Corrigé
Corrected
CR2013/10
International Court Cour internationale
of Justice de Justice
LAHAYE THE HAGUE
YEAR2013
Public sitting
lzeld on Tlzursday 27 June 2013, at 3 p.m., at tlzePeace Palace,
President Tomka presiding,
in tlze case conceminWhaling in the Antarctic (Australiav.Japan:
New Zealand intervening)
VERBATIM RECORD
ANNÉE2013
Audience publique
tenue lejeudi 27 juin 2013à15 Izeures, au Palais de la Paix,
sous la présidencede M. Tomka, président,
en l'affaire relativeaChasse à la baleine dans l'Antarctique
(Australie c.apon; Nouvelle-Zélande(intervenant))
COMPTE RENDU -2-
Present: President Tomka
Vice-President Sepulveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judge ad hoc Charlesworth
Registrar Couvreur - 3-
Présents: M. Tomka, président
M. Sepulveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
Mme Charlesworth, juge ad hoc
Couvreur, greffier
M. -4-
Tite Govemment of A11stra/ia i~representee/ by:
The Honourable Mark Dreyfus Q.C., M.P., Attorney-General of Australia,
as Counsel and Ac/vocale;
Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,
as Agent, Counsel and Advocale;
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 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 of International Law at the University of Geneva,
as Counse/ and Advocates;
Ms Kate Cook, Barrister, Matrix Chambers, London,
Dr. Makane Mbengue, Associate Professor, University ofGeneva,
as Counse/;
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 Ierino, 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 Gouvernement de l'Australie est représentépar:
L'honorable Mark Dreyfus, Q.C., M.P., Attorney-General d'Australie,
comme conseil et avocat ;
M. Bill Campbell Q.C., General Counsel (droit international), services 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 coagent ;
M. Justin Gleeson, S.C., Solicitor-General 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 Counse/, 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'Université de Genève,
comme conseils et avocats ;
Mme Kate Cook, avocat, Matrix Chambers (Londres),
M. Makane Mbengue, professeur associé à l'Université de Genève,
comme conseils ;
Mme Anne Sheehan, secrétaire adjoint par intérim,services de l'Attorney-General,
M. Michael Johnson, juriste principal, services de l'Attorney-General,
Mme Danielle Forrester, juriste principal, services de 1'Attorney-General,
Mme Stephanie Ierino,juriste principal par intérim,services de l'Attorney-General,
Mme Clare Gregory, juriste hors classe, services de 1'Attorney-General,
Mme Nicole Lyas, juriste hors classe par intérim,services de l'Attorney-General,
Mme Erin Maher, juriste, services de 1'Attorney-General,
M. Richard Rowe, juriste hors classe, ministère des affaires étrangèreset du commerce,
M. Greg French, secrétaire adjoint, ministère des affaires étrangèreset du commerce, - 6-
Mr. Jamie Cooper, Legal Officer, Departmcnl of Foreign Affairs and Tradc,
Ms Donna Petrachenko, First Assistant Secretary, Dcpartment of Sustainability, Environment,
Water, Population and Communities,
Mr. Peter Komidar, Director, Department of Sustainability, Environment, Water, Population and
Communities,
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 of the 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.
The 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 of New York and the Law Society of Upper Canada,
Mr. Shotaro Hamamoto, Professor of International 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 étrangèresct du commerce,
Mme Donna Pctrachenko, 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'Attorney-General,
M. Todd Quinn, premier secrétaire,ambassade d'Australie au Royaume des Pays-Bas,
comme conseillers ;
Mme Mandy Williams, administrateur, services de l'Attorney-Genera/,
comme assistant.
Le Gouvernement du Japon est représenté par :
M. Koji Tsuruoka, ministre adjoint des affaires étrangères,
comme agent ;
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
internationalà 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 1'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 chargéede 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 Counsel;
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 Institute 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 Improvement 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 Ishii, 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,
comme conseils ;
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 pêcheries,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 Kata, 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 pêcheries,
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, - 10-
Ms Risa Saijo, LL.M., Researcher, Embassy of Japan 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 Institute of Far Seas Fisheries,
Mr. Luis Alberto Pastene Perez, Ph.D., Director, Survey and Research Division, Institute of
Cetacean Research,
as Scient(fic Advisers and Experts;
Mr. Martin Pratt, Professor, Department ofGeography, Durham University,
as Expert Adviser;
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 Zealand is represented by:
The Honourable Christopher Finlayson Q.C., M.P., Attorney-General of New Zealand,
as Counsel and Advocate;
Dr. Penelope Ridings, International Legal Adviser, Ministry of Foreign Affairs and Trade,
as Agent, Counsel and Advocate;
H.E. Mr. George Troup, Ambassador of New 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'Université de 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'Université de 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 in the 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 Vinkenvleugel, conseiller politique, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
comme conseillers. - 14-
The PRESIDENT: Good aftemoon. Please be seated. The sitting is open. This aftemoon
the Court will hear the evidence of the second expert called by Australia, Dr. Nick Gales. The
procedure for the examination of Dr. Gales is the same as for the examination of Australia's first
expert, so 1 will not repeat it. 1 understand that Dr. Gales is already in the Great Hall of Justice.
Welcome, Sir, and 1give the tloor to the Agent of Australia.
Mr. CAMPBELL: Thank you, Mr. President. Australia now calls as an expert
>' Dr. Nick Gales, who is ChiefScientist of the Australian Antarcticerogram and he will be examined
by the Solicitor-General, Mr. Justin Gleeson. Thank you, Mr. President.
The PRESIDENT: Thank you very much. So may 1invite Dr. Gales to take his place at the
rostrum. Good aftemoon. 1cali upon you to make the solemn declaration for experts as set dawn
in Article 64, subparagraph (b),of Rules of Court.
Mr. GALES: 1solemnly declare upon my honour and conscience that 1will speak the truth,
the whole truth and nothing but the truth and that my statement will be in accordance with my
sincere belief.
The PRESIDENT: Thank you. 1now give the tloor to the Solicitor-General who will begin
the examination. Mr. Gleeson, you have the tloor.
Mr. GLEESON: Thank you, Mr. President. Dr. Gales, could you state your full name and
your occupation please for the Court?
Mr. GALES: My name is Nicholas John Gales and 1am the Chief Scientist of the Australian
'Il Antarctic Program.
Mr. GLEESON: Could you brietly outline for the Court what are your duties as the Chief
>t Scientist for the Australian Antarctic ~rogram?
Mr. GALES: My duties are to lead the scientific component of the Australian Antarctic
)C 9I'ogram to deliver the strategie science against major Australian public policy needs in the area of
climate science, fishery science and conservation science. 1 have a group of about 140 people - 15-
based at the Antarctic division, who undertake the sctcnce work, as weil as scientists from
;..-~..\0'\':0
35 institutions around Australia and some 70 Afrom 23 other nations around the world who
participatein our polar program.
Mr. GLEESON: Could you brietly expand on that last matter you mentioned, namely the
inter-relationship between scientistsof Australia and scientists of other countries in our program in
the Antarctic?
Mr. GALES: Certainly. We have a broad strategie plan that outlines our science priorities.
We invite and collaborate with most other polar program countries, especially those operating in
the area of East Antarctica, which is the large area beneath Australia and New Zealand and South
Africa. Programs are approved through a process of normal science review and we undertake those
cnd
programs with our own resource* as 1mentioned, in collaboration with other nations.
Mr. GLEESON: Thank you. Could you tum to the folder in front ofyou and identify, ifyou
would, at tab 4, that you are the author of the statement of 15 April2013?
Mr. GALES: Yes.
Mr. GLEESON : And you are also the author of the statement at tab 5 of the 31 May 2013, is
that correct?
Mr. GALES: Yes, that is correct.
Mr. GLEESON: If you could tum to the first of those two statements, the 15 April
statement. 1 might ask you to elaborate on three or four matters. Could you first go to
paragraphs 3.19 through to 3.21. ln those paragraphs you refer first of ali to Annex P from the
Scientific Committee and you have that in front of you in the Court book, in Volume I at tab 12.
And you then make sorne comments as to whether JARPA Il, particularly with reference to its first
objective, matches Annex P. Could you indicate to the Court your opinion as to the relationship
between JARPA Il and its objectives and Annex P? - 16-
Mr. GALES: Certainly.Weil, starting at the top of the issues listed undcr Annex P, it
discusses the objectives of the study and what they should be and 1 (a) talks about the fact that they
need to be quantified to the extent possible. Andhis is the first point at which 1would take
issue with the objectiveshe JARPA II program whereby the objectives as they are stated in the
proposai are very broad and it is very difficult to quantify them in a manner that would enable you
to assess the likelihood of success, of achieving them, or indeed just what it is they are intending to
achieve.
Mr. GLEESON: Thank you. And in the listf objectives in Annex P are there any other
paragraphs there that you regard as relevant in an assessmentI?
Mr. GALES: 1think ali of the criteria are relevant. The difficulty, though, is that they are
not independent, so without an initial objective that is clear at !east in what it is trying to achieve, it
is then very difficult to, for example, assess the degree to which the methods will then be able to
successfully address those typesjectives.
Mr. GLEESON: Thank you. And could you thentum back to tab 9 please of this folder,
where we see Resolution 1995-9.Do you understand that that was the predecessor resolution
which was in force at the time that JARPAs adopted?
Mr. GALES: Yes, that is my understanding.
Mr. GLEESON: And, by reference to that document, what is your opinionether the
objectives inRPA II enable the Resolution to be satisfied?
Mr. GALES: The criteria, as worded in this resolution, are,, slightly different, but
in many ways get at the same issues. The second recommendation is perhaps the most relevant to
JARPA II, where it specifies that the scientific research involving the killingshould
only be permitted in exceptional circumstances, where the questions address critically important
w·.w,nOl'-\lc.-1-..:~...
>< issues that cannot answer againdttatacreri, ,would argue that JARPA II falls well
short. - 17-
Mr. GLEESON: Thank you. Could 1 just ask you more generally, you are aware that
Professor. Walloe has expressed an opinion that we are here dealing with a field of knowledge
which is very immature and that that provides a justification for either having no hypothesesto start
with or having more general or vague hypotheses to start with. ln other words, that the scientific
method needs to adjust to the degree of knowledge we have in the field. Could you indicate your
opinion asto whether you agree or disagree with that approach ofProfessor Walloe?
Mr. GALES: Weil, 1disagree with the approach. 1agree with the starting premise that we
often know very little about these large and complicated ecosystems, but explicitly because of that
we have to be really structured in the way we go about studying it. And science is iterative, we
often, weil we learn as we go, that's the whole point and purpose, so an initially framed question
will start to be addressed and we'll evolve as we go. But the question still needs to be clear as to
what we're doing. If it is vague from the outset, we do not know where we are going and it is
difficult to make progress. So 1think in highly complex systems, like ecosystems, it is even more
important than anywhere else to be quite clear about the elements you are trying to understand and
the question you are posing about it.
Mr. G LEESON: Just taking that a little further, if you were considering the possibility of a
large-scale fieldwork programme, including perhaps lethal sampling, what are the steps that you
regard as essential before one commences upon such a project, if one is observing the scientific
method?
Mr. GALES: Weil typically you would have reviewed the body ofliterature available on the
subject so that you would be familiar with the current understanding. Most scientists would then
try and collaborate or link to people or organizations that have great understanding. So, an
example in the Southern Ocean would be the Commission for the Conservation of Antarctic Marine
Living Resources (CCMLR), but within the science process itself you would then frame your
question carefully and especially with complex systems, you would typically start with some
models, using ali available data that you would use to lead you to an improved understanding of
what parts of the system might be amenable to measurement and what parts are likely to influence - 18-
the other components of the system. Then you move to your carefully designed experiment and
collect the data.
Mr. GLEESON: Thank you. A question was raised this morning concerning the human
genome project, is that a matter about which you have knowledge?
Mr. GALES: l am not a geneticist but we have genetics groups in my program and certainly
itis a program of such enormous science significance that 1am aware of it, yes.
Mr. GLEESON: And are you able to express an opinion from that knowledge asto whether
with the human genome project there are questions or hypotheses which are relevant?
Mr. GALES: Certainly. The genome project is, was, a massively ambitious and expensive
program, so programs like that do not emerge for no good reason, so there were many projects,
especially around human health that posed questions that could only be answered most effectively
if we better understood the genome. So, already there were many projects with explicit questions
and hypotheses, such as which gene regulates a particular disease, or cancer, and so it was from a
wealth of questions that the need for a genome project emerged and the project itself effectively
pulls ali of those data together and makes them available globally for the kind of questions that will
then be asked of it, again, with carefully formulated questions around mechanisms of how the
genome works.
Mr. GLEESON: You mentioned earlier the ward "iterative". Do you accept that there may
be an iterative element in the development and refinement of hypotheses in the course of science?
Mr. GALES: Absolutely.
Mr. GLEESON: Could you explain how you understand that to occur?
Mr. GALES: Well your proposais for study, your hypotheses and questions, are developed
on the stateof knowledge at the time and as you learn more and address a particular question you
will refine your hypotheses. You may even reject the idea of where you were going with that - 19-
question and change to another one, as you leam more and it is the core component of science to be
self-correcting in that mechanism.
Mr. GLEESON: Yes. Could you go forward then, please, to paragraph 3.46, which contains
some discussion about earplugs and you indicate that nearly 7,000 earplug samples from dead
whales were collected from the first JARPA project. What has been the scientific output, if any,
from that collection of earplugs?
Mr. GALES: So, the primary objective of JARPA, when it began, was to estimate the
mortality rates of Antarctic minke whales at different ages through their lives. There were papers
at the time that indicated that trying to estimate that parameter would prove impossible but it was
persisted with for a few years until the Japanese scientists involved in the program recognized they
could not achieve that. So, they made it a Jess ambitious objective to measure the average
mortality rate over the whole lifespan of these whales, a mean mortality rate through the age. At
the IWC JARPA review meeting in 2006, this was examined and the estimates of mortality rates
which are derived from the age estimates through a madel were found, the conclusion effectively
said that the uncertainty around the estimates- so there was an estimate- the size of the
uncertainty around it, so the range, meant- and this is a direct quote from the report- that the
"parameter remains effectively unknown".
Mr. GLEESON: And, in your opinion, is a scientific case made in JARPA II for continuing
to collect thousands of earplugs, year after year? )c
Mr. GALES: So as 1 read JARPA II, they certainly discussed collecting earplugs for the
purpose of estimating mortality rates, which, as wc have mentioned, had failed in JARPA and aIso
another parameter, MSYR, maximum sustainable yield rate, but there is no reference back to the
failed aspect of the previous 18 years' attempts to use these.
Mr. GLEESON: And has the Scientific Committee come to a position as to whether
JARPA II identifies a scientific case for lethal research?
Mr. GALES: No. - 20-
Mr. GLEESON: Now, could you just go forward please to paragraph 5.9. Vou express an
opinion there that over 25 yearsof JARPA and JARPA Il the contribution of infonnation relevant
to the conservation and management of minke whales is negligible, and you set out some reasons
for that view. Do you apprehend from Professor Wal10e's report that he says that there may be
three areas where there may have been a contribution to knowledge?
Mr. GALES: Yes.
Mr. GLEESON: Can l take those in tum? The first area is from JARPA l, an advance in
knowledge on stock structure. What is your opinion on that topic?
Mr. GALES: Prior to the commencement of JARPA, samples had been collected from
Antarctic minke whales taken in the commercial whaling era of that time and some early genetic
studies had shown that in the area in which the commercial whaling operated, which is the same as
JARPA, there were at !east two stocks with a division approximately south of Australia. JARPA
has perhaps reinforced that view but has not provided new information on where the outside
boundaries of these populations might be, so it has really just reinforced what was known before
the commencement of JARPA.
Mr. GLEESON: Thank you. The second area is blubber thickness. What is your response
to Professor Wall0e on that tapie?
Mr. GALES: For the past few years, the Scientific Committee has been discussing analyses
looking at purported changes in the blubber thickness of Antarctic minke whales and at this stage
there is no agreed evidence that there bas been a change in the blubber thickness itsclf, that it
remains an open question in terms of the statistical tools that have been used so far. lt is a very
small change so quite elaborate statistical models are being used to investigate it.
Mr. GLEESON: Yes. And the third area is stomach contents. Your opinion on that?
Mr. GALES: Weil, the stomach content data bas added, in similar ways to the earplugs,
nothing to what we already knew. We know Antarctic minke whales eat Antarctic krill, almost - 21 -
exclusively. They will eat another, smaller type of krill that lives up on the shelf and in the
embayments but we know where those krill are so, when minke whales areas are in those areas,
they eat that type of krill. We already knew that.
Mr. GLEESON: Thank you. Could you tum then to your second statement of 31 May and
go first please to paragraph 4.3 where there is a reference to "pollutant loads"? And would you
accept that if one wanted to know about the presence of pollutants in the stomachs of whales, one
would need lethal sampling?
Mr. GALES: No 1don't.
Mr. GLEESON: What do you understand to be the scientific approach to a question of
measuring poilutant loads in the body tissues of whales?
Mr. GALES: Weil, we know that pollutants affect animais around the globe in different
ways. We know quite a lot about the way these different types ofpollutants are transported around
the globe in upper wind patterns and more directly in water systems. So we would already have an
idea about which pollutants might be affecting Antarctic minke whales in general. We would know
that that is an area in which animais would be expected to have quite low pollutant burdens. So a
normal approach to the type of question would be to focus on a particular pollutant, to determine
whether it can be measured but importantly to try and determine what else you need to measure to
see if there is an effect. Because a measurement, even if it is in a body organ such as a Iiver, that
could only be sampled from a dead whale, is only relevant if you understand its effects. The
measurement itself, in isolation of that, takes you nowhere.
Mr. GLEESON: In your opinion, does JARPA II make a scientific case for measuring the
pollutant loadsin minke whale tissue?
Mr. GALES: No, not at ali.
Mr. GLEESON: Now could 1 move to one perhaps final tapie which is the difference
between lethal and non-lethal methods of sampling, and what is feasible and practical in the world - 22-
today. We might just see on the screen, and you can cxplain to us what occurs whcn one uses a
lethal method such as harpoon grenade. What do we see in the first slide, Dr. Gales?
Mr. GALES: This is an Antarctic minke whale that has just been struck with a penthrite
grenade harpoon from one of the Japanese capture boats.
Mr. GLEESON: Thank you. And then, on the next slide, what do we see from the close-up
angle?
Mr. GALES: You can see coming out from behind the minke whale's blowhole the harpoon
head and it will be presumably bent as the rope cornes through from the other side so the whale is
being pulied to the bow of the ship, about two-thirds of the whales are not kilied instantly, so they
are then shot from the bow of the vesse!, or killed otherwise.
Mr. GLEESON: Thank you. And then if we could move to the next slide, you might
identify for us the first of three non-lethal techniques, namely satellite tagging? Can you explain
who we see shooting the little implement and what we are seeing?
Mr. GALES: Certainly. Weil, that's me on the bow of a small rigid-hulled inflatable boat. 1
am holding above my shoulders an airgun that has fired a projectile. You can see the projectile just
above the water. It hasn't yet hit the minke whale. lt has a satellite tag on the front of a little
rocket that delivers it, and it bouncesff the whale once the tag is implanted on the whale.
Mr. GLEESON: And with that satellite tagging, a signal will then be sent from the tag via a
satellite and information can be collected over a periodof time?
Mr. GALES: That's correct. We can follow the location ofthat whale for periods ofweeks
and months.
Mr. GLEESON: What are the benefits of being able to follow the location of the whale?
Mr. GALES: Weil, it's the only way now that we can really geta good understanding about
how whales, in this case, utilize ali of the different types of habitats they have available to them. -23-
So the degree to which they fced within the icc zone or offshore so we can track their movements
in quite fine scales over those sort of ranges.
Mr. GLEESON: Thank you. Now a second method of non-lethal research involves
short-term tags. Could you explain that for us, please?
;""t''-'-"~
Mr. GALES: Certainly. So, apart from the blubber and lfJhtRtaelatags such as the ones on )(
the screen now, we are also able to deploy a small tag that has suction cups on it that stays on the
whale for Jess than 24 hours, but it records ali of the infonnationSo it records depth of water,
pitch and roll, acceleration and deceleration. We are able to get extraordinarily fine detailsow
the whale moves through the water column, how it feeds, when it lunges for food and, white we
have that tag on the whale, we follow it with two small boats such as the one that was on an earlier
photograph and we measure the krill in the area and get an idea about how that whale is feeding on
the krilln the area that wc are measuring.
Mr. GLEESON: Thank you. And is the third broad non-lethal research method the taking of
biopsies?
Mr. GALES: Yes. That's correct. lt is nowa very standard method used on dolphins and
whales throughout the world and requires firing a projectile from a crossbow or a rifle that bounces
off the animal and collects a little plug of tissue about the size of a little fingemail from which
DNA and other tissues can be extracted and different things measured.
Mr. GLEESON: To the extent one is seeking genetic information, does the biopsy collection
enable you to obtain the same information as you can by the harpoon grenade deathof the whale?
Mr. GALES: lt certainly does. For genetics you only require a very very tiny piece of
tissue; additional tissue adds no advantage.
Mr. GLEESON: And in paragraph 2.8 ofyour second report, have you recorded information
as to the time per sample and the distanceof the shot for biopsy collection, including with minke
whales? -24-
Mr. GALES: Yes, 1have.
Mr. GLEESON: And on the basis of that material, and perhaps other material, is it your
opinion that the use of biopsy collection is at least as effective as lethal sampling if one is seeking
genetic material?
Mr. GALES: Absolutely.
Mr. GLEESON: Have there been advances in these non-lethal techniques over the last
20 years?
Mr. GALES: Yes, enormous advances in a wide range of techniques. We are talking about
a couple specifie to Antarctic minke whales, but in many areas, techniques have evolved very
rapidly.
Mr. GLEESON: Is there a broad sharing of information between the scientific community as
to the availability of non-lethal techniques?
Mr. GALES: Yes, there is. We have workshops and share it widely.
Mr. GLEESON: Are each of the techniques you have described available to, and practised
by,Japan?
Mr. GALES: Yes, they are.
Mr. GLEESON: And are they also available to, and practised by, such other countries
around the globe who are interested in whale research?
Mr. GALES: Yes, they are the tools of the trade.
Mr. GLEESON: That is the examination achieved, Mr. President.
The PRESIDENT: Thank you very much. And now it is time for counsel for Japan to start
the cross-examination. Professor Lowe, you have the floor. - 25-
Mr. LOWE: Thank you, Mr. President, Members of the Court. Dr. Gales, my name is
Vaughan Lowe. 1am one of the counsel for Japan and there are a few questions which we have to
clarify in the evidence which you have given. Thank you very much, both for your reports and for
coming along here to give testimony today.
The first question is this:n paragraph 1.4 of your first report, you list three factors that you
say have prevented any real progress in the Scientific Committee's attempts to conduct its
mandated scientific role of review and advice on these special permit whaling programs. And the
firstof those is what you cali the "ongoing and indefinite nature and Jack of clear objectives" of the
program. My question is this: are not many marine science programs ongoing- the measurement
of Antarctic ice and solidity of the ozone layer; in particular fisheries analysis with the ongoing
series of monitoring data that are regularly updated and refined to provide annual estimates of
sustainable catches? And are the scientists in these exercises not engaged in scientific research?
Mr. GALES: There are certainly very many projects that have long timelines on them.
Those projects, though, specify very clearly what it is they are intending to measure, down to the
precision they need, and they give a clear determination as to why the period of time they need to
measure it is set as it is. They show the rates of change within the parameter and then it is easily
understood, so they are not so much ongoing, they are long-term but they are defined terms.
Mr. LOWE: So, your criticism is really the Jack of justification for the long-term and
ongoing nature of JARPA rather than the fact that no science project should be ongoing as such?
Mr. GALES: No science project should be indefinite. Without clearly-stated objectives it is
difficult to assess the term it needs togo; that needs to be explicitly described.
Mr. LOWE: Thank you. You criticize JARPA II for its Jack oftimelines, but what about the
six-year timeline for review that was set out in the JARPA II research plan?
Mr. GALES: The Scientific Committee has been grappling for many years on how to review
these programs. The timeline itself has been set because the program is ongoing. If you were
starting from scratch, you would have undertaken a complete review- in the case of JARPA II at -26-
the very start - and that would have cnabled you to get some empirical basis, some way of
knowing when you then need to next measure progress. ldeally you would have, in the proposai,
some articulated defined milestones- by year two, five, six, we would have hoped to have
achieved this- by which you can do it. lt is arbitrary, the six-year period, but it is far from a
perfect process of the review, it has been quite a difficult process, within the Scientific Committee.
Mr. LOWE: Thank you. Can l turn to something else: it is suggested that within the
International Whaling Commission Scientific Committee there is a clear polarization between those
who believe whales should not be killed, and those who believe that sustainable whaling is
appropriate and permissible. ls that an impression which matches your experience of the IWC?
Mr. GALES: That, perhaps, could be characterized in the Commission. 1do not believe that
characterizes the Scientific Committee, it is not for the scientists to have those determinations.
Mr. LOWE: How would you characterize the handling of that question within the Scientific
Committee?
Mr. GALES: 1would say that it is critically important that the Scientific Committee provide
to the Commission clear, scientific views on matters that relate to the business of the Commission.
A philosophical view of whether or not a whale should be killed, should be kept to the business of
the Commission . 1believe that a lot of scientific criticism from myself and from other members
there have gone at JARPA and JARPA II because of the science. That has been characterized by
sorne as being motivated by a view that whales should not be killed. In my case- and 1think in
many peoples' cases- that is not the case.
Mr. LOWE: Is it true to say that although JARPA and JARPA II may have been the most
divisive components of the Scientific Committee activities- which is a point you make 1think in
the very beginning of your first report- there have also been other controversial matters in the
Scientific Committee, such as the establishment ofthe moratorium and the issue of the sanctuaries,
including the proposais of Australia and New Zealand around the period from 1999 up to 2005.
Have these issues also been divisive within the Scientific Committee? - 27-
Mr. GALES: There has been a number of divisive issues in the Scientitic Committee. Most
of them revolve around the nonnal process of difference in scientitic views that are explored and
resolved sometimes over a long period of time through scientitic argument. That is a good thing,
and a good example of the way the Scientific Committee works. 1 was not in the Scientitic
Committee at the time of the moratorium being established, but 1 have read the documents and
there was clearly a difference in view on how to deal with that.
Mr. LOWE: If the Scientitic Committee is in a position where it has one group of scientists
taking one view and another group takes a different view, and neither group is persuaded that there
are good grounds for changing its views, in your view is it necessary to try to impose a unifonn
view across the Committee? And why can the Committee not fulfil its role of reviewing and
commenting on proposais by saying sorne scientists think this, other scientists think that?
Mr. GALES: There are certainly times when there is quite legitimate disagreement in the
Scientific Committee and one example was around how to estimate the abundance of Antarctic
minke whales. There were a range of models put, and it took a very long time for those scientists
to tinally arrive at one model they both agreed with and sorne estimates; indeed, it was not until
2012. But that was an entirely appropriate scientific process because the views of both groups
were supported by the science they were doing. They had a very sound, empirical basis on x
simulations, statistics and study, and we explained that to the Commission. We cannot resolve the
differences but wc explained where the scientific differences lie. In the case of special pennit
whaling, the debate stops when somebody makes a criticism and the answer cornes back, "we
disagree". The next fundamentally important step of exploring the basis of the criticism- how
scientifically justified is that criticism, and how scientifically justified is the response to that
criticism- has never been able to advance within the Scientific Committee and we are left with,
what 1 view, as grossly inadequate advice to the Commission- as you phrased it- that "sorne
said this and others said that", but without any scientific insight as to how the Commission should
understand that difference ofview. -28-
Mr. LOWE: 1am sure that is a matter we will come back to next week. Could 1tum now to
the question of lethal whaling. You have described the experiments in the use of non-lethal
biopsies and we heard from Professor Mangel this moming that some of the data- the collection
of stomach contents and earplugs, for example- cannat be collected in that way. Putting those to
one side and focussing on those items of data that can obtained by biopsies, Professor Sands says
that you have been congratulated by the Commission who concluded that your research would
contribute substantiallyto the work of the Scientific Committee. We congratulate you on being the
first, 1 think, to achieve satellite tagging successfully for Antarctic minke whales. From the
photographs and the video material that we have seen, it looks as though this was achieved in fairly
calm sea conditions. Can you tell us the range of sea conditions in Beaufort scale tenns, during the
periods when the experiments took place?
Mr. GALES: Certainly. lt is generally characterized when you see photographs of
Antarctica that it is either extremely wild or extremely calm. The conditions of working with the
minke whales, with the small boats that we saw, were calm and they were in embayments. We also
do small boat work on the high seas in East Antarctica, from ships in exactly the same mode!, we
have not attempted to work with minke whales yet in eastern Antarctica. Generally, the weather
conditions are sufficient on about two out of every three days, on average. We can operate up to a
particular"sea state": it is called "sea state three", which is about Jess than fifteen knots of wind,
relatively calm waters. It is quite common to work in those conditions when you are sufficiently
far south close to the ice edge because you are below the polar lows that cause the dreadful weather
in the mid-latitudes.
Mr. LOWE: You spoke earlier about the enonnous advances over the past 20 years, and the
rapid evolution in non-lethal techniques, and is it fair to infer from that, that we are still in the
process of developing these new techniques for tagging and taking biopsies from minke whales?
Mr. GALES: Absolutely, as with ali scientific techniques they continue to evolve, yes. -29-
Mr. LOWE: 1have one final question. ln your judgment, as a scientist, would it be possible
to conduct sustainable commercial whaling for a certain number of minke whales in the Antarctic
now, without endangering the minke population?
Mr. GALES: 1 think the careful answer for that is, that the Scientific Committee has
developed theRevisedltanagementerocedure- the RMP- and 1believe that procedure to bx as
')IQ....rquc.::."t-:0"\
robust a mechanism as we can currently develop. So, before 1answe1would like to see aX
RMP run with ali of the information, and on the basis of that, get an idea. 1think it is tempting to
givea"back of the envelope"which would indicate the"'backenvelop~' tct aoulcxulation
indicate it is probably fine at certain numbBut we have a good mechanism, and in ali
likelihood, the RMP would deliver catch limits for abundant species.
Mr. LOWE: If you would just excuse me a moment. Thank you very much, Dr. Gales, 1
have no further questions. Thank you.
The PRESIDENT: Thank you, Professor Lowe. Would you like to re-examme,
Mr. Gleeson? Please, you have the floor.
Mr. GLEESON: Thank you, Mr. President. There were just three mattersFirstly,
Dr. Gales, you were asked sorne questions as to whether the Scientific Committee is simply a case
of sorne saying this, and others saying that, and it being appropriate to simply record that dispute to
theIWC. Could 1ask you to open your first statement please? At paragraph 3.16, in addition to
the oral answers you gave to that question toessor Lowe, may we take it that in 3.16 you
identify four detailed matters that are relevant to that question, and you then expand on those four
matters in the following paragraphs. ls that accurate?
Mr. GALES: Yes, that is correct.
Mr. GLEESON: Thank you. You were asked a question which appeared to inc1ude sorne
praise for you, being a world leader in satellite taggingwha1es- and praise is always
appropriate- could 1 ask you to explain a little more to the Court as to how it came about that -30-
satellite tagging has recently been extended to minke whales as compared with satellite tagging of
other whales?
Mr. GALES: Yes, 1am perhaps receiving the praise because we werc fortunate to be the
first to really attempt to deploy the tags. With colleagues from the United States we deployed tags
on Antarctic mink whales in the Ross Sea and in the Western Antarctic peninsula. But tagging of
whales has been a relatively routine procedure for weil over a decade now.
Mr. GLEESON: lncluding by Japan?
Mr. GALES: Including by Japan.
Mr. GLEESON: Thank you. And finally, you were asked a question concerning the
enorrnous advances in non-lethal methods and you agreed that these methods continued to evolve.
What do you see within JARPA II itself, by way of an attempt to include within JARPA II, an
appropriate recognition for these developing non-lethal techniques?
Mr. GALES: 1see no evidence at ali.
Mr. GLEESON: That is the re-examination, Mr. President.
The PRESIDENT: Thank you very much, Mr. Gleeson. Dr. Gales, 1understand some of my
colleagues would like to put questions to you. 1first cali on Judge Donoghue. You have the floor.
Judge DONOGHUE: Thank you, Mr. President. Dr. Gales, my questions relate to age data.
And, 1wanted to understand a few things. The first is, are age data important, or relevant to the
RMP? That is my first question. And my second is, if not, why is age data important, or is it not
important? And then last, just to understand whether you share the view that was reflected in
Professor Mangel's statement that, at present there is no non-lethal method to determine the age of
minke whales. Thank you.
Mr. GALES: Thank you for the question.
The PRESIDENT: Please. - 31-
Mr. GALES: ln relation to the RMP, the manner in which the RMP was designed and put
together, took into account the history the Scientific Committee had had in using biological
parameters such as age, for management models. The procedure before the revised management
procedure- the new management procedure- used those data and demonstrated that the
precision with which you could estimate mortality, which is the primarily derived output from the
age data, were insufficiently precise to be useful in management. So the RMP explicitly made sure
that it only needed information that could be gathereda sufficiently precise manner. And that
infonnation is the abundance of the whales, how many animais are there in the area in which we
intend to go whaling, and how many animais from that area have been taken previously in earlier
whaling activities. From that atone, without age data, the RMP can function.
If I can go to your second question, if 1 can recall it correcAge data can be a very
important parameter for some particular questions, but it will only answer those questions if it can
be measured quite precisely. There are sorne animais for which age can be measured very
precisely. And those can be done with both non-lethal and lethal techniques. So, lethal techniques
can be similar to looking at earplugsmeasuring layers in the bony ears of fish, what are called
otoliths- there can be a variety of other techniques used as weil. Non-lethal techniques basically
involve tracking animais that have been identified with either DNA, or as photographs of
recognizable features through their lifetime. So, indeed, in the RMP calculations of sorne things,
those data from photo identifications have been used to informa lot of the basis for the RMP.
And I think your last question was on the non-lethal techniques. There have been sorne
interesting developmentsn looking at the ratio of fatty aciwhich are the molecules that make
up theblubber.* the ratio of os~ Tnthe bottom layer of blubber, for sorne reason, gives a Xignal
about age. We do not know why, do not understand the mechanism, but it is relatively imprecise.
It will give you an age to withdecade,. te d~cad'l So, it is interesting, but it is not yet very -,.
evolved.
The PRESIDENT : Thank you very much. Now Judge Greenwood has a question for you.
Judge Greenwood, please. - 32-
Judge GREENWOOD: Thank you, President. Dr. Gales, 1 would likc to ask you the
question that1put to Professor Mange[ this moming, l think you were in the Court when 1put it.
Mr. GALES: Yes.
Judge GREENWOOD: Let me make it slightly more general than l did then. Has there been
an evolution in what the Scientific Committee regards as "proper scientific research" in the area of
whaling since the start of JARPA Il?
Mr. GALES: No, l do not believe so. l believe that the essential discussions around the up
to 200 papers that are received annually in the scientific committee for consideration-which are
papers about scientificactivities- l think in the period of eight years, peoples' understanding of
the objectives, and the methods, and the type of principals that Professor Mange[ provided to the
Court earlier, have not changed. What has changed is the Scientific Committee and the IWC, the
Commission itself, attempting to move to a review process that works better than it has in the past.
Because it has been a difficult process.
Judge GREENWOOD: Thank you. Mr. President, may l just ask a follow-up question,
please?
The PRESIDENT: Certainly, please proceed.
Judge GREENWOOD: To what extent would you regard the findings of the Scientific
Committee in respect of this process of review and the standards to be applied, to what extent
would you regard that as reflecting a consensus within the Committee or is there a division between
different groups of scientists on this point?
Mr. GALES: The Annex P, in particular, was negotiated within the Scientific Committee
and was agreed by the Committee as the most appropriate step we could go to. l believe- and 1
put myself in this category- there are many of us in the Scientific Committee, who would prefer
that we could go to a truly separate and independent process whereby people not associated with
the Scientific Committee, with the relevant expertise, could undertake a review and write the report - 33-
as a proper peer revicw process, 1 guess, rather than repeating Professor Mangel's criteria,
anonymous and thorough peer review. 1do not believe we are there. Annex P is a step towards
there but until such time as a review process can in a practical way alter the activities of the
program itself, thereis little incentive for scientists to invest effort in such a review.
Judge GREENWOOD: Thank you very much, Dr. Gales.
The PRESIDENT : Thank you. The next judge to put a question ts
Judge Hilary Charlesworth. You have the floor.
Judge CHARLESWORTH : Dr. Gales, this is just a question of scientific information for
me. How does one get from earplugs or age ofwhales to mortality rates? Can youjust explain that
for a lay person?
Mr. GALES: 1 will try. It is effectively through the useof population models. So, you
construct a mode! for a population, you have to make quite a number of assumptions, but if you are
truly able tocollecta representative sample of age from a population, which JARPA II we know
underrepresents young animais, for example, but if you werc really able to get samples of the age
of the animais through that population, you can build a mode! that would then say, to have that
distributionof ages in the population, what would the mortality rates have to be to derive that
distributionof ages? And so, it is through a mode! process. Is that clear? You are basically fitting
your mode! to the data you measure.
The PRESIDENT: Thank you. If no other judge would like to ask a question then this
brings to an end the examination of Dr. Gales. The Court thanks you very much for appearing
before us. You can take your seat, thank you very much.
If counsel for Australia is ready to continue in the presentation of the case by Australia, then
I will cali onrofessor Philippe Sands. You have the floor, Sir.
Mr. SANDS: Thank you, Mr. President. I wonder actually whether we could ask for a short
pause now, if that is convenient, to allow us just to have a brief consultation, which we expected to - 34-
have if the process had gone on longer and rather than have it in 15or 20 minutes, we would be
grateful for that, with your permission.
The PRESIDENT: We can make a break now for 15minutes and then we will continue until
the end of this afternoon 's hearings.
Mr. SANDS: Thank you very much, we are very grateful, Mr. President.
The PRESIDENT: So, the sitting is adjourned for 15minutes. We resume at ten past four.
The Court adjournedji·om 3.55 p.m. to 4.10 p.m.
The PRESIDENT: Please be seated. The hearing 1s resumed and the tloor is yours,
Professor Sands.
Mr. SANDS: Mr. President, thank you for your forbearance in giving us a few minutes, we
very much appreciated that opportunity to just have a short conversation. 1 will not detain the
Court for too long. The purpose of this speech was originally intended to provide a wrap-up on the
basis of the scientific issues that had been heard during the course oftoday. You will have seen for
yourself the two expert witnesses and formed your own view. You will see that they are bath
individuals with obvious expertise in the subject area and with obvious authority.
1 am just going to deal with six points, relatively brietly to respond to those issues which
have come up during the course of this morning.
Firstly, can 1 make a general point in relation to the criteria that have emerged as the basis
for exchanges, bath in examination, cross-examination and re-examination? You will recall weil
and easily by now that there are four criteria identified at the heart of the report offered by
Professor Mange!. The first criteria related to defined and achievable objectives in relation also to
the question of the need for a hypothesis, the second objective related to the appropriateness of
methods, the third objective related to the issue of peer review and the fourth criteria related to the
need to avoid adverse effects on stocks that are being studied.
1 am really going to focus my comments mostly on the first criterion. On the second
criterion, methods, the view of Australia is that that is essentially untouched by what happened -35-
today in cross-examination and we express also our appreciation of the questions from the Court
and from individual Members in relation to ali of the issues.
The third criterion, peer review, similarlyin relation to cross-examination did not form the
subject of any issues that require any attention from me in the course of this afternoon because it
appears that the approach stands unscathed. The fourth issue really is not highly material it seems
for the purposes of this case at this stage. lt is really the first criterion that generated a significant
number of questions from the Bench and we want to refer back to these in dealing with some of our
comments now.
1wonder if 1can take you back to the question from Judge Greenwood, which was returned
to during the course of the afternoon and 1 think, as it was put in the course of the morning, it
concerned the question of the criteria which applied at the time where JARPA II was being
proposed in 2005. And we can offer a relatively clear answer in terms of what the criteria were at
that time. They are collected in a document which is known as Annex Y, approved by the
Scientific Committee, which you will find at tab Il of your folder. That is an effort to bring
together ali of the criteria that applied at that time. lt is in a form prepared by an individual
member of the Scientific Committee and so we reserve our position as to whether it is completely
accurate and correct in ali ways but, generally, that is where you will find the criteria that were
applied and, in effect,ifyou like, as at 2005.
However, that document, Annex Y, incorporates two resolutions that are particularly
significant and which 1want to take you to now, so that we can go back over them in a little more
detail and, in particular, l want to take you to lWC Resolution 1995-9, which is at tab 9 of your
folder and which will, hopefully, appear now on your screens.
This is the Resolution which sets forth the approach that is to be taken at the time that
JARPA li was being proposed and which determines the conditions under which the program
would be considered. You will see from that document- in fact this is an extract; you will have
the full copy in your judges' folder at tab 9; the full thing did not appear in readable form on the
screen- half way dawn the Resolution the Commission recommends, and then there are two
indents: - 36-
"that scientific research intended to assist the comprehensive assessment of whale
stocks and the implementation of the Revised Management Procedure shall be
undertaken by non-lethal means"
and that of course refers to the part of the submissions we have made, explaining one of the reasons
that Japan is unhappy with the RMP.
And then we go to the paragraph that is most significant:
"that scientific research involving the killing of cetaceans should only be permitted in
exceptional circumstances where the questions address critically important issues
which cannat be answered by the analysis of existing data and/or use of non-lethal
research techniques".
The Resolution then proceeds to request the Scientific Committee to undertake certain activities-
1have highlighted that on the screen; you can read that for yourselves.
What 1would like you to consider is the second paragraph that 1have just read out to you,
because if you go to that second paragraph, you will see that it essentially gives rise to five
questions that need to be asked. The words "scientific research" is how it opens, so the first
question is: does the proposai engage scientific research? That Resolution does not provide the
criteria for determining what is "scientific research", but it requires there to be scientific research;
and that is the basis for the criteria that we have identified with the assistance of Professor Mange!
who has taken account of ali of the IWC Resolutions and the practice. So that is the first step. If it
is not scientific research, you do not get past first base.
Secondly, is the proposai being made in an "exceptional circumstance"? If the answer to
that is "no", and again "exceptional circumstance" is not defined, you do not get past first base.
Third question: do the questions addressed in the scientific research programme address
critically important issues? That, too, has to be established. Again it is not defined; it is a matter
for assessment and determination.
Fourth question: can the questions be answered by analysis of existing data? ln other words,
assuming you can meet the first three questions, the fourth hurdle you have to get over is the
existence of data which may enable you already to engage in the analysis.
And then the fifth question: can the questions be answered by non-lethal techniques? If the
answer to that is "no", you cannat proceed; if the answer to that is yes", you are over the final
hurdle. - 37 -
Those are the five criteria that are retlected in Resolution 1995-9 which were effective at the
time JARPA came forward as a proposai and, in the submission of Australia, you do not get past
the first question, you do not get past the second question, you do not get past the third question,
and you do not get past the fourth and fifth questions. So, it is a proposai that should never have
got off the ground.
We appreciate, and we remind the Court that, a point that has come up in response to
questions from the judges, that JARPA ran for a period of 18 years. lt was then subject to a review
process before the Scientific Committee, there was no pause before JARPA II was then proposed.
That was the moment, we say, at which these issues should once again have been examined; they
were not examined and that is the point at which Japan feil into error and that is the moment at
which, ifyou like, Australia's daim cames into focus in relation to JARPA II, which is the abject
of relief in this particular case.
There is a further Resolution that is worth having a look at, but 1will not take you to it now
so as not to detain you too long and that is Resolution 1999-2, which is at tab lO. But, the bottom
tine is that if you take the tabs 9, l0 and ll together, you get a clear sense of what was in place at
the time JARPA II came forward for proposai.
To turn to the next point which concerns a point that arase in relation to a question put by
Judge Donoghue in relation to mixed motives. She putto Professor Mangel a question concerning
the possibility that a project might be motivated by two or more considerations . Professor Mange)
is not a lawyer, he is a scientist, and he answered that question as a scientist. He did not purport to
give a legal interpretation of the Convention. The position of Australia is, as it was stated
yesterday in relation to that question, and articulated by Professor Crawford, at paragraph 89 of his
submissions yesterday. What he said was:
"A good faith interpretation and application of Article VIII, requires that any
special permit which authorizes whaling 'for purposes of scientific research' do so for
that purpose and not for any other purpose or purposes. That is, special permit
whaling must be genuinely motivated by the purpose of conducting scientific research,
and not by any other purposes." (Emphasis in the original.)
We felt that it was important to draw that to your attention because we did not want any confusion
to arise as to what the view of a member of the scientific community might be as opposed to the
issue concerning the interpretation of the Convention. Two distinct points. - 38-
May 1take you to a fourth point which goes to method and the issue of lethal take and we
have begun to hear quite a bit about earplugs. We noticed that Professor Lowe touched on it and
then it came up again in part of the questions from Judges Donoghue and Charlesworth. And we
fear that some element of confusion may have crept in here in relation to the question that was put
to Professor Mange!.
What 1would like to do is take you to Professor Mangel's first report to clear up that matter.
You will find it in the witness folder at tab 1, and 1would like to take you to paragraphs 5.28 to
5.30. This is Professor Mangel's first report and it deals specifically with this issue:
"Japan sought to justify lethal take as a means of obtaining age estimates that
could then inform the rate of natural mortality (required for the NMP but not the
RMP), but, as noted in the final review of JARPA, the effort failed."
(Paragraph 5.28.)
He then goes on to write in paragraph 5.29:
"This is because there are significant problems with the lethally derived data
used for aging. Ear plugs of whales have a structure of altemating light and dark
bands. Thus, in principle the age of a whale can be determined by counting the bands,
muchas with tree rings."
And he cites to various references supporting of that principle:
"However the difficulties in the interpretation of growth layers make ear plug
growth layers only somewhat reliable indicators of age. Furthermore, there are
problems with reading the ear plugs at ali, and often a large number of the killed
animais do not provide readable ear-plugs (Lockyer 2010)."
He then concludes, paragraph 5.30:
"As described in Para 4.14 a tool should only be selected for use after
evaluating its effectiveness in achieving the stated objectives. Japan conducted no
such evaluation. For ear plugs such as evaluation was done after only nearly 25 years
of JARPA and JARPA II (Lockyer 2010) and ear plugs fail to provide information
about the age dependence of the rate of natural mortality. Whether alternatives exist
or .aft not for aging, the approach of JARPA had demonstrably failed, but JARPA II
continues along this track."
So the evidence before you there, clearly put, and it is not rebutted, is that it is a failure for
determining what it purports to determine. That issue has been taken up also by Dr. Gales in both
of his reports and 1refer you to paragraphs 3.46 to 3.48 of his first report and to paragraphs 3.13
and 3.14 of his second report. And 1will just read out to you the last line ofparagraph 3.13, which
is a reference to the JARPA review, which concluded that, and I quote, from the JARPA review:
"the estimates of natural mortality estimated from the JARPA data atone span such a wide range - 39-
the parameter remains effectively unknown at present". ln our submission the earplug issue is of
no assistance to Japan, if it rests its case at ali on that matter.
We're going to come back, 1come now to a fifth point in relation to the issue of whether a
hypothesis is indeed needed and whether certain activities conducted many decades, or even
centuries ago, there was an important question by Judge Keith in relation to the work of
Charles Darwin and the Beagle, we very much appreciated that question; you heard from
Professor Mange) a response that on his understanding and in his opinion Charles Darwin did
indeed seek to test hypotheses.
We also had a question from Judge Donoghue in relation to the human genome project and
you heard, 1 think, carefully put both by Professor Mange! and Dr. Gales that neither of them are
geneticists. The issue raised is, of course an important one. There is an interesting debate to be
had as to whether the human genome project is to be characterized as a science program or a
technology program, or an engineering program, and there is plenty of debate in that issue.
But the simple point is the nature, scale and timingf the human genome project, however it
is characterized is entirely different from what we face today in this case, and what the Court faces
today in this case. 1 don't think 1 have the time to give a lengthy history of how we got to the
human genome project, the one book 1would certainly recommend you to read is James Watson's
book, The Double Helix, which explains the extraordinary period in the early 1950s in which
competing groups, in competing research institutions and universities engaged in a race to unlock
the key to understanding the nature of human life; what we now know to reside in DNA. That
work of Crick and Watson, and 1 had the great privilege when 1 was a very young academie in
1984, of meeting Francis Crick, who was then teaching at the Salk Institute in La Jolla, was
premised on a huge amount ofwork that tested a huge range of different hypotheses.
Since that period there have been tens of thousands, if not hundreds of thousands of
peer-reviewed papers that have tested hypotheses in relation to the secrets unlocked by Crick and
Watson and Rosalind Franklin and ali of the colleagues with whom they worked.
The human genome project is simply another step in that process. lt itself is premised on the
need to test hypotheses as to various functions that DNA will have. And we will in due course
provide a more detailed response in relation to the question. What we didn 't want you to do at this -40-
stage of the proceedings is leave this hearing imagining that there was somehow any analogy to be
drawn between what Japan is doing under JARPA Il in relation to whales in the Antarctic and the
work that was being donc by Francis Crick, James Watson, Rosalind Franklin and others in relation
to the discovery of the double helix.
7. The sixth and final point 1would like to make is simply in relation to a question that went
to Dr. Gales in relation to the evolution of alternative technologies. He confirmed in response to
that question, that technologies are evolving,of course they are evolving, they always do and 1
think that's what he said, but the simple pointis, his evidence, and he didn't respond to that aspect
of the question, which is in the materials that you have in his first and second report, is that the
technology that exists today,is usable, and you saw that in the image of the effort to attacha dart to
a minke whale. The technology exists, it is being used today and no doubt it will, as he said,
continue to evolve.
8. Those are the brief points that Australia would like to make in relation to the day on
science and with your permission, Mr. President, 1 would now invite you to cali to the Bar
Professer Crawford to conclude the day's presentation.
The PRESIDENT: Thank you, Professer Sands, for providing a summary of scientific
evidence and a study if scientific cases. 1now cali on Professer Crawford. You have the floor, Sir.
Mr. CRAWFORD:
JARPA Il VIOLA TES THE MORATORIA AND THE SOUTHERN OCEAN SANCTUARY
AND IS NOT WITHIN THE ARTICLE VIII EXCEPTION
Introduction
l. Mr. President, Members of the Court, it has been a long and rather intense day and 1
propose, if 1may, not to complete this speech this aftemoon. We will have enough time tomorrow.
1would suggest to you, Sir, when 1reach an appropriate point for the break, even though it will be
somewhat early, but 1think we've ali been working rather hard.
The PRESIDENT: I appreciate that, thank you. - 4 1-
Mr. CRAWFORD: Mr. President, Members of the Court, JARPA Il ts manifestly
undertaken for purposes other than scientific research. lts core purpose, the reason for it,
objectively, we are not talking about the subjective intentionof individual scientists, we are talking
about the reason for the program, is to cnable the continuation of whaling on an indefinite basis,
despite the tioratorium. Its design and implementation make clear the real reasons: JARPA Il is ><
whaling "for commercial purposes" or incidental thereto. lt is "commercial whaling", within the
meaning of the Convention. It therefore contravenes the wforatorium, the Sanctuary and the factory )(
ship prohibition.
2. 1will establish these propositions in three steps.
First, 1will show that JARPA Il is not a program "for purposes of scientific research" within
the meaning of Article VIII. It satisfies neither the "scientific research requirement" nor the
"purpose requirement" under that Article.
Secondly, 1will show that JARPA II is commercial whaling, pure and simple.
Thirdly, 1will establish Japan's consequential breaches of the Convention .
1. JARPA Il is not science
3. First, then, Mr. President, Members of the Court, JARPA II is not a scientific program
capable of being justified by Article VIII. A program for purposes of scientific research must
possess the four essential characteristics we have identified. These characteristics reflect modern
G
scientific practice and the practice of the IWC, as embodied in the :guidelines, including the )(
guidelines in force at the time that JARPA II was commenced. JARPA II fails to satisfy even one
of these requirements.
4. Mr. President, Members of the Court, what follows is to sorne extent a summary of what
has already been demonstrated by my colleagues and by the witness testimony. In effect it is a
synopsis of our case on breach, and the fact that 1 shall be short on various points should not be
taken to suggest that these points are not important.
(a) Japan 'smethods in JARPA Il are not dictated by scientijic considerations
5. First of ali, Japan's methods in JARPA II are not dictated by scientific consideration.
There are five points here. -42-
(i) Arbitrary catch limits
6. The first is arbitrary catch limits. The proposed catch limits have no scientific basis.
1
Political concems required Japan to reduce its proposed catch limits under JARPA • But when
setting its sample sizes for JARPA Il, Japan more than doubled the sample size for minkes, up to
850 whales, with a 10 percent allowance, a sort of a tip. ln the JARPA Il research plan, Japan also
claimed that a sample size of 50 fin whales and 50 humpback whales was necessary to achieve its
2
research objectives •
7. lt is, as the evidence has demonstrated, impossible to understand the statistical basis for
calculating lethal take in JARPA te: 1 look forward to Japan's explanation of it next week. We
say the reason is simple, because JARPA Il sample sizes were not determined by any scientific
4
method ,but by its need to create a commercially self-supporting program. The idea of science
was subordinated to the need to supply Japanese restaurant menus. As one cartoonist put it, in a
scene in a Tokyo diner, the waiter tells the chef, "Another serve of scientific research for Table 6"!
8. Statements by Japanese Ministers confirm this proposition. For example in 2010, the
Minister for Fisheries said (tab 95): "we don't actually need 800 [whales]; 1mean it's more than
we need- we would have enough material for research with that or Jess than that number of
5
whales."
9. Japan contends that this statement must be understood in the context of 2010, during the
Future of the IWC negotiations, and the concomitant need for "flexibility" in those negotiations 6•
MA, Ann. 156, Govemment of Japan, "The Program for Research on the Southem Hemisphere Minke Whale
and forPreliminary Research on the Marine Ecosystem in the Antarctic", 1987, SC/39/0(JARPA Proposa/, /987); MA,
Ann. 127, "Fisheries Agency Director-General Told by Prime Minister: Do Scientific Whaling thal Won't be Criticised",
Asahi Shimbun, 26 April 1987 (moming edition), p. 2; Govemment of Japan, "The Research Plan for the Feasibility
Study on 'The Program for Research on the Southem Hemisphere Minke Whale and for Preliminary Research on the
Marine Ecosystem in the Antarctic"', Oct. 1987, SC/087/1, p. 10.
2MA, Ann. 105, Govemment of Japan, "Plan for the Second Phase of the Japanese Whale Research Program
under Special Permit in the Antarctic (JARPA Il)- Monitoring of the Antarctic Ecosystem and Development of New
Management Objectives for Whale Resources", 2005, SC/57/01, pp. 1, 17-19.
1MA, App. 2, Mange!, An Assessment of Japanese Whale Researc:hPrograms Under Special Permit in the
Antarc:tic(JARPA. JARPA Il)as Programs for Pmposes of Sc:ientijic:Research in the Context of Conservation and
Management of Whales (Original Expert Opinion), para. 5.38.
4
Mangel, Suppleme111to An Assessment of Japanese Whale Researc:hPrograms Under Special Permit in the
Antarctic (JARPA, JARPA Il)as Programs for Pmposes of Sc:ient(fic:Researc:hin the Context of Conservation and
Management of Whales (Supplementmy Expert Opinion), paras. 3.11-3.22.
5MA, Ann. 107, Govemment of Japan, Minister for Agriculture, Forestry and Fisheries (H Akamatsu), Transeript
of Press Conference, 9 March 201O.
6CMJ, para. 5.81. -43-
,,
But its meaning is clear: Japan does not need to take 850 whales to conduct its so-called research '' )<
in the Southem Ocean. A take of fewer whales would permit Japan to meet its research objectives,
whatever they may be- indeed, to achieve results, it does not need to take any. The truth of this
proposition was confirmed by the Minister for Fisheries at a press conference in March 2012-
weil after the Future of the IWC negotiations had ended. In response to a query asto the JARPA II
target for the 2011/12 season, during which the tleet had taken 267 whales, the Minister queried-
"should we cali it a target? ... Weil, um, the sort of ... benchmark, soto speak, was ... I thought
it was a bit higher than that ... [W]e did, that is, I did, have a s/ightly higher number in mind than
the number caught this time." (Emphasis added) Science is hereby reduced to a "number in mind"
(tab 96).
10. These statements belie Japan's claims that its sample size of 850 minke whales is
scientifically derived as the minimum number required to achieve its alleged "research" objectives.
They contradict the contention that JARPA II research methods are limited to what is
"scientifically necessary"H.
(ii) Actual catch dictated by commercial considerations
Il. Second point: the actual catch under JARPA II is dictated by commercial considerations.
Japan's action takes in most years have been significantly less than its stated targets and they have
been dictated by commercial considerations. This can be seen from the graphie on the screen
(tab 87). [Screen on] The number of minke whales taken under JARPA II bas been significantly
lower than the annual maximum catch target of935. The average catch across eight seasons is Jess
than half that: it is 454. Japan has yet to provide an explanation as to how these smaller numbers
affect its alleged "research" objectives and results. If 267 minke whales are enough to achieve the
results, why propose 850 in the permit? The number in the permit bas not changed. The permit is a
mere piece of bureaucratie routine. lt is not a consideration of what is required on a year-by-year
basis. It bears no relationship to what happens on a year-by-year basis. [Screen oft]
7Press Conferenceby Michihiko Kano, Minister for Agriculture, Forestry and Fisheries, 9 March 2012,
8.32 a.m.-8.46 a.m.
KCMJ,para. 5.141. -44-
12. ln its Counter-Memorial, Japan attempts to dodge this issue on the basis that the effect of
the smaller catches on its research "output" is stiJl being evaluated 9• But this amounts to saying
that, eight seasons into JARPA II, 3,651 dead whales later, Japan stiJl has no answer but continues
to press on with whaling nonetheless. During the 2012/13 Southem Ocean whaling season, Japan
took its lowest recorded catch- only 103 minke whales. A spokesman for the Institute for
Cetacean Research conceded that he could not estimate the Joss resulting from the reduced take of
minke whales during that season. He said: "obviously there is a research value as weil as a
10
monetary one" that was negative!y impacted • But that negative impact in terms of research value
has never been articulated, it is entirely speculative, it is completely unretlected in the special
permit.
(iii)Treatment of humpback and fin whales
13. The third point is the treatment of humpback and fin whales. Despite claiming in the
JARPA II research plan that killing 50 humpback whales was required to meet its research
objectives, and despite continuing to annually list in its special permits 50 humpback whales, Japan
has not killed a single humpback whale under JARPA II. Their inclusion in the program, their
continued inclusion in the special permits, year after year, demonstrates how ill-conceived and
unscientific the "research" design is. The humpbacks are not necessary after ali and yet they
continue to be included in the special permits!
14. As to the third species listed in the research plan, Japan has killed 18 fin whales in eight
years- a twentieth of its purportedly "scientifically derived" minimum sample size for this
period.
15. In short there is a vast discrepancy between Japan's actual killings under JARPA II, and
the sample sizes calculated as being "scientifically necessary" to achieve its research objectives and
reflected annually in the special permits. Japan does not even attempt to suggest that its reduced
9
CMJ, paras. 5.73 and 5.80.
1Gavin Carter, spokesman for the !CR, quoted in D. Kirby, "Sea Shepherd's Win is Japan's Loss: Whalers have
Worst Season Ever", TakePart, 8 April 2013, TakePart websitehttp://www.takepart.com/article/2013/04/07/whaling
season-worst-ver-Sea-Shepherd> on5 June 2013. -45-
catch under JARPA Il is dictated by scientific considerations. Rather, it points to "logistical
11
reasons" and "violent sabotage activities" to explain the reductions •
16. With respect to fin whales, there is a logistical difficulty. The factory ship is not capable
of taking fin whales over 18 metres in length 12• ln the Southem Hemisphere, fin whales have an
13
average length of 25 metres • The female of the species is slightly more deadly than the male and
is a metre longer on average. That is a serious impediment to the ability to conduct research into
fin whales. lt is like conducting research into giraffes in a shed of two metres high: the outcome of
such a program would be to conclude that giraffes are adapted to feeding on shrubs. Catching a
non-representative sample of fin whales because of the limitations of the factory ship will
inevitably lead to skewed research results. This undermines any assertion that the killing of fin
whales in the Southem Ocean is for a scientific purpose.
(iv) A prior assumption of lethal take
17. My fourth point is the prior assumption of lethal take. lt is an accepted tenet of scientific
practice that lethal methods should only be used if no non-lethal methods are available to achieve
the research objectives. This is not a question of emotion, or custom, or distaste of the sight of
blood- although that is one of the reasons why I am not a scientist. It is for the reason that
Professor Mange! gave in response to the question asked by Judge Owada. It is because
scientifically you do not intervene unless you have to. If you can achieve the result by Jess lethal
means, you maintain the biosphere to that extent unaffected by your activity. You retain
knowledge in the system; you retain the possibility of further information. By contrast, the
presumption at the core of JARPA II is that killing whales is necessary. That is the basis on which
the whole thing was designed. It is entirely at odds with this tenet. In JARPA II, non-lethal
14
methods are presumed in advance not to be workable •
11
CMJ, paras. 5.73 and 5.80.
12
S. Nishiwaki et al., Cl'lliseReport of the Second Phase of the Japanese Whale Research Program zmder Special
Permit in the Antarctic (JARPA Il) in2008 /2009, SC/61/03, 4.
13
MA, App. 1, de la Marc et al., Antarctic Baleen Whale Populations, para. 4.1.
14
Mangcl, Supplementmy Expert Opinion, paras. 5.1, 5.2. -46-
18. A scientific process entails selecting appropriate objectives and then selecting methods
which best suit the achievement of those objectives. Japan began with a pre-determined method of
killing whales, large numbers of whales, and then "retrofitted" vague research objectives in an
15
attempt to justify its use of those methods • Despite ali that should have been leamed from
x 6,77tfdead whales under JARPA, JARPA Il is exactly the same- except more whales. Japan has
ignored the development of non-lethal methods- generally available- which might have been
used to obtain the data obtained under JARPA Il, including new tagging technologies, biopsy
methods and photographie techniques 16• You beard from Dr. Gales about them.
(v) JARPA II's lack of scientific output
19. The fifth reason: JARPA II's Jack of a scientific output. This has been dealt with in the
evidence, and by Professor Sands, and there is not much 1need to add.
20. A program for purposes of scientific research must do much more than simply collect
17
data; the collection of data alone is not a scientific activity , any more than the collection of
stones. The scientific enterprise may begin with a general enquiry, but it must soon establish a
testable hypothesis which leads to a potential answer to that enquiry. We are ali inquisitive, but we
are not ail scientists. The scientific method involves taking that question about the world and
making it real, making it concrete by working out what we can test that could establish or disprove
the proposition in question. The project has to be properly identified to address the question asked;
it has to be capable ofbeing answered with the technology available.
21. For 18 years, despite the adoption of the RMP- which relies entirely on data that can
be acquired non-lethally, and which was expressly designed to eliminate reliance on the biological
parameters that Japan claims to have been seeking- JARPA was maintained. lt was maintained
in the face of clear evidence presented to the Scientific Committee that the primary objective of
1
JARPA could not be attained x by the methods chosen, and in disregard of repeated IWC
15
Mangel, Original Expert Opinion, paras. 6.2, 6.5 [MA, Appendix 2].
16
Mangel, Supplementwy Expert Opinion, paras. 5.3-5.14.
17
Mangel, Original Expert Opinion, para. 6.1.
18W de la Mare, "On the Simultaneous Estimation ofNatural Mortality Rate and Population Trend from Catch-at
Age Data", Rep. int. Whal. Commn 39, 1989, 355-362; W de la Marc, "A Furthcr Note on the Simultancous Estimation of
Natural Mortality Rate and Population Trend from Catch-at-Age Data", Rep. /nt. Whal. Commn 40, 1990, 489-492. -47-
19
Resolutions urging Japan to reconsider JARPA or to use non-lethal means • The Commission
noted in 2007 that not one of the objectives of JARPA had been met and that the program was not
required for management under the RMP 2• Yet JARPA II continues to collect the very same data
that failed to produce results in its predecessor for 18 years, and apparently it intends to do so
forever. When Japan submitted its proposai for JARPA II in 2005, the IWC formally called on
21
Japan to withdraw its proposai or revise it to use non-lethal means • By 2007 the IWC had
recorded its view that the aims of JARPA II did not address critically important research needs, and
again called upon Japan for the second time to suspend indefinitely the lethal aspects of this
program 22.
22. After 25 years, neither JARPA nor JARPA II have enhanced our scientific knowledge as
to the conservation and management of whale populations in the Southem Ocean 2• There is no
suggestion that they have done anything else like, for example, produce a cure for the common
24
cold. JARPA publications are generally irrelevant to the stated objectives of the program • The
Counter-Memorial points to only two peer-reviewed publications from JARPA II since its
commencement in 2006. Neither is relevant to the conservation and management of whales or to
the stated objectives of JARPA II 25• Of the 15 papers that use data from JARPA, which were
1Resolution on Japanese Proposai for Special Permits, Appendix 4, Chairman's Report of the Thirty-Ninth
Annual Meeting, Rep. /nt. Whal. Commn 38. 1988, 29 [MA, Annex 10]; Resolution on the Proposed Take by Japan of
Whales in the Southern Hemisphere under Special Permit, Appendix 3, Chairman's Report of the Forty-First Annual
Meeting, Rep. int. Whal. Commn 40, 1990, 36 [MA, Annex 16]; Resolution on Special Permit Catches by Japan in the
Southern Hemisphere, Appendix 2, Chairman 's Report of the Forty-Second Meeting, Rep. /nt. Whal. Commn 41, 1991,
47-48 [MA, Annex 18]; Resolution on Special Permit Catches by Japan in the Southern Hemisphere, Appendix 2,
Chairman's Report of the Forty-Third Meeting, Rep. /nt. Whal. Commn 42, 1992, 46 [MA, Annex 19]; Resolution on
Special Permit Catches by Japan in the Southern Hemisphere, Appendix 5, Chairman's Report of the Forty-Fourth
Meeting, Rep. /nt. Whal. Commn 43, 1993, 71; Resolution on Special Permit Catches by Japan in the Southcrn
Hemisphere, Appendix 7, Chairman's Report of the Forty-Fifth Annual Meeting, Rep. /nt. Whal. Commn 44, 1994, 33
[MA, Annex 21]; Resolution on Special Permit Catches by Japan in the Southern Hemisphere, Resolution 1994-10,
Appcndix 15, Chairman's Report of the Forty-Sixth Annual Meeting, Rep. /nt. Whal. Commn 45, 1995, 47 [MA,
Annex 25]; Resolution on Special Permit Catches by Japan, Resolution 1996-7, Appendix 7, Chairman 's Report of the
Forty-Eighth Meeting, Rep. /111.Whal. Commn 47, 1997, 51-52 [MA, Anncx 28]; Resolution on Special Permit Catches
in the Southern Ocean by Japan, Resolution 1997-5, Appendix 5, Chairman 's Report of the Forty-Ninth Meeting, Rep.
/nt. Whal. Commn 48, 1998, 47 [MA, Annex 29]; Resolution on Whaling undcr Special Permit, Resolution 1998-4,
Appcndix 4, Chairman 's Report of the Fiftieth Annual Meeting, Amwal Report of the International Whaling Commission
1998, 43 [MA, Annex 31].
20Resolution on JARPA, Resolution 2007-1, AnnexE, Chair's Report of the Fifty-Fifth Annual Meeting, Annual
Report of the International Whaling Commission2007, 90 (Resolution 2007-1) [MA, Annex 41].
21Resolution 2005-1 [MA, Annex 40].
22Resolution 2005-1 [MA, Anncx 40]; Resolution 2007-1 [MA, Annex 41].
23Statement by Dr. Nick Gales, para. 5.9.
24Mangel, Supplementmy Expert Opinion, para. 7.2.
25Mangel, Supplementmy Expert Opinion, para. 3.35. -48-
published betwecn 2010 and 2012, most are short papers in Japanese which do not contribute
much; the three papers published in English could have been prepared using data gained entirely
26
by non-lethal techniques •
(vi) Summary
23. Mr. President, Members of the Court, to summarize, JARPA II is not a program of
science, it is a parody of science. The evidence shows that it is not designed on the basis of
scientific considerations to achieve scientific objectives through scientific methods. lt is designed
to keep Japan in the whaling business, come what may.
(b) JARPA 1is not conducted "for purposes ofscientific research"
24. Mr. President, Members of the Court, that brings me to the question of Japan's real
purpose in conducting JARPA II, and thus to the second requirement under Article VIII. This is
the requirement that Contracting Governments may only authorize special permits "for purposes of
scientific research", and not for any other purposes.
25. (Tab 19) [screen on] Before commencing these rcmarks, 1 should make an observation
about mixed motives. Of course , as individuals we ali have mixed motives for almost everything
we do. But that is not the legal point. The question is whether JARPA II can be characterized as
conducted for the purposes of scientific research That is an objective question. The question is
whether JARPA II can be accounted for, can be explained on the basis that it is a scientific
program. We say the answer to that question is most certainly "No", whatever individual scientists
may think they are doing. The reason for the design and implementation of JARPA II cannat be
accounted for on the basis that it is a scientific program. There are quite a number of factors that
point directly to that conclusion. In the 30-year period prior to the moratorium, Japan licensed the
killing of approximately 840 whales under Article VIII 27• You can see this from tab 19. That
figure is less than Japan's annual target for minke whales under JARPA Il. Japan conducted no
26
Mangel, Supplementmy Expert Opinion, paras. 3.36-3.39.
27
Resolution on JARPA II, Resolution 2005-1, Annex C, Chair's Report of the Fifiy-Seventh Annual Meeting,
Annuai Report of the International Whaling Commission 2005, 1(Resolution 2005-1) [MA, Annex 40]. -49-
special permit whaling at ali between 1979 and the commencement of JARPA m 1987. The
graphie on the screen shows that as weil.
26. That Japan commenced its large-scale special permit whaling operations in the Southem
Ocean in January 1988 is consistent with its true purpose of continuing commercial whaling to
sorne extent, despite the moratorium. Scientific whaling was the guise adopted to enable Japan to
continue whaling, thus at the same time circumventing the moratorium and avoiding the threat of
United States sanctions on its fishing industry. [screen off]
(i) Japan commenced JARPA immediately after the Moratorium came into effect
27. This can be seen from a briefreview of the history. Japan objected to the Moratorium in
2 29
November 1982 x, but withdrew its objection on 1 July 1986 • lts withdrawal was a result of
pressure applied by the United States, which was concemed to achieve compliance with the
Moratorium 30• The United States had made it clear that, should Japan continue commercial
whaling,it would certify Japan's actions as "diminishing the effectiveness" of the Convention, with
adverse consequences for Japan's fisheries allocation in the United States' EEZ 31 and its fisheries
exports to the United States32• The threat of certification was, in the words of the Director-General
33
of the Japan Fisheries Agency, a "huge problem" •
28. Japan concluded an exchange of letters with the United States in November 1984. 1t
agreed to withdraw its objection to the Moratorium if the United States agreed not to certify
~xiWC Circular Communication RG/EE/4613 "Amendments to the Schedule adopted at the 34th Annual Meeting
and an Objection by the Governmcnt of Japan"5 November 1982 [MA, Annex 53).
29
1WC Circular Communicat ion RG/VJH/16129 , "Withdrawal of Objection to Schedule Paragraph 10 (e)by
Japan", 1 July 1986 enclosing Note from the Ambassador of Japan to the United Kingdom to the Secretary of the
International Whaling Commission, 1July 1986 [MA, Annex 54].
30
United States IWC Commissioner Byrne confirmed the United States' intent to achieve compliancc with the
moratorium in evidence to the United States House of Representatives : Governmcnt of the United States, Subcommittee
on Human Rights and International Organizations of the Committee on Foreign Affairs, United States House of
Representatives,Review of the 34th International Whaling Commission Meeting, ( 16 September 1982), 28 [MA,
Annex 73]. Sec also JCM para. 3.47.
31
Government of the United States, 1979 Packwood-Magnuson Amendment to the FisheiJ' Conservation and
Management Act of 1976, 16 USC § 1821 [MA, Anncx 72).
.lGovernment of the United States, 1971 Pelly Amendment to theFisherman's Protective Act of 19622 USC §
1978 [MA, Annex 71].
13Governmcnt of Japan, National Die/ Dehales,House of Representatives, Agriculture, Forestry and Fishcrics
Committee, No. 24, 4 August 1982, Speaker : Il 0/277 (Kichirô Tazawa, Minister for Agriculture, Forestry and Fisherics)
[MA, Annex 89]. -50-
Japan's whaling activitics 34• Japan withdrew ils objection to the Moratorium on 1 July 1986. lt is
no coïncidence that it waited until the United States Supreme Court handed down a judgment
35
upholding the President's decision not to certify Japan's whaling . Japan withdrew its objection
one day later.
29. Under the Exchange of Letters, commercial whaling would no longer be an option.
Japan was forced to consider other means of continuing its whaling operations. These were
identified by the Whaling Issues Study Group, which reported in July 1984. The relevant extract of
this Report is at tab 97 of your folder. The Study Group recommended the following "policy
response" to enable continued Southem Ocean whaling: "we should seek the understanding of
36
relevant countries for Japan to undertake scientific whaling activities ... ". The Study Group
noted that "it will be necessary to assert [l emphasize assert] that these research activities will
contribute to the aim of understanding marine ecosystems in the Southem Ocean, which will be of
37
major benefit for ali humankind" •
30. Japan expressly linked this recommendation- to commence "scientific" whaling in the
Antarctic- with the Govemment's determination to preserve its whaling industry and continue
whaling despite the Moratorium x.3
31. On 1 August 1984, the Head of the Ocean Fisheries Department at the JFA stated: "Our
intention is to use the [Study Group's] report as a reference ... and to make our utmost efforts to
ensure that our whaling will be able to continue both in the Antarctic and as coastal whaling, in
34
Agreement between the United States of America and lapan concerning commercial sperm whaling in the
western division stock of the North Pacifie (with record of discussion), (contained in Letter from Yasushi Murazumi,
Chargéd'affaires ad interim of Japan to Malcolm Baldrige, United States Secretary of Commerce, 13 November 19!!4,
and letter from Malcolm Baldrige to Yasushi Murazumi, 13 Novcmber 1984), 2039 UNTS 35266 (Washington,
13 November 1984) [MA, Annex 63].
351apan Whaling Association and lapan Fisheries Association, Petitionerv.American Cetacean Society et al.,
Petitioners. Malcolm Baldrige, Secretmy of Commerce, el al., Petitioners v. American Cetacean Society et al., 478 U.S.
221, 106 S.Ct. 2860 (1986).
36
Whaling Issues Study Group, Report on Prejèrred Future Directions for lapan 's Whaling (July 1984) in New
Policy Monthly (August 1984) 108 (Report of the Whaling Issues Study Group), para. 5 (i) [MA, Annex 98].
37
Report of the Whaling Issues Study Group, para. 5 (i) [MA, Annex 98].
JHGovernment of Japan, National Diet Debates, House of Representatives - Agriculture, Forestry and Fisheries
Committee - No. 27, 2 August 1984, Speaker: 211/342 (Hiroya Sano, Director-General, Fisheries Agency) [MA,
Annex 92]; Government of Japan, National Die/ Debates, House of Representatives - Agriculture, Forestry and Fisheries
Committee - No. 28, 7 August 1984, Speaker: 138/377 (Shinjiro Yamamura, Minister for Agriculture, Forestry and
Fisheries), Speaker: 134/377,121/377 and 130/377 (Hiroya Sano, Director-General, Japan Fisheries Agency) [MA,
Annex 93]. - 51 -
39
some form or another . .." (Emphasis added.) Japanesc officiais confirmed in the Diet that
positioning Japan's Southem Ocean whaling as scientific research whaling was "the path to ensure
the continuation of whaling" 40,and the method to "keep Japanese whaling alive under these very
challenging circumstances'"' 1• To "keep Japanese whaling alive ... ". You will find copies ofthese
statements at tabs 98 to 100 of your folder.
32. The fact is that large-scale "scientific" whaling in the Southem Ocean began
immediately after the entry into effect of the Moratorium for Japan. Since this time, Japanese
Ministers and officiais have repeatedly confirmed their determination to perpetuate the "research"
program until the Moratorium is lifted. As stated by the Senior Vice-Minister of Fisheries, in
May 2011 "we at MAFF are determined to continue [JARPA II] until commercial whaling is
resumed" 42(tab 101).
(ii) Japan's conduct mirrored earlier misuse of Article VIII
33. JARPA is not the first example of the improper invocation of Article VIII by Japan.
When a zero catch limit was established in respect of Southem Hemisphere Bryde's whales in
43
1976, Japan developed an alternative plan to prop up its whaling industry • On 6 July 1976, the
Head of Ocean Fisheries stated (tab 102): "[a]nother option would be that of special catches (these
39
Govcrnmcnt of Japan, National Diet Debutes, Housc of Representatives, Foreign Affairs Committcc, No. 18,
1 August 1984, Speaker: 144/196 (Kciichi Nakajima, Head, Ocean Fishcries Department, Fishcrics Agency) [MA,
Annex 91). For furthcr references to Japan's determination to continue whaling "in sorne form or anothcr", sec,
c.g., Government of Japan, National Diet Dehales, House of Representatives, Agriculture, Forcstry and Fishcrics
Committce, No. 2, Il Octobcr 1983, Speaker: 41/163 (Fumio Watanabe, Dircctor-Gcncral, Fishcries Agcncy) [MA,
Annex 90]; Governmcnt of Japan, National Die/ Debutes, House of Representatives - Agriculture, Forcstry and Fisherics
Committce, No. 27, 2 August 1984, Speaker: 211/342 (Hiroya Sano, Dircctor-Gencral, Fisherics Agcncy) and Speaker:
217/342 (Shinjiro Yamamura, Ministcr for Agriculture, Forcstry and Fishcrics) [MA, Anncx 92]; Governmcnt of Japan,
National Die/ Dehales, Housc of Representatives, Agriculture, Forcstry and Fishcrics Committcc, No. 2, 18 Dcccmbcr
1984, Speaker:206/234 (Hiroya Sano, Director-Gcncral, Fishcrics Agcncy) [MA, Anncx 95].
40
Govcrnmcnt of Japan, National Die/ Debates, Housc of Representatives, Agriculture, Forcstry and Fishcries
Committcc, No. 27, 2 August 1984, Speaker: 211/342 (Hiroya Sano, Dircctor-Gcncral, Fishcrics Agency) [MA,
Annex 92].
4Govcrnment of Japan, National Die/ Dehales, House of Representatives - Agriculture, Forcstry and Fishcrics
Committec, No. 2, 18 Deccmbcr 1984, Speaker: 206/234 (Hiroya Sano, Dircctor-Gcncral, Fisherics Agency) [MA,
Anncx 95]. Sec also, The lnstilute of Cetacean Research- The First Ten Yem:f (ICR, Tokyo, 30 October 1997), 85
(Tatsuo Saito, former Japancsc Commissioncr to the !WC), Whaling Library website,
http://la.pos.to/whale/jpn zadan1>and <http://luna.pos.to/whalc /jpn zadan2> on 5 June 2013.
4Govcrnment of Japan, Minutes of the Second Meeting of the Committcc on the Whalc Rcscarch Program,
17 May 2011, Statcmcnt by Committcc Chairman, Nobutaka Tsutsui, Senior Vicc-Ministcr of Agriculture, Forcstry and
Fishcrics,9-1O.
4Govcrnmcnt of Japan, Ministry of Foreign Affairs, "Re Outcomcs of the Twenty-Eighth Annual Meeting of the
International Whaling Commission (Matter of Lodging Objection)", 6 July 1976, MOFA in Sanada, "A Gcncalogy of
Scientific Whaling: The Origin and Application of Article VIII of the ICRW", Collection ofEnvironmentallnformation
Science Papers 22 (2008), 363-368, 366. -52-
are conducted under the provisions of the Convention, and are undcrtaken as necessary in order to
44
obtain scientific data)" •
34. Fierce opposition was expressed in the Scientific Committee to this program 45• Scientists
from South Africa, New Zealand and Canada protested that this research - so-called research on
46
Bryde's whales- was, in reality, defacto commercial whaling • Japan's decision to issue these
permits was the catalyst for the Scientific Committee to assume the role of reviewing special
35. If the Commission had permitted continued commercial whaling on Southem
Hemisphere Bryde's whale stocks in 1976, there can be no doubt whatever that Japan would not
have issued the special permits which collectively authorized the killing of nearly 500 Bryde's
whales in the name of "science" to no result. In fact these permits were issued as an emergency
measure to assist in propping up the struggling whaling industry in face of falling commercial catch
limits.
36. Japan's actions m 1976 provided the blueprint for JARPA. Japan's former
Commissioner, Tatsuo Saito, confirmed this in 1997 when he said (tab 103): "[i]n 1977,
Dr. Ohsumi had been conducting surveys on Bryde's whales in the mid-latitude ranges of the
48
Southem Pacifie Ocean under Article VIII, Paragraph 1. We took a hint from this."
44
Ministry of Foreign Affairs, "Re Outcomes of the Twenty-Eighth Annual Meeting of the International Whaling
Commission (Matter of Lodging Objection)", 6 July 1976, MOFA in Sanada, "A Genealogy of Scientific Whaling: The
Origin and Application of Article Vlll of the ICRW",Collection of Environmental Information Science Papers 22
(2008),363-368, 366.
45
x Scientific Committee Report, 197Rep. /nt. Whai.Commn 28, 1978, 41.
4
hCable No. 801 from Japanese Ambassador to Australia Ohkawara to Minister of Foreign Affairs, 19June 1977,
Ministryof Foreign Affairs, "International Whaling Commission (029th), prepared 6 May 1977 in Sanada, "A Genealogy
of Scientific Whaling: The Origin and Application of Article VIII of the ICRW", Collection of Environmental
Information Science Paper22 (2008), 363-368, 367.
4E Mitchell & M Tillman, "Scientific Review of IWC Scientific Permits", SC/29/Doc 34. Rep. /nt. Whal.
Commn 28, 1978, 269; Chairman's Report of the Twenty-Ninth MeetingRep. /nt. Whal. Commn 28, 1978, 23 and 32;
Chairman's Reportof the Thirtieth Meeting, 19Rep. /nt. Whal. Commn29, 1979, 27.
xThe lnstitute of Cetacean Research - The First Ten Years(ICR, Tokyo, 30 October 1997), 85-86 (Tatsuo
Saito, former Japanese Commissioner to the IWC), Whaling Library website, <htto:/1/luna.pos.to/whale/jpn zadanl> and
<http://lluna.pos.to/whale /jpn zadon25 June 2013. -53-
(iii) The decision to continue lethal research on an indefinite basis determines the design
and structure of JARPA II
37. The real purpose of JARPA II is to continue commercial whaling on an indefinite basis.
This is confirmed by consistent statements of senior officiais and Ministers, stating Japan's
determination to continue whaling, "in sorne form or another". It is borne out by the design and
implementation of JARPA Il. At the heart ofboth programs is the presomption that killing whales
is required.
38. The instructions given to the scientists tasked with the design of JARPA in 1984 were to
plan a program of lethal research that was "self-sustainable" through the sale of whale meat 49• The
programs of bath JARPA and JARPA II reflect these instructions. The original JARPA plan had
50
no specified end date . Japanese scientists expressly confirmed to the Scientific Committee their
1
intention that it would be continued indefinitel/ • When it eventually concluded after 18years in
2005, nearly 7,000 dead whales later, Japan transitioned seamlessly, immediately and without any
form ofreview, into JARPA II, which itselfhas no specified end date.
39. In fact the stated objectives of JARPA II are so broadly framed that they could be used to
52
justify almost any activity that Japan wishes to pursue • There is simply no identifiable endpoint
at which these objectives may be achieved; JARPA II provides for the collection of data through
large-scale whaling on an indefinite basis.
40. The sample sizes have been calculated to ensure self-sustainability of the operation
through sale of whale meat. The original sample sizes were finalized only after officiais confirmed
that they would be capable of sustaining the operation through sale of whale meat "by-product" 53•
Professor Wal10e implicitly concedes that commercial considerations were a factor in
determination of Japan's sample sizes. In particular, he notes: "Japan has chosen to caver part of
49T Kasuya, "Japancse Whaling and Other Cetaccan Fisheries", (2007) 14(1) Env Sei Po/lut Res 39, 45-6 [MA,
Annex 77]; "Dcbate: Pros and Cons of Scientific Whaling", Mainichi Shimbun, 3 Octobcr 2005, 3 [column by T Kasuya]
[MA, Anncx 129].
50
JARPA proposa/, 1987 [Anncx 156].
51
Report of the Scientific Committce, Rep. /nt. Wha/. Commn 38, 1988, 55.
52Mangel, Original Expert Opinion, paras. 5.10 and 6.5 [MA, Appendix 2].
51T. Kasuya, "Japancse Whaling and Other Cetaccan Fishcrics", (2007) 14(1) Env Sei Po/lut Res 39, 45-6 [MA,
Annex 77]. -54-
the costs of its whale research programmes by selling whale products on the commercial market.
To obtain sufficient income in this way, the yearly catch has to be of a certain magnitude." 54
Now there are many valuable species in the world, the catching of which could meet the
costs of a scientific program. But if the amount that is caught is calculated by reference to the
income to be gained from the program, disconnected from the scientific purposes, there is a
complete disjunction between the program and the science. And that is the case here.
41. [Screen on] On average, several thousand tonnes of whale meat are produced globally
from Japan's special permit whaling each year. ln the highest year of production in 2005-2006,
almost 3,500 tonnes of whale meat were produced. There is a complex system of market
55
distribution and sale of whale meat pursuant to contractual arrangements with the ICR • Revenue
from these sales constitutes the ICR's predominant incarne. The ICR also generates the bulk of its
revenue and largely covers the expenses of continued whaling operations through the commercial
sale of whale meat. [Screen off]
42. Indeed, Japan does not deny this, nor could it 56• In a paper to the Scientific Committee in
2007, Japan made clear its view that "practical considerations"- the costs of conducting research,
and the potential for recovery of costs- were determinative for its continued insistence on the use
57
of lethal methods •
43. And yet, outside the IWC context, Japan accepts that economie or commercial interests
should not influence the design or conduct of an activity conducted for the purpose of scientific
research. Japan has a very large science budget, and very very good scientists. lt was an active
participant in the Drafting Group for the Assessment Framework for Scientific Research involving
Ocean Fertilisation- as 1 mentioned yesterday- that drafting group identified four criteria for
proposed activity in arder to have "proper scientific attributes". One of these criteria expressly
provides- this is at tab 105- this was Japanese involvement:
54
Walloe, Scientific Review of Issues Raised by the Memorial of Australia including ifs Iwo Appendic:es,
9 April 2013, pp. 9O.
55
Institute of Cetacean Research and Kyodo Senpaku Kaisha Ltd, By-Product Consigmnent Sales Agreement
(5 June 2007), Article 7 [MA, Annex 118].
56CMJ, para. 5.107.
57S. Ohsumi, M. Goto and S Otani, "Necessity of cornbining lethal and non-lethal methods for wha1e population
research and their application JARPA", SC/59/02, 2-3; Report of the Scientific Committee, Ann. 0, Report of the
Standing Working Group on ScientificPermits, JCetacean Res. Manage. /0 (Suppl.)2008, 343. -55-
"economie interests should not influence the design, conduct ... or outcomes of the
proposed activity. There should not be any financial and/or economie gain arising
directly from the experiment or its outcomes.,sx
Japan does not apply this principle toits JARPA programs.
(c) Conc/11sion
. 44. Mr. President, Members of the Court, these factors ali point to the same conclusion.
~·~ A'9 special permit whaling programs in the Southem Ocean cannat be justified under
Article VIII. Japan commenced and continues these operations, not for the purpose of contributing
new scientific knowledge, which it has significantly failed to do aft25 years. But to enable the
continuation of whaling indefinitely, in spite of the moratorium, in which it has been to sorne
degree successful. lt has retrofitted a proposed program of "scientific" research to justify its
purpose of continued whaling on an indefinite basis, "in sorne form or another". That, and that
alone, accounts for JARPA IL That is the reason which tells you what the purpose of the program
is. JARPA II faits to satisfy the "purpose requirement" of Article VIII. Even if it could be said that
it met the "scientific research requirement"- which it does not- JARPA II would not fall within
the scope of Article VIII.
Mr. President, that would be a convenient moment to break.
The PRESIDENT: Thank you very much, Professor Crawford. The Court will meet again
tomorrow at 10 a.m., to hear the continuation and completion of Australia's first round of oral
argument. The Court is adjoumed.
The Court rose at 5.10 p.m.
5KAssessment Framework for Scientific Research involving Ocean Fertilization (adopted on 14 October 2010),
Report of the Thirty-Second Consultative Meeting of Contracting Parties to the London Convention and the Fifth
Meeting of Contracting Parties to the London Protocol, LC/32115, Ann. 6, 5, para. 2.2.2.
Audience publique tenue le jeudi 27 juin 2013, à 15 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))