in (2008,g
Seizando-Shotcn Publishing Co. Ltd), p. 158.
16
MA, Ann. 77, T Kasuya, "Japancse Whaling and Other CEnv Sei Pol/ut Res, (2007) 14(1)
39, pp. 45-46. - 20-
66. Fourthly, JARPA Il, and in particular the leve( of take, is driven by market forces. You
can see this on the screen. Japan's average catch is less than half its target catch. lts catch of fin
whales is one-twentieth of its target. Weil you would have seen that on the screen it if had been on
the screen- but 1ask you to imagine it!
67. Japan cites the tire on board its factory ship during the 2006/2007 season and the actions
of the Sea Shepherd Conservation Society as the reasons for its reduced catches, and it accuses
Australia of downplaying the seriousness and dangers of violent activities occurring in the
17
Southern Ocean • 1should briefly deal with this latter allegation, although it is of no relevance to
the present case. Australia is fully alive to the dangers of the Southern Ocean. The Australian
Maritime Safety Authority sends annual messages to both the Sea Shepherd and the Japanese
whaling fleet warning of the dangers of operation in the Southern Ocean. Australia has repeatedly
condemned dangerous, reckless or unlawful behaviour occurring in the Southern Ocean. Australia
fully complies with its international obligations arising out of events in the Southern Ocean,
including search and rescue.
68. The real reason for the Japanese Government's decision to reduce target catches is as
simple as it is commercial- the sharp decrease in domestic demand for whale meat in Japan. The
well-known Mr. Komatsu, the former head of the JFA, has confirmed in numerous public
statements that Japan's reduction in catches has been a deliberate strategy to keep the priee of
whale meat high. For example, he said in June 2010 that Japan had deliberately reduced its target
catches- this is tab Il 0: "because of the stagnation of the sales of whale meat. Some
government officer tried to think that if ... the ... supply would be down that may lead to a bit
higher priee of ... the whale meat" 18,which is a fairly good commercial tactic.
69. [Screen on] Japan's stockpile of frozen whale meat is four times greater today than it
19
)/ was 15years ago • This can be seen-)(he said with some relief-on the graphie which is now
on the screen (tab Ill). Japan's capacity to store frozen whale meat is not unlimited. As reported
17
CMJ, paras. 5.73-5.74.
1MA, Ann. 148, '"Former Japanese lisheriesboss joins Lafeline", Australian Broadcasting Network,
17 June 2010.
1lntemational Fund for Animal Welfare, "The Economies of Japanese Whaling: A Collapsing lndustry Burdens
Taxpayers", 2 at IFAW Australia \\ebsite http://www.ifaw.org/australia/resource-centre/eeonomics-japanese-whalong
5 June 2013. - 21-
by crew members, since Japan expanded its catches at the beginning of JARPA Il, large quantities
of lesser quality meat are discarded overboard daily 20,notwithstanding Article VIII, paragraph 2,
surplus to "research requirements"! [Screen off]
70. Japan has sought to reduce the costs of its special permit operations by other means. For
the first four seasons of JARPA Il, it sent six vessels to the Southem Ocean. ln 2009/2010 it
reduced that to five vessels and then to four for the last three seasons.
71. It also reduced the length of its whaling voyages in the past three seasons. ln the
2012/2013 season, the tleet did not depart until 20 December, more than a month later than usual.
And yet- 1 repeat myself- the special permit still lists the same sample sizes- 935 minke
whales, 50 fin whales and 50 humpback whales. That was a year in which the catch was
103 minke whales- 10 per cent of the stated catch target. The "special permit", requiring
individual consideration and exceptional justificationt, has become a mere matter of administrative 1<
procedure, unchanging down the years, unrelated to what actually happens, unrelated to any issue
of science.
72. Mr. President, Members of the Court, taken together, the four characteristics 1 have
mentioned convincingly establish that JARPA Il is a whaling operation conducted for commercial
purposes, or incidental thereto. Australia is not atone in this assessment. Statements to similar
21 22 23
effect have been made by, among others, Germany , Brazil , New Zealand , the United
Kingdom 24 and the Buenos Aires Group: the latter, for example, noted that JARPA Il catch limits
"clearly point to an operation of a commercial nature which Jacks any scientific justification" 25•
20MA, Ann. 149, A. ldeta, "Feature: The Greenpeace Theil Trial",Clwnichi Shimbun, 26 August 2010 (moming
edition),p. 12; Greenpeace Japan, WhalinK on Trial: Japan 's whale meat scandai and the trial of the Tokyo Two.
(March 20Il), Greenpeace website, http://www.greenpeace.org/intemational/en/publications/reports/whaling-… on
5 June 2013.
21
1ntervention b} Germany, IWC 55, Verbatim Record of Agenda Item 12.2- Scientilic Perrnits-Commission
discussions and action arising [0:00:45].
22
1ntervention by Brazil, IWC 55, Verbatim Record of Agenda Item 12.2- Scientilic Perrnits-Commission
discussions and action arising [0:28:22].
2·1ntervention b} New Zealand, IWC58, Verbatim Record of Agenda Item 11.2- Scientilic perrnits
Commission discussions and action arising[0:04:01].
Hlntervention by the United Kingdom, IWC60, Vcrbatim Record of Agenda Item 9- Scientilic Perrnits
[0:24:15].
25"Members of the 'Buenos Aires Group' protes! against Japan's new whaling campaign in the Southem Ocean
Sanctuary and urge the Japanese Govcrnment to end the so-called 'scientilic whaling"', Press Release No. 022/13,
4 Feb.2013. -22-
ln 2003, the IWC stated: "The current and proposed Special Whaling operations represent an act
contrary to the spirit of the moratorium on commercial whaling and to the will of the
26
Commission."
3. The legal consequences: Japan's breaches
73. Mr. President, Members of the Court, 1turn to outline Japan's consequent breaches ofthe
>< Convention. The relevant measures are: the factory ship restriction, the ftloratorium, and the
Sanctuary.
(a) Tltefactory sltip restriction
74. The factory ship restriction, established in paragraph 10 (d) of the Schedule in 1979,
prohibits the taking, killingor treating of whales by factory ships or whale catchers attached to
factory ships. This moratorium applies to sperm whales, killer whales and to ali baleen whales
except minke whales.
75. Fin whales are, of course, a species of baleen whale. Since the commencement of the
JARPA Il program, Japan has taken 18 fin whales.
76. The Japanese "research base vesse!" is plainly a factory ship in accordance with the
definition in Article Il (1) of the Convention. The "sighting and sampling vessels" used in
JARPA Il are "whale catchers", as defined in Article Il, paragraph 3, of the Convention. These
whale catchers are "attached" to the factory ship within the meaning of the definition . It follows
that there is a breachf the factory ship restriction.
(b) Tite moratorium on commercial wlraling
77. 1 turn to the moratorium on commercial whaling. This was established under
paragraph 10 (e) of the Schedule in 1982. lt entered into effect for Japan on 1 May 1987, and has
been binding on it up to thistime27•
26MA, Ann. 38, Resolution 2003-2.
27IWC Circular Communication RGN Jl-1/16129, "Withdrawal of Objection to Schedule Paragraph 10 (e) b)
Japan", 1July 1986 enclosing Note from the Ambassador of Japan to the United Kingdom to the Secretary of the
International Whaling Commission [MA, Ann. 54]. -23-
78. Under JARPA Il, Japan has killed a reported total of 3,633 minke whales and 18 fin
whales in eight whaling seasons. For the reasons 1 have given, that constitutes whaling "for
X commercial purposes" and contravenes the Moratorium.
(c) [The Southern Ocean Sanctuary) Th:.A..:c.~
79. (Tab 63) [Screen on] Then there is the Southem Ocean Sanctuary, established under
paragraph 7 (b) of the Schedule in 1994. This prohibits commercial whaling in the waters
comprising the Sanctuary, as defined by co-ordinates there laid down. JARPA Il operations are
entirely conducted within the boundaries of the Sanctuary. [Screen off]
80. Japan has unsuccessfully attempted to repeal or limit the application of paragraph 7 (b)
on numerous occasions 28• The Commission has rejected these proposais and the Sanctuary remains
in place. Japan has exercised its right under Article V to object to the application of
9
paragraph 7 (b/ • However, this objection only protects the commercial whaling of minke whales
in the Sanctuary, and is independent of the tf1oratorium. Japan does not dispute that the Sanctuary Y
30
applies to ali other species • Paragraph 7 (b) thus applies to the take of fin whales under
JARPA Il.
4. Conclusions
81. Mr. President, Members of the Court, JARPA II is not a program for purposes of
scientific research in the context of the conservation and management of whales, or any other
context. JARPA II does not possess even one of the four essential characteristics of such a
program. Under the two programs, Japan has kilied more than 10,000 whales, purportedly in
2Chainnan' s Report of the Fitly- First Annual Meeting, Annual Report ofthe International Whaling Commission
1999, p. 10; Chainnan's Report of the Fifty-Sccond Annual Meeting, Annual Report of the International Whaling
Commission 2000, p. 14; Chair's Report of the Filly-Third Annual Meeting, Annuai Report of the International Whalinl{
C'ommission2001, p. 13; Chair's Report of the Filly-Fourth Annual Meeting, Annual Report ofthe International Whaling
Commission 2002, pp. 28-30, 35; Chair's Report of the Filly-Fillh Annual Meeting, Annual Report of the International
Whaling Commission 2003, p. 24; Chair's Report of the Fifty-Sixth Annual Meeting, Annual Report of the International
Whaling Commission 2004, p. 33; Chair's Report of the Filly-Scventh Annual Meeting, Annual Report of the
Internationalhaling Commission 2005, p. 34: Chair's Report orthe Fitly-Eighth Annual Meeting, Annual Report of the
Internationalhaling Commission 2006, p.27.
2
qiWC Circular Communication RGN JH/25435, "Japancsc Objection to Southem Ocean Sanctuary",
15 August 1994, cnclosing Note lrom the Embassy of Japan to the Secretary of the International Whaling Commission,
12 August 1994 [MA, Ann. 55].
30
IWC Circular Communication RGNJII/25479, "Objection by Japan to new Schcdulc sub-paragraph 7 (b)",
12 Sept. 1994 with enclosure [MA, Ann. 56]. - 24-
pursuit of information that is not required for the proper and effective conservation and
management of whale stocks in the Southern Ocean or for any other identified scientific purpose.
82. The design and implementation of JARPA Il confirm that Japan's true purpose in the
continuation of whaling in "sorne form or another", that is maintaining its whaling industry on a
self-sustaining basis through the sale of whale meat "by-product", while it waits for the resumption
of commercial whaling, that that is its true purpose. That accounts for JARPA Il in a way that
science does not. Japan's "scientific" whaling business model is driven by economie
considerations, not by scientific ones. Japan has not suggested, not even a traceof a suggestion,
how its reduction in annual catches affects its purported research. What it has done is to continue
its efforts to strengthen and promote whale meat consumption. The predominant influence of
commercial considerations in the conduct of JARPA Il is manifest. For ali these reasons,
JARPA Il is not protected by Article VIII.
Mr. President, Members of the Court, thank you for your attention.
The PRESIDENT: Thank you, Professor Crawford. Now 1 invite Solicitor-General
Mr. Gleeson to continue. Vou have the floor, Sir.
Mr. GLEESON:
JAPAN HAS ACTED WITH A LACK OF GOOD FAITH AND IN ABUSE OF RIGHT IN
ITS DEALINGS WITH THE IWC AND IN ITS ISSUE OF SPECIAL PERMITS
1.Introduction
1. Mr. President, Members of the Court, my presentation complements that which you have
just heard from Professor Crawford. My two tapies are Japan's failure to act with good faith and
Japan's conduct in abuse of right. This part of Australia's case has two core but related
components. The first follows inescapably from what you have heard from our previous counsel.
Once one understands the true abject and purpose of the Convention, the proper role and limits on
Article VIII within it and the true character of JARPA -just exposed by Professor Crawford- it
follows inescapably that Japan's purpose in issuing the permits lies outside that permitted by
Article VIII. As the factual premises of that part of the case have been developed, 1say nothing
further on them. - 25-
2. The second component of this part of our case - which 1will seek to develop - is this:
the obligation of good faith required Japan to give a degree of consideration to the Guidel ines and
Resolutions of the IWC, and to the reports of its Scientific Committee, which unfortunately Japan
has not shown. To develop this component of the case, 1will seek to take you to a chronological
review of the events as they unfolded. 1 will give you references to the tab numbers of the
documents and 1 will emphasize perhaps seven documents, which 1would invite you particularly to
read on this part of the case.
3. At the conclusion of this speech, 1will draw together our legal arguments on Jack of good
faith and abuse of right.
U. Japan and the IWC-the JARPA period (1987-2005)
4. Japan should never have started as and when il did: The starting-point which both sides
recognize lies in the original JARPA proposai. While this case concerns specifically JARPA Il,
Japan's relationship with the IWC and the Scientific Committee from the very outset of JARPA is
critical to understand what has occurred. The key documents which commence this part of the case
at the outset 1 will simply reference for you, you find them in Volume 1, at tabs 5, 6 and 7. And
they are the earliest pronouncements of the IWC: 1985 Annex L, and Resolutions 1986-2 and
31
1987-1 • Those documents are important because they set out at the very outset what the IWC
considered to be "the minimum criteria that should be met before whales are killed for research" 3•
5. With those minimum criteria having been laid down by the Commission, a number of
members of the Scientific Committee, a significant number, from the very outset in 1987, identified
serious reservations with the methodology proposed in JARPA (tab 114) 33•
31Proposed Guidelines tor Review of Scientilic Permits, Ann. L, Report of the Scientilic CommitRep. /nt.
Whal. Commn 36, 1986, p. 133 (1985 Ann. L) [MA, Ann. 42]; Resolution on Special Permits l'orScientilic Research.
App. 2, Chairman's Report of the Thirty-Eight Annual Meeting. Rep. /nt. Whal. Commn 37, 1987, p. 25
(Resolution 1986-2) [MA, Ann. 43]; Resolution on Scientilic Research Programmes, App. 1, Chairman's Report of the
Thirty-Ninth Annual Meeting,Rcp. lnt. Whal. Commn 38, 1988, pp. 27-28 (Resolution 1987-1) [MA, Ann. 44]. Sec also
MA, paras. 4.25-4.27.
n iWC39, Verbatim Record ofüpening Plenary Session, 22 June 1987, IWC/39NR, 16-17.
n Report of the Scicntilic Committec, Rep. /nt. Whal. Comnm 38, 1988, 57 (partially cxtractcd at CMJ,
Annex 82). The complete sectionof the report addrcssing the Japanesc permits (pp. 55-58) is reproduccd in the Judgcs'
fbldersat(tab 114). -26-
6. What was Japan's response to that reservation from within the Scientitic Committee?
Japan's response was to say that this should be simply termed a "division of opinion" and the
solution to the problem was that JARPA should simply go ahead and the differences could be
sorted aue". Indeed, Japan asked the Commission to defer its consideration of JARPA until the
1988 meeting. The Commission in turn, rather understandably, asked whether Japan would defer
issuing permits for JARPA until that consideration could occur, but Japan's response was what you
now see on the screen, also at tab 115. The reason Japan did not accede to the response to defer the
commencement of JARPA was [Screen on]:
"We have got allocation of funds from our Finance Ministry of over $4 million.
Once we do not use that it will not come back forever and we cannat get it again. So
we should proceed and 1 think that, even with a division of opinion between
35
distinguished scientists 1think we have a right to proceed." [Screen off]
7. That, Mr. President, Members of the Court, was Japan's attitude at the outset, and it has
remained the attitude until today. Now that sets the background for the first document, which 1
would invite you to read, which you should find at tab 116. At tab 116 you will find the first
Resolution of the Commission, expressing its views on JARPA 3• And 1 would invite you
particularly to consider the paragraph in which the Commission adopts the view that JARPA does
not satisfy the criteria, which had been set out in the 1986 Resolution, in that the proposed research
does not appear, on present information, to be structured as to contribute information essential for
the rational management of stock, and the proposed take will not, at this stage, materially facilitate
the Comprehensive Assessment, that is, the assessment which was referred to in paragraph 10 (e)
of the Schedule. And you then see the recommendation that Japan refrain from issuing the special
permits until the Scientific Committee could resolve the serious uncertainties and that it could be
established that the research methods would contribute sufficiently reliable results needed for the
Comprehensive Assessment or for other critically important research needs.
11ntervention of Japan, IWC39, Verbatim Record of Fourth Plenary Session, 26 June 1987, IWC/39/VR, 142.
slntervention ofJapan, IWC39, Verbatim Record ofFourth Plenary Session, 26 June 1987, IWC/39/VR, 145.
3Resolution on Japanese Proposai lbr Special Permits, App. 4, Chairman's Report of the Thirty- Ninth Annual
Meeting, Rep. /nt. Whal. Commn 38, 1988,29 (Resolution 1987-4)LMA, Ann. 10]. -27-
8. That Resolution was passed by an overwhelming majority of the Commission, in
accordance with the majority decision-making processes established under the Convention and
37
accepted by Japan •
9. Australia submits that the obligation of good faith required Japan, at the very outset, to
address four key questions in the light of this Resolution . Let me identify those matters which
Japan should have addressed in good faith. The first is:
how might the objectives of JARPA be revised so that they align with critical research needs,
identified by the IWC and the Scientific Committee?
the second is how might the methods of JARPA be adjusted to have a real likelihood of
achieving objectives so tailored?
the third is, rather than start with a pre-determined view that a certain number ofwhales had to
be killed each year, how might non-lethal means- existing or reasonably capable of
development- provide a partial or complete alternative?
and the fourth is should JARPA be suspended or deferred until those questions could be
answered?
1O.Australia's case is that you will not find anywhere, in the subsequent 28-year history, Japan
giving real consideration to those questions. Japan made sorne minor changes to the proposai and
commenced a "feasibility study", but never addressed the substance of the Resolution from the
Il. The IWC, in subsequent years, by clear majorities, expressed similar resolutions 39 and
the response from Japan was the same.
12. Mr. President, Members of the Court, you will not find in the Counter-Memorial a
substantive explanation for why Japan, in good faith, ignored the Resolution l've taken you to and
like resolutions. [Next slide] lnstead ofthat what you will find from Japan, and you should now see
37
See the table referred to by Prolèssor Cra\\lbrd , reproduced at tab 57, for the voting record lor each
resolution.
38
Report of the Special Meeting to Consider the Japanese Research Permit (FeasibilityStudy),
15-17 December 1987, Rep. /nt.Whal.Commn 39, 1989, 159, 162(partially extracted at CMJ, Ann. 83).
3
qResolution on the Proposed Take by Japan of Whales in the Southem llemisphere under Special Permit,
Appendix 3, Chairrnan's Report of the Forty-First Annual Meeting, Rep. /nt. Whal. C'om11m 40, 1990, 36
(Resolution1989-3) [MA, Ann. 16J. - 28-
summarized on your screen and at tab 119, is that Japan has made an unfortunate attack upon the
IWC itself. Japan's approach to the collective organ, under the treaty, that its resolutions:
- often "were adopted without supportive advice from the Committee";
that its resolutions
"appear ... as political decisions, driven by the convictions and the preservationist attitude of
anti-whaling States ... rather than by scientific knowledge"
r@: embarking upon rhetoric, Japan declaims that the 1~
-::.represents the ''tyrannyof the majority" against which de Tocqueville warned us 40•
13. Now, in short, Japan ignores any IWC Resolutions it does not like and it derides, and
that is not too strong a ward, those supportive of the resolution as engaged in mere "politics". lt
also dismisses any reasoned opinion expressed within the Scientific Committee that its proposais
require modification or withdrawal, as being no more than the opinion of a body that can't reach
consensus. [Screen off]
14. Mr. President, Members of the Court, 1 have spent a little time dwelling on what
happened at the outset, in 1987 to 1989, because it illustrates, in a microcosm, where, Australia
submits, Japan's conduct feil short of the standard of good faith. Before 1move beyond the first
JARPA proposai, could 1mention more briefly five other aspects, which emerge between 1987 and
2005?
15. Japan ignores the Commission 'srestated position: The first, which you have heard, is
that repeatedly, in the years from 1990 onwards, the Commission adopted resolutions reaffirming
that JARPA was not required for the management of whale populations and did not satisfy the
4
°CMJ [8.80), [8.87] and [8.101]. -29-
original 1986 and 1987 Resolutions'". Some ofthese Resolutions were passed by consensus, others
12
by large majorities' • The difference matters not for this part of the case.
16. .lapan ignores /WC Resolution 1995-9: The second additional matter 1would mention is
that Professor Sands showed you late yesterday, and Dr. Gales gave sorne evidence about,
IWC Resolution 1995-9, an important resolution, as it set out the criteria subsequently relevant at
the time JARPA Il was adopted.
17. lt is also important because on the occasion that the Commission had the first
opportunity to compare JARPA 1with Resolution 1995-9, the Commission confirmed that JARPA
failed to satisf)' the criteria. That is Resolution 1996-7 and in Japan's Counter-Memorial it again
gives you no substantive argument as to why it was entitled to ignore that Resolution. lndeed, the
approach which Japan took to this important Resolution 1996-7, which you will see on the screen
and at tab 120, can be expressed in the graphie words of disregard "we do not intend to respect this
3
Resolution'.4 •
18. The third additional point from JARPA is that in the mid-term review in 1997, the
Scientific Committee looked at JARPA, sorne ten years in, and concluded- and the reference is
tab 123- that the results of JARPA while not required for management under the RMP had, at
best, a potential to improve management in various ways. So after ten years, JARPA had not
produced any output which was required for management and, at best, was in the area of
44
potentiality. That is the context for the second document, which 1 would invite you to read ,
which you will find at tab 124, Resolution 1997-5.
41Resolution on Special Permit Catches by Japan in the Southern Hemisphere, Appendix 2, Chairman's Report
or the Forty-Second Meeting, Rep. /nt. Whal. Commn 41, 1991, 47-48 (Resolution 1990-2) [MA, Annex 18];
Resolution on Special Permit Catches by Japan in the Southem Hemisphere, Appendix 2, Chairman 's Report or the Forty
Third Meeting, Rep. /nt. Who/. Commn 42, 1992, 46 (Resolution 1991-2) [MA, Annex 19]; Resolution on Special Permit
Catches by Japan in the Southern Hemisphere, Appendix 5, Chairman's Report or the Forty-Fourth Meeting, Rep /nt.
Whal. Commn 43, 1993, 71 (Resolution 1992-5) (Tab 118); Resolution on Special Permit Catches by Japan in the
Southern Hemisphere, Appendix 7, Chairman's Report or the Forty-Fifth Annual Meeting, Rep. /nt. Who/. Commn
44, 1994, 33 (Resolution 1993-7) [MA, Annex 21]; Resolution on Special Permit Catches by Japan in the Southern
Hemisphere, Resolution 1994-10, Appendix 15, Chairman's Report or the Forty-Sixth Annual Meeting, Rep. /nt. Whal.
Commn 45, 1995,47 (Resolution 1994-10) [MA Annex 25].
42
See the table rererred to by Prolèssor Crawlord, reproduced at tab 57, lor the voting record lor each
resolution.
43
1ntervention orJapan, IWC48 (1996), Verbatim Record ol"Fifth Plenary Session, 28 June 1996, p. 176.
44
Resolution on Special Permit Catches in the Southern Ocean by Japan, Resolution 1997-5, App. 5, Chairman's
Report of the Forth-Ninth Annual Meeting, Rep.int. Whal. Commn48, 1998, p. 47 (Resolution 1997-5)[MA, Ann. 29]. -30-
19. You will see in that document a number of recitals, ali of which are accurate and the last
two recitals accurately record the position which the Scientific Committee had reached and you
will then see some resolutions. Firstly, an affirmation that JARPA does not address critically
important research needs; secondly, a reaffirmation that Contracting Governments should refrain
from issuing special permits involving killing; thirdly, a reiterationof deep concern at Japan's
continuing program of killing; fourthly, a strong urging to the Government of Japan in the exercise
of sovereign rights to refrain from issuing further permits; and, fifthly, important to the scientific
case, an instruction to the Scientific Committee not to consider Southern Hemisphere minke whales
in the context of the RMP unless advised to do so. ln other words, any data JARPA might be
collecting lethally was determined by the Commission not to be necessary or appropriate in
implementing the RMP.
20. Now 1have asked you to look at that as a second key document because it crystalizes ten
years into JARPA exactly the position the Commission had reached. lt required Japan to open its
mind to the four questions 1 mentioned at the outset and, unfortunately, you will not find from
Japan any consideration of these resolutions or questions.
21. 1998-2003: any justification for JARPA becomes even weaker: The third additional
matter 1mention about JARPA is that, in the following five years, that is 1998 to 2003, any slender
thread of justification in science which JARPA may have had, viewed within a good faith
framework, slipped away. This is apparent from a series of resolutions, including Resolution
1998-4 and Resolutions from 1999 onwards. And 1would like to particularly draw your attention
to Resolution 2003-2 45, of which an extract should appear on the screen and the full document,
which 1would invite you to read, is at tab 106. [Screen on] 2003 was a very importantyear in the
life of the Convention with the Berlin Initiative and the document at tab 106, which
Professor Crawford addressed you on this morning, contains really in one page a series of recitals
which accurately record the position after 15 years of JARPA and then came to a series of
recommendations, which really retlect the reason we are here today in this case. The Commission
expressed deep concern that the Article VIII provision enabled countries to conduct whaling for
4Resolution on Whaling under Special Permit, Resolution 2003-2, Ann. F, Chair's Report of the Fifty-Fillh
Annual Meeting, Annual Report of the International Whaling Commission 2003, p. 102 (Resolution 2003-2) [MA,
Ann. 38]. - 31 -
commercial purposes in the face of the moratorium; it considered that the current and proposed
permits were an act contrary to the spirit of the moratorium and to the will of the Commission; it
stated that Article VIII was not intended to be exploited in order to provide whale meat for
commercial purposes and shall not be so used - the very matter Professor Crawford has
addressed you on; it reaffirmed that non-lethal techniques availab/e today "will usually provide
better data at Jess cost to [both] animais and budget": the matter that Professor Mangel and
Dr. Gales gave evidence on and urged ali countries to limit scientific research to non-lethal
methods.
22. Now, as Professor Crawford said this morning, coming to the end of a 15- or 18-year
project, at the very least good faith required a considered pause. A consideration of whether the
collection of data had proved so useless and so contrary to the views of the common organ of the
Convention that there needed to be a fundamental rethink.
23. However, Japan's response, as you will see on the screen and at tab 126, [next screen]
is that its Commissioner to the IWC, Mr. Komatsu, put it as simply as this: "As far as legal aspect
46
is concerned ... this is Article VIII operations . It is none ofyour business." [Screen off]
III. Japan should never have proposed or adopted JARP A II in 2005
24. Let me turn then to the adoption of JARPA Il in 2005. Australia's case is that good faith
required Japan not to have proposed or adopted JARPA Il as and when it did. As you know, the
Commission in 2003 adopted a precautionary Resolution recommending that no additional JARPA
program be considered until the Scientific Committee had conducted its in-depth review of
JARPA 47• And as you know, in the face of that request, Japan submitted the research plan for
JARPA Il to the Scientific Committee in June 2005, 18 months before the JARPA review would be
conducted in 2006. On Japan's timetable, JARPA Il would already have been in operation for two
4lntervention of Japan, IWC55 (2003), Verbatim Record of Agenda item 10.2- Scientilic Permits
Commissions discussions and action arising-Dralt Resolution on Southern Hemisphere minke \\hales and special
permit whaling0:10:30].
4Resolution on Southern Hemisphere Minke Whales and Special Permit Whaling. Resolution 2003-3,
Annex G, Chair's Report of the Filty-Filth Annual Meeting. Annual Report of the lnternationaiWhaling Commission
2003, 103 (Resolution 2003-3) [MA, Ann. 39]. -32-
years - potentially taking up to 2,000 whales - before the final JARPA 1 rev1ew could be
conducted.
25. Mr. President, Members of the Court, setting that timetable was conduct inconsistent
with good faith. Vou have also heard that, when Japan presented the proposai to the Scientitic
Committee in June 2005- 18 months before the proposed review of JARPA- 63 Scientific
Committee members submitted a paper recording their view that it was "scientifically invalid to
review the JARPA Il proposai before the Commission could conduct the full review of the results
48
of the original 18-year programme" •
26. Those 63 scientists felt compelled to submit brief comments on matters of serious
49
concern, but quite properly refused to participate in any full "review" of the JARPA Il proposal •
The result was that it was only a portion of the Scientific Committee that ever considered the
JARPA Il proposai, and even then their comments were necessarily "limited" 5•
27. 1dwell on that because in the Counter-Memorial Japan makes the bold assertion that the
Scientific Committee in 2005 "reviewed ... JARPA Il ... in accordance with the relevant
51
guidelines" • But when scientists representing more than half of the national delegations to the
Scientific Committee were unable to participate in the purported "review", and the remaining
scientists expressed only "limited" opinions, the correct conclusion- and this is critical to the
establishment of JARPA Il- is that it was commenced by Japan first, without backing from the
Scientific Committee and second, without an identified relationship to any critical research needs
identified by the Committee.
28. That brings me to the fourth document 1 would invite you to read, which is at tab 127.
What you have at tab 127 is the Commission Resolution 2005-1, and that is the first formai
response by the Commission to Japan's plan to embark upon JARPA II. And you will note the
concerns expressed by the Commission: particularly at the foot of the first column, the concern in
4S. Childerhouse et al., App. 2, "Comments on the Government of Japan 's Proposais for a SecPha~ ofe
Special Permit Whaling in Antarctica (JARPA Il)", Ann. 01, Report of the Standing Working Group on Scientific
Permits, Report of the Scientilic Committee, J. Cetacean Res. Manage. 8 (Suppl.), 2006, pp. 260-261 (JARPA Il Proposai
Comments) [MA, Ann. 52, pp. 173, 179).
49
Report ofthe Scientilic Committee, J. Cetacean Res. Manage 8 (Supp/.), 2006, 49 [MA, Ann. 52).
50
See especially MA, Ann. 52 pp. 174-175.
51
CMJ, p. 427, para. 9.37. - 33-
the second column about the doubling of the take, the concerns on the effect on the endangered fin
population, concerns about the targeting of humpback whales in small vulnerable breeding
populations around some small island statesh Pacifie. And you then see the Resolution,
the request that the Scientific Committee review the outcomen as possible, and
theslrong urging lo Jto withdraw JARPA Il or revise it, so that the information needed to
meet the stated objectivesined "using non-leth•l means"
53
29. What one cannot find in the JARPA I,or in Japan's Counter-Memorial, is
any engagement with this Resolution.
IV. Japan continues to ignore the IWC in carrying on JARP A II
30. JARPA Il commences in the face of this Resolution and the inevitable, and somewhat
sorry end to this chronologtale,s found at the next tab 128, which is that in
Resolution 2007-this is now after the Scientific Committee has 1ookethet JARPA-
Commission,n the first column near the end, noted that the Scientific Committee workshop had
agreed that nonehe goals of JARPA 1had been reached and the results of the JARPA 1program
were not required for management under theessed certain further matters and then, in
the second column just before the Resolutions, expressed a conviction that the aims of JARPA Il
did not address critically important research needs and then called upon Japan to address
31 recommendations from the Scientific Committee and to indefinitely suspend the lethal aspects
of JARPA Il within the Southern Ocean Whale SSo what you have before you is a
S!b~
Resolution ofthe IWC based upon the work of the Scientific CommitteeF.lnd good taith, expressed
simply, required Japan to give real and meaningful consideration to the Resolution, and it did not.
V. Japan's grant of special permits under JARPA II does not comply with paragraph 30
31. Let me then turn to a related factual aspect of Japan's dealings with the Commission,
which is the question whether its permits comply with paragraphe.
5Resolution on JARPA Il, Resolution 2005-1, Ann. C, Chair's Report of the Filty-Scventh Annual Meeting,
Annual Report of the International Whaling Commission 2005, p. 1 (Resolution 2005-1) [MA, Ann. 40].
51
Govemmcnt of Japan, "Plan for the Second Phase of the Japanese Whale Research Program undcr Special
Permit in the AntarcticMonitoring of the Antarctic Ecosystem and Developmcnt of New Management
Objectives for Whale Resourccs", 2005, SC/57/01 (JARPA Il Plan) [MA, Ann. 105, cspecially p. 20].
s~~s I1\c.p~r..... :I"~r...w.,,."f --~.,'wr ]:)...~~l.~A~I-~-(-K~PcV.Ml~~
11
R...~c.-.~i"'kW~\& ::~.l,\.cl.-J1 \ct1'-&~'c"l" e.JJ.Ctc.~C f.:11oQc"ll(~&4f'f'.))
i<>o1ltM c~v-.. f't•;-l.l(J.BI·.I;Cl.11;c..,.,).
1 -34-
32. Professor Crawford explained to you earlier in the week the operation of paragraph 30,
which requires Contracting Governments to provide the special permits to the IWC before they are
issued, in sufficient time for the Scientific Committee to comment on them. The permits must
contain certain criteria.
33. Fai/ure lo submit in advance: There are two aspects to Japan's conduct that we draw
attention to. The first is that for the eight whaling seasons of JARPA Il, Japan submitted the
54
permits to the IWC after they had been issued ,and not in advance. Clearly the Scientific
Committee could not play its role in those circumstances.
34. Failure ta state required information in permits: The second aspect is that the Japan
permits do not contain the information required by paragraph 30. You might recall that on
Wednesday, 1showed you on the screen an example of the form of permit issued for the first six or
so years of JARPA . Those permits do not provide the information required by paragraph 30- and
paragraph 30, for these purposes, has been tlushed out by the Commission in a document 1 would
55
invite you to read- which is found at tabs 131 and 132 • If you might perhaps, if it was
convenient, go to 132, document Annex 0 in the reports of the Scientific Committee, you will see a
series of material which pro forma proposais should incorporate, and on a quick scan you will see a
close connection to the material in the Schedule P document we looked at yesterday. Now that is the
type of material which the Commission and the Scientific Committee was requiring ali proponents to
provide, in order to enable a proper assessment of the proposais. And the short fact is, Japan did not
do so.
35. The last document 1 propose to invite you to read this moming would be at tabs 134
to 135, which are the modified permits. So, for the last two years, perhaps in the light of this
case, in order to offer something more than what we saw on Wednesday was the research defined
by grenade harpoon, the permit now in paragraph 1 has copied over the four JARPA Il
54Special Pennit No. 17-SU1KAN-2389 of 1 Nov. 2005 [MA, Ann. 82]; Special Permit No. 18-SU1KAN-2610
of 13 Nov. 2006 [MA, Ann. 83]; Special Permit No. 19-SU1KAN-1911 of 7 Nov. 2007 [MA, Ann. 84]; Special
Pcnnit No. 20-SU1KAN-1727 of 5 Nov. 2008 [MA, Ann. 85]; Special Permit No. 21-SUIKAN-1605 of
12 Nov. 2009 [MA, Ann. 86]; Special Permit No. 22-SUIKAN-1577 of 29 Nov. 2010 [MA, Ann. 87] (tub 133);
SpecialPermit No. 23-SUIKAN-1874 of 1 Dcc. 2011 (tub 134); Special Permit No. 24-SUIKAN-1893 of20 Dcc. 2012
(tub 135) (JARPA Il pcrmits).
55
Scicntific Committec Report, J Cetacean Res. ManaKe. 9 (Supp/.), 2007, pp. 57-58; "Report of the Standing
Working Group on Scientilic Pcnnits", An0, Report of the Scicntilic Committcc, J Cetacean Res. ManaKe. 9 (supp/.),
2007, pp. 346-348. - 35-
objectives. That is a manifest attempt to remedy the deficiency of the earlier permits, but clearly
remains insufficient for the Scientific Committee to assess properly the proposed research. One
only need look again at the first objective monitoring the Antarctic ecosystem to wonder how
members of the Scientific Committee can usefully review such a proposai.
VI. Conclusions on lack of good faith case
36. Could 1then conclude on the lack of good faith case, and step back for a moment from
that chronology 1 have shawn you. There were 18 seasons of JARPA, and now eight seasons of
JARPA Il. JARPA Il has no end date; it is proposed to be reviewed next year, but Japan's public
position is it continues indefinitely- as 1 showed you on Wednesday. Five conclusions follow
about Japan's lack of good faith:
the first is a legal proposition that the IWC has a treaty role under Article VI to make
recommendations, and those recommendations are intended at a minimum to guide the exercise
of the power under Article VIII, consistent with the abject and purpose of the Convention and
to develop a common understanding among Contracting Governments asto the proper scope of
56
Article VIII; that is a legal proposition ;
the second is a factual proposition. The IWC, in proper reliance on the work of the Scientific
Committee, has provided recommendations in the strongest, clearest and most consistent
terms that Japan's special permit whaling should cease or be modified;
the third proposition, which is also factual, is that in making those recommendations, the IWC
has identified problems with Japan's whaling when set against the abject and text of the
Convention; problems which have a sound evidentiary base. The problems are in the three
main areas identified by Professor Crawford: Japan's whaling undermines the conservation
measures adopted by the Commission, in particular the Southern Ocean Sanctuary and the
5Intervention of the United States, IWC39, Verbatim Record of Second Plenary Session, 24 June 1987,
IWC/39/VR, pp.40-41. -36-
moratorium 5; it assumes the characteristics of commercial whaling 58; and it overlooks
non-lethal techniques where those methods are reasonably available 59;
the fourth proposition is a factual one, concerning Japan's response to those evidence-based
recommendations. The proposition is that Japan has never opened its mind to a consideration
of making the slightest change to the core aspects of its lethal methodology; scale, continuity
and indefinite period, have never been the subject of reconsideration by Japan; and,
the fifth proposition, which has elements of bath law and fact combined, is that this Court
should not reject the Resolutions of the IWC as merely the work of de Tocqueville's
''tyrannous majority".
37. Mr. President, Members of the Court, with that background laid, what 1need to say about
the law is brief, because the law on good faith is bath weil established in this Court and even better
60
known to you. Could 1permitted to say this, as was stated by the Court, in Gabcikovo :
"Article 26 [of the Vienna Convention on the Law of Treaties] combines
two elements, which are of equal importance ... 'Every treaty ... is binding upon
the parties ... and must be performed ... in good faith.' Th[e] latter element, in the
Court's view, implies that, in this case, it is the purpose of the Treaty, and the
intentions of the parties in concluding it, which should prevail over its literai
[interpretation]. The principle of good faith obliges the Parties to apply it in a
reasonable way and in such a manner that its purpose can be [achieved]."
38. As stated by Judge Keith in France v. Djibouti in the context of the principles of
"good faith, abuse of rights and détournement de pouvoir", those principles require a State
agency in question to exercise the power for the purposes for which it was conferred and without
regard to improper purposes or irrelevant factors 61•
57
Resolution 1995-9, MA, Ann. 46; Resolution 1985-2, Resolution on Scientilic Pcrmits. App.2, Chairman's
Report of the Thirty-ScventhAnnuai Meeting, Rep. in/. Whal. Commn 36, 1986, p. 26,MA.Ann. 7; Resolution2003-2,
Whaling under Special Permit, Resolution 2003-2, Ann. F, Chair's Report of the Filty-FillhMeetingAnnual Report of
the llllernational Whaling Commission 2003,p. 102,MA, Ann. 38; Berlin InitiativAnn. Il, IWC Conservation Work
(An Annotated Compilation, 1976-2001), p. 28,MA,Ann. 37; Resolution 1995-8, Resolutionson the Southem Ocean
Sanctuary: Resolutionon Whalingunder Special Permit in Sanctuaries, Chairman's Reportofthe Fort)-Seventh Annual
Meeting, Rep. in/. Whal. Commn 46, 1996, p. 46, MA,Ann. 27; Resolution 1996-7,MA,Ann. 28: Resolution1997-5,
MA, Ann. 29; Resolution1998-4, MA, Ann. 31; Resolution1999-3, MA,Ann. 32; Resolution2000-4, MA, Ann.33;
Resolution 2001-7, MA,Ann. 35; Resolution 2003-3,MA, Ann. 39; Resolution 2007-1, MA, Ann. 41.
58Forexample,Resolution 1985-2,MA,Ann. 7; Resolution 2003-2, MA, Ann. 38.
59Forexample,Resolution 1995-9,MA,Ann. 46; Resolution2003-2, MA,Ann. 38,.
60Gabélkovo-Nagymaros Projec/ (Hungmy!S/ovakia), Judgmenl, I.C.J. Reports 1997, pp. 78-79, pam. 142. Sec
alsoNuclear Tests (Australiav.France), Judgment, I.C.J. Reports 197-1p.268, para.46.
61Certain Questions of !vlutual Assistance in Criminal !v/allers (Djiboutiv. !·/·ance), Judgmen/,
I.CJ. Reports 2008, p.279,para. 6. - 37 -
39. Applying those principles to this treaty, the paramount consideration of Contracting
Governments, including Japan, must be to co-operate in good faith to further the IWC's primary
62
abject and purpose, as has been outlined •
40. By persistently putting its determination to continue whaling on a commercial scale
ahead of its duty of co-operation with the IWC, Japan has- to adopt the language of
Judge Lauterpacht in the Voting Procedure Advisory Opinion - set itself above the expressed
judgment of the Commission, and failed to show loyalty to the abject and purpose of the
Convention 63•
VII. Abuse of Right
41. The existence of the principle and ils contours: Mr. President, Members of the Court, the
final tapie for this presentation is to consider whether Japan's conduct amounts to an abuse of right.
Australia recognizes that it has not been necessary for the Court in previous cases to decide the
case on the basis of this princip le. But that does not deny the existence of the principle, about
which 1 wish to say a little, nor that it is attracted in this case. Japan does not present to you a
full-blooded argument that the Court should reject the existence of the principle as a matter of
law, and Japan is correct in that stance. The principle must have a role to play in international law
with its emphasis on pacta sun/ servanda, as much as it does in most domestic systems with
which we are familiar. The real area for debate perhaps lies in the contours of the principle.
42. What Australia would offer to the Court on this question of contour are four core
propositions and 1 will direct these propositions to a context where the issue arises directly between
States. The propositions may be stated a little differently in other contexts of international law.
The first proposition we ask you to find it that the doctrine is a general principle of law, which
may be applied by the Court, with support in relevant judicial decisions and academie
commentary within Article 38 (1) (c) and (d) of the Court's Statute. Secondly, the doctrine is a
62 Interpreta/ion of the Agreement of 25 Marclz 1951 between the WHO and t?ypt, Advisory Opinion,
I.C.J Report/980, p. 95, para. 48.
63Voting Procedure on Questions Relating /o Reports and Petitions concerning the Terri/ory of South West
Afi-ica,AdvisoryOpinionl C.JReports 1955,scparatc opinion of Judge Lautcrpacht, p. 120. -38-
~'- ;1\~"c-"\~ ...
~
particular application of the principle of good faith to the exercise ofSta.hts tT hi~ly, it
is important as the judicial decisions and academie commentary have pointed out, not to allow the
questionof abuse to rest in the ether. lt is important to identify the context in which the alleged
abuse arises, to understand the limits the principle.ln some cases- not the present- the
abuse arisesin the context of the exercise of an apparently general sovereign right of one State,
which is being exercised in a manner which might circumvent or eut across an identified right or
interestof anotherStat l~ those contexts the doctrine allows the apparently general right of
one State to be appropriately qualified to recognize the interests or rights of another. The fourth
propositionis that, in the present case, the question of abuse arises in a narrower context of a treaty
and the question is whether the exercise a right conferred under the treaty, or more particularly
an exception, such as ArticleIII, can be seen to abuse a right also retlected under that treaty,
particularly a treaty directed to safeguarding an identified common interest. 1take the opportunity
to remind the Courtof our earlier presentation on the importance of the need for ali Contracting
Govemments to respect the integrity of this Convention in the furtherance of their common
interest.
43. Could 1 then offer you our ultimate proposition, whichis that abuse, in the present
context, is measured by whether the rightolder- Japan - has so departed from standards of
reasonableness and bona fides in the exercise of the right, or from the proper purposes for which
the rights accorded under the treaty, that the right holder has reduced its treaty obligations to mere
facultative ones and,in so doing, has dissolved their juridical character and negated the treaty
rightsof other members.
44. The sources that we offer to the Court for the doctrine are fouur Memorial and we
have reproduced the relevant sources at tab6 for you. Of the sources, there are three 1 would
mention this morning.
64
United States -lmpoProhibition of Certain Shrimp Products, Report of the y, 1999) 38lod
/LM 119, p. 61 para 158, citing B. Cheng, General Princip/es of Law as applied by International Courts and
Tribunats(Stevens and Sons, Ltd, 1953), 125.
65
See, lor examplc, the separatc opinion of Judgc Alvarez in the C01ji1Channel Case (United Kingdom of Great
Britain and Northem frelandbania), I.C.J R19./9pp. 47-48 and his dissenting opinion in the Competence of
the General Assemb(vfor the Admission of aState to the United Nations, Advisory O1950,p. 14..J Reports
Sec also Judge Ammounn Barce/ona Traction, Light and Power Company, Limited (Belgium v. Spain), I.C.J Reports
1970,p. 324, citing his carlier judgment in North Sea Continental Shelf (Federal Republic of Germany!Netherlands),
p.35. - 39-
45. The first, for which an extract should be on the screen shortly, or at tab 137, is the
proposition as expressed by the WTO Appellate Body in the Shrimp case, the case particularly
66
close to the present in terms of the context • [Screen on]
46. The second source 1would offer this morning isSir Gerald Fitzmaurice's commentary on
the Law and Procedure of the Court. Sir Gerald correctly noted, as 1did at the outset, that the
Court has not yet had to decide a case on the basis of the doctrine, nevertheless, his statement of the
doctrine we would respectfully adopt:
"[A]Ithough aState may have a strict right to act in a particular way, it must not
exercise this right in such as a manner as to constitute an abuse of it; it must
exercise its rights in good faith and with a sense of responsibility; it must have bona
fide reasons for what it does, and not act arbitrarily or capriciously.',6 7
47. The final source we would offer is the definition now on the screen, proffered by the
dictionary 68•(tab 138) [next slide]
48. Application of the principle: Mr. President, Members of the Court, with that being the
legal framework, once Australia's factual case is accepted, it is difficult to think of a scenario
which would more squarely attract the doctrine.
49. Let me state Australia's case on the existence of the abuse in these terms. The right in
question is the right to issue special permits under Article VIII. The relevant obligations of Japan
are those under paragraph 7 (b), 10 (d) and 10 (e) of the Schedule, of which you have heard.
Japan has exercised that right in a manner which involves five elements working together to create
the abuse. Based on everything you have heard, those five elements are: firstly, the scale of the
exercise of the right; the indefinite period; the admitted commercial drivers; the absence of
demonstrated scientific need; and, fifthly, as 1 have mentioned today, the disregard of repeated
IWC Resolutions. Those five matters together demonstrate an absence of good faith and
reasonableness, they demonstrate the intrusion of an impermissible purpose, to such an extent that
66United States -lmport Prohibition of Certain Shrimp and Shrimp Products.Report of the Appcllatc Body.
(1999)38/LM 119 at [156].
67G Fitzmauricc, "The Law and Procedure or the International Court of Justice, 1951-54: General Principles
and Sources of Law", 2BYIL (1950), 1, 12-13.
68
"Thc cxercisc by a Statc of a right in such a manner or in such circumstanccs as indicatewa~hfor that
State an indirect means or avoiding an international obligation imposcd upon that Statc, or was carricd out with a
purposc not corresponding to the purposc for which that right was rccogniscd in fàvour orthat State." (J. Basdcvant
(dir.),ictionnaire de la terminologie du droit internatiParis, Sirey, 1960.) -40-
Japan has sought to render its obligations merely facultative and has deprived them of their
juridical character. lt has thereby negated the treaty rights of other members.
50. .lapan'scase: As 1have mentioned, Japan does not offer you directly a formulation of a
doctrine of abuse of rights, nor does it reject the existence of the doctrine. If you piece together
different parts of the Memorial, that is the Counter-Memorial, Japan does accept sorne constraint
upon its Article VIII right. ln one place it says it must be exercised in furtherance of the
69
Convention's object and purpose, taking into account the Commission's views , and in another
0
place it says that the right must not be exercised arbitrarily or capriciousli • We would ask the
Court to find that Japan's formulation of the constraint on the Article VIII right is too weak in law
and it rapidly Ieads into erroneous arguments that this Court has little role in assessing breach. The
"margin of appreciation" which Japan argues the right-holder retains becomes so large as to
swallow any constraint on the exercise of right.
51. However, and may 1 conclude on this, even if you were to accept only the weaker
constraint offered by Japan, you would find breach. For ali the reasons advanced thus far, Japan
has:
pursued a purpose extraneous to the Convention;
failed ever to give real consideration to the ICW's views that it defer, suspend or modify its
operation; and
been arbitrary or capricious, in the sense that the compelling need to kill so many of the
object ofstudy, supposedly to Jearn more aboutit, has never been shawn.
52. Mr. President, that concludes my presentation. 1thank you for your attention.
The PRESIDENT: Thank you very much, Mr. Solicitor-General. The hearing is now
suspended for 15 minutes and then 1will cali on Mr. Burrnester.
The Court adjournedfrom 11.30 a.m. to 11.45 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and give the floor to
Mr. Henry Burmester to address the Court on the issue of itsjurisdiction. You have the floor.
QCMJ,para.8.13.
°CMJ, para. 7.16. - 41-
Mr. BURMESTER:
The Court bas jurisdiction
1. Thank you. Mr. President, Members of the Court, the last matter Australia wishes to
address in this first round of our presentations is the question of jurisdiction.
2. Whilejurisdiction is normally a matter to be determined first, we have deliberately left the
issue of jurisdiction to the end of the presentations. Australia treats seriously the duty of this Court
to satisfy itself that it has jurisdiction.If the Court clearly understands what the dispute before the
Court is about this will assist it in understanding why Japan's argument on jurisdiction is without
foundation.
3. This is why it is important that the Court has first heard detailed submissions from
Australia about the substance of the dispute. The Court, having now heard these submissions, is-
in our view- much better placed to understand why Japan's argument on jurisdiction depends on
a completely wrong characterization of the dispute and consequently fails.
4. First, 1 will brietly outline the basis on which Australia relies to found the Court's
jurisdiction and the Japanese argument as to why there is no such basis. 1 shall then tum to the
proper interpretation of the particular optional clause reservation that Japan relies upon to seek to
deny the Court's jurisdiction and 1 will show as a matter of law why the Japanese interpretation
should be rejected.
The basis of jurisdiction
5. The basis of jurisdiction relied upon by Australia is that derived from the respective
optional clause declarations made by Australia and Japan under Article 36 (2) of the Court's
Statute 7• Australia's Declaration was made on 22 March 2002 and that of Japan on 9 July 2007.
6. 8oth Declarations apply to a "dispute" under Article 36 (2) on condition of reciprocity.
As the Court knows, this allows Japan to invoke any relevant reservation contained in Australia's
Declaration in an attempt to avoid jurisdiction. There is, however, no relevant reservation that
applies in this case. Nonetheless, Japan has sought to invoke one of Australia's reservations.
7Declaration of Australia dated 22 March 2002, sibyethe l-Ion. A.J.G. Downer, Minister lor Foreign Allairs;
Declaration of Japan dated 9 July 2007, sigbydthe lion. Kenzo Oshima, Permanent Representative of Japan to the
United Nations. -42-
7. Japan alleges that the dispute before this Court falls within reservation (b). 1need to read
out that reservation as its wording is critical. lt can be found in the your folders, at tab 140, and is
on your screen. [Screen on]
8. lt reads as follows:
"(b) any dispute conceming or relating to the delimitation of maritime zones, including
the territorial sea, the exclusive economie zone and the continental shelf, or arising
out of, conceming, or relating to the exploitation of any disputed area of or
adjacent to any such maritime zone pending its delimitation."
9. Japan accepts that the dispute does not fall within the first part of this reservation. lt
argues, however, that it falls within the second part. lt says:
"it is a dispute 'arising out of, conceming , or relating to the exploitation of any
disputed area of or adjacent to any such maritime zone pending its delimitation' ...
because the JARPA Il program is taking place in or around maritime areas Australia
claims to be part of its exclusive economie zone (EEZ), the rights of which are
generated, according to Australia 's claims, by its purported sovereignty over a large
part of the Antarctic continent. 7"
1O. There is one simple answer to this. The reservation relates to maritime delimitation
situations and only those situations. The fact is that ali the reservation was designed to cover and
ali that it does cover is pending maritime delimitation situations . End of story. No such situation
arises between Japan and Australia. ln particular, the reservation does not cover a dispute
conceming the validity, or otherwise, under the 1946 Convention of Japan's JARPA Il program, a
dispute entirely unconnected with any delimitation situation. [Screen off]
Il. Mr. President, 1will not stop there, however. 1will seek to assist the Court by outlining
in greater detail why Japan's attack on jurisdiction is without foundation. As 1shall demonstrate,
the attempt to invoke the reservation, in the way Japan does, ignores both the actual wording and
the context in which the reservation was made. lt involves a completely artificial and strained
attempt to find a link between the dispute about whaling under the 1946 Convention and the
completely separate issue of maritime delimitation. No such link exists. Yet without such a link
the Japanese argument must fail.
72
CMJ, para. l.15. -43-
The law concerning declarations
12. The law concerning the interpretation of optional clause declarations is not in dispute -
rather, the disagreement between Australia and Japan is over the application of the law to the
reservation given the facts of this case. The relevant principles of law are set out in the Fisheries
Jurisdiction case73quoted by Japan in its Counter-Memorial 74•
13. ln that case and in other cases this Court has emphasized two things:
(a) ali elements in a declaration are to be read as a whole and interpreted as a unity having regard
to the words used;
(b) the intention of the depositing State at the time it accepted the compulsory jurisdiction is
relevant.
14. As the Court knows, optional clause declarations are sui generis- they are unilateral
declarations white simultaneously giving rise to consensual relations between States. They are not
treaties, so it is not the mutual intention of the parties but that of the depositing State that is
relevant.
15. Thus, in the Anglo-Iranian case the Court said:
"The Court cannot base itself on a purely grammatical interpretation of the text.
lt must seek the interpretation which is in harmony with a natural and reasonable way
of reading the text, having due regard to the intention of the Government ... at the
time when it accepted the compulsory jurisdiction of the Court."75
16. Hence, the Court must clearly consider the text against the intention that lies behind it.
So let me, therefore, first provide this Court with sorne background on the Australian intent.
The intent of Australia
17. Australia's declaration was made at the same time as it made a reservation under the
United Nations Convention on the Law of the Sea, in relation to maritime delimitation 76• And
Japan has set out at Annexes 166 and 167 of the Counter-Memorial, the press release issued by the
73
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, /.C.J. Reports 1998, pp. 452-454.
7CMJ, para. 1.16.
~Anglo-/ Orl noi(anited Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 104;
sce also Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 454,
para. 49; see also MV Louisa case (St Vincent and Grenadines v. Spain), ITLOS Case 18,28 May 2013, para. 82.
76
United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3 (entered
intotorce 16 Novernber 1994); Declaration of Australia, 22 March 2002. -44-
Australian Government and evidence by Australian Government officiais to a parliamentary
committee explaining the reason for the declaration. What these documents demonstrate without a
doubt is that paragraph (h) of the Australian declaration concerned disputes about delimitation of
maritime boundaries, including disputes connected to such delimitation.
18. Japan seizes on references in these documents to the Antarctic to conclude that the
77
reservation concerned maritime zones generated by the Australian Antarctic Territory • And so it
does, in the sense that the reservation covers ali of Australia's potential maritime delimitation
situations. That is precisely the point- Australia's reservation concerns disputes about or
connected to maritime delimitation.
19. The fundamental policy behind the reservation was Australia 's beliefthat its overlapping
maritime claims are best resolved by negotiations. Ministers at the time emphasized this in the
press release 1 have just referred to and Australia had long pursued that policy and had already
concluded a number of maritime boundary agreements, including sorne with innovative solutions
which could only be achieved through negotiation.
20. To gain a greater understanding of Australia's intention in making the declaration , it is
instructive to consider the maritime boundaries that had yet to be concluded at the time the
declaration was made. At that time- in 2002- Australia was in active negotiations over the
maritime boundaries with New Zealand and Timor-Leste. Again, the Australian Government press
release made reference to these outstanding boundary delimitations as weil as to possible
delimitation with claimant States to Antarctic Territory abutting Australia's Antarctic Territory
that is, Norway, France and New Zealand.
21. So the Court should be under no illusion- at the time the reservation was made, the
intention of Australia was focused on ensuring maritime delimitation issues were resolved by
negotiation. This intent is clear in the statements of Australian Government Ministers and officiais.
22. ln relation to New Zealand, Australia had been negotiating for a considerable time over
continental shelf and exclusive economie zone boundaries. The relevant delimitations involved
geographie situations where a simple median line may not have been the only obvious outcome and
7CMJ, para.1.32. -45-
there had even been speculation about a possible International Court case. ln fact, an agreement
in 2004- and, indeed, it did not involve a simple median
was concluded with New Zealand
line78 - but in 2002 Australia was obviously conscious of these negotiations when drafting its
reservatior?J.
23. The intent of the reservation is aIso evident if one considers the situation Australia faced
in its maritime delimitation negotiations with Timor-Leste. Two months after the reservation was
made Timor-Leste became independent. Before that it was already clear that Australia was not
faced with a simple negotiation with Timor-Leste to draw a delimitation line in the "Timor Gap".
This was the area covered by the previous treaty with lndonesia, dealt with by a joint development
zone, that was raised in this Court in the East Timor case 80•
24. The Court need not be troubled by the detail of the proposed arrangements with
Timor-Leste. They were, however, complex. For example, the negotiations with Timor-Leste
went far beyond a straightforward delimitation and involved the negotiation of resource sharing
arrangements that ultimately took the form of three treaties between Australia and Timor-Leste.
There was to be no simple substitution of Timor-Leste for lndonesia in the previous arrangements
that Australia had concluded with lndonesia. Rather, at the same time as Australia was amending
its optional clause declaration, American oïl companies, with interest in exploiting areas off
Timor-Leste, were telling anyone who would listen that they had legal advice that Timor-Leste
could properly claim not just a share of the resources within the former joint zone but also in areas
which lay outside its boundaries, including areas already being exploited by Australia 81• This put
at risk existing resource exploitation by Australia. This situation was clearly in the mind of those
drafting the Australian reservation.
25. Given the complexity of the then current negotiations involving delimitations with New
Zealand and Timor-Leste, it is not surprising that Australia chose language in its reservation to
78
Treaty between the Govemment of Australia and the Government of New Zealand Establishing Certain
Exclusive Economie Zone Boundaries and Continental ShelfBoundaries, ATS 2006, No. 4; 2441 UNTS 235 (entered into
force 25 January 2006).
7
qPress Rclease, CMJ, Ann. 166.
80East Timor (Portugal v. Australia), JudgmeI.C.J.Reports 1995,p.90.
81See Hamish McDonald, "Timor gas billions ali at sea" (Sydney Morning lfera/d, 27 March 2002). Available at:
http://www.smh.eom.au /articles/2002/03/26/l 017089535182.html. -46-
cover ali the potentially associated disputes that can arise in a delimitation situation as between the
parties to the dellt therefore chose comprehensive language, namely disputes "arising
out of, concerning or related to the exploitation of any disputed area" or areas adjacent thereto.
That language makes perfect sense in the context of delimitation situations with complexities, such
as those with New Zealand and Timor-Leste.ense to try and apply it to a dispute that
is not a dispute between the actual parties to a maritime delimitation, let alone a dispute completely
unrelated to maritime delThe context 1 have mentioned also makes clear that the
exploitation under contemplation was exploitationred by a potential delimitation
arrangement and not any exploitation unrelated to that delimitation situation that happens to occur
in the relevant geographie area.
26. lt is true, as Japan mentions, that the revised optional clause reservation is not expressly
linked or confined to matters concerning Timor-LestRather, as 1 have.
mentioned, Ministers emphasized that Australia wasview that ali its maritime
boundary issues are best resolved by negotiation rather than litigation. lt was in that context that
references were made to other outstanding boundary delimitations, including those with other
States with claims to parts of the Antarctic continent abutting the Australian Antarctic Territory.
The words themselves
27. Having outlined the intent behind the reservation, 1 turn now to the reservation "as it
standsin light of that intention and 1 remind the Court that the words can be found, in your
folder, and they are again on your screen.
83
)( 28. The first word Japan seizes upon isit~~pword papaagapse•
Japan seeks to read this reservation as consisting of two distinct and unrelated parts divided by the
word "or". [ScreeText of reservation with "or" highlighted]. And the "or" that should be
highlighthe~is nrt~ hoer."ronyour re;s.~~
29. The dispute before the Court, as has been outlined, has no element and in no way
depends on or involves any delimitation, nor does it require this Court to identif)' any area to be
AnKio-lranian Oil Co. vIran), Preliminary Objection, Judp. 105 I.C.J. Reports 1952,
andquotFisheries Jurisv.Canada), Jurisdiction of the Court,p.454.enl, I.C.J. Reports 1998,
CMJ, para 1.18. -47-
delimited. And the second part of the reservation, properly interpreted, is clearly tied to the first
part of the reservation. The use of "or" in this context clearly does not require or contemplate an
interpretation that treats this reservation as containing two separate and completely unrelated parts.
Ifthat were so the second and separate element alleged by Japan would undoubtedly have formed a
completely separate paragraph. [Screen off]
30. The second part of the reservation refers also directly back to the first part, in its
reference to "such maritime zone pending its delimitation". And you can see that on the screen
with the word "such" highlighted [Screen on- Reservation with "such" highlighted]. Those
words at the end are clearly connected to the first part of the reservation- the term "such"
referring to something previously indicated 84• And so the purpose of the second part of
paragraph (b) is clear- it is to make clear the reservation extends beyond disputes over
delimitation of maritime zones perse, to associated disputes concerning exploitation of resources
that may arise between the States with overlapping maritime claims pending delimitation. [Screen
oft]
31. The ordinary meaning of the reservation is that it excludes disputes concerning or
relating to delimitation and any associated disputes that arise out of, concern or relate in sorne way
to the pending delimitation as between the countries concerned.
32. Japan tries another strange interpretive technique. lt seeks to divide the second part of
the reservation into three separate components 85• lt says that the word "exploitation" only attaches
to the last element, namely disputes relating to the exploitation of the disputed area. And again the
reservation is on your screen and you can see the word "exploitation" [Screen on- reservation
with "exploitation" highlighted]. Japan says that "exploitation" only qualifies the term "relating
to" and does not qualiry, or have any connection with, the previous words of "arising out of' and
"concerning". This interpretation does not read the words "as a unity'' 8, and does not accord with
Australia's clear intention. In the National Interest Analysis submitted to the Parliamentary
Committee on Treaties the expanded part of the reservation was described in shorthand as
84
Macquarie Concise Diclionmy (Sydney, 5th ed., 2009p. 1260.
85CMJ, para.1.28.
86Fisheries Jurisdiclion (Spv.Canada), Jurisdiction of the Court. Judgment, I.C.J. Reports p.453. -48-
excluding disputes "concerning the exploitation of an area in dispute or adjacent to an area in
dispute". That is, the official document used to explain the Declaration to Australia's Parliament
made an express connection between the word "concerning" and the word "exploitation" and
indeed used them in a composite phrase "concerning the exploitation of'. Yet Japan would have
the Court defy the plain reading of the Declaration , the plain reading of which inexorably leads to
the word "exploitation" qualifying ali the words "arising out of', "concerning" or "relating to".
33. Japan also seeks, in any event rather awkwardly, to fit the present dispute within the
word "exploitation". lt does so in what can only be described as a bizarre manner in so far as it
expressly assumes other parts of its own case are wrong. First, it says that Australia's argument
87
alleges "commercial whaling" which is "exploitation" • Japan says elsewhere that it is not
conducting commercial whaling. Secondly, Japan contends that JARPA Il as a program of
"research", is "an element of the process leading to exploitation" and hence is covered by the
reservation 88•
34. Mr. President, scientific research can be of significance for future exploitation of
resources, but that does not mean that a dispute over whether an activity amounts to scientific
research is a dispute about exploitation. More importantly, as already mentioned, the major flaw in
Japan's interpretation is that it seeks to apply the "exploitation" component of the reservation
divorced from any delimitation context. And, as 1have said repeatedly, this case does not involve a
maritime delimitation dispute. Yet that is what the words of the second part of the reservation, read
as a whole, clearly indicate must be present, its: "exploitation of any disputed area of or adjacent to
any such maritime zone pending its delimitation". Japan is a State with no delimitation dispute
with Australia. And it is involved in a dispute in this Court that does not depend in any way on the
status of the waters where the activity occurs. [Screen off]
35. Japan seeks to suggest that the dispute before this Court is in sorne way connected or
related to Australia's Antarctic Territory and adjacent maritime zones. And in its
89
Counter-Memorial Japan provides a potted history of this issue , including domestic Australian
87
CMJ, para.1.22.
8CMJ, para.1.25.
8CMJ, paras.1.3-1.55. -49-
law. This is entirely irrelevant. Japan itself concedes that "Australia's maritime claims are not the
subject-matter of the present dispute" 90• Yet Japan goes on and says that:
"The legality of Australia's claims to sovereignty in the Antarctic and of its
claim to an EEZ off the so-called AAT ... are not the issues of which the Court is
seised. For the purposes of determining its (Jack of) jurisdiction, it suffices for the
Court to determine that these claims exist, that they have not been resolved, and that
their extent covers a geographie area in which or adjacent to which the JARPA Il
91
programme is operating."
36. The second sentence 1 have just quoted conceming the determination of the Court's
jurisdiction by reference to the geographie area in which JARPA Il operates is an extraordinary
statement- it appears that on the Japanese view any dispute Australia may have with a State is
excluded by reservation (b) if it somehow relates to occurrences in an area with unresolved
maritime claims, regard Jess of whether the status of this area or its pending delimitation is in any
way relevant to the dispute and regardless of whether the State in question has any potential
involvement in the delimitation.
37. 1stress that the Court should firmly resist Japan's invitation to inquire into maritime zone
claims that Australia may or may not have made in the Southem Ocean or the way it deals with
these issues in domestic law. The HSI case involving Australian domestic law, referred to by
92
Japan , is just that- a matter of domestic law unconnected to the treaty law dispute before this
Court. And these are ali matters entirely irrelevant and provide no support for the attempt by Japan
to invoke the reservation.
38. ln order to be covered by the reservation, the situations or facts as described in the
reservation, and in regard to which a particular dispute is said to have arisen, must be "the real
93
cause" of the dispute before the Court • Or, applying the test noted in the Fisheries Jurisdiclion
case, and quoted by Japan 9, only disputes that would not have come into being in the absence of
the measures described in the reservation, are covered by the reservation. As the Law of the Sea
Tribunal recently recognized, for a dispute to concem something it must have a bearing on that
9°CMJ, para.1.43.
9CMJ, para.1.45.
9
~CMJ p,ara 1~8-1.53.
9
.1Eiectricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.J.J.,Series 77,p. 82.
94
CMJ, para.1.20. -50-
95
thing or be connected with it . The dispute before the Court conceming compliance of JARPA Il
with the whaling Convention exists whether or not Australia asserts maritime zones adjacent to
Antarctica and irrespective of any delimitation with adjacent claimants.
39. Y et the Japanese interpretation of the reservation would extend it to disputes far, far
removed from its clearly intended purpose. ln this regard one can think of a hypothetical dispute
which, on the Japanese view, would be excluded by Australia's reservation.
40. So let us take an example. Imagine a dispute between Australia and another State over a
marine pollution incident in waters south of 60° S. Treaty obligations which bind Australia and the
other State prohibit the discharge of noxious liquid substances in the whole of that area; without
any distinction as to the status of the waters in question. Australia is in dispute with the other
country asto its compliance with this particular treaty obligation as a consequence of the activities
of a vesse( of the other State discharging noxious liquid substances in the Southern Ocean below
60° S, including in areas within Australia's proclaimed exclusive economie zone.
41. ln that hypothetical example, the dispute is clearly over compliance with a pollution
convention obligation that applies in ali of the relevant Southern Ocean, irrespective of whether the
waters are within or beyond national jurisdiction. Yet, on Japan's interpretation of Australia's
reservation, the jurisdiction of this Court, assuming it otherwise existed, would be excluded if
Australia sought to bring proceedings. Why would this be so? Japan would say that, if part of the
passage of a vesse!, when it is alleged to have discharged noxious liquid substances, was through
an area subject to an exclusive economie zone claim by Australia, that is sufficient for the
reservation to operate because there are unresolved maritime daims in the area.
42. ln Australia's submission this analysis of the reservation by Japan can only be described
as far-fetched. The hypothetical dispute in no way tums on the status of the waters or any claim to
those waters. Nor is it in any way connected to or concerned with delimitation of the waters in
question. Japan 's attempt to invoke the Australian reservation in the case of whaling alleged to be
contrary to Article VIII of the 1946Convention is equally as far removed from both the intent and
the words of the reservation as in this hypothetical example.
qThe Mi l' "Louisa" case (Saint Vincent and the Grenadines v. Kingdom of Spain), International Tribunal for the
La\\o l'the Sea, Ordof28 May 2013, para. 83. -5 1-
43. That this interpretation by Japan is wrong is reinforced by its complete failure to focus on
the words "pending its delimitation" at the end of the reservation. [screen on- text of reservation
with "pending its delimitation" highlighted] "Delimitation", in a maritime context, has a weil
understood meaning. It relates to the fixing of boundaries between neighbouring States, whether
96
adjacent or opposite • By contrast, one talks of delineation of seaward limits and determination of
baselines 97• If one reads ali the words of the reservation as a unity they confirm that the words in
no way apply to a dispute between Australia and a State in relation to a multilateral convention that
imposes obligations regardless of the status of the waters in question, particularly a dispute
involving aState with whom there is no pending delimitation.
44. In summary, Japan's attempt to invoke Australia's reservation in this case faits because it
seeks to apply the reservation in a context completely divorced from its words. The words make
clear that delimitation is what the reservation is about. It extends to associated disputes between
the States involved in the delimitation, including those concerning exploitation of resources,
pending delimitation. It is, however, confined to such situations. The dispute before this Court has
nothing to do with delimitation and the reservation is irrelevant. The dispute would be unchanged
in ali respects even if pending delimitations were resolved. [screen off]
Conclusion
45. Mr. President, the nature of the dispute under the 1946 Convention is clear, as you have
now heard in sorne detail. It is entirely unrelated to maritime delimitation. The reservation sought
to be invoked by Japan, having regard to bath its intent and the words used, does not apply to this
dispute. The Japanese argument on jurisdiction should be rejected.
46. Mr. President, the Solicitor-General would propose to close this first round of
presentations with a few brief remarks. If the Court pleases.
The PRESIDENT: Thank you, Mr. Burmester. Certainly, the Court would be pleased to
hear brief concluding remarks from the first round. You have the tloor, Mr. Solicitor-General.
9
bJohnston and Saundcrs, Ocean Boundary MakinK (1988), p.9; S.P. Jagota, Maritime Boundaf'), 1985, p. 3;
Prosper Weil, The Law of Maritime Delimitation (1989), p. 1, 5.
9UNCLOS, Art. 3, 76 (7). -52-
Mr. GLEESON :
CONCLUDING SPEECH -AUSTRALIA'S CASE
1. Mr. President, 1have never before succeeded in being brief, but 1understand today 1must.
Thank you to you and the Members of the Court for your kind attention to our presentation of
Australia's opening arguments. May 1say, it has been a pleasure for ali of counsel to appear in the
calm and dignity of this great Court and 1might say, incidentally, to avoid the tumult and shouting
back home in Australia. lt remains only for me to mention those few brief remarks. We have
attempted in these three days to bring together five strands of argument in order to produce the
conclusion that JARPA Il is in breach of the Convention.
2. Those strands have first involved an analysis of the Convention itself in establishing the
comprehensive regulatory framework based on a collective approach founded on a common
interest.Our argument has ranged over the effect of the Schedule, the effect of the Guidetines and
an emphasis on object and purpose.
3. Our second key point has concerned that Article VIII itself is not self-judging, nor
self-contained and we have offered you the limits which must be placed on that Article.
4. Thirdly, we have presented our argument why, as a matter of law and fact, JARPA Il
does not satisfy the objective requirementsof Article VIII. That has included our expert testimony.
5. Fourthly, as Professor Crawford has elaborated upon this moming, not only does
JARPA Il Jack the essential characteristics of science, it displays the positive characteristics which
can be accounted for only as a commercial whaling operation.
6. And finally this morning 1 have reviewed that same material but, in particular, Japan's
dealing with the IWC through the prism of good faith and abuse of right.
7. Finally, Mr. President could 1 recognize that sorne of Australia's submissions have
involved trenchant criticism of certain aspects of Japan's conduct in JARPA Il. We have made
those criticismsin the course of presenting our case in a matter of significant importance to both of
our countries and, we would suggest, to the international legal framework in environmental and
conservation matters generally. The position remains, however, as was stated by Mr. Campbell at
the commencement of this case that Australia hasan excellent relationship with Japan and, white it -53-
has been necessary to put this case as strongly and clearly as we have, it is the resolution of the
dispute by this Court which will enhance that relationship between our countries.
8. Mr. President, 1trust 1have succeeded in meeting your opening admonition. That is the
oral argument for Australia.
The PRESIDENT : Thank you very much, Mr. Solicitor-General. lndeed it brings to an end
Australia's first round of oral argument. The Court will meet again on Tuesday 2 July between
15.00 and 18.00 p.m. to hear Japan begin its first round of oral argument. Thank you, the Court is
adjourned.
The Court rose at 12.20 p.m.
Audience publique tenue le vendredi 28 juin 2013, à 10 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l’affaire relative à la Chasse à la baleine dans l’Antarctique (Australie c. Japon ; Nouvelle-Zélande (intervenant))