Corrigé
Corrected
CR 2013/9
International Court Cour internationale
of Justice de Justice
LAHAYE THE HAGUE
YEAR2013
Publicsitting
held 011Tltursda27 June 2013,atJO a.m.,atthe PeacePalace,
PresidentTomkapresiding,
ill titecaseconcemi11gWhaling in the Antarctic (Australia v.Japan:
New Zealand intervening)
VERBATIM RECORD
ANNÉE2013
Audiencepublique
tenuelejeudi27juin 20J3,à JOheures,au Palaisdela Paix,
sous laprésidencedeM. Tomka,président,
en l'affairerelatiàla Chasseà la baleine dans l'Antarctique
(Australiec. Japon ; 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,uge ad hoc
M. Couvreur, greffier -4-
TiteGovemme11o t f Australiais represe11tehy:
The Honourable Mark Dreyfus Q.C., M.P., Attorney-General of Australia,
as Counsel and Advocate;
Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,
as Agent, Counsel and Advocate;
H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Justin Gleeson, S.C., Solicitor-General of Australia,
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government Solicitor,
Mr. Philippe Sands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Ms Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva,
as Counsel and Advocates;
Ms Kate Cook, Barrister, Matrix Chambers, London,
Dr. Makane Mbengue, Associate Professor, University ofGeneva,
as Counsel;
Ms Anne Sheehan, Acting Assistant-Secretary, Attorney-General's Department,
Mr. Michael Johnson, Principal Legal Officer, Attorney-General's Department,
Ms Danielle Forrester, Principal Legal Officer, Attorney-General's Department,
Ms Stephanie 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 Gouvememe11t de l'Australie est représe11té par:
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 auprèsdu 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 Counsel, Solicitor du Gouvernement australien,
M. Philippe Sands, Q.C., professeur de droit au University College de Londres, avocat,
Matrix Chambers (Londres),
Mme Laurence Boisson de Chazournes, professeur de droit international à l'Universitéde Genève,
comme conseils et avocats ;
Mme Kate Cook, avocat, Matrix Chambers (Londres),
M. Makane Mbengue, professeur associéà l'Universitéde Genève,
comme conseils ;
Mme Anne Sheehan, secrétaireadjoint par intérim,services de l'Attorney-General,
M. Michael Johnson, juriste principal, services de l'Attorney-General,
Mme Danielle Forrester,juriste principal, services de l'Attorney-Genera/,
Mme Stephanie Ierino,juriste principal par intérim,services de l'Attorney-Genera/,
Mme Clare Gregory, juriste hors classe, services de l'Attorney-General,
Mme Nicole Lyas, juriste hors classe par intérim,services de l'Attorney-General,
Mme Erin Maher,juriste, services de l'Attorney-Genera/,
M. Richard Rowe, juriste hors classe, ministèredes affaires étrangèreset du commerce,
M. Greg French, secrétaireadjoint, ministèredes affaires étrangèreset du commerce, -6-
Mr. Jamie Cooper, Legal Officer, Department of Foreign Affairs and Trade,
Ms Donna Petrachenko, First Assistant Secretary, Department of Sustainability, Environment,
Water, Population and Communities,
Mr. Peter Komidar, Director, Department of Sustainability, Environment, Water, Population and
Communities,
Dr. Bill de la Mare, Scientist, Australian Antarctic Division, Department of Sustainability,
Environment, Water, Population and Communities,
Dr. David Blumenthal, Senior Adviser, Office ofthe 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.
Tlle Govemment 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, Professorat the University of Paris Ouest, Nanterre-La Défense,President of the
Sociétéfrançaise 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 oflnternational Law at the University of Tokyo, member and former
Chairperson ofthe Human Rights Committee,
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International Law, McGill University,
member of the Bar ofNew York and the Law Society of Upper Canada,
Mr. Shotaro Hamamoto, Professor oflnternational Law, Kyoto University,
Ms Yukiko Takashiba, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
as Counsel and Advocates; -7-
M. Jamie Cooper, juriste, ministèredes affaires étrangèreset du commerce,
Mme Donna Petrachenko, premier secrétaire adjoint, ministère du développement durable,
de l'environnement, de l'eau, des populations et des communautés,
M. Peter Komidar, directeur, ministère du développement durable, de l'environnement, de l'eau,
des populations et des communautés,
M. Bill de la Mare, scientifique, division de l'Antarctique australien, ministère du développement
durable, de l'environnement, de l'eau, des populations et des communautés,
M. David Blumenthal, conseiller principal, services de l'Attorney-Genera/,
Mme Giulia Baggio, conseiller principal, services de l'Attorney-Genera/,
M. Todd Quinn, premier secrétaire,ambassade d'Australie au Royaume des Pays-Bas,
comme conseillers ;
Mme Mandy Williams, administrateur, services de l'Attorney-General,
comme assistant.
Le Gouvernement du Japon est représenté par:
M. Koji Tsuruoka, ministre adjoint des affaires étrangères,
comme agent ;
S. Exc. M. Yasumasa Nagamine, ambassadeur extraordinaire et plénipotentiairedu Japon auprèsdu
Royaume des Pays-Bas,
comme coagent;
M. Alain Pellet, professeur à l'UniversitéParis 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'Universitéd'Edimbourg, membre du barreau
d'Angleterre,
M. Yuji Iwasawa, professeur de droit international à l'Université de Tokyo, membre et ancien
président duComitédes droits de l'homme,
M. Payam Akhavan, LL.M., S.J.D (Harvard), professeur de droit international à l'Université
McGill, membre du barreau de New York et du barreau du Haut-Canada,
M. Shotaro Hamamoto, professeur de droit international à l'Universitéde Kyoto,
Mme Yukiko Takashiba, directeur adjoint à la division chargéede l'affaire de la chasse à la baleine
devant la CIJ, ministèredes 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 freland,
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 émérite dedroit international de l'Universitéde 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 pêcheriesen eaux
lointaines,
M. Akima Umezawa, Ph.D., directeur à la division des pêcheries,ministère des affaires étrangères,
Mme Yoko Yanagisawa, directeur à la division chargéede l'affaire de la chasse à la baleine devant
la CIJ, ministère des affaires étrangères,
M. Naohisa Shibuya, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
M. Ken Sakaguchi, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
Mme Akiko Muramoto, division chargée de l'affaire de la chasse à la baleine devant la CIJ,
ministère des affaires étrangères,
M. Masahiro Kato, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
M. Takaaki Sakamoto, sous-directeur à la division des affaires internationales, agence des
pêcheries,
M. Shigeki Takaya, sous-directeur à la division de l'amélioration de la gestion des pêcheries,
agence des pêcheries,
M. Toshinori Uoya, sous-directeur à la division de la gestion des pêcheries,agence des pêcheries,
M. Shinji Hiruma, sous-directeur à la division de la gestion internationale, agence des 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 lnstitute of Far Seas Fisheries,
Mr. Luis Alberto Pastene Perez, Ph.D., Director, Survey and Research Division, Institute of
Cetacean Research,
as Scientific Advisers and Experts;
Mr. Martin Pratt, Professor, Department of Geography, Durham University,
as Expert Adviser;
Mr. James Harrison, Ph.D., Lecturer in International Law, University ofEdinburgh,
Ms Amy Sander, member of the English Bar,
Mr. Jay Butler, Visiting Associate Professor of Law, George Washington University Law School,
member ofthe New York Bar,
as Legal Advisers.
TlleGovernme11o tf NewZeala11d isreprese11ted 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, Counse/ and Advocate;
H.E. Mr. George Troup, Ambassador ofNew Zealand to the Kingdom of the Netherlands,
as Co-Agent;
Ms Cheryl Gwyn, Deputy Solicitor-General, Crown Law Office,
Ms Elana Geddis, Barrister, Harbour Chambers, Wellington,
as Counsel;
Mr. Andrew Williams, Legal Adviser, Ministry of Foreign Affairs and Trade, - 11-
Mme Risa Saijo, LL.M., chercheur à l'ambassade du Japon au Royaume des Pays-Bas,
Mme HéloïseBajer-Pellet, membre du barreau de Paris,
comme conseillers;
M. Douglas Butterworth, professeur éméritede l'Universitéde Cape Town,
Mme Judith E. Zeh, Ph.D., chercheur, professeur éméritede l'Universitéde Washington,
M. Dan Goodman, Institut national de recherche sur les pêcheriesen eaux lointaines,
M. Luis Alberto Pastene Perez, Ph.D., directeur à la division des enquêtes et de la recherche,
Institut de recherche sur les cétacés,
comme conseillers et experts scientifiques ;
M. Martin Pratt, professeur au départementde géographiede l'Universitéde Durham,
comme conseiller expert;
M. James Harrison, Ph.D., chargéde cours en droit international à l'Universitéd'Edimbourg,
Mme Amy Sander, membre du barreau d'Angleterre,
M. Jay Butler, professeur associé invité de droit à la faculté de droit de l'Université George
Washington, membre du barreau de New York,
comme conseillers juridiques.
Le Gouvernement de la Nouvelle-Zélande est représentépar :
L'honorable Christopher Finlayson, Q.C., M.P., Attorney-General de Nouvelle-Zélande,
comme conseil et avocat ;
Mme Penelope Ridings, conseiller juridique pour le droit international, ministère des affaires
étrangèreset du commerce,
comme agent, conseil et avocat ;
S. Exc. M. George Troup, ambassadeur de Nouvelle-Zélandeauprèsdu Royaume des Pays-Bas,
comme coagent ;
Mme Cheryl Gwyn, So/icitor-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 l'Attorney-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,
co1mneconseillers. - 14-
The PRESIDENT: Please be seated. The sitting is open. Professor Sands you can resume
where you have stopped yesterday.
Mr. SANDS:
JAPAN'S "SCIENTIFIC" WHALING INTHE SOUTHERN OCEAN (CONTINUED)
1. Mr. President, Members of the Court, yesterday I began these submissions with sorne
introductory elements that we say the Court will need to have in mind in assessing the activity in
which Japan is engaged and today I am going to continue by addressing the characteristics of
scientific activity. Could I just correct one error into which 1feil yesterday, I made a reference to
the Kyodo Senpaku, I think I referred to it as a vesse), in the context of the use of whale meat, it is,
of course the company, which was the commercial whaling company in the past, so I would just
like to correct that.
Part 3. The characteristics of science
":::1-c.or-C\
2. hM now to the characteristics of science, the third part of my presentation. How is the
Court to detennine whether a particular activity is to be characterized as having a "scientific"
purpose? One option, of course, would be for the Court to decide that a State is entirely free to
decide for itself whether activity is science. If Japan says it's science, it's science. And that is, in
effect, what Japan is inviting you to do. Such an approach we say would have the most adverse
consequences, not only in relation to the conservation ofwhales but across the board: fisheries and
ali international rights and obligations in which science plays a significant role, would ali be
impacted by such a decision. lt would run directly contrary to international practice, to the practice
of national science foundations and of research bodies, and to decades, if not centuries, of
endeavour in the field of the philosophy of science.
3. Australia has put forward an expert opinion from Professor Mange) on this issue. Having
regard to his academie and professional activities, he has identified four essential characteristics
that are to be met if the killing of whales by Japan under the JARPA II program is to be
characterized as being for purposes of scientific research. And he has drawn on two main sources: - 15-
1
firstly, generally accepted principles of scientific practice and secondly, the criteria developed by
the International Whaling Commission and its Scientific Committee 2•
4. (Tab 80) [Screen on - first characteristic] On your screen you can see the first essential
characteristic identified by Professor Mangel: it is that a program must have a defined and
achievable set of objectives that aim to contribute to knowledge that is important to the
conservation and management of whale stocks. And, on his view, this involves the selection of
particular hypotheses or questions to be tested by the proposed research, to address gaps in
knowledge on the conservation and management of whales. This, we say, is the approach taken by
the IWC itself.
5. [Add second characteristic on screen] The second characteristic is the application of
appropriate methods to achieve those stated objectives. On Professor Mangel's view- again
entirely consistent with the approach adopted by the IWC- lethal methods should only be
resorted to where they are necessary and the research objectives cannat be achieved by non-lethal
means.
6. [Add third characteristic on screen] The third criteria is the need for periodic, independent
review of research proposais and results, and the adjustment of the program in response to that
review. This, of course, is known as "peer review".
7. [Add fourth characteristic on screen] The fourth characteristic is that the research should
be designed to avoid adverse effects on the stocks that are being studied.
8. Now, as the Solicitor-General mentioned yesterday, Australia is not wedded to a particular
form of language with respect to these four characteristics. What is important is the substance of
the matter. [Screen off]
1M. Mange!, "An Assessment of Japanese Whale Research Programs Under Special Permit in the Antarctic
(JARPA, JARPA II) as Programs for Purposes ofScientific Research in the Context of Conservation and Management of
Whales", April2011, App. 2 toMA (Mange!, Original Expert Opinion), para. 4.8.
2Mangel, Original Expert Opinion, paras. 4.30-37.
3Resolution on Special Permits for Scientific Research, App. 2, Chairman's Report of the Thirty-Eighth Annual
Meeting, Rep. int. Whal. Commn 37, 1987, 25 (1986 Resolution) [MA, Ann. 43]; Resolution on Scientific Research
Programmes, App. 1, Chairman's Report of the Thirty-Ninth Annual MeetinRep. !nt. Whal. Commn 38, 1988, 27-28
(1987 Resolution) [MA, Ann. 44]; Resolution 1995-9 [MA, Ann. 46); Resolution on Special Permits for Scientific
Research, Resolution 1999-2, App. 3, Chairman's Reportof the Fifty-First Annual Meeting,Annual Report of the
International Whaling Commission 1999,52 (Resolution 1999-2) [MA, Ann. 47]; Process for the Review of Scientific
Permits and Research Results from Existing Permits, Report of the Scientific Committee, Ann.J. Cetacean Res.
Manage. 11(Suppl.), 2009,398-401 (Ann. P) [MA, Ann. 49]. - 16-
9. We noted that in its Counter-Memorial Japan put forward no fully independent expert
opinion, indeed no expert opinion at ali, to challenge Professor Mangel's views. Japan simply
stated that the criteria are not relevant to the determination of the key issue before the Court, and it
disputes their application to the facts in this case. Notably Japan offered no alternative criteria for
the Court. Vou were given nothing to assist you in assessing whether the JARPA II program is
"for purposes of scientific research' 74• Their view may be summarized in a simple form: if we say
it's science, it's science.
1 O. What Japan has done is to offer operational indicators: the area of operation, target
species, numbers taken, tissue samples and so on and so forth. In listing these operational
indicators, in its written pleadings Japan notably declined to address the matters raised by
Professor Mangel 5• According to Japan, Professor Mangel's views were simply those of one
expert, and not binding on the Parties. Japan dismisses, without discussion, his opinion in that
pleading, and notes that its own expert differed from Professor Mange!. Japan offered, as 1said, no
6
elaboration in its Counter-Memorial, no expert opinion of its own .
Il. On Japan's approach there is no need for a testable hypothesis, no need for peer review,
no need for any assessment of alternative and non-lethal means. The collection of body parts and
data is "science" if Japan says it is science.
12. That was how things stood at the close of the written pleadings. Subsequently, as you
are aware, Australia submitted a further opinion by Professor Mange!, which reviewed Japan's
Counter-Memorial and which confirmed his earlier conclusions, namely that the JARPA II
program is not for "purposes of scientific research", and that the data obtained by Japan over
26 years has not contributed to the RMP, and that anything that Japan claims as a useful product of
the killing ofwhales can be obtained by non-lethal means.
13. Subsequently, after that expert opinion was tendered, Japan tendered its own expert
opinion, the statement of Professor Lars Wallee. Professor Wallee has criticized
4For example, see CMJ paras. 8.13, 9.10, 9.12; see also M. Mangel, "Supplement to An Assessment of Japanese
Whale Research Programs Under Special Permit in the Antarctic (JARPA, JARPA Il) as Programs for Purposes of
Scientific Research in the Context of Conservation and Management ofWhales", 15 Apri12013 (Mangel, Supplementary
Expert Opinion), para. 2.2.
5CMJ, paras. 5.127-5.139.
6/bid., paras. 9.10 and 9.12. - 17 -
Professor Mangel's approach to the application of the characteristics of a program of science, but
significantly, he does not reject the criteria out of hand or at ail. In this sense, the criteria of
Professor Mangel stand unchallenged by any expert evidence tendered by Japan. Professor Wallee
proceeds to dispute the practicality of the non-lethal methods identified by Australia, but that of
course will not come as a surprise.
14. Professor Mangel has then submitted a response to Professor Wallee's statemene. You
will be able to hear directly from Professor Mangel Jater today, and if you wish, to ask your own
questions. In our view, the merits of his criteria, as identified by him, are self-evident, and they are
unchallenged on the substance by Japan's solitary expert evidence.
15. Australia has also submitted a statement by Dr. Nick Gales, who is the ChiefScientist of
Australia's Antarctic Program. He describes, in his statement, the work of the Scientific
Committee, responds to a number of points raised in the Counter-Memorial, addresses the question
asto whether JARPA and JARPA II have contributed important knowledge on minke whales and
discusses the non-lethal SORP program. And Dr. Gales has also responded to points made by
Professor Wallee 8•
16. Japan's position seems to be that these expert opinions are simply irrelevant. Why?
Because, as it states at paragraph 7.16 of its Counter-Memorial, "[n]o other State or body is given
the power to overturn decisions taken by the Contracting Government in the exercise of its right to
authorize special permit whaling" 9•That is the crux of Japan's argument, and, of course, why it felt
no need to tender any expert opinion of its own, originally at !east, in the Counter-Memorial. That
is essentially a legal argument, but late in the proceedings an element of doubt appears to have
crept into Japan's thinking. lt might not succeed, perhaps, in its rather far-reaching legal argument.
And soit has tendered the opinion ofProfessor Wallee.
17. Let us, against that background, turn to the objectives of JARPA II and the scientific
criteria to which both Parties have directed expert opinion.
7M. Mange[, "Response to "Scientific review of issues raised by the Memorial of Australia including its two
Appendices"byProfessorLars Wallllle",31 May2013(Mange[,Responseto ProfWal1111e).
8
N. Gales, "Statement by Nick Gales in Response to the Expert Statement by Professor Lars Wallllle",
31May2013(Gales,ResponsetoProf Wal111 ).1e
9
CMJ,para.7.16. - 18-
Part 4. The objectives of JARPA II and the criteria for science
18. Looking to the objectives of the JARPA Il programme and the question of whether it is
for "purposes of scientific research", one has to start with the objectives, which were, as we stated
10
yesterday, adopted without the benefit of any prior peer review •
19.JARPA Il has four supposed objectives 1, closely connected to the objectives of JARPA:
this program is open-ended intime and is, as 1mentioned yesterday, premised upon the killing of
whales and the collection of data.
Objective 1
20. The first objective, which you can find at tab 81 of your folders, is to monitor the
Antarctic ecosystem, including whale abundance trends, biological parameters, krill abundance and
12
the feeding ecology of whales, amongst other matters • Professor Mangel's opinion is that the
objective is "broad and general", and "without clear and testable hypotheses" 13• Indeed, he says
that it is so broad that it allows "almost any activity" 14• Japan has not explained how research
derived from the collection of body parts of a single species- taken over an extended and
open-ended period- could contribute to any understanding of the Antarctic ecosystem as a whole.
And you saw on the maps yesterday the full extent of the Antarctic ecosystem in terms of its
geographical scale.
21. In reality, this objective is nothing more than "monitoring", "monitoring" by the
collection of body parts. And, in Professor Mangel's view, monitoring is not "scientific
15
research" • The collection of data itself cannot be considered as being "for purposes of scientific
16
research" • Now this point is not a novel one. As early as 1902,the distinguished French scientist
Jules Henri Poincaré- who happened to be the cousin of the late President of the French
Republic - addressed this issue in a rather pithily-written book entitled La Science et
1
°For more detail, see paras. 66-67, below.
1CMJ, para. 5.20.
1/bid.~s.22-5.27.
1Mangel, Supplementary Expert Opinion, para. 6.3.
14
Mangel, Original Expert Opinion, par5.10.
15
Mangel, Supplementary Expert Opinion, para. 3.6. The objectives of JARPA and their failures are addressed in
MA, Chap. 5 and in Mange!, Original Expert Opinion.
16
Mangel, Supplementary Expert Opinion, para. 6.3. - 19-
l..'Hypoth;se, which is still in print as a classic, more than a century later and available on Amazon
and more widely on the web. lt indeed includes a rather lengthy and commendable introduction
written by Professor Larmor, the Lucasian Professor of Mathematics at the University of
Cambridge, who commends this French text- he translated it- to an English readership as a
demonstration of what he calls "the French instinct for precision and lucid demonstration". What
does Professor Poincaréhave to say? "Science is built up of facts, as a house is built of stones; but
17
an accumulation offacts is no more science than a heap of stones a house."
22. In response, Japan says that it is working on the collection of facts towards what it calls
the development of an ecosystem model. Mr. President, a quarter of a century has passed,
thousands of whales have been killed, and Japan is unable to offer any evidence of discernible
18
progress • At the annual Scientific Committee meeting held just last week, Japan apparently
asserted that results would appear early next year 1• What was the response to that assertion of the
relevant Working Group of the Scientific Committee? It simply noted there was a /ack of c/arity in
the aims of Japan's ecosystem modelling exercise.
23. We note also the manifest failure on the part of Japan to explain why lethal take is
necessary at ali. Let us take an example: Japan claims that to achieve its first objective it has to
obtain samples from the stomachs of dead minke whales and measure, additionally, blubber
thickness. This, they say, is needed to establish feeding strategies and it can only be done by
killing the whales. We say that claim Jacksali merit. Dr. Gales has provided compelling evidence
to refute the only expert opinion on which Japan relies, namely that of Professor Wal10e and you
will have noted that there is not a single reference in Professor Wal10e'sstatement, a statement of
expert opinion without a single footnote. Dr. Gales has explained how more specifie information
on feeding strategies can be obtained by non-lethal means 21, exactly what is happening in the
17Jules Henri Poincaré,Science and Hypothesis, London: Walter Scott Publishing (1905), p. 141
18MA, para. 5.64; N Gales, "Statement by Dr Nick Gales", 15 April 2013 (Gales, Expert Statement), para. 4.11.
19Kitakado et al., "Plan for ecosystem modelling for species in Area IV in the Antarctic Ocean using JARPA and
JARPA II data", presented to 2013 Scientific Committee meeting as paper SC/65a/EM02. Available at
http:l/iwc.int/sc65adocs.
20L Walloe, "Scientific review of issues raised by the Memorial of Australia including its two Appendices",
9 April2013 (Walloe, Expert Statement), p. 14, para. 3.
21Gales, Expert Statement, para. 5.9, eighth dot point; Mangel, Supplementary Expert Opinion, para. 3.28. Gales,
Response to ProfWalloe, paras. 4.8-4.9. -20-
22
SORP program • You can ask him about that later this afternoon. Japan has offered no evidence
whatsoever, nothing, to show that the stomach contents of dead minke whales has offered any
greater understanding about the Antarctic ecosystem. Eighteen years of the JARPA program has
23
offered nothing more than the information that Antarctic minke whales eat a great deal of krill •
That has long been known. To the best of my recollection, 1knew that in 1972when my biology
teacher, Robin Jenks, told me that that is what whales ate. The program has added nothing- and 1
emphasize nothing- to the understanding of the Antarctic ecosystem.
Objective2
24. 1 turn to objective No. 2, which you will find at tab 82 of your folders, which has two
elements 24• The first element is to construct a madel of competition among different whale species:
this involves what is held out as something called the Krill Surplus Hypothesis; and the second
element is to devise new management objectives, including the restoration of the cetacean
ecosystem 25•
25. In our submission this objective is wholly misconceived. Japan focuses on only a small
number of species, just three; and the objective is being pursued unilaterally without any reference
to multilateral research activity undertaken elsewhere 2• Professor Mange! has put the first point
clearly: by focusing on a small component of the ecosystem- just minke whales- JARPA II
can only produce necessary data on "that single species in its ecosystem madel", whereas "ali of
the other components of the madel (e.g., the other baleen whales, birds, mammals)" will not be
addressed at all27• It is a bit like examining only the European red squirrel to understand what is
happening to the European ecosystem: it is a useless exercise unless you carry it out in a manner
that is integrated with the assessment of other species.
22Gales, Expert Statement, paras. 6.14-16.
23
MA, para. 5.13.
24
/bid.Ann. 105, p. 161; 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
ofNew Management Objectives for Whale Resources", 2005, SC/57/01 (JARPA II Plan); and CMJ, para. 5.30.
25
JARPA II Plan, pp.161-2; CMJ, paras. 5.28-5.31.
26
Mangel, Original Expert Opinion, paras. 5.15, 5.36-37. See also Mange!, Supplementary Expert Opinion,
paras. 3.26-3.27.
27
Mangel, Supplementary Expert Opinion, paras. 5.15 and 5.36-37. - 21 -
26. What of the "krill surplus hypothesis"? Professor Mangel states that it is "the only
28
clearly identifiable hypothesis in JARPA or JARPA 11" , but that Japan's approach to it is
significantly flawed 29• Actually, Japan says that it is not even purporting to verify the hypothesis:
it is merely seeking to develop what it calls "a model of competition among whale species", and to
that end it is considering several possible hypotheses that might explain changes in the abundance
30
of baleen whale species • Japan has not, however, designed JARPA II to test any hypotheses, so
we simply do not know what the true aim of the research is. Without knowing the aim, there is no
way to assess results. So, body parts are being collected and they are being examined for no
reasoned purpose. We just do not know what Japan's program is seeking to establish or explore or
tese•.
27. The IWC and the Scientific Committee have strongly criticized Japan's objective of
monitoring the Antarctic ecosystem, and the work related to it 32• The Scientific Committee has
conspicuously failed to state that Japan's approach is at ali useful for whale management. lt is true,
33 34
as Japan and Professor Wallee have noted, that the Scientific Committee itself does look at
ecosystem effects as part of its work. But, the purported ecosystem modelling under this objective
of JARPA II is different from what the Scientific Committee is doing. Lethal data is not required
or used for the ecosystem modelling agreed by the Scientific Committee 3• As Professor Mangel
has stated, the model being developed under JARPA II "cannot possibly provide any useful results
36
in assessing the ecosystem" • So much for objective 2.
28Mangel, Original Expert Opinion, para. 5.12.
29
/bid.paras. 5.11-5.15, 5.36--5.37.
3
°CMJ, para 5.31
31 çocara.
Mangel, Supplementary Expert Opinio2 n.. ~
32
MA, para. 5.20.
33
CMJ, para. 3.101.
34Wal10e,Expert Statement, p. 15.
3Gales, Expert Statement, para. 4.11.
36Mangel, Supplementary Expert Opinion, para. 3.27. -22-
Objective 3
28. 1tum to objective 3, which is at tab 83, namely the identification of changes in the
37
temporal and spatial structure of stocks of fin, humpback and minke whales • There is a rather
simple point to be made in relation to this objective, beyond the point that it obviously tests no
hypothesis: information on whale stock structures and mixing rates between different stocks can be
useful for the implementation of the RMP, but it is not required. But even more significantly, ali of
this data- everything- can be obtained by non-lethal means, such as biopsy sampling, satellite
38
tagging and tracking • So the Court- you, the Judges - are entitled to ask: why kill minke
whales to meet an objective that seeks to test no hypothesis, when non-lethal means are available?
Dr. Gales will address this point in due course 39•
Objective 4
29. The fourth objective of JARPA Il, which is at tab 84, is purportedly to improve
management procedures for Antarctic minke whale stocks 40• This objective is premised on Japan's
unhappiness with the RMP, which it considers to be overly conservative. Japan wants to amend the
41 42
RMP , because it is designed to function without obtaining data by killing whales • In short,
Japan wants a management régimethat allows the killing of whales today to produce higher catch
limits tomorrow.
30. Japan's desire to amend the RMP is, we say, misconceived. The RMP operates underthe
IWC, and it offers a robust and widely supported management procedure 43• It also includes its own
procedures for revision, a process that has been undertaken spanning 25 years of work. In that
4
work, "data from JARPA and JARPA II have not been relevant to those revisions'"' says ,
Dr. Gales. In Professor Mangel's point of view, he states that he is aware of "no peer-reviewed
37
CMJ, paras. 5.32-33.
38
MA, para. 5.69.
39
Gales, Expert Statement, para. 4.8.
4
°CMJ, paras. 5.34-5.37
41
/bid.,para. 5.37.
42/bid.,paras. 5.20, 5.34-5.35.
43Gales, Expert Statement, Annexure 2, para. 14.
44Gales, Expert Statement, para. 3.5. -23-
published paper that demonstrates fundamental flaws with the RMP that can only be corrected
through field-based programs that involve lethal take" 45•
31. In short, the inputs needed for the RMP can ali be obtained without killing whales, a
point to which Dr. Gales will return.
JARP A II bas no testable hypotheses
32. 1 can assemble ali of Australia's concerns with the objectives of JARPA Il, the four
objectives, under a single theme- and it is an important theme: it has no testable hypotheses. lt
offers nothing more than the collection of data, a heap of stones- not a house. The core of
"scientific research" aims to investigate questions or hypotheses that can be tested. That is their
essence. As Professor Mange} puts it, "the mere collection of empirical data without a testable
hypothesis simply cannot be treated as "scientific research'"' 6• Japan's activities does not test
identifiable hypotheses, and for this reason atone it cannot be treated as science. As
7
Professor Mangel puts it, "objectives that cannot be tested are not scientific'"' • The 21 eminent
scientists to whom 1 referred yesterday made exactly the same point: They said that Japan's
research program "Jacks a testable hypothesis or other performance indicators consistent with
8
accepted scientific standards'"' it is not science. The objectives of JARPA II have no end-point,
precluding any possibility of assessing progress in meeting purported objectives 49•
33. In challenging that view, Japan relies exclusively on Professor Wall0e, who has opined
that Japan is engaged in the collection of what he calls "exploratory data" and "exploratory data" is
50
science • Professor Mangel has offered a categorical response and rebuttal to this claim, he says
he is "not aware of any scientific research bodies that would support the approach of exploration
51
lacking a conceptual framework going on for decades" • Moreover, Professor Wall0e has offered
no evidence in support of his claim. lt is simple assertion, mere assertion.
45Mangel, Original Expert Opinion, para. 3.29.
46Mangel, Supplementary Expert Opinion, para. 3.7.
47
Mangel, Original Expert Statement, para. 4.12.
48
"An Open Letter to the Govemment of Japan on Scientific Whaling", The New York Times, 20 May 2002.
49
Gales, Expert Statement, para. 3.25-26.
50
Wallee, Expert Statement, pt, para1.
51Mangel, Response to ProfWallee, sect. 4. -24-
Conclusion on objectives
34. 1can be brief in my conclusions on Japan's objectives. They are simply there to allow
whales to be killed, not to establish a genuine program of science. A genuine program would
identify objectives for conservation and management based on broadly agreed research objectives
based on testable hypotheses.
35. Three of the four objectives of JARPA II cannot be achieved- period. The only one
that might be capable of being achieved- objective 3, changes in stock structure- merely
replicates what can be attained by non-lethal means. There is no support for any of these four
objectives from the international community of scientists. They are not required by the RMP. The
objectives of JARPA Il, in our view, are not science.
Part 5. JARP A II is not science: three further issues
36. 1 turn to the fifth part of my presentation, focusing on three further specifie issues.
Professor Mange) has stated that scientific research programs are characterized by a close
relationship between methods of research and the objectives that are sought to be achieved. There
is no such close relationship between objectives and method in JARPA II.
(i) JARPA Il's sample sizes are not established on a scientific basis
37. Let me begin with my first example: sample size. What 1mean by sample size is the
number ofwhales that Japan kills to meet its stated objectives.
38. Japan has not explained why it needs to kill 850 minke whales- plus or minus
10 percent- as opposed to 85, or 8,500, or 85,000. That failure undermines the claim to be
engaged in "scientific research". You have got evidence before you from Professor Mange) that it
52
is difficult to understand the statistical basis relied upon by Japan to set its sample size• Japan has
simply not contradicted that evidence, another example that is unrebutted. (tab 85) [screen on]
lndeed, it seems - as you will see on your screen - that Professor Wallee has conceded the point:
"it must be admitted that the Japanese scientists have not always given completely transparent and
53
clear explanations of how sample sizes were calculated or determined" • [screen off] 1take that
52
Mangel, Original Expert Opinion, para. 5.38.
5Walloe, Expert Statement, JO. -25-
as an example ofNorwegian understatement. The inadequacy of Japan's approach is compounded
by the absence of any testable hypotheses. As Professor Mange! puts it for JARPA II "it is
impossible to set sample sizes in a proper manner, because sample size is properly set by reference
54
to what is required to answer the focal question" •
39. Japan has offered vague explanations asto why it has chosen the sample size that it has.
lt asserts that it set sample sizes using statistical formulae based on margin of error and confidence
55
interval • Fine. What it has not done is offer any evidence or account to support its choices of
margin of error and confidence interval. On Japan's approach, as Professor Mange! states, "one
can select almost any sample size and describe it as being required by way of retrospective
56
reference to unexplained choices of each of the parameters" • There is just no scientific rationale
there: what there is, however, is the conveniently proximate relationship between a sample size of
850 kilied whales and the refrigerated capacity of its factory ship, the Nisshin-Maru.
40. Selecting a different margin of error changes the number to be killed: a higher margin of
error allows the number to be killed to be lowered, a lower margin of error would require more
whales to be killed. As Professor Mange! states, "knowing what margin of error to apply requires
knowing the question that is intended to be answered" 57• So the question for the Court is: on what
basis did Japan fix its margin of error? 1 cannot answer that question, we simply do not know.
58
There is no information or evidence on the point in Japan's Pleading •
41. Japan's Jack oftransparency and inconsistency in setting sample size began in fact with
JARPA. 1can explain that by reference to a table you can see on the screen (tab 86) [screen on-
table of sampie size against stages of JARPA and JARPA II]. The table shows that Japan set catch
9
quotas of 825 minke whales and 50 sperm whales in March 1987, in the JARPA proposai 5 - that
is right at the top. Six months later, and before the program was commenced, the number was
54
Mangel, Supplementary Expert Opinion, para. 3.11.
55
CMJ, paras. 5.58-5.60.
56
Mangel, Supplementary Expert Opinion, para. 3.20.
51/bid.para. 3.14.
58CMJ,f&Rit 5.57-5.71.
59Government of Japan, "The Program for Research on the Southern Hemisphere Minke Whale and for
Preliminary Research on the Marine Ecosystem in the Antarctic", 1987, SC/39/04 (JARPA Proposai, 1987) [MA,
Annex 156]. -26-
reduced significantly, to 300 minke whales and no sperm whales, for a two-year feasibility study 60•
This number- with an allowance of plus or minus 10 percent- was retained when the full-scale
program commenced in 1989. Japan claims that the adjustment was made to respond to comments
61 62
by the Scientific Committee in 1987 ,and elsewhere due toits own logisticallimitations •
42. But that is not what the evidence before the Court shows. The real reason for the change
was political, it had nothing to do with scientce. The Japan Fisheries Agency reduced the proposed
catch limits on the direct instruction apparent!y of the Prime Minister of Japan, in April 1987. He
told the Director-General of the JFA that he had a "gut feeling" that a killing target of 875- the
825 minkes and the 50 sperm whales- looked too large, and he instructed that Japan should not
create the impression of being "unfair" 63• So Japan reduced the number by about 60 percent.
Interestingly, it offered no relevant change in its research objectives, once the full-scale program
64
began in the 1989 •
43. From a scientific perspective, Mr. President, Japan's research program either requires
825 minke whales or it does not. The adjustments that took place between 1987 and 1989 were not
based on scientific considerations- gut feeling is not science. And that calls into question the
whole basis of the program. This conclusion is compounded by the fact that the Court has no real
evidence before it to show that the sample sizes were really informed by the program's stated
objectives.
44. But that is not the only problem with sample sizes. You will have noted that the sperm
whales were removed entirely from JARPA's research plan, and yet, the stated objectives were not
changed at all 65• On a scientific approach, one assumes that the stated objectives required the
killing of a certain number of sperm whales. Remove those sperm whales from the research plan,
60
Government of Japan, "The Research Plan for the Feasibility Study on 'The Program for Research on the
Southern Hemisphere Minke Whale and for Preliminary Research on the Marine Ecosystem in the Antarctic"', October
1987, SC/D87/1 (JARPA Feasibility Study Proposai, 1987), p. 10.
61CMJ, para. 4.85.
62Government of Japan, "The Research Plan in the 1989/90 Season in Conjunction with note for 'The Program
for the Research on the Southern Hemisphere Mink Whale and for the Preliminary Research on the Marine Ecosystem in
the Antarctic (SC/39/04)"', May 1989, SC/41/SHMi13 (JARPA 1989/90 Research Plan), p. 5.
63MA, Ann. 127, "Fisheries Agency Director-General Told by Prime Minister: Do Scientific Whaling that Won't
be Criticised", Asahi Shimbun, 26 April 1987 (morning edition), 2.
64JARPA Feasibility Study Proposai, 1987, p. 10; JARPA 1989/90 Research Plan, p. 5.
65/bid., p. 3; JARPA 1989/90 Research Plan, p. 5. -27-
and those objectives, presumably, would have to be revisited. The objectives cannot be met. And,
this indicates on its face, that JARPA is not science, it is a program driven by political and
commercial considerations.
45. Now Jetus move forward to 2005 - moving to the bottom of the siide- and JARPA II
ali of a sudden. Japan decides to increase the sample size for minke whales, more than doubling it
to 850 whales- plus or minus 10 percent- and set a kill of 50 fin whales and 50 humpback
whales. Japan's stated research objectives are premised on the collection of body parts from three
species of whale, in specified numbers. How were those numbers fixed? 1have already told you,
we have no idea, because there is no expert evidence before you to provide an account. One would
have expected Japan to put forward an independent scientist who would explain, as an expert
witness, how Japan took these decisions. lt has chosen not to do so. So the evidence of
Professor Mangel and Dr. Gales is entirely unrebutted. Again, it is impossible to avoid the
conclusion that the reason for the change in 2005 was political, and had nothing to do with
scientific considerations. In our Memorial at Chapter 3 we described what happened in 2010, when
a Japanese Minister stated that "[W]e don't actually need 800 [whales]", and he theo helpfully
66
added "it's more than we need" • What did Japan say in its Counter-Memorial? Nothing of any
relevance to that factual assertion67• What has Professor Wallae said in response to that material?
Nothing. There is no evidence, not a shred of evidence before you to explain Japan's choice on this
vital issueof the number ofminke whales and other whales to be taken. [screen off]
46. 1have so far focused only on targets. What about the actual take of whales? Weil, as
you know from the pleadings 68,Japan's actual take has, in most years of JARPA Il, been far below
the targets. (tab 87) [screen on- visual representation to show actual and projected catch]. As
you can see on the screen, on average over the Jast eight seasons the take has been 454 minke
whales, which is Jess than half the maximum target of 935. And Japan of course, sets an annual
take of 50 humpback whales under JARPA Il, but has not taken a single one. That is not for
scientific reasons, itis for a political decision taken in the face of massive protest, at the IWC and
6MA, Ann. 107, Govemment of Japan, Minister for Agriculture, Forestry and Fisheries (H. Akamatsu),
Transcript of Press Conference, 9 March 2010.
6See CMJ, para. 5.81.
6MA, para. 5.78. -28-
beyond. And what about fin whales? lt should have caught 400 over the past eight years, it has in
fact caught 18. [screen off]
47. What changes have been made to the research program based on this failure? far as
we can tell, none. There has been no change to the stated objectives. This too confirms that this is
not about science. 1ask you to pause for a moment and imagine a domestic research programme,
on the impact of certain vaccines on children with three different blood types. You set an annual
figure of 850 for one group, and 50 for the testing of each of the two other groups. As to the first
group, you find only 425 volunteers; of the second group you find only two volunteers, and of the
third group you find none. Does the research programme go ahead without any change to the
v~ ..-\'~a. l\lf';)o""c q.-~- ~0 ~~) ot
objectives? lQQcourse tt does not go ahead. In fact, it is unlikely that the project would proceed at
ali. Yet Japan nevertheless has just gone on and on, without any change to objectives of the
research program.
48. Let me be clear on one point-Australia welcomes the fact that fewer whales have been
killed than were targeted. But the numbers actually killed raise a fundamental question that Japan
has thus far not been able to answer: how can it meet research objectives of JARPA Il, purportedly
premised on killing a stated number ofthree species, when in fact it has killed far fewer of only two
species? Why is Japan silent about this? What does its single expert have to say about it?
Nothing. Any scientist- any one of the 21 scientists I referred to yesterwill tell you that a
sample size has to be fixed by reference to the hypothesis that is being tested, and if the sample size
is changed the whole research objective has to be changed, or abandoned. If JARPA II was truly a
true scientific research program, Japan would have adjusted its objectives. If it was really science,
that would have happened. What has Japan clone? It has continued its program and says that the
matter is being "evaluated•
49. Mr. President, Members of the Court, the claim to "scientific research" is wholly
undermined by the gap between target and actual sample sizes. This is politics and commerce, not
science.
6CMJ, paras. 5.73 and 5.80. -29-
(ii) JARPA Il'scommitment to lethal take is not scientific
50. 1 turn to a second key issue, namely Japan's unbending commitment to lethal take.
(tab 88) [on screen, Resolution 2003-2] On the screen you can see IWC Resolution 2003-2, by
which the IWC unambiguously called for scientific research to be limited to "non-lethal methods
only" 70• The Resolution recognized that Article VIII of the Convention was drafted at a time when
there were few alternatives to lethal take, but that today's situation was "drastically different".
Numerous IWC resolutions on Japan's special permit programs have recommended that they be
halted and restructured to make use of non-lethal methods, as Professor Crawford has noted 71•
Professor Wallee has nothing to say on these resolutions, or on the need to avoid killing whales, or
on the work of the Scientific Committee. [screen off]
72
51. In its Memorial, Australia set out alternatives to the killing of whales • Dr. Gales has
expanded on these in his expert statements73• There is no evidence before the Court to show that
Japan turned its mind to these options, either for JARPA or JARPA 117• There is not a shred of
evidence before the Court of any assessment by Japan of alternatives. Japan has simply asserted
that they are not available, and relies on Professor Wallee, who offers no reference to support his
own assertions.
52. Japan claims that lethal methods are necessary and indispensable because certain
research can only be conducted by obtaining the body parts of whales. Let us subject this claim to
a little more scrutiny.
53. The reports from JARPA and JARPA II indicate that about one hundred body parts are
sampled from each whale killed. The reports do not, however, indicate how this growing collection
of body parts and datais tied to specifie objectives of JARPA Il. We say that the body parts are not
needed, because the research is not reliable or useful for the conservation and management of
.~Wc. a..\~ ~~Q .. «-~
whales in the Southern Ocean. Y~ if the data coulô be said to be needed- and we say it is
70
MA, Ann. 38, Resolution 2003-2.
71
MA, Ann. 25, Resolution 1994-10; ibid.Ann. 28, Resolution 1996-7;ibid.Ann. 30, Resolution 1997-6;
ibid.Ann. 39, Resolution 2003-ibid.Ann. 40, Resolution 2005-1.
72 ~·
MA, JU815.65-71.
73
Gales, Expert Statement, section 6; Gales, Response to ProfWall0e, paras. 2.6-2.11, 4.4.
74
Mangel, Supplementary Expert Opinion, para. 2.2. -30-
not- ali of it can be obtained without killing whales, principally by biopsy sampling and satellite
75
tagging of whales •
54. Let me very clear again on another point: Australia welcomes legitimate scientific
research on whales in the Southem Ocean, and it contributes to various multilateral efforts in the
field, as described in the Memoriaf 6 and in Dr. Gales's expert reports 77• Australia participates in
numerous programs, including the SORP program, a scientific initiative described by Dr. Gales and
78
led by the IWC's own Scientific Committee • Japan has chosen not to participate. There is also
the Ecosystem Monitoring Program of the CCAMLR (CEMP), in which both countries are active
participants, which does not require lethal "research". There was also the earlier Scientific
Committee-led IOCR and SOWER programs, which did not seek or require lethal "research".
Japan could have linked JARPA II to these programs, but it has not done so. As 1 mentioned
yesterday, it has even kept JARPA II entirely separate from ali of the work carried out by its own
National Institute of Polar Research (NIPR) 79• lt has been kept out of it because the work of
JARPA II is premised on the killing of whales, and it has nothing to do with science.
55. Japan has also promoted JARPA and JARPA II as an activity distinct from the RMP.
The IWC's agreed management procedure. This was described to you yesterday by
Y\r.
PrefeiliiQB • urmester. Note that Japan does not like the RMP 80•
56. The Parties are in strong disagreement on whether information on matters such as the
structure of whale stocks and mixing rates can be ascertained by non-lethal means. You have got
evidence before you from Australia's two experts, and Japan's own expert. Australia's experts say
that this information can be obtained from non-lethal means; biopsy sampling and satellite
tagging 8• Japan's expert disagrees. Ali three experts will be available to you to have your
75MA, paras. 5.65-5.71.
76
/bid.paras. 5.60-62.
77
Gales, Expert Statement, Sec. 6; Gales, Response to Prof Walloe, paras. 2.6-2.11, 4.4.
78 fW'C\S.
Gales, Expert Statemen 61--6.17.
79 . • r..ro.S.
See 1b1d.,*ll'llll3.21-3.24.
80Walloe, Expert Statement, p. 11.
81Gales, Expert Statement, para. 4.8, third dot point of para. 5.9, paras. 6.15--6.Mange!, Supplementary
Expert Opinion, paras. 5.4-5.13. G ""~ ':·"'ft>'--",_'.\~,_ 1~ ;·s.q..
(p\u-.~"-.c.,:.'~fCr.o:~,..~ .,>....\.N»Kcl
- 31 -
questions put to them and you will be able to form your own view on which is the more persuasive
ofviews.
82
57. Japan also says that non-lethal biopsy sampling and satellite tag•ing is not practicable
Yet Professor Wallee does accept that "DNA analyses of biopsy samples obtained non-lethally
from minke whales can provide sufficient genetic information to determine stock structure". He
recognizes that the approach "is correct", in•But what he says is that "in practice it
would be impossible", because it is "prohibitively expensive" and because "the number of biopsies
that could be obtained with a similar effort to that in the current [Japanese] research whaling
84
program would be far Jow•But, once again he offers no evidence whatsoever in support of
that assertion. Even if he iand Dr. Gales offers actual data to show thahehe is not-
recognizes that itossible to do it, and that is the crucial point. It should at )east be explorecy-
That is a concession made by Japan through its witness, it is an important one and it offers the
Court a way forward.
58. Over the past 25 years there have been huge advances in biopsy sampling and satellite
tagging. The evidence before the Court shows that these methods are feasible, used and successful.
And they are being used on minke whale . You will hear more from Dr. Gales on this later this
5
afternoo•
59. The evidence before the Court also shows that information oncan be structure
obtained by genetic analysis from biopsy sampling, and that information on whale movements and
mixing rates can be obtained effectively by satellite
60. What is Japan's response to these alternative techniques? Weil, it says, there are sorne
things that cannat be known unless you kill the whale and obtain a particular body part. It rests its
case very largely on the earplug of the whale, a feature 1must confess 1was not aware of before 1
became involved in this case. You tao it seems must now turn your attention to the earplug of the
8CMJ, para. 5.49 and footnote 696.
83
Walll3e,Expert Statement, p. Il.
84
/bi-~·..,'bc-.,~....-i .. ~P' ... ·-. s.'-.a s.n;G.l. ':"<~''5 .~.'"+'.,..&~-"";~·'·'~
~s, Response to Prof. Wal10e,paras. 2.1-2.18.
( q.\.-)1. od.:Ç'.a~fro,.lN\I'.Alkat
8CMJ, para. 4.83. ~c.c )o,"."".::Ç'aso\u.n..)
87
Gales, Expert Statement, third bullet point of para. 5.9.( -32-
f'\ f-~"~~1\"'""\l G.~.i;,' .:.~o' E"- "..'-...,~"~~~\.~'~ct
'S~~"-'o!:t>~) ::')l'~. s.~l l\j;fc:C>f\"\.~-f•'"EWt.'.l""",f"O""'·S.,t~
whale, a body part meaId, not much more than the size of my thumb. It can only be
obtained by killing the pan asserts that it is "a valid and useful tool for age
88 89
determinatand to assist in determim g na•ural mortality rates
61. Australia has offerints in response. First, the earplug of the whale has
not been established to show the true age ofwli les. Secondly, even if it did establish that, the data
90
is of no•Japan has collected nrplugs from dead minke whales under JARPA.
What have we learnt from this? As far as we can tell, absolutely nothing at ali: the evidence
before the Court is that our understanding of mortality ates for Antarctic minke whales is exactly
;.a
the same as it was in 1988, before this program began There is no evidence before the Court that
B
the age data obtained by Japan has offered anythe situation has notighAnd
changed under JARPAapan collects earplugs, nothing is Iearned, one of the stated objectives
"'--- f"'~Hofro""
of JARPA II are met, Japan continues tGc.l.:Cst!~~rplt-"~•.,.~-1."-=l.
62. The evidence is plainly insufficient to allow Japan to get home on earplugs. What other
body parts are available toit? lt invokes the use it has made of the stomach content of dead whales
and of blubber thickness. These, it says, are indispensable to understanding how whales feed, and
their nutritiona• With respect, we fundamentally disagree that this data provides any
useful informThe analysis carried out is not required for the RMP, a point accepted by
Professor W•To the extent that it wants to use the data for that purpose, the approach is
manifestly inadequate, given that it is claiming to study the whole of the Antarctic ecosystem.
63. There are other problems with Japan's approach to data on stomach content and blubber
thickness. The data that is collected is recognized as being unreliable, as it has not been obtained
by a properly random sampie. At the 2012 Scientific Committee meeting, when stomach content
and blubber thickness were addressed, serious questions were raised about the unreliability of the
93
data•Japan has since tried to fix the problem, at !east in relation to blubber thickness data, at the
8CMJ, para. 4.66.
89
/bparas. 4.118-4.124.
9/bpara. 4.66 and footnote 436. For authority see MA, in particular para. 5.70.
91
CMJ, para. 4.72.
9Wall"e, Expert Statement, p. Il.
93
Report of the ScientiCetaceanRes.Manag2013, p. 51. -33-
recent 2013 Scientific Committee meeting. But the Committee concluded that the problems had
not been resolved. As to stomach content data, at the most recent meeting, Japan did not even
attempt to show that it had tried to fix the problems. Finally, 1must mention that Professor Wallee
4
has asserted that non-lethal means- namely, studying the krill directll , and modelling based on
95
the size of living whales - are not available and cannot accurately ascertain feeding eco1ogyand
96
habits. Dr. Gales has provided clear evidence directly rebutting that statement •
64. What have we leamt from Japan's analysis ofstomach contents? Seven thousand whales
killed, two things leamed: (1) they eat krill; (2) estimates of daily food intake are no more precise
than previous estimates based on metabolic calculations. As Dr. Gales states, we have leamed
nothing that we did not already know 97• More important questions on feeding remain completely
98
unanswered and cannot be answered by lethal take •
65. Japan claims to obtain much biological data from body parts; none of it is needed for the
99
RMP • What is needed is not addressed by lethal data.
(iii) The absence of peer review confirms JARP A ll is not science
66. 1 tum to the third issue that illustrates the manifest difficulty for Japan's case: total
absence of peer review. Professor Mange! has made it clear that a program for "scientific research"
should receive- and then take account of- comments from independent reviewers, at the design
100
stage and in its implementation of a program • There is no dispute between the Parties that
JARPA II did not integrate extemal comments at the design stage: Japan did not bother to wait for
the outcome of the Scientific Committee's review of JARPA, in 2006, before moving on to
JARPA II. lt just conducted its own review, in a manner that was not independent. lt relied on its
own and closely aligned scientists.
9Gales, Expert Statement, para. 6.15.
9Gales, Expert Statement, fourth dot point of para. 5.8, eighth dot point of para. 5.9; Mange), Supplementary
Expert Opinion, para. 3.28.
9Gales, Response to Prof. Wa1113e p,aras. 4.5-4.14.
97Gales, Expert Statement, paras.3.48 , 4.10, fourth dot point of para..5.8, eighth dot point of para.5.9; see a'Xo:
Gales, Response to Prof. Wall13e,paras. 4.7-4.8.
98Gales, Response to Prof. Wa1113e p,aras. 4.7-4.8.
99MA, paras. 2.75, 5.10, 5.47; Mange), Original Expert Opinion, paras. 3.25-6, 5.16-18; Gales, Expert
Statement, para. 3.4.
10Mangel, Original Expert Opinion, para. 4.26. -34-
67. The JARPA II Plan was presented to the Scientific Committee in 2005, a year before the
IWC's planned review of JARPA. Sixty-three members ofthe Scientific Committee-a large and
unprecedented number- presented a paper, which you will find at tab 89, which they stated they
were "unable to engage in a scientifically defensible process of review of the JARPA II proposai",
101
because JARPA had not yet been independently reviewed • The consideration of the JARPA II
Plan that followed, without any input from the 63 objecting scientists was limited to a "brief
discussion within a small and non-representative portion ofthe Scientific Committee" 10• No peer
review of design.
103
68. Peer review has fared no better with respect to the implementation of JARPA 11 • Japan
104
claims ample peer review both of JARPA and JARPA 11 • It cites a total of 107 peer-reviewed
papers published in the period 1988 to 2009, with more papers after that. Please look at those
papers very carefully, as I have done and as the Australian team has done. Of the total, 51 appear
in peer-reviewed literature and are potentially relevant to the vague objectives of JARPA and
JARPA II 10• Sorne 40 per cent of the peer-reviewed articles- 39 out of 107- have nothing to
do with the stated objectives of JARPA and JARPA 11 106• Only about 15 percent of the papers
107
produced in relation to JARPA and JARPA II are relevant to stated objectives •
69. How many of these peer-reviewed papers relate to data essential for the conservation and
management ofwhales that could only be obtained by lethal data? None. Not a single one.
70. How many peer-reviewed publications have been produced under JARPA Il, since its
108
launch in 2005? Japan says there are two papers • And it says, hopefully perhaps, that "a larger
0\ (~ .\~ "•"" 1'\""""'~v).
10Childerhouse, S. et al. (62 other authors). 2006. "Comments on the Govern.fe'nt of Japan's proposai for a
second phase of special permit whaling in Antarctica (JARPA Il)App. 2 ofAnn~ "Report of the Scientific
Committee". Journal ofCetacean Research and Management 8:260-261; see also, Gales, Expert Statement, para. 3.38.
102
Gales, Expert Statement, para. 3.39.
10Mangel, Original Expert Opinion, para. 4.2.
10CMJ, paras. 4.112-114 and 5.99.
10Mangel, Original Expert Opinion, para. 5.58.
10/bid., para. 5.59.
107
Ibid., para. 5.62.
108
CMJ, para. 5.99, footnote 774;Institute of Cetacean Research, "Data available for JARPA II Review
Workshop" (presented as paper SC/65al008 to 2013 Scientific Committee meeting; available at http://iwc.int/sc65adocs),
p.6. -35-
109
number ... are expected", once the program has been reviewed in 2013-2014 • (Tab 90) [Screen
on- footnote 774] We invite you to look carefully at those two papers, as Professor Mangel and
Dr. Gales have done. You can see references to them on the screen -they are footnote 774 of the
Counter-Memorial. They are about biochemistry and heart anatomy, two matters that are irrelevant
to the conservation and management of whales, and equally irrelevant to the stated objectives of
JARPA II 110• [Screen off]
71. Professor Mangel bas also looked at sorne more recent papers that have been prepared
using JARPA data, JARPA, not JARPA II- 15 peer-reviewed papers produced between 2010 and
2012. Of the 15, 12 do not appear to have been intended for wide circulation and are inaccessible
to most in the scientific community only for reasons of linguistic difference: one is in Norwegian
and 11are in Japanese. We took the trouble to get them translated into English and provided them
to Professor Mangel for his consideration, and he took the view that many of them don't contain
any substantive analyses at ali- of the 11 in Japanese, seven are two pages long, and one is three
111
pages long. You can hear more from him, in due course, on these matters •
72. Japan is very defensive on the subject of peer review. It asserts- without any
evidence- that documents submitted to the Scientific Committee are more important than peer
112
review • That claim is misconceived: the function of the Scientific Committee is not to provide
113
peer review of JARPA Il, for reasons explained by Dr. Gales • Japan bas tendered no evidence in
support of its argument on peer review. Dr. Wallae has absolutely nothing to say about peer
review. What he does say corroborates the widespread critique that Japan's decision-making on
other matters is unclear and lacks transparency.
73. In any event, submissions to the Scientific Committee lack the essential elements of peer
review, and cannot replace it. The function of peer review is to assess whether scientific objectives
10CMJ, para. 5.99.
110
Mangel, Supplementary Expert Opinion, para. 3.35; Gales, Expert Statement, para. 5.9.See Yunoki, K.,
lshikawa, H., Fukui, Y. and Ohnishi, M. 2008. Chemical properties of epidermallipids, especially sphingolipids, of the
Antarctic minke whale.Lipids (2008) 43: 151-159 (on biochemistry); Ono, N., Yamaguchi, T., Ishikawa, H., Arakawa,
M., Takahashi, N. Saikawa, T. and Shimada, T. 2009, Morphological varieties of the Purkinje fiber network in
mammalian hearts, as revealed by light and electronmicroscopy.h Histol Cytol. 72(3), 139-149 (on heart anatomy).
11Mangel, Supplementary Expert Opinion, para. 3.39.
11CMJ, para. 4.90.
11Gales, Expert Statement, Sect. 3. -36-
are relevant, significant and attainable, having regard to the methods proposed, and that they can
114
contribute to the problem being addresse• The complete absence of peer review in relation to
JARPA II fatally undermines Japan's claim to scientific pur•ose
74. Japan asserts that it has addressed recommendations of the Scientific Committee in
relation to JARPA and JARPA 11 11• This is plainly not correct as Dr. Gales makes clear in his
. (i;J)G:.'- ë.-~ ,s.'nL""-"'"ioart3..2.Q(r'--- '"~ l'l-t\"fo.~ J~ ~)'.""
evJdenceJ- '
75. The evidence before the Court provides no support for Japan's contentions on peer
review. On JARPA Il, Japan asserts that it has addressed recommendations made by the 2006 IWC
JARPA Final Review Workshop 11• If you go through that text, which you will find in the
pleadings, you will see that the annotations merely indicate that most of the recommendations were
"to be considered". That Report was adopted six years ago, what's the evidence to show that Japan
has followed through on it? There is, again, none before you.
76. The conclusion on peer reviewis simple. There was no peer review of design or
objectives of JARPA II before it commenced. There has been no peer review of any of the
research purportedly based on data collected under the JARPA II program that is relevant to the
stated objectives.
Part 6. Conclusions
77. Mr. President, 1can now conclude. Japan has collected data, mainly from the body parts
of a large number of minke whales killed over the last 26 years, purportedly in the name of
"scientific research". lt asserts, without much evidence, if any, that that data provides new and
118
useful knowledge in the service of conservation and management ofwha•eBut what has Japan
actually achieved in 26 years of its so-called scientific programs? The evidence is extraordinarily
limited.
1Mangel, Original Expert Opinion, para. 5.52.
115/bid .
1CMJ, para. 4.110.
1/bid.para. 5.18; App. 3 of Ann. 0 ofthe Report ofthe Scientific Committee (2007), J. Cetacean Res. Manage.
JO(Suppl.), 2008, p. 349.
1See CMJ, paras. 5.28, 6.22, 9.21, 9.27, 9.30. -37-
78. lt cannot rely on any positive statement by the IWC or the Scientific Committee that its
research has contributed to any scientific knowledge.
79. lt has relied upon the expert evidence of a single individual, closely associated with the
whaling program of another State. Professor Wallae's expert evidence provides limited support for
sorne of Japan's claim, contradicts other parts of the claims, and is totally silent on yet other parts.
On the crucial issue of sample size and on the adequacy of peer review of JARPA Il, he frankly
does not offer any support for Japan.
80. Japan is able to point to no peer review of the design of the JARPA II program and not a
single peer-reviewed article of research carried out under JARPA II that relates to the stated
objectives ofthat program.
81. Japan offers no claim that JARPA II has assisted in meeting the requirements of the
RMP. lt has offered no evidence to show that JARPA II has been integrated into any other
research programs that seek to contribute to scientific knowledge about the Antarctic ecosystem.
82. lt offers no evidence that JARPA II is based on any testable hypotheses, the prerequisite
for any program of science.
83. lt has produced body parts from more than 10,000 whales killed over a period of
26 years. The data offers no assistance to the review processes built into the RMP, and will not
resultin any improvement to management. None of the research recommendations in the Scientific
Committee's annual reports refer to the product of JARPA Il, or the need to collect Jethally
acquired data. JARPA II does not meet research needs identified by the Scientific Committee, and
it is not premised upon research objectives or methodologies that meet minimum standards for
sound science, as laid down in general scientific practice.
84. Despite ali of this, Mr. President, Japan asserts before this Court that its activity under
JARPA II is for "purposes of scientific research". The evidence before you does not come close to
supporting that claim. Twenty-one distinguished scientists made that very clear, more than a
decade ago. It's not designed to answer scientific questions they said, it has no scientific need they
119
said, it has no testable hypothesis, they said • Nothing has changed in the intervening decade.
11CR2013/8,pp. 64-65,paras.23-24(Sands). -38-
What you have before you is not a scientific research program, it is a heap of body parts taken from
a large number of dead whales. C'est un tas de pierres, ce n'est pas une maison.
85. Mr. President, Members of the Court, 1thank you for your attention, and now invite you
to proceed to the next stage of the proceedings.
The PRESIDENT: Thank you, Professor Sands. The Court will now proceed to the hearing
ofthe experts called by Australia.
1will first explain the procedure to be followed during the examination of experts.
At my invitation, the Agent of the Party calling the expert will introduce him. The expert
will then take his place, and 1 will ask him to make the declaration set down in Article 64,
subparagraph (b),ofthe Rules of Court.
Thereafter, the Agent or counsel of the Party calling the expert will begin the
examination-in-chief, which will last up to a maximum of 30 minutes. The expert may give his
evidence in the form of a statement and/or as replies to questions put to him by the Party having
called him, at the option of that Party. The other Party will then be given an opportunity to
cross-examine the expert, for a period not to exceed 60 minutes. The scope of this
cross-examination shall be confined to written and oral statements already made by any of the three
experts.
The Party calling the expert will then be asked by me if it wishes to re-examine him. The
attention of the Parties is drawn to the fact that any such re-examination may not exceed
30 minutes and must be limited in scope to issues already dealt with in cross examination.
Thereafter, Judges could put questions to experts.
1now give the tloor to the Agent of Australia to introduce the first expert, who 1understand
is Professor Mange!. Mr. Campbell you have the tloor.
Mr. CAMPBELL: Mr. President, Australia calls, as its first expert, Professor Marc Mange!
of the University of Califomia. Professor Marc Mange! will be examined by
Professor Philippe Sands. Thank you, Mr. President. -39-
""o.n:.
The PRESIDENT: Thank you, Mr. Campbell. Professor IM&FkMangelmay now take his
place at the rostrum and 1cali upon you to make the solemn declaration for experts as set dawn in
Article 64, subparagraph (b), of the Rules of Court. Professor Mange! you have the floor.
Mr. MANGEL: 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 made in accordance
with my sincere belief.
The PRESIDENT: Thank you very much. 1now give the floor to Professor Sands to begin
the examination of Professor Marc Mange!. You have the floor.
Mr. SANDS: Professor Mange!, welcome to The Hague. If you could begin by telling the
Court your name and current occupation.
Mr. MANGEL: Mr. President, Members of the Court, it is bath a great honour and privilege
for me to be standing here in front of you. My name is Marc Mange!, 1am a faculty member at the
University of Califomia, Santa Cruz campus.
Mr. SANDS: If you've got the tab folders in front of you, if 1 can just take you to tab 1,
which should be a copy ofyour expert opinion, dated April 2011. Could you confirm that you are
the authorof this opinion?
Mr. MANGEL: 1confirm that this is my scholarship and my ideas, 1am the author.
Mr. SANDS: If you could tum to the next tab, tab 2, that should be your supplementary
expert opinion dated 15 April2013. Could you confirm that you are the author ofthis opinion?
Mr. MANGEL: 1also confirm that 1am the author of this opinion.
Mr. SANDS: If you tum to the next tab, tab 3, which should be a copy of a document
entitled "Respanse to Professor Wallee", dated 31 May 2013. Could you confirm that you are the
author of this opinion?
Mr. MANGEL: 1also confirm that 1am the author of this opinion. -40-
Mr. SANDS: 1finally take you to tab 6 of the folder. There is a copy there of Professor
Wallee's statement. Could you confirm that you have read this document and that you are familiar
with its content?
Mr. MANGEL: 1confirm that 1have read this document very carefully.
Mr. SANDS: Could you please briefly explain to the Court, Professor Mangel, how you
went about the task of preparing your three written statements and your interaction with
representatives ofthe Australian Government?
Mr. MANGEL: Certainly. 1took this on as a major research project and consequently 1read
>< an enormous amount of literature,-both about the process of science and then literature of the IWC
understanding how it currently operates. 1have followed the work of the IWC for many years but 1
basically went back ali the way to the beginning to completely understand this. lt was a major
research project and 1 actually put aside sorne other research projects in order to do that. 1write
scientific papers which are very differentj 1 have learned, ~"'-' papers for the law. 'nd my
interaction with lawyers associated with this case has been to get editorial guidance so that 1can
make what 1wrote most valuable for you.
Mr. SANDS: Could you tell us about your professional training and experience?
Mr. MANGEL: You already have my CV, so 1won't repeat that. And in fact, in general,
since l'rn spea,king extemporaneously to you, 1 will not generally repeat what 1 have written
because 1haven't tried to memorize anything. Essentially, 1have done 36 years ofpolicy-relevant
science, 1 do modelling, field work and experiments. And the field work and experiments
sometimes involve lethal take. 1have worked in this period on dolphins and seals and sea lions and
most recently blue whales. And 1 have reviewed for ali the major granting agencies in North
America, and many in Europe and in the UK. And 1have also have been a reviewer and editor of
major scientific journals.
Mr. SANDS: Professor Mangel, what's been the nature of your engagement with the work
of the IWC and its Scientific Committee in relation to the issues raised in this case? -41 -
Mr. MANGEL: Because of my work, particularly on Southern Ocean krill and sorne of my
dolphin work, 1have observed the IWC from one step removed for a very very long time, going ali
the way back to graduate school in the 1970s.
Mr. SANDS: On what basis do you consider yourselfto be qualified to express opinions on
specifie issues relating to the programme for the purposes of scientific research in the context of
scientific whaling under the Convention?
Mr. MANGEL: As 1just described, 1have observed the IWC one step removed for a very
very long time. 1 have thought about these issues. 1 served on the Committee of Scientific
Advisers for the US Marine Mammal Commission for six years in which 1was very familiar with
the development of the RMP and followed it closely. But 1 have always been one step removed
and of course 1am a practising scientist.
Mr. SANDS: Hopefully on the screen now will come up sorne criteria. 1 wonder if you
could'just take a minute to look at those. Are these the criteria you have identified your expert
opinion?
Mr. MANGEL: They are indeed mine.
Mr. SANDS: If you could tell us briefly about the basis upon which you identified the four
criteria you referred ton your original expert opinion?
Mr. MANGEL: As 1 mentioned previously, 1 took this as a major research project so the
first thing 1did was a broad surveyof the practice of science as ait is done generally today. At the
same time 1was reading IWC literature. So in fact, if you look in my original opinion, you will
see, first 1have a general setf criteria for science as practice, and second 1have a set of criteria
specialized for considerationf conservation and management of whales, using what 1have learned
from the IWC. -42-
Mr. SANDS: Given your background and your experience through your career, is it your
view that these are criteria generally accepted by independent members of the scientific community
for determining whether a programme is for the purposes of scientific research?
Mr. MANGEL: Yes. 1 think that the general criteria will be broadly accepted by the
scientific community. And that the specifie criteria will be broadly accepted by the marine
mammal community.
Mr. SANDS: You have at tab 6- 1will invite you to go to it now- the expert opinion
which was produced by Professor Wallee in relation to your statements and the criteria that you
have identified. I wonder if you couId tell the Court what your reaction was when you read what
Professor Wallee had to say about these four criteria?
Mr. MANGEL: We've already heard a lot about peer review and Professor Wallee's
document is actually the first peer review of what 1had written. In that 1found what we usually
find with peer review: he agreed with sorne thingssaidtt}e disagreed, and did not comment on x
others.
Mr. SANDS: In relation to his comments on the criteria, 1wonder if you could say anything
more about what your reaction was to his critique, such as it is, ofyour criteria?
Mr. MANGEL: 1noted that Professor Wallee did not reject my criteriaj or the criteria in my x
" originalrepor Ithink that is a better way to put it. He did not reject those criteria, nor did he
offer alternatives.
Mr. SANDS: The views that he has expressed in his opinion which you've looked at, have
they in any way caused you to reconsider the criteria that you would apply in determining whether
the JARPA II programme is a programme for the purposes of scientific research?
Mr. MANGEL: After reading Professor Wallee's report and thinking about it carefully, 1
decided that it has no cause for me to change my assessment. -43-
Mr. SANDS: Let me turn now to a different subject, namely the role of defined and
achievable objectives that aim to contribute to knowledge that important to the conservation and
management of whales. 1wonder if 1could ask you this question to begin: why are defined and
achievable objectives necessary for a programme for the purposesf scientific research?
Mr. MANGEL: lt is almost a definition of science that we have to begin with a meaningful
question and a means to answer it. Very often in the scientific literature you will see this called a
"testable hypothesis". When 1 wrote my document, 1 called them "defined and achievable
objectives", to sorne extent to use language that was similar to what is in the IWC literature.
Mr. SANDS: Could you elaborate a bit on one aspect ofwhat you've just said. What is the
relationship between defined and achievable objectives and aestable hypothesis"?
Mr. MANGEL: The "testable hypothesis" will be a subset of the objectives. One could
~o. ..
imagine many objectives and ~ the objective as an overarching framework leads to specifie
hypotheses which one would then evaluate and test.
Mr. SANDS: Professor Wallee has expressed the opinion that the JARPA II programme
does include data collection to test whate calls "specifie hypotheses". Do you agree with that
view?
Mr. MANGEL: 1do not.
Mr. SANDS: Could you explain why you don't agree with that view?
Mr. MANGEL: To begin 1 would note that Professor Wallee did not mention any of the
specifie hypotheses in his expert opinion, even though explicitly stated that tkrillhypothesis
was the only one that1could find. And 1consider that to be untestable.
Mr. SANDS: In your view, is the JARPA II program designed to test any hypotheses
whether general or specifie?
Mr. MANGEL: No, it is not. -44-
Mr. SANDS: In his statement, Professor Wallee offers two examples of scientific research
projects which he says do not seek to test any specifie hypotheses. Do you agree with the two
examples he has given?
Mr. MANGEL: 1disagree with the two examples.
Mr. SANDS: Could you explain why?
Mr. MANGEL: The first example offered by Professor Wallee is that of Gregor Mendel, the
founder of genetics. Professor Wallee and 1 read the history of science quite differently in this
particular case, and 1read that Mendel began with hypotheses, conducted experiments to test them,
used the experimental results to develop another hypothesis and proceeded like that. The second
example offered by Professor Wallee is something called the 'Surface Waters ~idification"
f»r-ot "aC"o.I'A~
Ptogtan( which was conducted in the late 1980s. lt was a joint effort between the United Kingdom
and Norway, conceming acid rain; it began with very specifie hypotheses, particular questions and
went on to answer those particular questions.
Mr. SANDS: And now to a slightly different topic, namely, the topic of methods used to
achieve stated objectives, and in particular, appropriate methods. Could 1ask, for a program for the
purposes of scientific research, how are appropriate methods to be chosen?
Mr. MANGEL: One cannot begin to choose a method until you have a question. So we
have to begin with a meaningful question. Once we have a question, we can begin to ask what
tools are available to help us answer that question, and proceed in selecting the tool based on a
range of criteria associated with the answer to the question.
Mr. SANDS: One method that arises relates to the subject of sample size. Could you tell the
Court what you understand by the term "sample size" in the JARPA II program?
Mr. MANGEL: 1 understand that in JARPA Il, sample size is the number of whales to be
taken. -45-
Mr. SANDS: ln a program for the purposes of scientific research, how should sample sizes
be set?
Mr. MANGEL: Because we live in a world in which there is natural variability, when we go
to answer a question, we compute how many samples we need to take to answer that question,
given the variability the world.
Mr. SANDS: Do you consider that the method for setting sample sizes in relation to the
JARPA Il program is scientifically sound?
Mr. MANGEL: 1 have been unable to understand how sample sizes have been set in
JARPA Il.
Mr. SANDS: What are the principal concems that you have with the information which has
been made available to you on that question?
Mr. MANGEL: Although there are sorne technical details given to compute a rangeof
sample sizes, what happens is..a range is given and then a particular number is picked without any •
explanation for that number.
Mr. SANDS: Professor Wallae has said in his report "Japanese scientists have not always
given completely transparent and clear explanations of how sample sizes were calculated or
determined" for JARPA II. Do you agree with that statement?
Mr. MANGEL: Yes, that is one of the things that 1 noted when 1 read Professor Wallae's
r..;nc.
report about agreement between his peer review of my repoand~·
Mr. SANDS: ls Japan's approach to setting a sample size of 850 minke whales for
JARPA II scientifically justifiable in your opinion?
Mr. MANGEL: Absolutely not. -46-
Mr. SANDS: Turn now to the question of the choice of method by reference to lethal take.
ln your view, can lethal take ever be an appropriate method in the program for the purposes of
scientific research?
Mr. MANGEL: Of course lethal take will be appropriate in a program for purposes of
x scientific research; as 1mentioned in my ownwor~we have sometimes used lethal take.
Mr. SANDS: In what circumstances would that happen? What do you need to know to be
able to determine whether a lethal take method is appropriate?
Mr. MANGEL: Lethal take can only make sense if we have a question that needs to be
answered that is a meaningful question, and for which lethal take is the best way of answering that
question.
Mr. SANDS: 1 am going to put a slide on now, and draw you to paragraph 6.2 of your
statement. Your state both JARPA and JARPA II began with an answer that lethal take is required
and without clear plans of how data were to be or will be analysed or used. Could you elaborate a
little on that, what you mean by that statement?
Mr. MANGEL: As 1read the literature of JARPA and JARPA Il, the starting-point was the
decision that lethal take was required and that a certain amount of lethal take was required. Which,
as Professor Sands indicated, went from 400 whales a year to 800 whales a year between the two
programs. But the beginning point was, lethal take was required of a certain size and then the
programs went backwards determiningjustifications for that lethal take.
Mr. SANDS: Putting it another way, are you saying that Japan has inverted the normal
process of scientific decision-making?
Mr. MANGEL: That would be another way of putting what 1am saying, yes.
Mr. SANDS: Could a lethal take be justified in a program that does not seek to test any
hypotheses? -47-
Mr. MANGEL: Lacking a testable hypothesis, it is difficult to answer whether any sample
size, lethal or non-lethal, makes sense.
Mr. SANDS: Let us turn to non-lethal alternatives. What alternatives to lethal take are
available and relevant to the conservation and management ofwhales?
Mr. MANGEL: As 1 have described in my original report and supplementary report, we
have available now wonderful technologies of satellite tagging and biopsy genetic sampling of very
small samples of skin and digital photography.
Mr. SANDS: In your opinion are these techniques practicable for the assessment of a
scientific program that is concerned with minke whales?
Mr. MANGEL: Absolutely, 1 consider them appropriate and feasible and again,
Professor Wallae and 1agreed that the biopsy methods, for example, are indeed feasible.
Mr. SANDS: In your supplementary expert opinion of paragraphs 5.1 to 5.3, you note that
Japan has not genuinely explored alternative non-lethal methods, and that sornef the methods that
you have just described are available. Could you say a bit more about your views, having read the
material you have read in preparing your testimony today, asto Japan's exploration of non-lethal
alternatives?
Mr. MANGEL: As far as 1can tell, the JARPA program and the JARPA II program simply
assume, or assert, that lethal methods are required, that non-lethal methods will not work, and so
have not put any serious effort into developing such methods.
Mr. SANDS: Turning to another tapie that you address in your statements, the subject of
peer review. Could you tell the Court what you understand by peer review?
Mr. MANGEL: By peer review, 1mean the overall process in which discovery- which is
the goal of every scientist- is changed into credible knowledge- consensual knowledge
which is what we think of as science. lt involves the assessment of either research proposais or
results of research by experts, usually anonymously, who are one step removed from the actual
work, and who may require changes before the work proceeds or the work appears in print. -48-
Mr. SANDS: Why is peer review necessary for an activity to be characterized as scientific
research?
Mr. MANGEL: The Nobel Prize winning physicist Richard Feynman once said "the easiest
person to trick is yourself'. When we work on a problem, and particularly when we think we have
made a discovery, and this may happen in the law as weil as in science, when we think we have
made a discovery we are very excited aboutit, because that is the intellectual feast of our work and
what peer review does is it allows us to have colleagues who are not as involved check on the
quality of the work, as weil as the conclusions we draw, as weil as the communication ofthe work.
Mr. SANDS: In your opinion was the proposai for JARPA II subject to any form of peer
review?
Mr. MANGEL: 1, of course, was not at the Scientific Committee when the JARPA II
proposai was discussed, but everything 1read suggests that it was not subject to the kind of peer
review that 1just described or tha1 would be familiar with, say, from a big project associated with
aNationalScience fôundation of the United States.
Mr. SANDS: As far as you are aware, from what you have been able to ascertain from the
literature and from the reports, was the JARPA II program substantially reviewed within the
Scientific Committee?
Mr. MANGEL: As far as 1understand, and Dr. Gales can give you more details later this
aftemoon, no.
Mr. SANDS: As far as you are aware, did Japan respond properly or at ali to any criticisms
that were raised with respect to the proposai for the JARPA II program?
Mr. MANGEL: Again, as far as 1understand, Mr. President, no.
Mr. SANDS: What does peer review entai! with respect to the results, or the product or
output, of a programme for the purposes of scientific research? -49-
Mr. MANGEL: When one thinks one has made a discovery, one writes a paper, typically
with a journal in mind; the paper describes the question, the methods, the results and what
inferences about the natural world we can draw from that, and peer review assesses each phase of
that. Was it a meaningful question? Were the results appropriate? Were the methods appropriate?
Do the results make sense, given the method and the question, and are the inferences about the
world that are being drawn by this author or group of authors consistent with what the results
show?
Mr. SANDS: How many peer-reviewed papers have been prepared based on the results or
product or outputof JARPA II program research?
Mr. MANGEL: There are at this point two papers that are peer reviewed based on
JARPA II.
Mr. SANDS: Do they relate to the conservation and management ofwhales?
Mr. MANGEL: Neither ofthose papers, one ofwhich relates to the morphology of the heart
and the other which relates to reproductive tissue removed from whales, relates to any of the
objectives that are stated JARPA II.
Mr. SANDS: 1take it from the last two answers that you have given that it is your opinion
that no peer-reviewed papers have been prepared based on the resultsf JARPA II that relate to the
conservation and management of whales.
Mr. MANGEL: That would be my opinion, yes.
Mr. SANDS: In your view, for a program that has operated for over seven years, is this an
appropriate outcome for a program which is for the purposes of scientific research?
Mr. MANGEL: This is a woefully low production of peer-reviewed papers over that period
oftime. -50-
Mr. SANDS: Just to turn to sorne brief concluding questions. In your opinion, having
regard to the totality of the material that you have considered, is the JARPA II program a program
for the purposes of scientific research?
Mr. MANGEL: lt is my opinion, as 1 have stated in my report, that JARPA II collects a
considerable amount of data, but that it is not a program for purposes of scientific research.
Mr. SANDS: In your view, is the opinion that you have just expressed one that would be
generally shared by scientists who are independent ofwhaling activities?
Mr. MANGEL: 1believe that had another scientist of my experience assessed JARPA II in
the same serious way that 1have, the same conclusion would be drawn.
Mr. SANDS: Vou mentioned that you have had experience in advising bodies that fund
scientific research programs in North America and Europe and elsewhere in the world. Having
regard to that experience, would you expect any such body to provide any amount of financial
support for JARPA II as a program for the purposes of scientific research?
Mr. MANGEL: 1 could not imagine any of the funding bodies that 1 know funding
JARPA Il, as it was first formulated or certainly on a second round.
Mr. SANDS: Thank you very much, Professor Mangel. Mr. President, 1 have no more
questions.
The PRESIDENT: Thank you very much, Professor Sands. 1 understand Professor Lowe
will be conducting cross-examination, but that will be after a short break. The Court will suspend
for ten minutes and 1ask Professor Mangel to enjoy this ten minutes to relax and certainly not to be
involved in the discussions.
Mr. MANGEL: Thank you for the break, Mr. President.
The PRESIDENT: Thank you. The hearing is suspended.
The Court adjourned.from 11.30 a.m. to 11.45 a.m. -51 -
The PRESIDENT: Please be seated. The hearing is resumed. 1 invite Professor Mangel to
take his place at the rostrum and Professor Lowe you may start the cross-examination.
Mr. LOWE: [Microphoneo.fj]
The PRESIDENT: 1think we have sorne technical difficulties with the microphone.
Mr. LOWE: Lest the interpreters think 1was rude, 1will repeat the fact that it is a privilege
to appear before you and an honour to be entrusted with this part of the presentation of Japan's
case.
Mr. President, the original understanding was that we would handle witnesses in one session
and, on the allocation of time which you outlined before the coffee break, we would not actually
finish within the normal time.
The PRESIDENT: May 1 interrupt you, Professor Lowe. 1envisaged that we will conduct
this hearing until 1.10 p.m., so you will have your 60 minutes and, if Australia needs 30 minutes
for re-examination, we will finish by 1.10 p.m. and judges will put questions at the beginning of the
afternoon.
Mr. LOWE: 1am grateful for that, Sir. Thank you very much.
The PRESIDENT: So, you have your 60 minutes. Please proceed.
~~-..,..01\
Mr. LOWE: Thank you. Professor Mangel, my name isPtlattghl(Lowe and 1am one ofthe
counsel for Japan in this case, and 1should start by thanking you for your reports and for coming to
give evidence this morning. May 1also say that the purpose of the cross-examination is to clarify
your expert testimony, not for the two of us to have a debate. The presentation of Japan's case will
come later.
We did provide Australia with a copy of Professor Zeh's critique of your report, so that you
would have the opportunity to prepare yourself for anyf those points that might come up. Was
that passed to you? -52-
Mr. MANGEL: Mr. President, that was passed to me but 1was informed that 1should treat
these as observations. 1 read it; 1 did not attend to it in the same detail that 1 attended to
Professor Wallee's expert testimony.
Mr. LOWE: Absolutely right and it was merely an indication of the points that we might
raise.
The first question that1would like to raise is this, and it goes to the issue of the question that
you were answering. Australia's question to you, as you recall, was to ask you to explain the
essential characteristics of the program undertaken for purposes of scientific research. But in your
reports you refer, in ali of them, to "programs for purposes of scientific research in the context of
conservation and management ofwhales". Why did you add that qualification to the question that
you were asked?
Mr. MANGEL: Mr. President, may 1ask you to tum to something in your binder? At the
very back oftab 1 are the terms of reference, page 387, the penultimate page oftab 1, at the bottom
it says 387. There you will see that the terms of reference 1was given are actually twofold: the
first is "to identify and outline the essential characteristics of a program undertaken for purposes of
scientific research". That was the first task, and then basically to assess JARPA II_,andusing 'IC
x JARPA when 1needed toJas programmes for purposes of scientific research given the conclusions 1
drew in Part A. For that reason, as 1referred to JARPA and JARPA Il, 1used the language in the
context of the conservation and management ofwhales because ofiWC literature.
Mr. LOWE: Do you think that there is any difference in meaning between "for the purposes
of scientific research" and on the other hand "for the purposes of scientific research in the context
ofthe conservation and management of whales"?
Mr. MANGEL: There is certainly a difference in meaning of those two. However, if one
looks at the current, or the most recent, which is from 2009, criteria that the IWC Scientific
Committee has set for special permits, they specifically talk about the context of the conservation
and management of whales. -53-
Mr. LOWE: Australia is now using another formulation and referring to the conservation
and recovery of whales, of whale populations. Do you think that that is again different from
conservation and management of whales and the purposes of scientific research simplicitor, as a
phrase, as a concept?
Mr. MANGEL: 1 believe that that phrase was used in sorne of the speeches yesterday
morning. Sorne whale populations are still very, very far from what we might cali "recovered" in
any sense. Others are closer and consequently, depending on what one is doing, one could envision
that kind ofphraseology.
Mr. LOWE: When you were writing your report, did you turn your attention to the question
whether there was any significance for the formulation ofyour views in the difference between "for
the purposes of scientific research" and "for the purposes of scientific research in the context of the
conservation and management of whales"?
Mr. MANGEL: As 1described previously, what 1tried to do in my report was first, provide
a general assessment of what it means to do a program for purposes of scientific research and then
by reference to the IWC's writings, the activity of the Commission and the Scientific Committee,
to try to make it in sorne sense more operational for the context of conservation and management of
whales. Essentially to help you have a better focus of the points that 1was trying to make.
Mr. LOWE: Was the drafting of your report influenced by the fact that the reference to
purposes of scientific research with which we are concerned appears in a legal text?
Mr. MANGEL: No it was not. 1began with the terms of reference that 1was given.
Mr. LOWE: So, you were not asked to address and you did not address the question whether
there was any particular meaning that would derive from the fact that it was a legal text in that
particular context, rather you addressed the question as it was set out in your terms of reference. ls
that how 1understand you? -54-
Mr. MANGEL: 1must admit that, three and a half years ago 1was very much a neophyte in
international law and, although 1learned a little bit about international law in the course of trying to
prepare my documents, 1certainly did not think of the legal interpretation of what 1was trying to
do as a scientist for you.
Mr. LOWE: Thank you. The preamble to the 1946 Whaling Convention says that it was
concluded "to provide for the proper conservation of whale stocks and thus make possible the
orderly development of the whaling industry". Do you consider that that is yet again another
different formulation from the formulation for purposes of conservation and recovery, purposes of
conservation and management, or do you think that these phrases have no significance whatever?
Mr. MANGEL; Mr. President, Members of the Court, I do not want to dodge a question.
However, I am not a historian, nor a legal scholar. There is an excellent recent book by a historian
at Princeton on the history of the IWC. I was not asked to review the history of the IWC or its
Scientific Committee, soI would prefer to say that that question is out ofthe range of my expertise
for this case.
Mr. LOWE: A perfectly fair answer. Thank you for that. Let me turn then to what we
might cali the evidential basis of your expert report. Have you ever been a member of a national
delegation to the IWC or any of its subsidiary organs?
Mr. MANGEL: I have not been a member ofthe United States delegation to the IWC or any
of its subsidiaries, although I have been a member of the delegation of the United States to the
Scientific Committee for the Conservation and Management of Antarctic Marine Living Resources.
Mr. LOWE: Sticking to the International Whaling Commission, have you ever attended any
meeting ofthe Scientific Committee of the IWC?
Mr. MANGEL: I have not attended a meeting of the IWC, although as 1mentioned earlier, 1
served on the Committee ofScientific Advisors ofthe United States Marine Mammal Commission.
I was very familiar with scientific activities concerning whales in United States territorial waters
because of that. -55-
Mr. LOWE: Have you collaborated with Japanese scientists who are working specifically in
the field of whale assessment and management research?
Mr. MANGEL: No, 1have not.
Mr. LOWE: You referred in Appendix C to your first report to background material
provided by the Govemment of Australia and you refer to a range of IWC documents, including
"relevant extracts of the Annual Reports of the Commission and Scientific Committee from
1985-2009, including discussions on special permit whaling and the RMP". Can you tell us who
selected those extracts?
Mr. MANGEL: Those extracts were selected by a combination of Australian colleagues
who, 1presume, consulted with Australian scientists about what the scientists felt would be most
relevant tome and then by me. -s 1would read material, 1would ask for other pieces to be sent to
me as 1thought certain literature would be relevant.
Mr. LOWE: Thank you. In your first report, Professor Mangel, you wrote that "workers in
JARPA and JARPA II have not demonstrated an ability to respond to criticism orto admit to being
wrong". And then you said: "scientists in JARPA and JARPA II have demonstrated an
unwillingness to change their minds, particularly with respect to the asserted requirement for lethal
take". Putting aside lethal take, which 1will come to in a few minutes, what instances did you have
in mind of that?
Mr. MANGEL: In general, 1was thinking about lethal take when 1wrote that sentence.
Mr. LOWE: And who are the Japanese scientists who have demonstrated this
unwillingness?
Mr. MANGEL: Mr. President, Members of the Court, 1 do not have that information
immediately at hand. 1 could get it to you tomorrow moming if you wish. The first name that
cornes to my mind is Dr. Ohsumi, who has on numerous occasions, 1believe, simply asserted that -56-
lethal take is required. But 1would not even be confident ofthat but ifyou were to give me a day, 1
could provide those details.
Mr. LOWE: Are you saying that ali Japanese scientists demonstrate an unwillingness to
change their minds?
Mr. MANGEL: No, of course not.
Mr. LOWE: Vou wrote, in your first report again, that individuals participating in JARPA II
are disconnected from the self-correcting community of scientists and have not demonstrated the
ability to revise or correct their work or methodologies. Again, do you have any specifie instances
ofthat in mind?
Mr. MANGEL: 1think that the best example of this is the fact that the JARPA II Program
went forward before JARPA had even had a proper scientific review. In other words, ifthere were
problems with things that had been done in JARPA, a proper review would have allowed one to
change one's mind and go forward, but to immediately have one program follow the other
continuously in time prevents that.
Mr. LOWE: Thank you. Let me turn to the themes that you develop in your reports. Vou
say in paragraph 1.2 of your second report that the IWC Scientific Committee has never provided a
definition of "scientific research". Has any other international body concerned with marine
research ever provided a definition of "scientific research", or "scientific research in the context of
the conservation and management of whales"?
Mr. MANGEL: Again, 1do not want to sound like 1am trying to dodge a question, but 1was
not asked to review ali international scientific bodies and whether they have defined "science" or
not. So 1do not know the answer to that question.
Mr. LOWE: 1hope that you do not think that this is unfair, but 1am going to read you two
or three definitions of "scientific research", in fact specifically of marine scientific research, which
were put forward by States at the United Nations Law of the Sea Conference, and 1am not asking -57-
you anything about them, simply to hear them as definitions. For example, Trinidad says, "marine
scientific research is any study or investigation of the marine environment and experiments related
thereto". Canada says, "marine scientific research is any study, whether fundamental or applied,
intended to increase knowledge about the marine environment including ali its resources and living
organisms, and embraces ali related scientific activity". My question is simply that, to my ear,
those definitions sound differentin their nature from the definition which you have crafted on the
basis ofyour four principles. Would you accept that that is a fair point?
Mr. MANGEL: May 1 ask for a clarification, in particular, 1 do not know who to turn to
now, 1turn to Professor Lowe to ask him the question.
Could you repeat the source ofthose; that was a United Nations Conference?
Mr. LOWE: These were proposais put by States for the adoption of a definition of "marine
scientific research" in the 1982 United Nations Conference on the Law of the Sea. 1 am not
making any point about them being put in as proposais there, it is simply the way that they have
approached the question of definition.
Mr. MANGEL: 1 think that there are two differences here. The first is that there was a
United Nations Conference on the Law of the Sea, which is again different from a scientific
conference, and the second difference is that neither of those, or none of those definitions, actually
are proposing that this is how one should run a program for purposes of scientific research. They
are at a much higher leve!,kind of intellectually and embracing.
Mr. LOWE: Thank you. Can we tum now specifically to the criteria that you have set out,
and first to your reference to the need for scientific research to have an initial hypothesis, so that
we can make sure that 1understand what you are saying. Do you accept that an initial hypothesis
could be a question?
Mr. MANGEL: Yes. -58-
Mr. LOWE: So that it may be that there is a set of phenomena that are to be investigated,
there is no clear idea of why those phenomena are arising, but a scientist's hunch as to the kind of
data that might be collected and might bear upon it. ls that fair?
Mr. MANGEL: ln order for that kind of investigation to consist of something more than
going out and seeing what is there, one needs to have a focus to the question and have a meaningful
context for trying to use the question in a way that will provide an answer to something.
Mr. LOWE: Weil, how about a question such as "how has Antarctic biodiversity evolved in
response to past environmental change and what does this tell us about the capacity to respond to
future change"? Would you think that was an acceptable objective?
Mr. MANGEL: ln the phraseology that 1use in my report, 1would consider that to be an
overarching conceptual framework. The conceptual framework is, we want to understand how
environmental change has affected different components of the Antarctic, and then what we would
do is use that overarching framework to get to specifie testable hypotheses.
Mr. LOWE: So that would count as a properly formed scientific research project?
Mr. MANGEL: 1would count that, as 1said, as a properly formed overarching conceptual
framework. lt is in sorne sense too high a leve) to actually be used to create focused work.
Mr. LOWE: 1 do not want to deceive you, 1 actually took it from the title of a research
project that was approved by the Scientific Committee on Antarctic Research. lt was there and 1
was trying to use it in order to get to precisely the point you are raising which is, what kind of
formulation is adequate to meet your requirement that there should be a conceptual framework to
give point to the research.
Mr. MANGEL: Was that a question?
Mr. LOWE: No, it was a statement. If you wish to treat it as a question, you can do.
Otherwise 1will make a question out of it. 1have a real interest in knowing what your answer to -59-
that question is, would you say that that was or was not adequate for the objective component of
your criteria- 1know there are other criteria there- but in terms of the objective is that enough?
Mr. MANOEL: 1think that it is very hard to answer that question just looking at the title of
a proposai, that is, 1could imagine- and 1 myself have written proposais that would have such
broad titles- but then what one wants to do is have specifie questions that emerge from that broad
framework and that is what 1consider necessary for meeting my objective.
Mr. LOWE: Thank you. So it is one of those things where people might take different
views on the adequacy of that formulation, but you would pursue the point through looking at what
else was clonein the project?
Q..
Mr. MANGEL: 1think if one submitted a proposai to the funding bodies that 1 know,Ythat
level of generality- and then in the rest of the proposai did not go into any more specifies- it
would likely not be funded, for example.
Mr. LOWE: Can 1 ask my last question in a more general sense? Thinking of your four
criteria for a scientific research project, are there border-tine cases where sorne scientists may think
that a particular project falls on one side the criteria, others may think that they fall on the other
side?
Mr. MANGEL: Once again 1am not familiar with the law, but as you know in universities
there are different departments of science. So the first answer to that question is: certainly.
Physicists will look at ali sorts of biology and ecology, and say that is not science. Molecular
biologists will look at ecology often, and say that is not science. Within ecology there will be
individuals who will sometimes have disputes about whether something is properly formed or not,
and that is exactly the point of peer review of proposais by independent experts who are not
involved in the work.
Mr. LOWE: White we are touching on that, can 1 ask you what it is about the Scientific
Committee that makes it and the scientists on it incapablef acting int~ eote of that peer review? -60-
Mr. MANGEL: The Scientific Committee is not intended to be a peer-review body in the
same way that I described it. In the Scientific Committee as I understand it, and Dr. Gales can give
you more details later in the afternoon, review is not anonymous- which I consider to be a
essential to peer review- and response is not mandatory. That is, in peer review if one submits a
proposai to a granting agency and the referees say the work cannat go forward until these changes
are made, or if one submits a paper and the paper couId completely be declined by the journal, or
the referees could say, this paper cannat be published until changes are made, that is a very
different kind of peer review than people standing up and saying:"I think you should do this''and
proponents acknowledging that those comments were received.
Mr. LOWE: Thank you. CouId we change the focus a little from the general idea of what
counts as science to JARPA II in particular? Is it your evidence that the Japanese workers who are
working on JARPA II Jacka conceptual framework within which they are working?
Mr. MANGEL: In my opinion, yes. That is true.
Mr. LOWE: And on what do you base that opinion?
Mr. MANGEL: I have looked through the JARPA II proposai on numerous occasions. I
have read it, I have looked for questions that are sufficiently broad, let us say, that they would fit
the conceptual framework in the context that Professor Lowe and I just described, as weil as
looking for specifie hypotheses, and I find neither.
Mr. LOWE: I do not wish to, and I would not be allowed to put words into your mouth, but
it sounds to me as though you are saying that the papers disclose no overarching conceptual
framework and from the fact that the papers do not disclose it, you are inferring that the scientists
do not have it. Is that correct?
Mr. MANGEL: Since my conclusions are based on what 1read, yes. Again, Dr. Gales has
spent many years interacting with the scientists and he can give you persona! infonnation this
afternoon. - 61-
Mr. LOWE: Thank you. You say in your first report, and you said this morning, that the
only clearly identifiable hypothesis in JARPA II is the krill surplus hypothesis. But in fact, as 1
think Professor Zeh pointed out, the proposai for JARPA II explicitly sets out eight other
hypotheses and there are nine statements, each of which is Jabelled "Hypothesis 8", or whatever.
Why do you not count those as hypotheses?
Mr. MANGEL: 1consider that those are basically sub-hypotheses or derivative hypotheses
of the krill surplus hypothesis and, in fact, they are ali in an appendix with a title about krill
predators and essentially they are ali associated with sorne version the krill surplus hypothesis.
Mr. LOWE: Could we turn brietly to the question of lethal take, which we will come back
to this afternoon. There, the point is made again by Professor Zeh, that she is not aware of any
general requirement in established scientific practice that lethal methods are appropriate only where
the objectives of the research cannot be achieved by non-lethal means, and this morning 1 beard
you say that the test is whether lethal research the best way of answering a particular question. ls
that your view?
Mr. MANGEL: If there is an alternative to lethal take that is workable, 1 would say that
should be used over lethal take but if there is no alternative to lethal take and there is a question
that is meaningful and cannot be answered without it, then 1 would consider lethal take to be
appropriate.
The PRESIDENT: 1just wish to remind you what was the Court's position, that statements
by Professor Zeh are accepted as statements ofthe Government of Japan, not as expert statements.
Mr. LOWE: 1receive the admonition humbly, 1apologize for having raised the point. Let
me turn to the question of catch limits, if 1may. In your bibliography, you say that you were given
various IWC documents, but the latest date that was given in the bibliography was 2009. Have you
looked at any papers after2009? -62-
Mr. MANGEL: Yes, 1 have followed the literature since 2009, as 1 was preparing my
supplemental report and my response to the review by Professor Wallee, and then in draft form
sorne of the most recent work of the Scientific Committee.
Co.h:>-.-o.."-~~
Mr. LOWE: Have you looked in particular at the analysis of tf38~tt asae9ata by
Professor Punt and his colleagues, as published this year, or at least presented to the IWC Scientific
Committee this year?
Mr. MANGEL: Mr. President and Professor Lowe, 1 find myself in a somewhat
uncomfortable situation here. That work has been going on since, 1have been familiar with it
from 2005, but every paper written by Professor Punt and colleagues begins with the statement that
"this paper cannot be cited except in the context of IWC meeand 1seek your advice about how
much 1should talk about that paper this context.
Mr. LOWE: Mr. President, you will respond to that question but it may be helpful to say
that we checked yesterday with the people who we believe to hold the rights over the paper and
they have no objection to the point being raisedese proceedings. 1am told that is correct.
The PRESIDENT: May 1ask counsel for Australia to explain the views of Australia.
5Ato~t)"!:o.
Mr. CAMPBELll: Mr. President, this cornes out of the blue. We are not aware of such an
undertaking, we have not been provided with any prior notice about such undertaking and we raise
the question of whether it is appropriate in such circumstances to proceed without us having had
prior information.
Mr. LOWE: Let me say, Mr. President, 1 asked nothing about the content of the paper, 1
asked nothing that would even have touched that undertaking. 1simply askedu were aware of
it as an example of a paper that feil outside the range that you had put there. But 1am quite happy
to drop this question and to move on.
Let me just ask one or two final questions. In the June 2012 report of the Scientific
Committee it was reported there was an agreement upon revised estimatesf the abundance of
minke whales and, in the area where JARPA II operates, the new lowest estimates are somewhere -63-
around 330,000 minke whales. The planned annual JARPA take of 850 whales is therefore
0.3 percent ofthat lowest estimate of the whale stock. ls it your evidence that the leve! of catch of
minke whales for which JARPA II provides would seriously endanger the Antarctic minke whale
population?
Mr. MANGEL: Mr. President, Members of the Court, 1 was not asked to do a stock
assessment, which is a scientific term to assess the distribution and health of a stock as it relates to
catch, for this work. As far as 1 know from reading the literature, that very small take of whales
will notin any way endanger this stock, but at the same time 1consider that not to be the issue here.
Mr. LOWE: Professor Mange!, 1 have no wish to take you outside the area of your brief.
Thank you very much for your answers. 1have no further questions.
The PRESIDENT; Thank you, Professor Lowe. Professor Sands, would you like to conduct
your examination?
Mr. SANDS: Thank you, Mr. President. lt either means an early lunch or over to the
Members of the Court for questioning. We have no further questions in re-examination.
The PRESIDENT; Thank you very much. 1understand that Judge Bennouna would like to
put a question. Monsieur Bennouna, vous avez la parole. Please give the earphones to
Professor Mange! as 1understand the question is going to be put in French.
Judge BENNOUNA: Thank you. 1 am going, Professor Mange!, to put my question in
English, so 1am sarry and please excuse sorne language mistakes if there are any. You described
to us this moming the processof scientific research as a process which starts first with the adoption
of what you cali the specifie hypothesis, and then by putting specifie questions which are intended
to be answered. Can you tell the Court if, for you as an expert, how this specifie hypothesis is
established, to start this scientific research and, particularly, what interests me personally is to
know if the researcher needs materials, data, even as preliminary, in arder to reach this hypothesis.
Thank you very much. -64-
The PRESIDENT: Please, you have the tloor, Professer Mangel.
Mr. MANGEL: The creation of hypotheses, and now 1will come back to Richard Feynman
W'-'OM.
\WÀtf1quoted earlier, is again one of the wonderful parts of science because it is where we get to
engage our intellect and use our mindsin the most wonderful way. Clearly, we need to begin with
sorne kinds of observations about the natural world in order to ask, to begin to formulate, the
question. What the source of those observations are and how we use them depends on the natural
system and the question that we are moving towards. 1presume you are interested in this case in
the context of JARPA Il,and JARPA of course, and one might say at sorne point one needs
possibly even lethal take. 8ut for 25 years of this to go on with no clearly-identified hypotheses
coming out and 1 might mention that in Professer Wallae's statement; he and 1disagree about
something called "exploratory data analysis" which he says the use of data more or Jess randomly
collected could be used to generate hypotheses, that a pause between JARPA and JARPA II might
have been an ideal time to use and do exploratory data analysis to see what hypotheses had
emerged. So yes, on occasion, even lethal data would be required to develop such a hypothesis.
Judge BENNOUNA: Thank you very much.
The PRESIDENT: Thank you very much. The nextjudge who is going to put a question is
Judge Cançado Trindade. 1give you the tloor.
Judge CANÇADO TRINDADE: Thank you very much, Mr. President.
Professer Marc Mangel: in your original expert opinion, there is a consideration as to resort to
lethal methods only when the objectives of scientific research cannot be achieved by any other
means. In respect of that, 1 have five interrelated questions. 1will put them together, and if you
want, 1can go afterwards through them, one by one.
First, are lethal methods necessary to such a research at ali?
Secondly, as to non-lethal research techniques in the context of conservation and
management of whales,- are such techniques available to ali States concerned, that is, to the
States Parties to the 1946 International Convention for the Regulation of Whaling?
Thirdly, can such non-lethal techniques entirely replace lethal methods? -65-
Fourthly, who defines, or who is to define, scientific research objectives?
And fifthly, what would be examples of non-lethal tools- you have already referred to
satelliteagging- that have already actually been used for the study of whale populations? Thank
you.
The PRESIDENT: Maybe we can go question by question.
Judge CANÇADO TRINDADE: With pleasure. So, first: are lethal methods necessary to
scientific research at ali?
Mr. MANGEL: As 1said earlier, there will be cases in which lethal methods are necessary
for scientific research, so not against lethal methods, ifthat is why you were asking.
Judge CANÇADO TRINDADE: Yes. And in respect of that, as to non-lethal research
techniques in the context of conservation and management ofwhales, are such techniques available
to ali the States Parties to the 1946 Convention?
Mr. MANGEL: To my knowledge, yes.
Judge CANÇADO TRINDADE: They are available.
Mr. MANGEL: Yes.
Judge CANÇADO TRINDADE: Thank you. Thirdly, can such non-lethal techniques
entirely replace, as time goes on, lethal methods?
Mr. MANGEL: There we come back to what is the question: that is, for example, if 1say 1
want to age whales and today the current method for aging whales requires taking their earplug,
then there is no non-lethal method. If 1 say, for example, 1 want to follow the size of livers of
different whales over time, then there is no alternative to measuring the size of the liver except for
removal of it. So it cornes back to having a relevant question.
Judge CANÇADO TRINDADE: Yes, as to the original question. Fine. And fourthly, who
defines, or who is to define, scientific research objectives? -66-
Mr. MANGEL: As 1 describe in detail in my supplemental report, science is the
development of consensual~'"'"~coA.nd there is an interplay and always a tension in the scientific
community about that exact question. As1also said, 1received editorial advice from Australia and
in the supplemental report, 1had pages and pages on the philosophy of science which got reduced
to one paragraph. But this was an important question in the twentieth century, but it is the
scientific community, broadly defined, that answers
Judge CANÇADO TRINDADE: Yes, the independent experts.
Mr. MANGEL: Yes.
The PRESIDENT: And the final question.
Judge CANÇADO TRINDADE: And the fifth one: what would be examples of non-lethal
tools, such as satellite tagging which you mentioned, but which have already been actually used for
the studyof whale populations?
Mr. MANGEL: So if 1could mention two examples, with the Court's approval. There was
a programme in the early 1990s. Let me back up one second. Tagging, which 1will talk about
first, and then biopsy, tagging actually beganthe late 1800s but it was not until the early 1990s
when we had the revolution in technology that we ali celebrate today, with our iPhones and iPads
and so forth, that tags really became available that could be put on animais and collect lots
information. In the early 1990s, there was a two-year programme called the "Year of the North
Atlantic Humpback Whale" - 1 believe Professor Sands showed us a picture of an Antarctic
humpback yesterday- it ran for two years and- actually that is biopsy, 1 apologize. lt used
biopsy to study these whales. lt actually had 26 peer-review papers in the first five years;
71 overall and then after a pause of ten years in 2003 another programme began, using these sort of
methods. Where 1live on the west coast of Califomia, there is a programme called the "Tagging of
Pacifie Predators" (TOPP). lt started in 2000 and it is tagging many different kinds of top-leve!
predators and about2,000 have been tagged now. 1 listed in my CV that 1served on the Special -67-
Committee on Seals for the Government of the UK and the Sea Mammal Research Unit in the UK
which tags seals in order to ascertain their movements.
Judge CANÇADO TRINDADE: Thank you, Professor Mange!. Thank you, Mr. President.
The PRESIDENT: Thank you very much. The next judge to put questions is
Judge Greenwood. Vou have the floor.
Judge GREENWOOD: Thank you. Professor Mange!, 1would like to take up one issue that
you raised in your first report. At paragraph 4.30 and the later paragraphs, you talk abo1will
read the relevant passage:
"The Scientific Committee of the IWC bas spent many years considering how
the broad concepts in the previous paragraphs [that is the previous paragraphs of your
report] apply to scientific research the context of conservation and management of
whales. Their most recent thinking is summarized in IWC (2009)."
And then it lists what proposais for special permit research should show. 1just wanted to ask you
whether there had been any change, an evolution in the IWC's approach, because of course
IWC (2009) postdates the start of the JARPA II program. Has it altered over time oris it more or
less constant?
Mr. MANGEL: Again, 1am not an expert on the history of the IWC but 1think it has in fact
evolved over time. So 1 believe your inference that those particular criteria might not have been
available to the proposaisof JARPA II is probably correct. Dr. Gales can answer this in more
detail because he has been there. But again, if the scientific community is changing the way it
thinks about a problem, one would expect that scientists would respond.
Mr. GREENWOOD: Thank you very much. 1 perhaps ought to put this question to
Dr. Gales; 1might do so.
Mr. PRESIDENT: Thank you very much. The next judge who has a question is
Judge Donoghue. Vou have the floor.
Judge DONOGHUE: Thank you, Mr. President. Professor Mangel, 1want to ask you about
two things and the first question that 1have relates to a statementProfessor Wallee and, if you -68-
have his statement there, you might find it convenient to have a look at page 10when 1ask you this
question. So, you will see that about midway down that page that Professor Wallee quotes from
Australia's Memorial where Australia says that, "for an activity to be genuinely motivated by an
intent to conduct scientific research, it must not be for any other purpose or purposes". And then in
the next paragraph, Professor Wallee takes issue with that and he says no, that mixed motivations
are common to, in particular, costly research programs. 1wanted to ask you whether you consider
that a mixed motivation is fatal to the definition of a particular activity as to the purpose of
scientific research, and 1have in mind, for example, a situation where a scientist has a hypothesis,
has an appropriate sample size, is engaged in peer-review research, no lethal methods, no adverse
impact on animal subjects, but the scientist is employed by a pharmaceutical company and the
pharmaceutical company wants this research to take place so that it can make money off the sale,
ultimately, of an AIDS vaccine or something of that sort. So, if you couId answer that question 1
would appreciate it. Thank you.
Mr. MANGEL: So, may 1give a short answer then a somewhat longer answer?
Mr. PRESIDENT: Please.
Mr. MANGEL: The short answer is of course mixed motivations happen. The somewhat
longer answer is that every scientist, every academie in fact, has a variety of mixed motivations so
that we have to be honest about that, 1think. In sorne of my own work we actually had to lethally
sample salmon in a region of the California coast that was close to fishing. We ended up with
salmon carcasses and had to figure out what to do with them. We were unable to sell them,
because of the controversy that would arise, so we ended up giving them away to a widows and
orphans barbeque. But these kind ofproblems happen ali the time, certainly.
Judge DONOGHUE: Thank you. My second question relates to your assertion about the
need for a hypothesis and, if 1 understand it, your assertion is that data collection alone is not
science and instead that the existence of a hypothesis is an essential element within the four criteria
that you put forward. And 1know that in the exchanges of the experts before us, sorne particular
challenges have been put forward and that you have responded to those. 1am still having trouble -69-
with your hypothesis and 1 have another question in mind that 1 wanted to ask you to address,
which relates to the human genome project. 1assume you are not a geneticist but, like you, 1am an
American and probably you have heard of the project and, as 1 understand it, the purpose is to
identify ali the genes in human DNA and then store that information in databases which will
ultimately then be used for other science, presumably with hypotheses. As far as 1can tell, thereis
no hypothesis there, but it is difficult for me to think of that as anything other than science. 1
wanted to ask you if you couId help me out in integrating that activity with your analysis. Thank
you.
Mr. MANGEL: 1am not a geneticist, but 1come from the campus where the public part of
the genome was put on the Web, so 1hear a lot about this. lt is true that the human genome project
is collecting lots of data, and that much of those data will be subject to exploratory data analysis of
the sort that Professor Wallae described, but it is also true that there are hypotheses - 1 do not
have any specifie ones at hand right now. Again, if the Court wishes, 1could get sorne probably
within two da ys- that would answer this, but for example hypotheses about the location of genes
that leadto a higher proclivity to cancer. So 1think that there are sorne hypotheses in there.
Mr. PRESIDENT: Thank you. Judge Keith is the next one to put a question or questions.
You have the floor.
Judge KEITH: Thank you, Mr. President. Professor Mangel, 1was really taken by- when
1 got to the second or third page of your first report- by the reference to Adam Gopnik's book
Ange/sandAges and- it is completely irrelevant to this, 1thinkbut it deals with the interesting
fact that Darwin and Lincoln were born on the same day. My question really does relate to this
very broad issue of the development of hypotheses and 1was thinking of that young man who got
on the Beagle and started gathering stones - it is a variation on the Poincaréquote, perhaps. What
is known about just what it was that Darwin had in mind as he started collecting ali these samples?
He obviously developed his hypothesis over a very lengthy period, worried in the end by someone
else competing- Russell, was it?. But 1can see that it is completely a different case from the
current where you can have much clearer ideas about what you are trying to discover. How -70-
absolute can you be is a matter of blue-sky thinking, about just what is the question that you are
answering. 1 ask this partly because 1 have been a long-time academie in a completely different
field, and sometimes1 am still not sure now i1get back to that task of just what is the ques1ion
am considering. It is a rather broad question, but 1would be interested in your reflections. Thank
you.
Mr. MANGEL: Mr. President and Judge Keith, thank you for asking that question,
particularly with the preliminary part, because in one of the early versions of my report 1pointed
out that Lincoln and Darwin had the same birthday and 1was struck by my editorial masters, so 1
l'tc.\1·~
am happy that now everybody knows. When Darwin went to sea, he had already read tNiles'A
book and 1 think at that time in the nineteenth century people were already talking about
transmutation, evolution, they did not know exactly how it happened and of course he was very
familiar with artificial selection. In the course of the voyage of the Beagle 1think what happened is
he sharpened this hypothesis, or set of hypotheses that he had, and then of course when he returned
to the United Kingdom, he collected lots and lots of data in order to bolster his argument and he
really made an argument by going from artificial selection that we do on animais and plants, to
natural selection. So 1think that is the answer: he had a framework that he was taking to sea with
him.
Judge KEITH: Which he slowly developed, 1mean, it is not a rigid framework; it is one
that kept moving. Yes, thank you very much.
The PRESIDENT: Thank you. My understanding is that Judge Owada has a question.
Please take the floor.
Judge OWADA: Thank you, Mr. President. Professor Mange!, 1 would like to ask a
question in the same context as the question raised by our colleague Judge Cançado Trindade,
namely the question of the lethal take. Now 1 understand that you said in answer to
Judge Cançado Trindade that lethal take should not be undertaken unless this is an absolute
necessity to clarify sorne concrete question. Now my question is the following: apart from, setting
aside for the moment, the considerations like the ethical factors or social factors and so forth from -71 -
our consideration, as a matter of pure science, and from the viewpoint of a scientist expert on this
particular question, what makes you think, what is the reason why, 1would like to know, I'd Iike to
be enlightened, what is the reason why you think that lethal take should not be undertaken, purely
from a scientific point of view, in arder to approach the question at issue. Couid you explain why
this is so, from the viewpoint of a scientist; apart from the ethical factors or social factors and ali
these things which you may have to take into consideration in the broader context, but purely in the
context of your testimony as an expert scientist?
Mr. MANGEL: 1think the answer to that question is, that if the only way one can obtain a
piece of information that answers a relevant question is from lethal take, then one still has to
balance the fact, and 1mentioned this in my original report, that every time we conduct lethal take
we Joseali future information from that organism. So in my own work when we do lethal take we
understand, we use the word sacrifice, we are sacrificing that organism, not only its Iife, but ali the
future information that we could possibly gain from it. And 1think that is a compelling reason.
Judge OWADA: Thank you.
The PRESIDENT: So if there are no more questions, this brings us to the end of this
morning sitting. 1 wish to thank you, Professor Mangel, for appearing before the Court and for
providing answers and explanations to the questions putto you.
The Court will meet this afternoon at 3 o'clock for the continuation of presentation of a case
by Australia. This sitting is adjourned.
The Court rose at 12.40 p.m.
Audience publique tenue le jeudi 27 juin 2013, à 10 heures, au Palais de la Paix, sous la présidence de M. Tomka, président, en l’affaire relative à la Chasse à la baleine dans l’Antarctique (Australie c. Japon ; Nouvelle-Zélande (intervenant))