Corrigé
Corrected
CR 2013/J9
International Court Cour internationale
of Justice de Justice
LAHAYE THE HAGUE
YEAR2013
Public sitting
lteld on Wednesday JOJuly 2013,at JOa.m., at tite Peace Palace,
President Tomka presiding,
intite case concemingWhaling in the Antarctic (Australiav.Japan:
New Zealand intervening)
VERBATIM RECORD
ANNÉE2013
Audience publique
tenue le mercrediJOjuillet 2013,à JOlteures, au Palais de la Paix,
sous la présidencede M. Tomka, président,
en l'affaire relativeaChasse à la baleine dans l'Antarctique
(Australie c.apon ; Nouvelle-Zélande(intervenant))
COMPTE RENDU - 2-
Present: President Tomka
Vice-President Sepulveda-Amor
Judges Owada
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judge ad hoc Charlesworth
Registrar Couvreur - 3-
Présents: M. Tomka, président
M. Seplllveda-Amor , vice-président
MM. Owada
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari ,uges
Mme Charlesworth,jugead hoc
M. Couvreur, greffier -4-
Tite Govemment of Au.\·trlllitlis repre.\·eutetlhy:
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, Counse/ and Ac/vocale;
H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Justin Gleeson, S.C., Solicitor-General of Australia,
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government Solicitor,
Mr. Philippe Sands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Ms Laurence Boisson de Chazournes, Professor oflnternational Law at the University ofGeneva,
as Counse/ 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, Attomey-General's Department,
Ms Stephanie lerino, Acting Principal Legal Officer, Attomey-General's Department,
Ms Clare Gregory, Senior Legal Officer, Attomey-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 Gouvememe11ttle I'Am·tr t!·leiré!l'ellttlr:
L'honorable Mark Dreyfus, Q.C., M.P., Allorney-General d'Australie,
comme conseil el avocat ;
M. Bill Campbell Q.C., General Counsel (droit international), servtces de l'AIIorney-General
d'Australie,
comme agent, conseil et avocat ;
S. Exc. M. Neil Mules, A.O., ambassadeur d'Australie auprès du Royaume des Pays-Bas,
comme coagent ;
M. Justin Gleeson, S.C., Solicitor-General d'Australie,
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l'Université de
Cambridge, titulaire de la chaire Whewell, membre de l'Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Henry Burmester, A.O., Q.C., Special 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-Genera/,
M. Michael Johnson, juriste principal, services de l'Attorney-General,
Mme Danielle Forrester,juriste principal, services de l'Attorney-General,
Mme Stephanie lerino,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-General,
M. Richard Rowe, juriste hors classe, ministèredes affaires étrangèreset du commerce,
M. Greg French, secrétaireadjoint, ministère des affaires étrangèreset du commerce, -6 -
Mr. Jamie Cooper, Legal Officer, Department of Foreign Affairs and Trade,
Ms Donna Petrachenko, First Assistant Secretary, Department of Sustainability, Environment,
Water, Population and Communities,
Mr. Peter Komidar, Director, Department of Sustainability, Environment, Water, Population and
Communities ,
Dr. Bill de la Mare, Scientist, Australian Antarctic Division, Department of Sustainability,
Environment, Water, Population and Communities ,
Dr. David Blumenthal, Senior Adviser, Office of the Attorney-General,
Ms. Giulia Baggio, First Secretary, Senior Adviser, Office of the Attorney-General,
Mr. Todd Quinn, First Secretary, Embassy of Australia in the Kingdom of the Netherlands,
as Advisers ;
Ms Mandy Williams, Administration Officer, Attorney-General's Department,
as Assistant.
Tlle Government of Japan is represente{/ 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
Société française pour le droit international , associate member of the Institut de droit
international,
Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of International Law,
Oxford University, associate member of the Institut de droit international ,
Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, member of the
English Bar,
Mr. Yuji Iwasawa, Professor of International Law at the University of Tokyo, member and former
Chairperson of the Human Rights Committee,
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International Law, McGill University,
member of the Bar of New York and the Law Society of Upper Canada,
Mr. Shotaro Hamamoto, Professor of International Law, Kyoto University,
Ms Yukiko Takashiba, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
as Counsel and Advocates; - 7 -
M. Jamie Cooper, juriste, ministère des affaires 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'AIIomey-General,
Mme Giulia Baggio, conseiller principal, services de l'Attorney-General,
M. Todd Quinn, premier secrétaire, ambassade d'Australie au Royaume des Pays-Bas,
comme conseillers ;
Mme Mandy Williams, administrateur, services de l'Attorney-General,
comme assistant.
Le Gouvemement tlu Japon est représentépar:
M. Koji Tsuruoka, ministre adjoint des affaires étrangères,
comme agent ;
S. Exc. M. Yasumasa Nagamine, ambassadeur extraordinaire et plénipotentiaire du Japon auprès du
Royaume des Pays-Bas,
comme coagent ;
M. Alain Pellet, professeur à l'Université Paris Ouest, Nanterre-La Défense, président de la Société
française pour le droit international, membre associé de l'Institut de droit international,
M. Vaughan Lowe, Q.C., membre du barreau d'Angleterre, professeur émérite de droit
internationalà l'Université d'Oxford, membre associé de l'Institut de droit international,
M. Alan Boyle, professeur de droit international à l'Université d'Edimbourg, membre du barreau
d'Angleterre,
M. Yuji Iwasawa, professeur de droit international à l'Université de Tokyo, membre et ancien
présidentdu Comitédes droits de l'homme,
M. Payam Akhavan, LL.M., S.J.D (Harvard), professeur de droit international à l'Université
McGill, membre du barreau de New York et du barreau du Haut-Canada,
M. Shotaro Hamamoto, professeur de droit international à l'Université de Kyoto,
Mme Yukiko Takashiba, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
comme conseils et avocats; - 8 -
Mr. Takane Sugihara, Emeritus Professor of International Law, Kyoto University,
Ms Atsuko Kanehara, Professor of International Law, Sophia University (Tokyo),
Mr. Masafumi lshii, 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
Ageney,
Mr. Noriyuki Shikata, Minister, Embassy of Japan in the United Kingdom of Great Britain and
Northern lreland,
Mr. Kenichi Kobayashi, Director, International Legal Affairs Division, Ministry of Foreign Affairs,
Mr. Joji Morishita, Director-General, National Research lnstitute of Far Seas Fisheries,
Mr. Akima Umezawa, Ph.D., Director, Fishery Division, Ministry of Foreign Affairs,
Ms Yoko Yanagisawa, Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Naohisa Shibuya, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Ken Sakaguchi, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Ms Akiko Muramoto, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Masahiro Kato, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Takaaki Sakamoto, Assistant Director, International Affairs Division, Fisheries Agency,
Mr. Shigeki Takaya, Assistant Director, Fisheries Management lmprovement Division, Fisheries
Agency,
Mr. Toshinori Uoya, Assistant Director, Fisheries Management Division, Fisheries Agency,
Mr. Shinji Hiruma, Assistant Director, International Management Division, Fisheries Agency,
Mr. Sadaharu Kodama, Legal Adviser, Embassy of Japan in the Kingdom of the Netherlands,
Mr. Nobuyuki Murai, LL.D., First Secretary, Embassy of Japan in the Kingdom of the Netherlands, - 9 -
M. Takane Sugihara, professeur éméritede droit international de l'Universitéde Kyoto,
Mme Atsuko Kanehara, professeur de droit international à l'UniversitéSophia (Tokyo),
M. Masafumi lshii, directeur généraldu bureau des affaires juridiques internationales, ministère
des affaires étrangères,
Mme Alina Miron, chercheur, Centre de droit international de Nanterre (CEDIN), Université Paris
Ouest, Nanterre-La Défense,
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 chasseà 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, lnstitute of
Cetacean Research,
as Scientific Advisers and Experts;
Mr. Martin Pratt, Professor, Department ofGeography, Durham University,
as Expert Adviser;
Mr. James Harrison, Ph.D., Lecturer in International Law, University of Edinburgh,
Ms Amy Sander, member of the English Bar,
Mr. Jay Butler, Visiting Associate Professor of Law, George Washington University Law School,
member of the New York Bar,
as Legal Advisers.
Tite Government of New Zea/and is representetl by:
The Honourable Christopher Finlayson Q.C., M.P., Attorney-General ofNew Zealand,
as Counsel and Advocate;
Dr. Penelope Ridings, International Legal Adviser, Ministry of Foreign Affairs and Trade,
as Agent, Counsel and Advocate;
H.E. Mr. George Troup, Ambassador of New Zealand to the Kingdom of the Netherlands,
as Co-Agent ;
Ms Cheryl Gwyn, Deputy Solicitor-General, Crown Law Office,
Ms Elana Geddis, Barrister, Harbour Chambers, Wellington,
as Counsel;
Mr. Andrew Williams, Legal Adviser, Ministry of Foreign Affairs and Trade, - Il -
Mme Risa Saijo, LL.M., chercheur à l'ambassade du Japon au Royaume des Pays-Bas,
Mme HéloïseBajer-Pellet, membre du barreau de Paris,
comme conseillers ;
M. Douglas Butterworth, professeur éméritede l'Universitéde Cape Town,
Mme Judith E. Zeh, Ph.D., chercheur, professeur éméritede l'Universitéde Washinbrton,
M. Dan Goodman, Institut national de recherche sur les pêcheriesen eaux lointaines,
M. Luis Alberto Pastene Perez, Ph.D., directeur à la division des enquêtes et de la recherche,
Institut de recherche sur les cétacés,
comme conseillers et experts scientifiques ;
M. Martin Pratt, professeur au département de 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
étrangères et du commerce,
comme agent, conseil et avocat ;
S. Exc. M. George Troup, ambassadeur de Nouvelle-Zélande auprèsdu Royaume des Pays-Bas,
comme coagent ;
Mme Cheryl Gwyn, Solicitor-General adjoint, Crown Law Office,
Mme Elana Geddis, avocat, Harbour Chambers (Wellington),
co11uneconseils ;
M. Andrew Williams, conseiller juridique, ministère des affaires étrangèreset du commerce, - 12-
Mr. James Christmas, Private Secretary, Attorney-General's Office,
Mr. James Walker, Deputy Head of Mission, Embassy of New Zealand in the Kingdom of the
Netherlands,
Mr. Paul Vinkenvleugel, Policy Adviser, Embassy of New Zealand 111the Kingdom of the
Netherlands,
as Advisers. - 13-
M. James Christmas, chef de cabinet, services de l'AIIorney-Genera/,
M. James Walker, chef de mission adjoint, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
M. Paul Yinkenvleugel, conseiller politique, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
co1mneconseillers . - 14-
The PRESIDENT: Please be seated. Good morning. The sitting is open. Judge Abraham,
for reasons explained to me, is not able to sit today. The Court will hear the continuation of
Australia's second round of oral argument and 1 shall now give the tloor to Mr. Gleeson,
Solicitor-General of Australia. You have the tloor, Sir.
Mr. GLEESON:
THE TRUE CHARACTER OF JARP A 0: THE PROPOSAL ITSELF AS ILLUMINATED
BYTHE EXPERT EVIDENCE
Introduction
1.Thank you Mr. President, Members of the Court, and good morning to you ali. Australia
thought it might be most helpful to the Court to structure our presentation today on the treaty
interpretation and breach argument in three segments. Firstly 1 will offer you sorne summary
propositions about the true natureof the JARPA Il proposai as illuminated by the expert evidence .
1 will also seek to pull together the evidence you now have on the availability of non-lethal
methods. Professor Sands will then present our main science speech in response to Japan.
Professor Crawford will then bring together our legal arguments on treaty interpretation and
breach. Later this afternoon,1hope not too much Jater this afternoon, 1will respond on Australia's
alternative case on good faith and abuse of right and the Attorney-General and the Agent will
conclude our presentation. lfthat is convenient, Mr. President, that is how we were to proposing to
use our time today.
The nature and quality of the expert testimony
2. Could 1first be permitted to offer you a few words on the approach you might choose to
take to the expert testimony you have heard. For our part, Australia has offered you two experts
who have given you detailed and pertinent written evidence, fully supported by references, you will
have noted. lt will not have escaped you that hardly a line in those reports was challenged by
Professor Lowe in his brief cross-examination. We invite you simply to accept the substance of
those written reports. - 15 -
3. You heard the oral testimony of Professor Mangel and Dr. Gales and we trust that you
observed them to be honest, reliable and measured, quite measured , in their opinions. They were
certainly fully responsive to the questions asked by counsel or by the Court. Professor Mangel, for
his part, was undoubtedly independent. We trust you might conclude that Dr. Gales did not, in any
way, allow his position as Australia's Chief Antarctic Scientist to intrude upon the opinions he
gave you; and Professor Lowe quite rightly did not ask any questions challenging the integrity of
Dr. Gales' evidence.
4. We ask you then to accept their oral evidence, as weil as their written evidence. 1 must
brietly mention Professor Pellet's later attacks on the integrity of Australia's dealings in the IWC
1
and indeed the integrity of our whaling scientists • 1 ask you to treat those attacks with reserve.
Not only did he not offer you evidence to support his attacks, but he did not ensure that his
cotleague, Professor Lowe, put to Dr. Gales, our Chief Antarctic Scientist, those attacks for
Dr. Gales' response. That failure, we suggest, you might consider to be not conducive to sound
fact finding and, indeed, you might consider it to be unfair.
5. Professor Walloe's evidence was in a little different category, which we have ali observed.
1will not dwell upon his unhelpful monologue-in-chief, his failure to tell you he was defending his
own work, or many of his rather lengthy answers. What is more important for you, we suggest,
Mr. President, Members of the Court, is in his final 15 minutes of testimony last Wednesday he
acknowledged a rather gaping hole at the heart of JARPA II: the Jack of a scientific justification
for the number and species ofwhales to be taken. That is a matter we will place sorne emphasis on
during today.
The nature of JARP A II as elucidated by the experts
6. Could 1 then come to the substantive part of this presentation, which concems the
summary propositions we would otfer you about JARPA Il. 1will ask for them to be shown on a
slide, and perhaps invite you for a moment to see where 1will be going for the next 20 minutes or
so. [Siide]
CR 2013!16, pp.40, 41, 42, 43, 57 (Pcllct). - 16-
7. Our first summary proposition is that it has not been established that JARPA Il was
necessary at ali: when we scrutinize the JARPA Il Plan with care, it is very hard to find a
justification - as opposed to a bare assertion - that it is scientifically necessary to conduct a new,
large, long-term, indefinite, lethal field-work project, as opposed to using, for example, the body of
data available in 2005.
8. The most we could find, Mr. President, Members of the Court, is when you go back and
read Section 10 on page 20 of the JARPA plan, there is a one line statement that it is necessary to
collect more data in order, and these are the words, to "connect" the past with the future, or to
"continue" the original JARPA. That is it. The question we respectfully ask is why is that
necessary? Has JARPA provided an explanation why the vast databank of information, available
in 2005 was not necessary for whatever scientific purposes were in mind. And when we ask that
2
question, we point you to the principles you have now seen in Annex P, Annex Y the evidence of
3
Professor Mangel and you might recall even Professor Wallee said that he accepted that some
enquiry of this type was necessary. He said in his cross-examination: "you must have a question"
4
and "you should have some idea why you are studying this, why you are collecting this data" •
9. As we listened to and reread Professor Hamamoto's helpful exposition of JARPA we
couldn't find that it descended to the justification in JARPA Il itself, or elsewhere, for why it was
truly necessary to connect the past with the future, or to continue the earlier work. We don't
believe Professor Boyle took that question any further.
1O. Against this, Japan might remind you that in answer to one of the questions from the
Court, Professor Wallee said he had a belief that a "continuing" collection of data had some value,
although he could not say for how long he thought it might have to go on 5• We would also
2See Australia's judges' foldcrs, Vol. 1, tab 12. Ann. P, para. (2) (a) (iii) rcquires that any field\\ork mcthods
must includc "an assessmcnt of why non-lethal mcthods, mcthods associatcd with any ongoing commercial \\haling, or
analyses of past data have becn considercd to be insullicient"Ann. Y, Australia's judgcs' loldcrs, Vol. 1, tt,at
(C) (2), (3) and (4) providcs that, in relation to mcthodology, the objectives for Art. VIII rcsearch must be those that are
not practicatly and scicntificatly fèasiblc through non-lethal rcscarch techniques, that consideration is to be given to
whether the information sought could be obtaincd by non-lethal means, and also that the rcsearch concerns a question that
couId not be answcred by the anal) sis of cxisting data and/or non-lethal techniques.
JCR 2013/9, p. 46 (Mange)): '"Lethal takc can only make sense if \\e have a question that necds to be answered
that is a meaningful question, and for which lethal takc is the bcst way ofanswcring that question."
4CR 2013/14, p. 34 (Watloe).
5
/bid., pp. 23-26, 55 (Watloc). - 17-
respectfully suggest that Professor Walloe did not ask or answer the "why" question. White he was
happy to talk about projects on which he was a joint researcher- such as blubber thickness and
stomach contents - he did not really address why it was necessary to connect the past with the
future orto continue the data collection 6•
Il. On the topic of blubber thickness and stomach contents- which you do not want to hear
too much more about from me, or us, or perhaps anyone- 1 do need to observe, since Japan
placed some reliance upon Professor Walloe's papers last week, that in cross-examination he came
to accept the reality that: the Scientific Committee with stomach contents in 200i- and we
provided a reference- and blubber thickness in 2013 8- we have given a reference- made it
clear that it remains the position after 26 years that lethal investigations into these subjects have
proved unreliable and unnecessary for the conservation and management of whales or any other
critical research need.
12. To conclude this first proposition, Members of the Court and Mr. President, we
respectfully suggest that nothing you have heard in the first round for or on behalf of Japan has
really told you why, after 26 years, in 2005 more collection of this lethal data was necessary. They
certainly have not established for how much longer the killing and collection must go on. ln short,
there are no guidelines in JARPA Il or in Japan's evidence for how one might establish when
enough is enough. That we suggest might properly be of critical concem to you in your resolution
ofthis case. [Screen off]
13. Let me tum to the second proposition and Professor Crawford outlined it yesterday. It
seems clear beyond doubt that JARPA Il does not scientifically establish why the fin whales and
the humpback whales are to be killed. Throughout the proposai there are references that it is
"essential" to expand the original JARPA beyond minke whales into minke, fin and humpback
whales and indeed that provides the basis for the so-called "model" of inter-species competition.
Yet, there are two matters that are now fairly clear before you: (i) the first is that there is no
"CR 2013114, p. 26 (Walloc).
7/bid., pp. 30-31. Sec also, Dr. Gales' second expert statemcnt, dated 31 May 2013, at para. 4.9.
8CR 2013/14, p. 29. Sec also the cxtract from the "Report of the Working Group on Ecosystem Modclling",
Ann. K-1 to the "Report of the Scicntilic Committec Annuai Meeting 2013", pp. 1-7 reproduccd at tab 7 of Australia's
cross-examination lolder of3 July 2013.
9For example, sec JARPA Il Plan at pp. 9, 10 and 19. - 18-
explanation for why the permits each year authorize the killing of humpbacks whales, when not a
single humpback has been taken; and (ii) the second matter, which ought to be clear- and 1will
ask for you to be shawn Professor Wallee's correct concessions [Siide]- is that, as he told us at
about 4.15 p.m. last Wednesday, he "never liked the fin whale proposai because 1 think, and
10
especially with 18whales caught, it is no information you can get from it" • And you might recall
when 1,rather uncharitably perhaps, pressed him on why his own calculations were left at home in
Norway, his answer was this: "as 1said, 1 never considered humpback and fin because 1did not
like the proposai to catch, especially the fin whales but also the humpback whales" 1• [Screen off]
14. Perhaps we should have heard earlier from Professor Walloe in his report these
statements. In any event we know his true opinion now. So that is our second point: no scientific
justification for the lethal take of humpback and fin whales.
15. Which leads immediately to the third point. Obviously Objective Two, which had aimed
12
to build the grand overarching madel of inter-species competition , is- and it is hard to put this
more politely than this- rather illusory. The plan for a madel is rather illusory.
16. If lethal sampling is not conducted on one of the three essential species to build the
madel, and if it is carried out on the others in a manner incapable of yielding the intended
information, the madel is rather illusory. If I could just pause on that point atone, if Australia were
to say nothing else today, as Japan threatens and intends this November, as with each other
November, to issue a permit authorizing the usual take of minke plus 50 humpback plus 50 fin
whales, on those grounds atone the Court would be entitled to grant Australia the relief it seeks.
17. I have mentioned that the plan for the madel was found in Objective Two. You may also
recall that in relation to Objective Two, Professor Walloe correctly accepted that it was the only
place in JARPA II where he could find a testable hypothesis; and he agreed that the data needed to
test that hypothesis was not identified, and therefore no sample size could be identified for
Objective Two 1•
10CR 2013/14, pp. 44-46, csp. 44 (Walloc).
11/bid., pp. 46-47 (Walloc).
12JARPA Il Planat pp. Il, 15-16.
13
CR 2013/14, pp. 40-41 (WallllC). - 19-
18. Let me move to the fourth point. Vou may then have in mind that, weil, if we dismiss
the humpback whales and the fin whales, what is the Court to do with the minke whale aspect of
the proposai? What we would be so bold as to say that at the end of the evidence, you will
conclude it has not been shawn that there was a justification for doubling the minke take
from 300/400 under the original JARPA to the 850 in JARPA Il. [Screen on]. On that tapie 1
might seek to just remind you of what it was Professor Wallee told you last Wednesday at about
4.15 p.m. Vou will recall he opened up- indeed he almost volunteered- these statements : "1do
not really know how they have calculated the sample sizes"14• And again when 1 uncharitably
pressed him on why his own calculations were left in Norway, his answer was "so 1thought it was
sufficient to say that 1did not really understand it but that is my answer". We would ask you to
conclude, on this material, that we now have common ground between Professor Wallee and
Professor Mangel and this represents the gaping hole at the heart of JARPA Il: sample sizes are
15
arrived at by a "particular number" being "picked [from a range] without any explanation" as
Professor Mangel had said in his reports. [Screen off]
19. With those matters being common ground and it being a long day ahead, 1fear 1might
risk your patience if 1 mention the words "sample size" any further. However, 1 need to do just
this, which is what one might regard as a precautionary approach, given what Japan might wish to
say to you next week, if they ask you to conduct an archive expedition into the Appendices of
JARPA Il. What 1would wish to do isjust to remind you ofthose few examples we looked at with
Professor Wallee from the Appendices, which led him to make his fairly candid concession that he
really did not have the foggiest of how the sampies were chosen.
20. So if you would just bear with me in that brief exercise in revision, what you should next
see on the screen, [slide: table 3] as you have already seen, was the humpback proposai. And you
know that to get a sample size of 50, one needed to assume a rate of change of plus or minus
3 percent. Vou will not find in the JARPA proposai a scientific justification for why a 3-per-cent
14
CR 2013114, p.41 (Walluc).
1CR 2013/9, p. 45 (Mangcl). Sec also Prolèssor Mangcl's lirst expert statcmcnt of April 2011 at
paras. 5.38-5.50. -20-
change is plausible. 1would simply reference that at page 64 of the proposai, the last available data
showed a change of only 1.3 percent. [Screen off]
21. Let me turn then to the table that you have already seen in relation to the fin whales.
[Siide: table 4] ln short, the position is pretty similar. [Screen off]
22. Then let me turn to the table you saw for the minke whales. [Siide: table 2] And we
know that if one followed through the approach with the other two species of 12years and
3 percent, you would only take 18whales; ifyour made it six years, on that assumption you would
take 138; if you made it six years and adopted the 1-1.5 percent range, you would need between
87 and 213. JARPA Il does not explain why one would adopt 1-1.5 percent, but there it is.
23. Ali of this is simply to confirm the arbitrary nature of the sample size which led
Professor Wallee to his correct concessions. If the~roje needs tluee, not one, species, why do
you only kilt one species? If for two of the species it will take 12 years to get useful results, why
select a sample size for the other which uses a six-year period, resulting in a lethal take four times
higher than it needs to be? That, we suggest, is hardly necessary or proportionate, if one applies
the standards New Zealand helpfully laid out on Monday of this week 1• On the other hand, ifthe
project is really about only killing minke whales, deJete the other two species, discard the aim to
build a mode! and get down to examining through science whether a minke whale program of this
scale and indefinite natureis needed.
24. [Siide: table 6] 1 will simply ask for you to be shown the other table in Appendix 6
dealing with a different parameter where, for the fin whales, 12 years is taken, for the minke
whales, six years is taken, without explanation.
25. So hopefully my last word on statistics is to draw together that proper statistics require a
rational connection between the hypothesis to be tested, the power expected from the text, the
margin of error and the resulting sample size.
1bCR 2013/17, pp. 36-38 (Ridings). - 21 -
26. That was Professor Mangel's view in his report 17• lt is now Professor Wall0e's view 18•
19
To the extent that any sample sizes are offered, they only relate to the "monitoring" objective ,
Objective One.
20
27. That objective has no identified hypothesis, as Professor Wall0e confirmed •There can
be no analysis in JARPA Il of the precision with which any parameter needs to be measured.
28. The fifth point takes us back to the real world. By now, 1suggest you might be heavily
puzzled why the permit is issued in the same form and with the same numbers each year when the
actual take is at great variance to that. ln chief you heard our explanation which was that the size
of the vessel was significant. Mr. President, Members of the Court, you may know that the Court
received a letter on the 3 July from Japan- that we have not objected to- giving us sorne
interesting information about the effective refrigeration capacity of the Japanese vessel, such that it
can only take, they say, 400 whale carcasses per season 21• Let us now assume that to be true. What
does that tell you? lt tells you that, in order to carry out the JARPA Il program, Japan would either
require two factory ships of that size or, perhaps more realistically, use refuelling vessels with
refrigeration capacity to oftload the prize back to Japan during the season. Japan has not given you
any explanation for why it does not send two vessels, it has not explained to you what it does by
way of oftloading whale carcasses on the refuelling vessel. lt asks you to find, through a chart you
may have been bemused by last week, that if more Sea Shepherd vessels are sent, that explains the
who le of the difference. We wouId respectfully suggest that the Sea Shepherd cannat stop a vessel
that Japan chooses not to send to the Antarctic. The explanation cornes back to commerce. As
Professor Crawford put in our opening round: a drop in demand for whale meat and a desire to
22
keep the priee high •
29. Could 1turn then to the last three of our summary points from JARPA. The sixth pointis
a matter about which the Court has asked many questions, helpful, if 1may say so, with respect to
1 Sec, for example, Prolèssor Mangcl's supplemcntary expert statcment, datcd 15 April 2013, at pp. 9-11.
18CR 2013114, pp. 34, 53-54 (Walloe).
19
JARPA IlPlan, p.17.
2
°CR 2013/14, p. 38 (Walllle).
21
Sec the lcttcr datcd 3 July, sent by Japan to the Court conccming the capacit) of its v.haling vcssels. Sec also
CR 2013/15, pp. 45-46 (Boyle).
22
CR 2013110, p. 41 (Crawford). -22-
focus the Parties' attention. Before launching JARPA Il, Japan did not establish that lethal
scientific research was necessary on the scale proposed and could not be done by any other
23
available method • Further, to take up one of the Court's questions- Judge Donoghue's
question- Japan has not established on a year-by-year basis before issuing the permit, that
matter 24• [Siide] On the screen you will see shortly what appears to be the entirety of the
25
substantive justification in the lengthy JARPA proposai for the lethal take . Vou might have
thought that a tapie of such intense concem to the Commission and to many of its members
deserved more attention [slide]. We have summarized thenon the next slide you will see, what is
wrong with that brief and thin justification.
30. 1 must mention on this tapie, that one point is now also common ground.
26
Professor Boyle's careful and accurate answer to Judge Donoghue's question confirmed that
Japan does not year by year, as it issues the permits, consider the options of non-lethal methods.
That is a significant matter. [Screen off]
31. The last two points, perhaps unfortunately, descend a little further to the science, and 1
will deal with them briefly. The seventh point is that any suggestion that JARPA is designed to
obtain information to "implement" the RMP lacks justification 27• [Siide] The key points for that
proposition are seen on the slide. And, the point that perhaps requires only this elaboration, the
fourth point, would take us to the issue of genetic data and the alternative of biopsy sampling. And
our response on that tapie is provided on the following slide that you will see. 1would emphasize
that the proposition that biopsy is impractical on the apparently fast-swimming nifty minke whales
in the high seas, you will not see addressed in the proposai from Japan, and there is a solid body of
evidence to the contrary which it would seem Japan has not considered. Professor Gale, in fact,
referenced a paper from as early as 1991, from scientists from the ICR who proved it feasible to
)C biopsy sample minke whales 28• He referenced the work of Paul Ensor on the SOWER lïlAfisers\
er-lA-.~
2See the question of Judge Bhandari, CR 2013114,p. 74.
24
See the question of Judge Donoghuc,CR 2013112, p. 64.
25
JARPA IlPlan, p. 20.
26
CR 2013/15, pp. 69-70.
27
See Profèssor Mangel's first expert statemcnt of April 2011 at paras. 3.21-3.31, and his supplementa!)
statementat paras..1-4.14.
28
See Dr.Galcs's second expert statement,dated31 May2013 at para.2.5. -23-
work on the high seas 29 and he referenced his own work for which he has been praised 30• The real
point seems to be that body of material is not, and has not been, considered by Japan.
32. The final pointis the suggestion that JARPA may produce results which will improve the
RMP, that particularly relates to the question of age data. The short point is that, as you now see,
31
Japan has not engaged with the defined procedure to amend the RMP • The aim of the original
programme to use earplugs, to establish mortality has failed as the Committee reported in 2007 32•
The Committee in 2009 33found catch-at-age data was of low reliability. The Committee in 2013
34
made a slight adjustment to the bounds of the MSYR without using age or lethal data • And
35
indeed it found a range of problems in the current age model •
33. Mr. President, Members of the Court, to make sure that 1was not losing the wood for the
trees, or losing the Southern Ocean Sanctuary for the large whale who knocked a surfer
unconscious off Sydney Harbour last weekend, 1 have tried to prepare for you, a little table-
which you should see relatively shortly, and it is at tab 17 [Siide]- which pulls together how it is
that for none of the four objectives can you actually see the four most basic things you would want
in combination: a specifie hypothesis, a proper sample size, a proper justified assertion of lethal
methods, and a proper analysis of non-lethal alternatives. That is not to say it couId not be done,
but it has not been done in this proposai. [Siide off]
Non-lethal techniques
34. The final matter 1 mentioned at the outset, was the question of non-lethal techniques.
You now have clear evidence that they include satellite tagging, short term tags, biopsies, and
6
digital photograph/ • Dr. Gales importantly confirmed for you that biopsies are now a "very
29
See Dr. Gales's second expert statement, dated 31 May 2013 at paras.2.8-2.12.
1See Dr. Gales's lirst expert statement, dated 15 April 2013 at paras. 6.1-6.17.
.JAustralia's cross-examination folder, 3 July 2013, tab 24 (Extract from "Report orthe Scientilic Committce"
(1993)).
nlbid ., tab 28 (Extract from "Report of the lntersessional Workshop ta Review Data and Results from Special
Permit Research on Minke Whales in the Antarctic, Tokyo, 4-8 Dec. 2006).
3
J /bid., tab 20, p. 502 ("Report of the lnterscssional Workshop on MSYR for Balecn Whales" 2010).
34/bid., tab 22, p. 4 ("Report of the Sub-Committee on the Revised Management Procedure" 20 13).
35/bid., tab 23, table 1,p. 2 (Extract from the ·'Reportof the Sub-Committee on ln-depth Assessments" 2013).
.lCR 2013/10, pp. 22-23 (Gales); CR 2013/9, p. 47 (Mangcl). - 24-
standard method" 3• He spoke of the enormous advances in the field, as did Professor Mangel 3,
and perhaps most importantly, Dr. Gales confirmed the obvious, that the non-lethal methods are
available to scientists of ali whaling communities in the world. Professor Mange( agreed to that
proposition. And we suggest that Professor Mange(- and 1 might end on this- with his
characteristic understatement, said this quite accurately, the JARPA Il program simply assumes
"non-lethal methods will not work" and Japan has "not put any serious effort into developing such
39
methods" •
35. Mr. President, 1 would invite you shortly then to cali on Professor Sands to deliver our
substantive science speech. Thank you for your attention, Members of the Court.
The PRESIDENT: Thank you very much, Mr. Gleeson. And 1 give the tloor to
Professor Sands. You have the tloor, Sir.
Mr. SANDS:
JAPAN'S "SCIENTIFIC" WHALING IN THE SOUTHERN OCEAN
1. Mr. President, Members of the Court, you have now heard from both Parties on the central
question, namely whether JARPA Il is a programme "for the purposes of scientific research" under
the Convention. When 1addressed you two weeks ago, 1 said that the subject requires a careful
assessment of the facts. The arguments show that the Parties agree on that proposition, but on 1ittle
else. Japan has now offered its version of the facts, and it is to this that 1will now tum.
2. This is a court of law, it addresses facts on the basis of evidence that is before it. The
Attorney-General for New Zealand said that "giving full consideration to ali relevant facts and
40
circumstances" is indispensable to this case • lt is striking that much of Japan's argument is mere
assertion, unsupported by documentary, expert or other evidence. Japan claims that JARPA Il is a
programme for "the purposes of scientific research", that claim rests on two asserted propositions:
HcR 2013110, p.23 (Gales).
38
CR 2013/9, p.47 (Mangel).
9
_1/bid.
4
°CR 2013/17, p. 30, paras. 48-49 (Finlayson). -25-
first, what Japan says is science is science, and second, the Scientific Committee of the IWC has
endorsed that claim.
3. On Japan's case, the Court's assessment of what is largely a factual issue- is JARPA
science- need go no further than that. According to Japan, you, as a Court, do not have to bother
yourself with any objective criteria to determine what science is, you do not have to bother even
applying such criteria. Forget about ali the expert evidence. You just take what Japan has said at
face value and you follow that. lt could be said that they have nailed their flag rather firmly to a
shaky and dangerous mast.
4. There are many difficulties with Japan's approach to this case. One of them is that it rests
on a particular versionof"the facts", including what Japan says the Scientific Committee has done,
unsupported by evidence. There is no evidence in the Counter-Memorial to support their case. The
testimony of Professor Mange! and Dr. Gales doesn't support their case. We now know that the
testimony oftheir own expert, Professor Wallae, doesn't support their case. We will ali have noted
that moment in the hearing, towards the end of Professor Wallae's testimony, around 4.15 p.m. last
Wednesday, when Japan's case began to fully unravel: JARPA Il offered to this Court as a
multispecies programme "for purposes of scientific research", and Japan's only expert tells the
Court that it shouldn't be taking fin or humpback whales, and that he doesn't support those
elements of JARPA Il. That testimony made Japan's claim to be allowed ta kill fin or humpback
whales totally unarguable. You cannat run a multi-species programme by looking at one species.
And you cannat runa programme that claims ta be a science programme, as Professor Wallae told
you, ifyou cannat explain to this Court why 850 whales have to be killed.
5. The evidence before this Court, and in particular the testimony of Professor Wallae,
makes it difficult ta see how this Court can offer Japan the stamp of approval that it seeks. To
allow Japan ta continue ta accord itself the right to kill three species of whales requires this Court
ta ignore the evidence and testimony that is before it.
6. Mr. President, my presentation will be in four parts, and it may be appropriate to have a
break at a convenient moment. 1am going to begin by addressing you on the Scientific Committee,
which has not offered any positive assessment of JARPA ll's role in conserving and managing
whales in the Antarctic. 1 will then move on to the events of 2005, the circumstances in which -26-
Japan proposed JARPA Il without bothering to await the review of JARPA. 1shall then turn to the
criteria that we say are to be applied by the Court, explaining how those criteria should be
approached and applied. And 1 shall then end with a few brief conclusions. 1 have focused my
comments, in the time available, to the key issues. But for the avoidance of any doubt, we would
not wish any silence that we have had on any point raise by Japan to be taken as a concession.
7. Before moving onto these four matters, can 1 make sorne brief preliminary points of a
general nature. We could not help but be struck by Japan 's approach to these hearings,
characterized by tluee distinct elements: silence, contradiction and disparagement.
8. Japan's silences have spoken very, very loudly. There are so many matters on which it
has simply declined to offer argument, or evidence. lt offered no evidence on the assessment it
carried out in 2005- the period between JARPA and JARPA Il- or on methods alternative to
the killing of whales. It has offered no evidence to explain the increase in the number of minke
whales it says have to be killed. lt has offered no evidence, or even argument, to explain to the
Court how it proposes to meet the objectives of JARPA Il in circumstances in which it has killed
Jessthan half the targeted nurnber of minke whales, Jessthan 5 percent of the fin whales, and none
of the humpbacks. We look forward to hearing what Japan says about that next week; it has said
nothing in its first round. And of course if it raises these matters now in, its second round,
Australia is Ieft in the unfortunate position of not being in a position to respond, unless their
address of these matters relates to the questions put by Judges Donoghue, or Greenwood or
Judge Gaja or Judges Cançado Trindade or Charlesworth, on which we have a right to put in a
written response.
9. Japan's contradictions are equally striking. There are, of course, many contradictions
between its own counsel. lt is as though they hadn't read each other's written submissions before
they were delivered. But it's the contradiction between counsel and expert that is so telling, like a
fault tine that divides its case. Professor Akhavan told you that the Scientific Committee functions
weil, his words, as an "independent expert body" 41,but Professor Wallee distanced himself from
42
that view, it has "close connections ... with politics" , he said. Professor Boyle told you that
41
CR 2013/12, p. 45, para. 21 (Akhavan).
4CR 2013/14, p. 37 (Walloc). -27-
sample sizes in JARPA Il were set using, his words, "solid statistical reasoning" 43• It's not what
Professor Wallee said, he said he did "not really know how they have calculated the sample
4
sizes'.4 •
1O.So, in the absence of any evidence to support its case, or a desire not to engage with the
merits, what does Japan do? It turns to disparagement. Of ali and sundry. Professor Mangel? Just
45
an ivory tower academic . States that have voted with Australia in the Commission? Australian
46
lackeys, it might be said, complicit in "hijacking the Convention" ; those words were used. The
63 members of the Scientific Committee who declined to participate in the "review" of the
JARPA Il proposai? Politically motivated boycotters, scientists who have merely aligned
47
themselves to Australia's policy • Japan's counsel were no more complimentary of the views of
other distinguished scientists. You will recall 1 drew your attention to the 21 distinguished
scientists who put their name to a letter expressing serious scientific concerns with Japan 's
scientific whaling programme a decade ago. 1 mentioned one of them, Sir Aron Klug, who was
8
described as an "environmental activist'.4 • (Tab 18) [Screen on] Weil, you can see Sir Aron Klug
now on your screens; he is a distinguished scientist, an extremely distinguished scientist, awarded
the Nobel Prize for Chemistry in 1982, knighted in 1988, elected President of the Royal Society
in 1995. ln 1983 elected an Honorary Fellow of Trinity College, Cambridge- a notable
achievement. Counsel for Japan may not like the views expressed by Sir Aron Klug, that Japanese
"scientific whaling" does not meet, his words, "accepted scientific standards" 4'\ but the fact is he
expressed them as a scientist, a distinguished scientist. And he was not alone. [Add image to
screen] Professor Masakazu Konishi? Also labelled by counsel as an "environmental activist".
Why? Because he dared to express the opinion that Japanese scientific whaling was "not designed
to answer scientific questions relevant to the management of whales". Yet he is a wholly
41CR 2013/15, p. 63, para. 70 (Boyle).
44CR 2013/14, p. 41 (Walloe).
4~CR 2013/15, p. 47, para. 12(Boyle).
46
CR 2013/12, p. 48, para. 32 (Akhavan).
47
CR 2013115, p. 33. para. 18 (Takashiba).
48
CR 2013/12, p. 59, para. 70 (Akhavan).
4
Q"AnOpen Lcttcr to the Govcrnment of lapan on Scicntilic Whaling", The New York Times, 20 May 2002. -28-
independent and globally renowned scientist. He was awarded the International Prize for Biology
by Japan's Society for the Promotion of Science, and the citation was for "outstanding contribution
50
to the advancement of research in fundamental biology" • lt was not for environmental activism.
These distinguished scientists deserve better from counsel from Japan. [Screen off] We invite
counsel for Japan to stick to the merits, to the law and to the evidence. And it is to this that 1now
turn.
(1)The Scientific Committee has not offered positive support to JARPA II
11. Let us begin with the rote of the Scientific Committee. Japan argues that whether
JARPA Il is a programme "for purposes of scientific research" is a matter exclusively for the
Scientific Committee. lt asserts that the Scientific Committee "scrutinized" the JARPA Il proposai
in 2005, and it told you repeatedly -1 gave up counting- that JARPA Il wiIl be reviewed by that
body again next year, in 2014 51• That, counsel for Japan seemed to be saying, is the beginning and
the end of the matter. lt was as though they were saying "back off, don't touch this, it's being dealt
with elsewhere, you have no rote"; that's what you are being told.
12. Now, given that this is a central plank in Japan 's case, it is understandable, the absence
of evidence on the merits, that they would try to come down hard on Australia's assertion that, in
respect of JARPA and JARPA Il, the Scientific Committee has "never ... offered any positive
assessment of either program's contribution to the conservation and management of whales, orto
the IWC's Revised Management Plan" 52• That submission attracted the attention of
53 54
Professor Akhavan and Professor Hamamoto , both of whom sought to persuade you that
Australia was wrong. Weil, Australia's characterization is entirely correct.
13. ln support of his contention, Professor Akhavan offered you a series of examples,
quotations that he attributed on his slides to the "Scientific Committee". You can see that slide on
the screen at tab 19 [Screen on], under the heading "Scientific Committee 1997 and 2006 JARPA
50
http://www.jsps.go.jp/engl ish/c-biol/01_outlinc.html.
51
CR 2013/15, p. 68, para. 89 (Boyle).
5CR 2013/8, p. 63, para. 19 (Sands).
5CR 2013112, p. 57, para. 61 (Akhavan).
5CR 2013113, p. 29, para. 54 (1-lamamoto). -29-
Review Conclusions". He offered ten examples. Yet not one of them relates to JARPA Il, the only
programme with which this case is concerned. Professor Akhavan, the embodiment of creative
lawyering, who also has the great merit of making me sound reasonable, was unable to find any
positive assessment from the Scientific Committee on JARPA Il on the conservation and
management ofwhales. He could not do so because it has not done so.
14. Even on JARPA he struggled, for understandable reasons. Professor Walloe has spent
quarter of a century at the Scientific Committee, but even he distanced himself from the JARPA
programme. "JARPA itself is a much more difficult program and 1 must admit 1 had some
reservations on some parts of JARPA" 5• More difficult even than JARPA Il, on which he does not
support the killing of fin and humpback whales? Counsel for Japan might have asked
Professor Walloe during examination or re-examination about the positive assessment of
JARPA- or for that matter JARPA Il- by the Scientific Committee. But Professor Lowe chose
not to ask him any questions in relation to that matter.
15. Professor Akhavan's ten examples are flawed. 1do not have time to go through each
one, but let me give you a sense of the technique that he has employed. (Tab 20) [Next slide] If
you look at the fast three statements, 8, 9 and 10 let us cali them, they are offered as three separate
views of JARPA's record ofpublications-you can see~tha atthe bottom. But, ifwe now turn x
to the next slide [next slide] and we see those three separate views, we see that they emerge from a
single paragraph, of the same document. ltis not one point, it is not three points, sarry, it is a
single point. More than that, it is a hopeless single point because ali the paragraph says is a
purported statement offact. There is no positive assessment there of anything. [Screen off]
16. Let us turn to another one, the third statement which he attributes to the Scientific
Committee. Actually, his third statement is a view expressed by a 1997 Intersessional Workshop.
The Workshop is not the same as the Scientific Committee. It is instructive to look at the list of
attendees of that Workshop, which you can now see on your screen. (Tab 21) [Screen on] There
were 38 participants at the Workshop, if you exclude the Scientific Committee Chair, the
IWC secretariat and what are termed "local scientists". The Japanese team, plus Professor Walloe
55CR 2013/14p.50 (Walloc). -30-
and Professor Butterworth - who is on the Japanese delegation here- offer a straight majority at
that Workshop. Comments expressed by the Workshop are dominated by the views of Japanese
and aligned scientists of their own work on the very project on which they are working, the point
made by the Solicitor-General. [Screen off]
17. Let us move to 2006, and Professor Akhavan's fourth quote (tab 22), which you can see
on the screen [screen on], that "[T]he JARPA dataset provides a valuable resource". [Next slide]
Weil, the technique here is a slight modification, because what you see if you look at the next
sentence is that "With appropriate analyses, this has the potential to make an important
contribution to the Scientific Committee's work." (Emphasis added) (Tab 23). "Potential", it is
exactly what 1said last week, there is a world of difference between "potential" and "actual".
18. Now look at his seventh quote (tab 24) [next slide]- "[T]he JARPA dataset provides a
valuable resource to allow investigation of sorne aspects of the rote of whales within the marine
ecosystem." Read it carefully. Does it look familiar? (Tab 25) [Next slide]. Yes, it does look
familiar: that it because it is exactly the same as the fourth quote, from the same line ofthe same
6
document, on the same page 5 • lt is double counting, but poor double counting, of potentiality and
nothing more. This is a serious court of law, Mr. President, you are entitled to more than this.
[Screen off]
19. 1 could take you through the rest of the document, and demonstrate that there is no
positive assessment of JARPA, just as there is no positive assessment of JARPA Il. The same
points may be made in relation to Professor Hamamoto's very acrobatie exercise in reading
documents.
20. The point can be made very simply. The evidence shows that the Scientific Committee
has not been able to function as a proper scientific committee on these matters. That is what
Professor Wallee told you. lt has not offered a positive assessment, it has not characterized JARPA
as a programme "for purposes of scientific research" within the meaning of Article VIII.
21. 1 have taken you, Mr. President, Members of the Court, through this exercise for three
reasons. First, it demonstrates that Japan clutches at straws, there is no substance to its claim that
5"Rcport of the lntersessional Workshop to Rcvicw Data and Rcsults from Special Permit Rcscarch on Minkc
Whalcs in the Antarctic", Tokyo, 4-8 Dcc. 2006, J. Cetacean Res. ,HmwKe. JO(Suppl.), 2008, pp. 411-445, (available at:
http://iwc.int/workshop-rcports#lyca r-2007), p. 431 (Scct. 5.5). - 31 -
the Scientific Committee has positively assessed the JARPA Il programme. Second,
Professor Akhavan has not been candid with you. The document he referred you to is a motley
collection of incomplete and selective quotations, wholly irrelevant to JARPA Il and this case.
22. And third- my most significant point- close analysis shows that we are here a world
away from the report of the Porter Commission in Armed Activities on the Territory of the Congo
7
(Democratie Republic of Congo v. Uganda) (2005i , of the factual findings of the ICTY
(International Criminal Tribunal for the former Yugoslavia) in Bosnia and Herzegovina v. Serbia
58
and Montenegro (2007) , or the reports of the IFC (International Finance Corporation) in the Pulp
59
Mills case more recently in 2010 • ln each of those cases you had rather clearer statements by
independent third bodies that admitted of little doubt or ambiguity- it was right that you should
look at them. ln this case, Japan has no independent body to turn to for support.
23. lt has been unable to function- the Scientific Committee- it is at an impasse.
Professor Boyle told you that it is "not for Australia or its experts to come to this Court to criticize
what the Scientific Committee has found acceptable" 60• Yet it is clear that as with so many matters,
you are getting mixed messages from Japan's counsel, and its expert, who expresses rather
different views. Ms Takashiba contradicted Professor Boyle, she said that "Les débatsau sein du
comitéscientifique sont polarisés" 61• Like her, Professor Wallee takes a dim view of the Scientific
Committee. He told you, on JARPA and JARPA Il, that body is highly politicized, "not like a
62
scientific committee in my other scientific fields" • On this point at !east- and again- he and
Dr. Gales are in agreement. And of course they are very well-placed to know, they have attended
the Scientific Committee for many years. You can choose Professor Wallee's view of the
Committee, or you can choose Professor Boyle's. How many meetings of the Scientific Committee
57
Armed Activtties on the Territ01y of the Congo (Democratie Republtc of the Congv. Uganda), Judgment,
/.C.J. Reports 2005, p. 201, para. 61.
8
~Applicoa f thioConvention on the Prevention and Punishment of the Crime of Genocide (/Josnia and
1/er=egovinav.Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (/), p. 137, para. 230. The report was "The 1-à/1
ofSrebrenica ".
59
Pulp Mills on the River Uruguay (Argentinv.Uruguay), Judgment, I.C.J. Reports 2010 (/); sec in particular
paras. 167,10 and 252.
6
°CR 2013115, p. 64, para. 77 (Boyle).
61
Ibid., p. 39, para. 32 (Takashiba).
62
CR 2013/14, p.29 (Walloc). -32-
has Professor Boyle attended, one might ask - probably no more than me. The accurate view is as
stated by Dr. Gales: the Scientific Committee, as he puts it, is "characterised by its polarity and its
Jack of assessment of the scientific weight of the issues raised by members of the Scientific
63
Committee" • Japan could have challenged that claim of opinion by Dr. Gales in
cross-examination, but again Professor Lowe chose not to do so. On this point the expert evidence
offered by both Parties concurs.
24. Against this background, tluee points may be made by way of conclusion. First, the
Scientific Committee has offered no positive assessment of the JARPA II programme. lt has not
characterized it as a programme "for purposes of scientific research". Second, the Scientific
Committee's activities and output offer no basis upon which the Court can conclude that JARPA II
is a scientific programme. Third, and consequently, it falls for this Court to decide for itself
whether JARPA II is a programme "for purposes of scientific research". To do that, the Court has
to identify the standards and the criteria to be applied in determining whether it is a programme
"for purposes of scientific research". Having carried out that initial exercise, the Court must then
apply those standards and criteria to the JARPA II programme. 1am going to tum to these matters
shortly, but before doing so 1would like to address what occurred at the Scientific Committee in
2005, when the JARPA II proposai came to that body.
(II) The 2005 Scientific Committee meeting
25. Japan accepts that it put forward the JARPA Il proposai in 2005, before the Scientific
Committee had reviewed the output of the JARPA programme. That is not in dispute. Japan also
accepts that the arrivai of the JARPA II programme was highly controversial when it reached the
Scientific Committee. Sixty-three members of the Scientific Committee declined to participate in
the review of the JARPA Il proposai. Japan had very little to say about the reason this notable and
large group of scientists declined to participate. They told you that the group was basically a bunch
64
of boycotters ,perhaps "troublemakers" was the word they did not quite feel able to use.
oJN.Gales, "Statement of Dr Nick Gales", 15 April 2013 (Gales, Expert Statcment), para. 4.3.
6CR 2013/15, p. 33, para. 18(Taka<;hiba). - 33-
26. But let us look at what the 63 said and who they are. Vou will find their written
statement at tab 26 oftoday'sjudges' folder. [Screen on] And 1do invite you to open it and have a
look at what that document actually says. Vou can see on that page the list of the 63 highlighted
65
individuals • They come from 16 countries, and they inelude 16 invited participants, individuals
not associated with a national delegation. They include scientists from Australia, France, ltaly,
Japan, Mexico, New Zealand, the United Kingdom and the United States, coming from a range of
66
academic and other institutions • [Next screen] They state their conclusion at the top of page 261.
What they say is that they were "unable to engage in a scientifically defensible process of review of
the JARPA Il proposai". They go on to say that to proceed to a review "would substantially
undermine the scientific credibility" of the IWC. ln their view- and these words are important-
the proposai could be addressed by the Scientific Committee "only when the JARPA review is
complete".
27. Now, this whole document is worth reading carefully- and 1am not going to take you
through the whole thing. But there are other elements of it 1would like you to have a look at now.
[Next screen] If you go back to the beginning of the document, you can see that JARPA Il is
treated RS a concluded programme, and that the review of that programme is only to take place in
2006 or 2007. The 63 scientists note the paucity of peer-review literature on JARPA. They note
then that JARPA Il "will more than double the annual catch of minke whales and also take 50 fin
and 50 humpback whales", and will "abandon the accepted IWC method of managing whale
stocks"- that is a reference to the RMP- in favour of what they cali "a speculative
'multi-species' approach". They note the significant increase in annual take, to levels that are
"approaching the annual commercial quotas for Antarctic minke whales that were in place prior to
6
~S.Childerhouse et al. (62 other authors) 2006, "Comments on the Government of Japan's proposai for a second
phase of special permit whaling in Antarctica (JARPA Il)", App. 2 of Ann. 01 to "Report of the Scicntilic Committcc"
(2005). J. Cetacean Res. Manage. 8, 2006, 260-261; MA, Ann. 52: sec also Gales, Expert Statemcnt, para. 3.38.
(Oy way of examplc, they include Profcssor Scott Baker, Oregon State Univcrsit) Marine Mammal lnstitutc
(US); Dr. Per Dcrggren Associatc Proli:ssor, Marine Ecology. Stockholm University (SweDr. Bob Brownell,
Director of the Marine Mammal Division at the Southwest Fisheries Science Centre in La Jolia, Calilornia (who served
three terms as a Scientilic Advisor to the US Marine Mammal Commission)Dr. Jean-Benoit Charrassin, Muséum
National d'Histoire Naturellearis(l~'ran ce.);rank Cipriano, Director, Conservation Genetics Laboratory,
San Francisco State UniversityDr. Bruno Cozzi, Faculty of Veterinary Medicine, University of Padua (ltaly);
Dr. Simon Northridge, Senior Lccturer, School ofBiolog), Universit) ofSt. Andrews (UK); Dr. Lorenzo Rojas Bracho,
Marine Mammal Program Coordinator, lnstituto Nacional de Ecologia (Mexico); Dr Michael Stachowitsch, Department
of Marine Biolog), University of Vienna (Austria); Proli:ssor Peter Reijnders, Wagingen University and Research Centre
(Netherlands);Dr. Karl-Herman Kock, lnstitute of Sea Fisheries (Germany); Dr. William Perrin, South West Fisheries
Center(USA); Proli:ssor Toshio Kasuya, Teikyo University of Science and Technology (Japan). -34-
the moratorium". (Now, can 1just say here, by way of parenthesis, that immediately prior to the
moratorium entering into force for Japan in 198611987, the number of Antarctic minke whales
taken by Japan was 19-11( emphasis added). It is not very far away from what they are taking
67
now. ) The 63 scientists express the view that the increase in annual take, from 300 or 400 to 800
plus, is a result that goes "far beyond the intention envisaged when Article VIII of the Convention
was developed". [Screen off] Mr. President, can 1just pause there to remind you of the evidence
that was given by Professor Wallee, when he confirmed in cross-examination that when he
reviewed the papers of the Norwegian drafter of the 1937 Convention, Birger Bergersen, the latter
envisaged a take of no more than /en whales (emphasis added). (Tab 27) [Screen on] You can see
that interview that Professor Wallee gave in 2007, (tab 28) with the relevant article where he is
quoted, in which Professor Wallee says- this is Professor Wallee speaking: "lt's clear that in his
mind he was thinking that the number ofwhales a country could take for science was less than JO;
he didn't intend for hundreds to be killed for this purpose." 68 (Emphasis added.)
28. Let us go back to the views of the 63 scientists. [Next screen] They state that it is
"scientifically invalid" to review the JARPA Il proposai before the IWC has conducted a full
review of JARPA (emphasis added). "By bringing this proposai forward at this time", they write,
"the Government of Japan has substantially compromised" the Scientific Committee, and has put
"at stake" the Committee's capacity "to provide objective and representative scientific advice".
[Screen off]
29. Mr. President, the 63 scientists who addressed their initial substantive concerns as to the
proposai are not just anyone. 1 have listed in the footnotes sorne of their institutional affiliations.
These are serious people who followed the Commission's guidelines, a reference to the guidelines
set out in Annex Y. Their concerns are instructive for a number of reasons, not least because they
dovetail very closely with the themes of so many of the questions that have come to both Parties
and to the experts from the Bench. The 63 are concerned that "the proposai is open-ended and has
no time limit by which it can be assessed". This mirrors exactly the point raised by
7
b"1ntemational Whaling Commission Report 1986-87", Rep. /nt. Whal. Commn. 38:1 (available from
http://iwc.int/annual-reports ).
8
bV. Moreil, "Killing Whalcs For Science?", Science, Vol. 316, April 2007, pp. 532-534 (available at:
http:/lw\\w.seaaroundus .org/magazincs/2007 /Science_MarineBiolo gyKiIlingWhalcsForScicnce. pdl), p. 533. -35-
Judge Cançado Trindade, who posed a question asking whether it was possible to determine "the
69
total of the whales to be killed" to attain the objectives of JARPA 11 • Judge Cançado Trindade,
the answer to that question is "no", there is no evidence that admits of a different answer. The
63 scientists make the point that to be able to evaluate "ecosystem interactions", the expertise of
CCAMLR is "necessary". Weil that provides a response, Judge Keith, to your question to
whc.~
Professor Wallae,~ it would make "good scientific sense", 1think you asked, for JARPA Il to x
be linked to CCAMLR and other projects which deal with the Antarctic ecosystem 70• The answer
1
to that is plainly "yes", and Professor Wallae agreed with thae but it is not happening.
30. Mr. President, 1pause here to note that Japan has offered no evidence at ali to show that
work under JARPA Il has been associated with CCAMLR, or SORP, or even with projects
conducted by Japan's own venerable National lnstitute of Polar Research, to which mention has
been made. lt is interesting, for example, in 2009, Japan's National lnstitute of Polar Research
hosted the Xth Symposium on Antarctic Biology under the auspices of the Scientific Committee on
Antarctic Research (SCAR). lt was held in Sapporo, in Japan, in connection with SCAR's
biological research programme, which is entitled "Evolution and Biodiversity in the Antarctic". So
you might have thought this is of sorne interest to those proponents of the JARPA Il programme
and there would be sorne participation in that symposium. Participation, for example, from the
lnstitute of Cetacean Research who are supposedly doing scientific research on exactly the topic of
a symposium being held in Sapporo, Japan, in 2009. The Symposium was attended by
255 established scientists and post-graduate students from 22 countries. The programme indicates
that not one oral presentation was given on any of the JARPA or JARPA Il research findings, out
of 113 oral presentations. Of the 122 "posters papers" presented at the symposium, not one related
to JARPA or JARPA Il. There is no evidence before the Court that any scientists from the lnstitute
72
of Cetacean Research attended the symposium • And yet they clairn this is scientific research to
do with the very subject-matter of this symposium.
1)CR2013/14, p. 51 (Walloe).
10
/bid., p. 58 (Wallnc).
71/bid.
nReport on Agenda Item # 19 at the SSG-LS, XXXIth SCAR, Buenos Aires, 2010, availablcat:
http://www.scar.org/rcsearchgroupsllifescicnce/ms/20 1ceting/LSSSG-1 0_Doc20_1OthBioSymp.pdt: -36-
31. Going back to the views of the 63 scientists, they note that the JARPA Il proposai-and
quote, because this is v"does not have well-defined hypotheses and
performance Two points to makc here. First the view accords entirely with the view
expressed by Professor Mangel, offered by way and a view now we know
73
largely shared by Professor Wallae, as he confirme• in answering your question, Judge Yusuf
But more to the point, it makes it clear that for these 63 scientists, "well-defined hypotheses" were
required2005, in the review of JARPA Il, under the Guidelines applicable at the time.
32. Those quotes simply deal with thBut they were equally Il.
trenchant when it came to the methodology of JARPA Il. The 63 scientists state "the new proposai
provides an undefended rationale to more than double the take of minke whales". That concern,
the concern of an undefended rationale goes directly to the heart of the two questions putto Japan
by Judge Greenwood, concerning the basis on which Japan proceeded with higher sample sizes
74
before JARPA had b•The rationale was undefended 8 years ago, in 2005, and it was
undefended last week in this coOne would have thought that in the
intervening 8 years they might have been able to come up with something; they have come up with
nothing.
33. Following the events in the Scientific Committee, the matter went to the 57th Annual
Meeting of the Commission. Vou can find extracts from the report at tab 29 ofyour judge's folder.
[Screen on] At page 37 of that report, please note the short summary of what had transpired in the
Scientific Committee: "there was severe disagreement within the Committee regarding advice that
should be provided on a number of issues, including: the relevance of the proposed research to
)<management, appropriate sample sizes and applicability of alternate (non-lethal) researchh
[Screen Where is the positive assessmenwhere is the positive
assessmOn the next page you have the details of the resolution that was passed, strongly
urging Japan to withdraw or revise its JARPA Il proposai. This is the very same resolution that the
Attorney-General made reference to yesterday. And, you will also see there the list of 26 States
that co-sponsored, that was reThree of thosand 1 am sure
7CR2013/14,p.53(Walloc).
7744
r~C~R~2~0~13~/~16~,~p.~6~2~.---------------"ti.~..J------------~----~--
-',~ ,~t" "~".'~rA..Jn-" .',~14no.»r~~)'"-'"Qf.
:r""'cr.\,.os!~')~i~\~~(\~U.l. ~~..~../i,.c.·,"1e~-f"ct-'"')
-"ft~~-l""· -37 -
Mr. President, you have noted which tluee States are there set out - had only joined the
Convention earlier that year. Are these also hijackers, Professor Akhavan, to be characterized as
having succumbed to the Australian-led "takeover of the IWC" ? 75
34. What has happened in the 8 years? Nothing. Ali Professor Boyle could do was refer you
to Appendices 3 to 8 of the JARPA proposai. He showed you a formula, but was unable to offer
any explanation asto how sample size was fixed, or why the increase from JARPA was necessary.
76
Vou saw him for yourselves , flailing before the Court, proclaiming that "none of us understands" •
He must have been hoping for support from Professor Wallee, but by the time Professor Boyle
came to the Bar the lawyers had been cast adrift by their expert. Professor Wallee had attached
himself to the views of the 63 scientists, distancing himself at a rapid pace from Japan 's case. "1do
not really know how they have calculated the sample sizes", Professor Wallee told the Bench 77• So
you have your choice, on one side of the room a consensus view: 63 members of the Scientific
78 79
Committee, Professor Mangel , Dr. Gales ,Professor Wallee, ali in agreement on the absence of
any explanation asto the basis for sample sizes set in the JARPA Il proposai. On the other side,
cutting a solitary figure, Professor Boyle, waving a textbook, telling you with a straight face and
admirable aplomb: "1 haven't the foggiest idea" what it ali means 80• Mr. President, that was as
memorable a concession as 1have ever seen in a courtroom.
35. lt appears there is common ground between the Parties as regards sorne aspects of the
standards and criteria that were to be applied by the Scientific Committee in 2005 in respect of the
JARPA Il proposai. Japan appears now to agree with us that the applicable Guidelines, 2005, are
81
set out in Annex Y; a compilation of a series of IWC Resolutions on special permits , including
IWC Resolution 1995-9 and 1999-2 to which 1took you two weeks ago 82• Professor Crawford will
have more to say about the legal effect of these Guidelines as reflected in Annex Y, and the
7
sCR 2013/12, p. 48, para. 33 (Akhavan).
76
CR 2013/15, p. 64, para. 74 (Boyle).
77CR 2013/14, p. 41 (Wall,le).
78CR 2013/9, p. 45 (Mange!).
7'Gales. Expert Statemcnt, pams. 3.25. 3.42.
8°CR 2013/15. p. 63, para. 69 (Boyle).
81CR 2013/12, p. 53, para. 33 (Boyle).
82CR 2013/10, pp.35-37 (Sands). -38-
consequences of them. The currently-applicable Guidelines are set out in Annex P, which were
adopted by consensus. Professor Boyle told you that with the adoption of the Annex P Guidelines,
the earlier Resolutions "ceased to be relevant" 83• That is wrong, as the Attorney-General ofNew
84
Zealand made clear • The continued applicability of earlier Resolutions is confirmed by the
2009 JARPN Il Review, which was the first to be conducted under Annex P. That addressed the
review by reference to the Resolutions referred to included in Annex H to that Report -1 will give
85
you the citation in the footnotes; and that included IWC Resolution 1995-9 •
36. Professor Boyle had as little to say about the standards applicable under Annex Y as he
did about his equation, or formula. You will recall that 1had identified the five questions that arise
86
under Annex Y standards •
First, does the proposai constitute a programme "for purposes of scientific research"?
Second, is the proposai being made in "exceptional circumstances"?
Third, do the questions addressed in the scientific research programme address critically
important issues?
Fourth, can the questions be answered by analysis of existing data?
Fifth, and finally, can the questions be answered by non-lethal techniques?
37. Mr. President, Members of the Court, Professor Boyle did not take issue with those
questions. lt is difficult to see how he could. What he did was to devote ali of half a paragraph to
the supposed "review" of JARPA Il that took place, without the involvement of the 63 scientists 87•
In various places, the report ofthat review makes it clear the responses from the Committee bad to
be "limited", because of the non-involvement of the 63 and the Committee offered no conclusion or
recommendations. Even Professor Boyle recognized that the "review", such as it was, was cursory.
"It was discussed", he told you, "as far as we can tell they were satisfied that Annex Y had been
8CR 2013/15, p. 55, para. 36 (Boyle).
8CR 2013/17, p. 31, para. 54 (Finlayson).
8''Report of the Expert Workshop to Review the Ongoing JARPN Il Programme", J. Cetac:eanRes. !llanage. Il
(Suppl. 2) 2010, pp. 405-449 (SC/61/Rcp. 1), (available at: http://iwc.inti\\ orkshop-reports #!year- 2009), pp. 423, 448.
bCR2013/10, p. 36 (Sands).
8"Report of the Scientilic Committee" (2005), J. Cetacean Res. Manage. 8 (Suppl.)2006 (available at:
http://i\\c.int/scientifc-committee-reportpp. 48-52. -39-
complied with" 88. But of course he does not know, because he was not there and because no
conclusion is offered, one way or another. The reality is that none of the questions raised by
Annex Y were properly addressed.
38. So let us turn to those five questions, in the light of Japan's arguments and
Professor Wall0e's testimony.
39. First question, is the proposai for a programme "for purposes of scientific research"? We
say, that question requires this Court to forma view on the essential characteristics of a programme
for scientific research. We set out our views in the Memorial, assisted by the expert evidence of
Professor Mangel. ln its Counter-Memorial, Japan offered no expert, so the criteria identified by
Professor Mange( were inapposite: but they did not bother offering you any alternative .
Professor Mange( was rather robust when he was questioned by counsel for Japan, who made no
inroads whatsoever into the criteria identified by him, and even abandoned the cross-examination
early. Professor Mange( explained how he identified the criteria, taking into account practice under
the Convention, at the Scientific Committee, and general scientific practice. He offered a clear and
credible account.
40. What did Japan have to say about Australia's approach? Weil, Professor Boyle conceded
89
that the 1946 Convention offers no definition , but offered you, this Court, absolutely no help
whatsoever in how to go forward. His only word of advice was that this "is not a matter to be
answered by reference to expert scientific evidence from eminent scientists" 90• And 1 can
understand why he would say that, having been abandoned by Professor Wall0e. He spent ali of
five minutes on this subject, even though he accepted- and Japan concedes- that this is a
91
question that "the Court has to decide" • The five minutes were devoted to the testimony of
Professor Mange( and it avoided ali substance. ln a rather unfortunate tone, the Court was told that
Professor Mange( had approached the matter as a mere university professor, stuck in his ivory
92
tower. "[A]n interesting diversion", were the words of Professor Boyle •
88
CR 2013/15, p.54, para.35 (Boyle).
89
/bid.,p.47, para.12(Boyle).
'lO/bid.p.44, para.2 (Bo)le).
01
/bid.,p.47, para. Il(Bo) le).
92/bid.,p.46, para.13 (Boyle). -40-
41. Weil, the Court can form its own view. As Professor Mangel's CV shows, he has many,
many years of providing practical, real world advice to governments and international
organizations on their real scientific research activities. He served for eight years on the
United Kingdom Special Committee on Seals, which provides scientific advice to the British
Government on matters related to the management of seal populations. Stuck in his ivory tower,
93
the United Kingdom Government made him chairman of the Committee • Two months ago he
was appointed as a founding member of the Scientific Review Board for the International Pacifie
Halibut Commission, an intergovernmental body that researches and manages stocks of Pacifie
94
halibut for the United States and for Canada, under a 1923 Convention • He is very weil placed to
offer totally independent, practical advice on what does and does not constitute scientific research.
42. He has drawn from his experience in assisting Australia, and, we say, the Court, with
what the criteria are and he has explained the basis for his criteria, including within the practice of
the IWC.
43. Professor Boyle might have been more plausible if he had offered alternative criteria, but
he offered none. Science isjust what Professor Boyle says it is,just what Japan says it is, nothing
more, nothing Jess. If Japan tells the Commission and the Scientific Committee, and this Court,
that the collection of data is science, then it is science. If Japan tells this Court that a room full of
body parts of hundreds or thousands of dead whales is science, then you are supposed to simply
keel over and accept that it is science. Professor Boyle devoted a single paragraph to this
95
submission • And in another paragraph in which he expressed the hope that nothing more would
96
be said about the need for a hypothesis • It seems that he is not a fan of M. Poincaré,and would be
perfectly content for the Court to rule that a heap of body parts is science. Nor, it might add, does
Professor Boyle seem to be a fan of the rather impressive book Ange/s and Ages, referred to by
Judge Keith, on the subject ofscientific advances. "lt is in the leap ofthe data, not the heap ofthe
93http://www.smru.st-andrcws .ac.uk/pagcsct.a spx?psr=411.
94
http://blog.pugctsoundinsti tutc.org/20 13/06/marc-mangcl-appointcd-to-intcmationlie-halibut
commission/.
95
CR 2013/15, p. 48, para. 16 (Boyle).
'lIbid., para. 17(Boyle). - 41 -
data, as Muhammad Ali might have put it, that the advance lies." That is Adam Gopnik's, the
97
author ofthat book, view on exactly the issue that is before us •
44. The gulf between Professor Boyle and Professor Walloe was very great indeed. He was
abandoned by his expert. When Professor Walloe was asked by Judge Yusuf about the four criteria
identified by Professor Mangel, he responded "1 agree with much of it" 98• On the subject of the
need for a hypothesis, he said "1 agree that there should be sorne questions, something the scientists
99
would like to explore" • The difference between Professors Walloe and Mangel is of emphasis,
not of principle. Yet the JARPA Il Objectives have no questions or hypotheses, as
Professor Walloe accepted, with the exception of the krill surplus hypothesis and Japan says, at
paragraph 5.31 ofits Counter-Memorial, that it is not exploring that question 10•
45. This may be a good moment also to return to the question posed by Judge Donoghue, in
relation to the human genome project. JARPA Il is plainly not comparable to the Human Genome
Project. That Project had an overarching conceptual framework, namely that many- and possibly
most- human diseases had a major genetic component. This is often referred to as the "common
101
variant" hypothesis • The Human Genome Project met ali the criteria identified by Professor
Mangel:
it had a clear overarching scientific need;
it had a specifie question with measurable milestones and a defined outcome;
it employed (and developed) appropriate methods; and
102
it had rapid publication and peer review •
And 1 have offered you citations for ali of that, Judge Donoghue, m the footnotes to these
submissions.
97A. Gopnik, Angels and Ages: A Short Book about Dam in, Lincoln and Modem Life (2009), p. 71.
98CR 2013/14, p. 53 (Wallue).
<)Qibid.
10See CMJ, para. 5.31.
101
E. Lander, "The New Genomics: Global Views of Biology" (1996) Science 274:536-539; G. Gibson, "Rare
and common varianl'i"(2012) Nature Reviews Genetis 13:135-145.
10F. Collins, M. Morgan, and A. Patrinos, "The 1-lumanGenome Project: Lessons from Large-Scale Biology"
(2003) Science 300:286-290; H. Williams, "lntellectual property rights and innovation: Lessons from the human
genome" (20 13) Journal of Politica/ &onomy,121:1-27. -42-
46. Early in the Project, some scientists expressed concern, in relation to the point you
raised, about whether the rapid throughput of data would undermine the notion that science
103
requires testable hypotheses. There was a series of pieces in the journal Genome Research •
Ultimately, the authors agreed that testable hypotheses- not hypothesis testing, in the statistical
sense- is the foundation of science, and 1have offered you the citations for that in the footnotes.
47. Professor Walloe too agreed that "the correct set of empirical tools"- the
methodology- depends on the questions that are to be explored; it is the hypothesis is what he's
104
referring to • He offered no objection either to Professor Mangel's third criteria, on peer review.
He conceded the need for proper review and confirmed to the Court that the Scientific Committee
is no substitute for peer review. lndeed he offered to the Court, on more than one occasion, that he
himself seeks to get his writings on subjects that are before the Scientific Committee to be the
105
subject of peer review • Why would he do that, if the Scientific Committee was peer review?
And finally Professor Walloe told Judge Yusuf that he agreed too with Professor Mangel's fourth
criteria, the need to avoid endangering the stock 106•
48. In short, on the basis of the evidence from the two experts, there really is no material
disagreement between them on the criteria that are to be applied in determining whether an activity
is properly to be characterized as scientific research. That having been made crystal clear, 1can
quite understand why Professor Lowe recognized the danger of re-examining Professor Walloe. lt
was no surprise, indeed, Professor Boyle was left with no alternative but to adopt the course that he
did, seeking to convince you that what constitutes "scientific research" is not to be answered by
"expert scientific evidence from eminent scientists" 107,because he now knows that if you disagree
with him and you go to look at the expert evidence you have to hang your hat on the hook offered
by the two experts. The problem for Professor Boyle and his colleagues as counsel on the Japanese
team is that they put forward an expert, and the expert basically agreed with Australia. It also
10
.1J. Engert, "Unlimitcd l-lypolhcsis Rescarch" (2000) Genome Research 10:271-272; L. Goodman,
"Hypolhesis-Limitcd Rcsearch" (1999) Genome Research 9:673-674; K. Lastowski and W. Makalowski,
"Mcthodological Funclion ofHypothcses in Science: Old ldeas in New eioth" (2000)Genome Research 10: 273-274.
104eR 2013114,p. 53 (Walloe).
105
/bid., pp. 20, 21, 31,52 (Wallue).
106
/bid., p. 53 (Walloe).
107
eR 2013/15, p. 44, para. 2 (Boyle). -43-
retlects a recognition on their part that expertise is both useful and necessary. Having taken that
path, they cannot now row back; they are stranded. Professor Walloe is Japan 's expert, for now at
Jeast- how long that wiIl Jast we do not know - but Japan is stuck with what he told this Court.
49. Where does this Jeave the Court? The standard to be applied in determining whether
JARPA Il is a programme "for purposes of scientific research" is readily identifiable and not in
issue. The criteria described by Professor Mangel - largely agreed with by Professor Wallee
should assist the Court in answering the first question that is offered by Annex Y; the other
questions emerge from Annex Y itself. 1will turn to the application of the other criteria, but this
may be an appropriate moment, Mr. President.
The PRESIDENT: lt is certainly an appropriate moment for you to relax, and for Members
of the Court as weil. A coffee break for 15 minutes.
The Court adjourned.from11.35 a.m. to 11.50 a.m.
The PRESIDENT: Please be seated. Professor Sands, if you are ready to resume, we are
ready to listen. You have the tloor.
Mr. SANDS: Thank you very much, Mr. President, 1will try to keep you attentive. 1know
these scientific matters are notof the most accessible nature. 1was talking about the criteria and 1
have spent sorne time identifying what other criteria we say that the Court should have heard. Let
me now turn to the matter of the application of the criteria in this case.
(IV) The application of the criteria: what is scientific research?
50. The first question that arises under Annex Y takes us directly to the four criteria
identified by Professor Mange!. There is no real disagreement, as 1 have mentioned, between
Professors Mangel and Wallee on the first criteria, namely that for it to be scientific research
JARPA Il has to have defined and achievable objectives that contribute knowledge important to the
conservation and management of whale stocks. Meeting the standard involves the selection of
particular hypotheses, or questions, as Professor Wallee accepted. You will recall that the -44-
63 scientists in the Scientific Committee said that they would not participate in the review of
108
JARPA Il because it "does not have well-defined hypotheses" •
51. The Solicitor-General took Professor Wallee through the objectives of JARPA Il and as
you heard, he was unable to identify the hypotheses or questions that underpinned any of the
Objectives 10, with the exception of the krill hypothesis.
52. This absence of hypotheses, or questions, is absolutely fatal to Japan 's case. A
hypothesis is important because it determines the statistics that are required and the data that is to
be collected. Without a set of clear questions you cannat determine the sample size.
Professor Wallee accepted in cross-examination, and 1 use his words- and 1am going to quote
them carefully- "there is a connection between the formulation of the hypothesis and ... the
110
selection of methods" • We say that is a crucial point and a concession, which is why his
testimony is so problematic for Japan. Methodology includes the choice between killing and not
killing, and it determines the sample size. "1 do not really know how they have calculated the
111
sample sizes", Professor Wallee said, "1 have to make guesses" • As you saw, asked whether he
1t'
)1 could find any justification in JARPA ~for determining that certain changes in pregnancy rate
over a 12-year period was "a plausible hypothesis worth testing", he provided a clear answer: he
said "No" 112• Asked about the assumptions made by Japan for taking 50 fin and 50 humpback
whales over a 12-year period, rather than the six years for the minke whales, he simply said "1
never liked the fin whale proposai"- you will have picked up the tremblement on the other side of
the room as those words emerged from his mouth. To compound the anguish, he then said "there
are difficulties with the humpback proposai". He then said that without knowing about the
113
assumptions on which Japan relied, the statistical basis for Japan's approach was "worthless" •
That is his ward, "worthless". Could it get any worse, one might ask. Weil, it could. Asked
whether he could find a scientific explanation for the choice of 12-year periods for fin and
10Sec para. 31,abovc.
1"CR 2013/14, p. 40 (Walloc).
11/bid., p. 35 (Walloc).
11/bid., p. 41 (WallŒ).
112
/bid., p. 44 (Walloe).
113/bid. -45-
humpback whales, as compared with six years for minke whales, he provided another clear - and
114
equally devastating - answer: he said "No" •
53. Professor Wall0e confirmed the need for hypotheses and the obvious connection between
the questions a scientific research project seeks to explore and the methods adopted. In short, you
cannot determine how many whales are to be kilied without knowing to sorne degree of precision
the questions that you seek to explore. Professor Wall0e was very candid in confinning that.
54. lt feil to Professor Boyle to pick up the pieces, an impossible task. He could do no more
than tell you that the figure of 850 minke whales, 50 fin whales and 50 humpback whales was "a
115
compromise" • He offered no scientific explanation. The problems with sample size haunt
Professor Boyle's case, as it haunted the Scientific Committee in 2005 116and as it haunted the
63 members of the Scientific Committee who cited that as one of the reasons they would not get
117
involved in this process •
55. 1move to the second characteristic of a programme "for purposes of scientific research",
namely the need to apply appropriate methods to achieve the stated objectives. Japan has offered
no scientifically justified rationale for why it needs to kill so many whales. But its difficulties go
further than that: it has offered no scientific justification for killing any whales. On
Professor Mangel's view, confirmed by Professor Wall0e and reflected in the requirements of the
Guidelines set out in Annex Y, lethal methods may be resorted to on/y where they are necessary
and the research objectives cannot be achieved by non-lethal means.
56. To meet this requirement, Japan has to demonstrate that it has gone through certain steps:
it has to demonstrate that it has identified the questions its programme seeks to explore, and on that
basis determined the data that it needs, and then ascertained the different options for obtaining the
necessary data. Judge Donoghue asked Japan what analysis of the feasibility of non-lethal methods
"'I.
it had conducted prior to setting the sample size each year for JARPA" 8• The questions were X
11eR 2013/14, pp. 45-46 (Wallue).
115
eR 2013/15, p. 64, para. 73 (Boyle).
111
"'Report of the Scicntilic eommittcc" (2005), J.Cetacean Res. Manage. 8 (Suppl.), 2006 (availablc at:
http://iwc.int/scicntilè-committcc-rcports), p. 51.
117
Scc para. 32, abovc.
118
eR 2013/12, p. 64 (Donoghuc). -46-
formulated in a very precise and comprehensible way, and they were concerned with JARPA Il, not
JARPA. Yet Professor Boyle in his answer simply referred Judge Donoghue back to a document
prepared in 1997 in relation to JARPA, eight years before the JARPA Il proposai. tt was very plain
to us from his response, and what he did not say, that the answer to your question,
Judge Donoghue, is that Japan conducts no analysis of the feasibility of non-lethal methods, either
on a year-by-year basis, or at ali.
57. Your second question concerned the bearing of such analysis on the sample size. You
asked: "How did any such analysis bear on those sample sizes?" ln response to the question,
119
Professor Boyle said "our scientists were not quite sure what this question meant" • 1have to say,
speaking for myself, the question seemed remarkably clear. The answer to the question has to be
"it did not" bear on sample sizes, because it did not exist; there was no analysis.
58. Professor Boyle also sought to answer your question, Judge Bhandari. You asked
whether, before launching JARPA Il, Japan had established that it was carrying out lethal research
120
on such a large scale because it was critical and because there was no other available method •
lnterestingly, Professor Boyle challenged your characterization- 1am sure you remember that-
that the killing of 850 minke whales and 50 fin whales and 50 humpback whales every year for
ever and ever and ever, in his words, "can properly be described as large scale"- weil, if that is
not large scale then 1do not know what is- the point is, he did not offer any substantive answer:
121
he simply asserted, without any evidence, that no other method was available • Again, his
answers were contradicted by the evidence, and in particular that of Professor Wallee:
Professor Wallee told the Court last week that the JARPA sample of 300 or 400 minke whales
122
that is JARPA- was "a large number" ,and that was Jess than half of the annual take of minke
whales under JARPA Il, and did not include any fin or humpback whales. As for JARPA Il itself, 1
have already noted that the 850 whales a year- or 935- is not far off the last commercial quotas
123
for Japan -of 1,941- in the 1986/1987 season •
119
eR 2013/15, p. 70, para.(Boyle).
12eR 2013/14, p. 74 (Bhandari).
12eR 2013/15,p.70 (Bo)lc).
12eR 2013114,p.50 (Walloc).
msec para. 27, abovc. -47-
59. What is striking, Judge Bhandari, is that he did not direct you to any evidence to show
that the research addressed a "critical" need, as Annex Y required. Of course, he is unable to do so:
the answer to your question is that there is no evidence before the Court to show that Japan
established any critical need to carry out this research, or the absencenative non-lethal
t•MtH,~-e~
18henutth·e,. No evidence. lndeed, the evidence that is there is to the contrary: since JARPA Il ')(
was launched before JARPA had been reviewed, it would be impossible to identify a critical
research need. Which is why the 63 members of the Scientific Committee declined to be
associated with an exercise of review. They wanted to see the results of JARPA. Japan chose not
to wait.
60. Professor Hamamoto and Professor Boyle referred to a 2009 report of the
JARPN 11-JARPN- review panel, as evidence that non-lethal alternative methods of data
124
collection-satellite tagging, biopsy sampling, eare impracticable or unavailab•[Screen
on] Weil, they seem to have overlooked page 426 ofthe relevant report-wis at tab 31 ofthe
judges' folder- this is what the panel "strongly" recommended, in bold. Japan should
"quantitatively compare lethal and non-lethal research tecifit decides to continue a lethal
sampling programme", and collaborate "in the design of a weil specified study to fully evaluate
125
lethal and non-lethal techniqu•sThat is a complete answer to the questions of Judge Donoghue
and Judge Bhandari. lt is doable. Has it been done in relation to JARPN? It has not. Japan has
not acted on the 2009 recommendation, which you can see for yourselves on the screen. It has
simply closed its mind to non-lethal alternatives. [Screen off]
61.1turn now very briefly to three or four issues that are before you. But, it maybe that you
do not even need to get to them in deciding this caseIssues of age data, blubber thickness,
J:
stomach contents and the dreaded RMP.Age data- 1suppo gst o ~y somveting about )1
earplug issues, since Japan has sought to make much about Australia's experts stating that age data
can be useful, and that it can only be obtained by non-lethal means. Let me be very clear about
Australia's position on thisthe age of an animal can be an important parameter for sorne
12CR 2013/13, p.l9, para. 24 (Hamamoto); CR 2013/15. p.59. para. 59 (Boyle).
m Report of the Expert Workshop to Review the Ongoing JARPN Il Programme, J. Cetacean Res. ManaKe. JI
(Suppl. 2) 2010, 405-449 (SC/61/Rep.l), available at: http://iwc.int/workshop-reports#!yea r- 2009, pp.426, 432. -48-
particular questions, provided that you know what the question is, and provided that it can be
measured with precisiont2('. But the results of 26 years of JARPA and JARPA Il have repeatedly
and unambiguously shown that age estimates using the lethal method adopted by Japan have not
produced reliable data and useful results. The 2006 Review of JARPA found that estimates of
natural mortality based on JARPA age data were so unreliable that they were "effectively
unknown" 127•
62. We mentioned this in the first round and Japan's response was to tum to catch-at-age
analyses, using JARPA and JARPA Il age data, and arguing this would allow trends in whale
128
populations to be identified and provide a basis for estimating sustainable yield • Ms Takashiba
asserted that, thanks to this information, "le comitéscientifique dispose d'estimations fiables sur le
taux de mortalité naturelle et le ratio de rendement maximum de renouvellement" 12• Weil, that
may be counsel's view, but it is not the view of the Scientific Committee as expressed at its
meeting just last month. The outcomes of the "Statistical Catch-at-Age" analyses- "SCAA"-
undertaken using JARPA and JARPA Il age data, were presented just last month at the
2013 Scientific Committee meeting. The outcomes were summarized in a table in the report of the
relevant sub-committee- you will find it in an extract at tab 33 of your judges' folder, and you
130
can now see iton the screen • [Screen on] What has JARPA data usefully and reliably led to?
MSYR? Not robust. Natural mortality? Requires further investigation. Growth curves? Not
reliable. Errors in age-determination? Present and important to take into account. This is the last
word from the Scientific Committee, just last month. It is a complete answer to Ms Takashiba; it
131
confirms that the JARPA Il material is unreliable • [Screen off]
12CR 2013/10, p. 31 (Gales); CR 2013/9, p.65 (Mangcl).
"12Report of the lntersessional Workshop to Review Data and Results from Special Permit Research on Minkc
Whalcs in the Antarctic", Tokyo, 4- 8 Dcc. 2006, J. Cetacean Res. Manal{e. 10 (.mppl.). 2008, p. 434; Gal~a,so
Expert Statcmcnt, lburth dot point of para. 5.9; N. Gales, ''Statement b.>Dr. Nick Gales in Rcsponsc to the Expert
Statement by Prolèssor Lars Walloc", 31 May 2013 (Gales, Responsc to Prof: Wallnc), para. 3.13.
12
RCR2013115, p. 68, para. 91 (Boyle).
129
/bid., p. 41, para. 35, (Takashiba).
13Sce: Table 1. "Report of the Sub-Committcc on ln-dcpth Asscssmcnts", Ann. G to the "Report of the
Scientilic Committcc Annual Meeting 2013", available at: http://iwc.int/scrcport, p. 2.
111
See, also, Gales, Rcsponsc to Prof: Walloe, pa.-3.14. -49-
63. Japan's counsel have repeatedly asserted that the Scientific Committee has confirmed
132
that ali of the technical problems regarding age data have been resolved • Yet the Scientific
Committee concluded this year that "errors in age determination" exist and are important to take
into account, and that the SCAA analysis produced nothing reliable or useful 133•
Blubber thickness and stomach contents
64. Blubber thickness and stomach contents: another subject in which Japan's counsel have
sought to take refuge. Again, the Scientific Committee, or workshops involving sorne of its
members, disagree on both counts that this has been useful or reliable. Serious concerns have been
134
raised about blubber thickness as an appropriate measure for ecosystem change , and analyses
135
arising out of JARPA and JARPA II have been routinely criticized as unreliable • At last month's
2013 meeting, the Scientific Committee concluded that the problems raised had still not been
resolved, despite the presentation by proponents of purported solutions n 6• We have inserted an
extract of the relevant Sub-Committee report at tab 34 of your judges' folder. And, similarly, the
Scientific Committee has questioned the ability of stomach contents to provide useful information
137 138
about the feeding behaviour ofwhales , and has noted the unreliability ofsuch data •
65. 1 turn to the RMP. Much has been said about whether lethal data is required for the
IWC's agreed management model, the RMP. Let me make Australia's position very clear: killing
whales and obtaining lethal datais not required for the RMP. The Solicitor-General has dealt with
132
CR 2013/13, pp. 37-38. para. 69 (IIamamoto); CR 2013/15, p. 41, para. 35, (Takashiba); CR 2013/15, p. 60,
para. 61 (Boyle).
mTable 1, "Report of the Sub-Committcc on In-dcpth Asscssmcnts", Ann. G to the "Report of the Scicntilic
Committee Annual Meeting 2013", availablc at: http://iwc.int/scrcport, p. 2.
14
1."Report of the lntcrscssional Workshop to Revic\\ Data and Rcsults from Special Permit Rcscarch on Minkc
Whales in the Antarctic". fokyo, 4-8 Dcc. 2006, J. Cetacean Res. ManaKe. /0 (.suppl.),2008, pp. 411-445, availablc at:
http://iwc.int/workshop-rcports#!ycat=2007, pp. 428-429, 434; sec, also, Gales. Rcsponsc to Prof. Walloc, para. 4.13.
11"Rcport of the Scicntilic Committce", 1987, Rep. /nt. Whal. Commn 38, 1988, available at:
http://iwc.int/scicntifc-committcc-rcports, p. 56; "Report of the Scientilic Committcc", 2011, J. Cetacean Res. Manage.
13 (Suppl.), 2012, availablc at: http://iwc.int/scicntilè-committcc-rcports, pp. 50-51.
136
"Rcport of the Working Group on Ecosystcm Modclling", Ann. KI to the ''Reportof the Scicntilic Committce
Annual Meeting 2013", availablc at: http://iwc.int/scrcport, p. 5.
137
"Report of the Scicntilic Committcc", 2007. J. Cetacean Res. :\lanage. 10 (Suppl.), 2008, available at:
http://iwc.int/scicntifc-committcc-rcports, p. 45; "Report of the Scicntilic Committcc", 20Il, J. Cetacean Res. Manage.
13 (Suppl.), 20/2, availablc at: http://iwc.int/scicntilè-committcc-rcports, p. 51; sec, also, Gales, Rcsponsc to
Prot: Walloc, paras. 4.5-4.1O.
l.lH"Rcportof the Scicntilic Committcc'', 2012, J. Cetacean Res. ivlanage. J.J (Suppl.), 2013, available at:
http://iwc.int/scicntilè-committee-reports, p. 51 -50-
this point. The data needed for the RMP are the levels of past catches and an up-to-date abundance
139
estimate of the population- and both are obtainable, and obtained, through non-lethal means •
66. 1turn to the third characteristic of a programme "for purposes of scientific research", and
that is the need for periodic, independent review of research proposais and results, and adjustments
in response to such review. This is of course "peer review". And, Japan has conceded the absence
of peer review, at least in its established sense. lt has made no real response to the points 1made in
the first round, an output from JARPA Il described by Professor Mangel in examination-in-chief as
"woefully low" 140• Again, he was not challenged on this in cross-examination.
67. What does Japan have to say in response? lt says that peer review is not relevant,
141
because the work is carried out by the Scientific Committee • Yet again, that view is
contradicted, by Professor Wall0e.
68. There is a further point to be made on peer review. And it goes to a point that Japan
harks back toit time and again. They say that the Scientific Committee will review JARPA Il next
year, and so this Court should back off 42• This is a very constant theme and no doubt you will hear
a lot about it next week. Professor Boyle addressed Annex P in some detail. As with so much of
the Japanese submissions, it is what they do not say that is often more interesting than what they do
say. Professor Boyle was very silent about the Annex P review of JARPN II's programme, which
took place in 2009- 1have already mentioned that it was the first review under the new Annex P
procedure. Professor Hamamoto complained, in a very genial way, that we hadn't referred to this
review in our first round, so let us look at it now, and 1am grateful to him for referring us to it 14•
119
"The Revised Management Procedure (RMP) for Baleen Whales", Ann. H to the "Report of the Scientific
Committee", 1993, Rep. /nt. Whal. Commn 44, /994, 145-152, pp. 146 (Sec. 3.2- "Data Requirements"): L. Walloe,
"Scientificreview of issues raised by the Memorial of Australia including ils two Appendices", 9 April 2013 (Walloe,
Expert Statement), p.Il: Gales, Expert Statement, Annexure 2, para. 13; M. Mangel, "Supplement to An Assessment of
Japanese Whale Research Programs Under Special Permit in the Antarctic (JARPA, JARPA 11)as Programs for Purposes
of Scientilic Research in the Context of Conservation and Management of Whales", 15 April2013 (Mange!,
Supplemcntary Expert Opinion), para. 4.9.
1°CR 2013/9, p. 49 (Mange!).
141
CR 2013/15, p. 46, para. 9 (Boyle).
142
CR 2013/12, p. 58, para. 68 (Akhavan); CR 2013/13, p. 22, para. 39 (Hamamoto); CR 2013/13, p. 29,
para.53 (Hamaoto); CR 2013/13, p. 37, para. 68 (Hamamoto); CR 2013113, p. 38, para. 70 (llamamoto); CR 2013/15,
p. 36, para. 27 (Takashiba); CR 2013/15, p. 51, para. 24 (Boyle); CR 2013115,p. 55, para. 39 (Boyle); CR 2013/15, p.
57, para. 49 (Boyle); CR 2013/15, p. 70, para. 96 (Bo)le); CR 2013/16, p. 31, para. 9 (Bo)lc).
14CR 2013/13, p. 19, para. 24 (llamamoto). - 51-
The JARPN Il review panel was highly critical of the absence of quanti fied short term objectives in
that program. You see it at tab 35, you see iton the screen. [Screen on] The review stated:
"Lack of such objectives [quantitied short-term objectives] hinders any
thorough review and is a weakness of the pro144mme. This is aIso relevant to sample
size considerations as indicated below."
This is of course exactly what the 63 scientists said in 2005 about the JARPA Il proposai. This
2009 review then goes on to state in relation to sample size [tab 36] [next screen]:
"An evaluation of sample sizes depends on each of the objectives being better
specitied, with an identification ofthose quantities that need to be estimated to achieve
the objectives . . . The precision of the estimate and its relation to sample size and
sampling design should be determined. Such an analysis is a pre-requisite for an
evaluation of the appropriateness of the sample size and sampling design." 145 [Screen
off]
69. A "prerequisite"- that is a review panel of the Scientific Committee. What they
concluded was that a "much more thorough approach is warranted and should be carried out as
saon as possible"- that is 2009. And they then said, until that more thorough approach was
carried out and completed, the panel is "not able to provide appropriate scientific advice on the
appropriateness of the sample sizes" 14• ln other words, they said we cannat complete the review,
because you have not given us the detailed information that we need. Later that year the matter
went to the Scientific Committee, and the Scientific Committee "expressed concern that the Panel
was not provided with the information and guidance necessary to review progress, to draw
147
conclusions on sample size and to assess the effects on two of the stocks" •
70. Mr. President, Members of the Court, that was four years aga; that was in 2009. Has
Japan provided the quantified short-term objectives that the review panel asked for in 2009, four
years aga? lt has not. The review is still outstanding, because of Japan 's failure to better specify
its objectives, or provide the information necessary to assess sample sizes. Now, 1want to be clear
about this, this is the very same point that has emerged as central in this case, and the subject of so
many of your questions. That should provide, if nothing else, sorne reassurance that the Court has
14·'Rcport of the Expert Workshop to Rcview the Ongoing JARI'N li Programme"J.Cetacean Res. Manage. Il
(Suppl. 2)2010, 405-449 (SC/61/Rep.1). available at: http://iwc.int/workshop-report s#!year=2009, p. 430.
14/bid., p. 432.
14/bid., pp. 427, 432.
147
"Report of the Scicntific Committee·· (2009)J. Cetacean Res. Manage. Il (Suppl. 2) 2010 (available at:
http://iwc.int/scientifc-committce-reports),. -52-
correctly identified - individual Members of the Court are thinking about - some of the central
failings of the JARPA Il programme. Japan says in response to this that you should await the 2014
Annex P review. What it has not told the Court is that when the same review went on, nothing
happened and the review could not be completed. lt knows very weil, on the Japanese delegation
and the Japanese counsel, that when the review is carried out next year, it will not be capable of
being completed because of the programme's ill-defined and vague objectives and the problems of
the setting of sample sizes. That is, in effect, what Professor Wallee and Professor Mange( have
told you.
71. For ali these reasons, we say that it is plain that the JARPA Il programme, as conceived
and implemented, is not a programme "for purposes of scientific research". ln the absence of any
questions being explored, the methodologies cannot be assessed for their appropriateness, and they
cannot be peer reviewed. That is not science.
(V) The application of the criteria: the remaining questions
72. 1turn now to the remaining questions that arise under Annex Y and Resolution 1995-9.
Even assuming that JARPA Il could be treated as a scientific programme- and we say it
cannot- it just plainly does not meet the criteria of Annex Y that were applied in 2005, or the
criteria of Annex P, including Resolution 1995-9, that would be applied now.
73. 1can deal with these points quite brietly, as 1have covered the evidential material. Japan
has to demonstrate that the JARPA Il proposai is being made in "exceptional circumstances".
There is simply no evidence before the Court to show that this programme is "exceptional".
lndeed, it is the very opposite of exceptional, a regular programme that is intended to operate year
in, year out, with scientific permits being spewed out by a photocopier, without any changes, no
accommodation of any outcome, is not an exceptional programme.
74. Next, Japan has to demonstrate the JARPA Il programme addresses critically important
issues, as noted by Judge Bhandari's question. lt has manifestly failed to do so. Professor Wallee
was offered an opportunity to identify the critical needs, he could not identify any. He confirmed
that the Scientific Committee had not identified a long-term project to monitor the Antarctic -53-
ecosystem as a critical research need 148• Again, he told the Court he opposed the plan to kill fin or
149
humpback whales. Of the 18fin whales, he said there is "no information you can get from it" •
Remove the fins and the humpbacks from JARPA Il, you no longer have a multi-species
programme. Professor Walloe plainly does not support the JARPA Il programme as a
multi-species programme, as it is conceived. On his view, it cannot be said, therefore, to address
critical needs.
75. Next, Japan has to show that the questions cannot be answered by analysis of existing
data. Here Japan faces another obstacle: since the programme has not identified the question that
it seeks to answer, there is no way of knowing whether those questions can be answered by existing
data. Japan has, in effect, disabled itselffrom showing that the existing data will not be sufficient.
76. Finally, Japan has to show that the questions it seeks to address cannot be answered by
non-lethal techniques. This, of course, overlaps with one of the criteria identified by
Professor Mangel, which 1have already addressed. But, once again, in the absence of questions or
hypotheses, it is difficult to see how Japan can stand before this Court with a straight face and
claim that it can only achieve its objectives by killing whales. Alternatives exist, as
Professor Walloe confirmed.
77. Australia has shown that the accepted approaches oftaking biopsy samples and attaching
satellite tags are feasible 150and at its meeting last month, the Scientific Committee commended ali
151
of this work • 1do not think we need to say anything more about that.
78. Professor Boyle by contrast, tells you that certain data can only be attained by killing
whales, and that that data is needed, as he puts it, "to facilitate an understanding of minke whale
152
population dynamics" • Notice he said nothing about fin and humpback whales. 1have already
addressed how the use of JARPA and JARPA Il has proved to be unreliable as a means for
attempting to undertake population dynamics, or catch-at-age, modelling 153• But you will have
14eR 2013/14, p. 37 (Walloe).
14/bid., p. 44 (Walloe).
15Gales, Expert Statement, pams. 6.14-6.17; Gales, Response to Prof. Walloe, paras. 2.1-2.18.
151
"Report of the Sub-eommittee on ln-depth Assessments", Ann. G to "Report of the Scientific eommittee
Annual Meeting 2013" (available at: http://iwc.int/screport), p. 5.
152
eR 2013/15, p. 59, para. 57 (Boyle).
153
See paras. 61-62, above. -54-
noted that Professor Boyle said nothing about the population dynamics of fin and humpback
whales. lndeed, Japan's counsel seem to have said nothing about these two species, and this part of
JARPA ll's programme appears, on the basis of the first round, to ali intents and purposes, to have
been abandoned. Not one counsel for Japan stood at the Bar and argued for any right to kill fin or
humpback whales in terms. ln the light of Professor Wallee's testimony, that part of the JARPA Il
programme is plainly indefensible and, in the first round, undefended. We look forward to hearing
the efforts of counsel for Japan to contradict the clear evidence of Professor Wallee.
79. Before 1 turn to my conclusion, 1 would like to answer the question put yesterday by
Judge Cançado Trindade. You asked, Judge, whether a programme that utilizes lethal methods can
be considered "scientific whaling". Professor Akhavan had, last week, told the Court that
154
"Australia is categorically opposed to lethal sampling" • Those are his words. That is not right
and that is not fair. Australia does not consider that the use of lethal methods would, as such, mean
that a programme could not be characterized as "scientific whaling", as Australia is not absolutely
opposed to the killing of whales in ali circumstances. And Professor Akhavan knows that. ln
relation to aboriginal subsistence whaling, for example, Australia consistently votes in support of
quotas when they are supported by science and in accordance with IWC rules and procedures. He
can smile to you now but, in 2012, Australia voted for the reissuing of quotas for aboriginal
subsistence whaling quotas for the United States, for Saint Vincent and the Grenadines and for the
Russian Federation. ln relation to Article VIII, as he knows, Australia put forward a proposai in
2009 that allows for lethal means if absolutely needed and ali strict conditions are met 155- you
can find that proposai at tab 37 ofyour folders. So when he tells you that Australia is categorically
opposed to lethal sampling, he knows that is not true. ln short, Australia would not exclude support
for scientific whaling that used lethal methods, provided that ali the conditions under the IWC rules
and procedures had been met, including that the programme could genuinely be characterized as
being "for purposes of scientific research". That is plainly not the case in this matter. 1need say
no more.
15CR 2013/12, p. 47, para. 28 (Akhavan).
155
Government of Australia, "Addressin g Special Permit Whaling and the Future of the IWC", doc. IWC/61/9,
prescnted to the 61st meeting of the International Whaling Commission, 2009 (availablc at:
http://iwc.int/indcx.php?ciD=I744&cTypc -=document). -55-
(VI) Conclusions
80. Mr. President, the mear1ingof"scientific research" is at the heart of this case, and science
is a subject on which Japan has a remarkably distinguished community. 1checked and saw that
16Japanese scientists have been awarded the Nobel Prize in the sciences, seven in the last five
years alone 15• Japan's Nationallnstitute of Polar Research does significant work in the field; only
a small proportion of its budget- less than 1 per cent - is drawn from research revenue and
. 157
seIfgenerate d mcome .
81. If JARPA Il really was science, you would have evidence before you on the interactions
between the ICR and the NIPR. We would have heard from this distinguished community of
scientists, who would be totally independent of JARPA and JARPA Il, who would have come to
appear before you, as Professor Mangel did. No one came, no one stood before you to support
Japan's claim.
82. 1 invite this Court and its Members to suspend disbelief for a further moment. If
JARPA Il was truly a programme for scientific research, Japan's pleadings would have included
the following nine elements:
(1) Evidence that JARPA Il as a proposai was peer reviewed before it was sent to the Scientific
Committee in 2005;
(2) Objectives for JARPA Il that set out clearly the questions (or hypotheses) that the programme
of research sought to explore, accompanied by evidence to explain why those questions were
selected, why other questions were discarded, and how those questions informed the
methodologies that were proposed;
(3) Evidence to identify and explain any changes that were made to the objectives of JARPA Il in
light of the results of JARPA;
(4) Evidence to explain why the annual take was increased from 300 or 400 minke whales to
850 minke whales;
(5) Evidence to support the claim that non-lethal take was necessary because critical data could not
be obtained by other means;
156
Sce: http://cn.wikipcdia.org/wiki/Li st_o(_Japancsc_Nobcl_laurcatcs: and www.nobclprizc.org.
7
" NIPR, "National lnstitutc of Polar Rcscarch: 2012-13", availablc at: http://wwY..nipr.ac.jp/publication/PD F/
outlinc201c 2-p20l.37. -56-
(6) Evidence to show why the research addressed one or more criticalneeds;
(7) Evidence to show how the figure an annuai sample size of 850 minke whales was arrived at;
(8) Evidence to show how the JARPA Il multi-species programme could stiJl function without
taking any finor humpback whales, and evidence to show how its objectives could be met
when Jess than half the target of a single species that remthe minke whale- is being
achieved; and
(9) Evidence to show how the programmes have been adjusted, and can stiJl be reached,ght of
the failure to meet annual targets.
83. Mr. President, Membersof the Court, none of this evidence is before you, you have none
of this.lt cannot be said that Japan was not on notice. Ail ofitwas needed to respond to
Australia's Memorial. Japan simply cannot say itn't had time to gather it. There really is only
one possible conclusionthe reason the evidenceis not before the Court is because the evidence
does not exist. And the fact that that evidence does not exist is fatal tose. There is only
~
x ~pos soicbsilne Japan has simply not made out its case, on evidentiary grounds, that JARPA
Il is "for purposes of scientific researlt is something else. This is the case of the missing
evidence.
84. Mr. President,n these proceedings the Court has adopted a different approach to expert
evidence, following the important and welcome decision it tookthe Pulp Mills case. The new
approach may not be immediately to everyone's liking, but undeniably it has had a significant
impact on the identification and testinge real issues before the Court. No one who was in the
Court whilst Professorall0e and Professor Mangel were examined and cross-examined could
escape that view.The testing process has allowed a clear and unambiguous picture to emerge.
Professor Wall0e's testimony has removed manyof the differences between the Parties' experts,
between whom there is much common ground. That is the common ground on which the Court is
able to construct a judgment in this case. Of course it is possible that the Court will decide simply
to disregard the clear evidence thatow before it. We would say that that would have the most
serious adverse consequences for the Convention, for the rolecience in international law, and
for this Courtn terms of the procedures it follows. The Court has adopted a new approach, and
that has produced clear evidence.the basis of the evidence that is before you, it is impossible to -57 -
see how the Court can conclude that the JARPA Il programme, as it is before the Court, can
properly be characterized as being "for purposes of scientific research", within the meaning of
Article VIII of the Convention. The facts do not admit of any other conclusion.
85. Mr. President, Members of the Court, that brings my submissions ta a conclusion. Could
1 thank my junior, Kate Cook, for assisting in the considerable effort in putting this together and
also the excellent lawyers in the Attorney-General's department, and in particular Michael Johnson ,
for the tremendous assistance 1 have received over the last few days. Thank you very much for
your attention, and 1ask you ta cali Professor Crawford ta the Bar.
The PRESIDENT: Thank you very much, Professor Sands. Now 1 give the tloor ta
Professor Crawford. You have the tloor, Sir.
Mr. CRAWFORD:
JAPAN'SBREACHESNOTWITHSTANDING ARTICLE VIII
Introduction
1. Mr. President, Members of the Court, this presentation is in two parts. The first part
addresses Article VIII, the basis of obligation and the standard of review, responding ta Professors
Pellet and Lowe and ta a question put ta Australia by Judge Greenwood. The second part deals
with the application of Article VIII, applies what we say is the proper standard of review ta the
facts of the case, and addresses, amongst others, the question asked by Judge Gaja last week.
A. Interpretation of Article VIII
Japan 's theory of Article VIII
2. At the heart of Japan's theory of this case are two black hales. These 1 will name, in
accordance with scientific practice, after their first discoverers, that is, the Pellet void and the Lowe
vacuity. Or perhaps they are the same black hale seen from different points of view- whether
that is sa might be a matter for further research, hopefully not lethal.
3. The Pellet void results from the proposition that the rest of the Convention has no
application ta Article VIII; that once a program reaches a law threshold of scientific plausibility, it
vanishes from the screen of the Convention and is sustained only by the self-evaluation of the -58-
permitting State 15• The target species, ali three of them, disappear normatively from the
Convention.
4. The Lowe vacuity results from the proposition that scientific whaling, below the same
minimal threshold, is governed by a permissive régimeof customary international law under which
the Court's power of review is limited to scrutiny for good faith, with a strong presumption in
favour of the permitting state 159• The vast space between, on the one hand, a full-scale de nova
review, in which the Court is the primary decision-maker standing in the shoes of the permitting
State, on the one hand and, on the other hand, a preliminary, broad-brush check for good faith-
that vast space- is left desert and uninhabited by law. Do not enter the Lowe vacuity, Japan
warns the Court, or you may never emerge.
5. These propositions are incredible when applied to a major multilateral convention for the
conservation and management of highly migratory mammals whose conservation and management
in 1946 cried out, and still today cries out, for collective action. We are not dealing with sedentary
or local species which can be effectively managed by a single coastal State.
6. (Tab 38) [Screen on- Whale Abundance Graphie] Mr. President, Members of the Court,
we ali know where high seas freedoms got the great whales. We ali know where high seas
freedoms and general international law got the great whales. It got them into great difficulties.
Before 1939 the numbers of whales taken were falling sharply: this was because the number of
remaining whales was falling sharply. The war years, during which very little whaling took place,
saw little signs of recovery. In 1946, when the Convention was concluded, blue whales were at
15-20 percent of their former abundance 16• Subsequently things got a whole lot worse. Blue
161
whales were on the verge of extinction -less than 1 percent of the pre-exploitation stocks • Fin
162 163
whales were not much better- 1-2 per cent • Humpbacks were 2-3 per cent • There was a
1~Fo rxample, CR 2013/13. pp. 61-62, par5.(Pellet).
1~Foer xample, CR 2013115, p. 15, para5.and 8; p. 16, para. 12; pp. 21- 24, paras. 38-54 (Lowe).
16Mori and Buttcrworth, "A lirst stcp towards modclling the krill-prcdator dynamics ofthc Antarctic ccosystcm",
2006 CCAMLR Science /3, pp. 217-277.
16MA, Appendix 1, pp. 282-332.
16/bid., pp. 282-332.Estimatcd from CPIII (the third circumpolar survcy conductcd bch\ccn 1991/92 and
2003/04). This cstimatc dacs not includc whalcs nort:·. ;>f60°S.
16MA, Appendix 1, pp. 282-332. -59-
great deal of unsubstantiated invective from Professors Akhavan and Pellet as to the iniquities of
164
the "anti-whaling countries" who were, and remain apparently, puppets of Australia • But it is a
matter of profoundly important public policy when and on what terms the moratorium is to be
modified- that it could be lifted entirely is out of the question, given the stiJl perilously low
numbers of blue and fin whales. The proposai in JARPA Il to take an unrepresentative sample of
165
50 fin whales a year was indefensible- certainly Professor Wall0e did not defend it ! Yet the
JARPA Il special permits which Japan annually copies and pastes are inseverable. They purport to
deal with inter-species interaction, for which purpose they provide for the taking offin whales. Yet
Japan has absolutely no intention of taking fin whales in any numbers! They purport to deal with
inter-species interaction, for which purpose they provide for the taking of humpback whales. Yet
Japan has no intention of taking humpback whales at ali! How can something at the same time be
necessary and not merely avoidable but actually avoided? [Screen oft]
7. This brings me back- you might think not before time- to Article VIII, to the Pellet
void and the Lowe vacuity. As 1said a moment ago, their interpretations are incredible. The Court
would be wise not to adopt them. And this is because they create black holes in a convention
which was intended as one for the collective management of a common resource and was intended
to be effective. But it is indeed what they argue, in default of facts argue the law as 1 will now
demonstrate.
The Pellet void
8. Turning first to Professor Pellet, 1will just take a few extracts:
"Leur délivrance relève d'un régime spécial, qui échappe au système de
régulation par les organes établis par la CBI. Il s'agit d'un régimespécialréservépar
1a conventton aux permts specwux . .. ,166
9. There is a régimewithin the régime; the régimeof Article VIII. That "régime" escapes
from the system of regulations established by the Convention. And again:
" ... l'article VIII a toujours étéentendu comme soustrayant la chasse à des fins
scientifiques au pouvoir normatif de la commission." 167
164
For example, CR 2013/12, pp. 48-49. paras. 32-39; pp. 53-54. para. 52; pp. 55-56, paras. 57-58 (Akhavan);
CR 2013/16, p. 40, paras. 8-9 (Pellet).
'6CR 2013/14, pp. 44-47.
16CR 2013/13, pp. 61-62, para5 (Pellet). -60-
"Souslrayanl". ln other words the régimeof special permits escapes the régimeof the Convention
in effect by a side door, a side door which is very easily opened. Article VIII is understood -
Professor Pellet does not say by whom- as souslrayanl, subtracting, scientific whaling from the
normative power of the Commission. lt is as if the Convention contains an ejector seat, with the
button in the sole custody of the proponent State, a button marked "science". But the ejector seat
works so quickly that the Scientific Committee will not be in a position to assess the science- the
proposai will have already disappeared into the ether.
1O. ln relation to the reporting obligation contained m Article VIII (1), Professor Pellet
remarks: "Celte obligation d'informer est le seul élémentde «régulationcollective» introduit dans
168
la conventions 'agissant dela chasse à desfins scientifiques." This is consistent with his remark
about the absence of normative authority on the part of the IWC and its subsidiary organs. They
have a right to know, but only at the point of departure of the ejector seat- when it will be too late
to do anything about it.
The Lowe vacuity
Il. Professor Lowe expressed what is perhaps the same idea in a slightly different way,
when he interpreted Article VIII as an affirmation of a pre-existing customary law right, rather than
as something integral to the Convention itself. He said, for example:
"Whaling for scientific purposes was a freedom that pre-existed the Whaling
Convention, and Article VIII stipulates that it is exempt from the operation of the
Whaling Convention. So, the question here is not, 'what are the limits of a power
given by a treaty?', but rather 'what limits on the exercise of a freedom have been
169
imposed by a treaty?"'
As a corollary, the IWC and its organs lack any substantive authority in relation to scientific
permits:
"The limits imposed by Article VIII do no more than require170at Japan comply
with the procedural obligations set out in the Convention."
167
CR 2013/13, p.62, para.6 (Pellet).
168Ibid.p.65, para.17(Pellet).
169CR 2003/15, p.15, para.8 (Lowe).
110/bid.para.9 (LO\\C). - 61 -
1 will return to these black holes in a moment. lt should be noted as a preliminary point that
Article VIII is not expressed as a reaffirmation of customary international law. ln 1946 customary
international law was the problem, not the solution. lt is expressed as a power of the proponent
States, qualified by the ordinary words of the Convention. Already we are in the realm of
interpretation, which it was the point of the Lowe vacuity to deny.
The meaning of the Convention
12. 1turn to the Convention itself, and to Professor Greenwood's question 17•
The PRESIDENT: Rather, Judge Greenwood, not Professor Greenwood.
Mr. CRAWFORD: 1am sorry, 1think of him in ali his possible capacities, and 1sometimes
get the capacities confused.
The PRESIDENT: Please, proceed.
Mr. CRAWFORD:
1return to the Convention itself, and to Judge Greenwood's question. The Convention is
explicitly a convention for the regulation of whaling. lt is quite clear in offering choices to
governments which do not like or are unwilling to accept regulations adopted by the Commission.
Such governments can opt out of the regulation- under Article V (3). They can denounce the
Convention itself- under Article XI. Otherwise they are bound. To the extent of these express
provisions, the Convention- an early example of an institution-based conservation convention,
probably the first- operates in classical consensual mode. But in other respects it is an advance,
in that the Commission can bind member States which do not opt out by regulations adopted by a
75 percent majority which, as amendments to the Schedule, form an integral part of the
Convention- see Article 1(2). The Convention is precise in specifying the rights of dissenting
Contracting Governments: not merely can they opt out, but by opting out of a regulation they can
postpone its binding effect for al/ the States parties for a further 90 days- in effect, six months
from the adoption of the contested regulation- see Article V (3) (b). During that additional
171
eR 2013/12,pp.63-64. -62-
90-day period other governments, tàced with any objection, may themselves object and they have a
minimum of 30 days to do so. Given these provisions, to complain about the tyranny of the
majority, as Professor Pellet did 172, is absurd. Governments which sufficiently dislike a measure
are told quite precisely what they have to do. What they cannot do, beyond the extra 90 or at most
120 days allowed by Article V, is to prevent the majority from co-operating with each other and
with the Commission and its organs in pursuit of the purposes of the Convention. Nor can
dissenters impose on the majority the ir- by definition, unpersuasive- interpretations of those
objects and purposes. Their ultimate weapon is reservation or withdrawal. Consensualism works
both ways, otherwise we would have the tyranny of the minority!
13. As to those purposes of the Convention, Japan has emphasized the recovery of various
whale species since the depths of 1982, and in that regard has emphasized that the provisions of the
Convention and its Preamble envisage the continuing exploitation of whales. But it is a matter of
judgment for the organs of the Convention how to strike the balance. And it should be stressed that
the Preamble expressly recognizes the value of conservation as such and for the long run. The very
first paragraph of the Preamble:
"Recogniz[es] the interest of the nations of the world in safeguarding for future
generations the great natural resources represented by the whale stocks."
Magic language.
14. The Preamble also tells a sadly familiar story of over-fishing in the second paragraph-
not dated at ali:
"Considering that the history of whaling [we might say the history of fishing]
has seen over-fishing of one area after another and of one species of whale after
another to such a degree that it is essential to protect ali species of whales from further
over-fishing;"
The southern hemisphere has seen this pattern repeatedly- new stocks, whether of southern
bluefin tuna, Patagonian tooth fish, orange roughy or whatever, discovered and over-exploited to
the point of stock collapse. No doubt minke whales were on sorne way along that morbid
trajectory -just how far along is not clear. lt is worth noting that overfishing can occur quickly
and recovery is slow, especially with species that inhabit the higher latitudes.
172
CR 2013/16, p.61,para.58 (Pellet). - 63-
Article VIII in its context
15. Japan concedes that the ICRW régimeis comprehensive: it agrees
"with the proposition that the object and purpose of the Whaling Convention ... was
'to establish a comprehensive regime to provide for the proper and effective
conservation and recovery of ali whale stocks', subject of course to the special
173
position occupied by Article V111" •
But if what Japan says about Article VIII is correct that proposition cannot hold. A
"comprehensive regime" subject to a comprehensive escape clause of an effectively self-judging
character is hardly a régime at ali. The ejector seat cancels out the capsule; as one régime
excludes the other.
The legal bases of Australia's claim
16. ln the first round, Judge Greenwood asked Australia to clarify precisely the source of
obligation in the present case 17• 1apologize if 1was not sufficiently clear on this. In truth, the
position is relatively straightforward. There are four propositions:
(1) The Convention, including the Schedule, is binding on both Australia and Japan in its entirety.
(2) Regulations made under Article V, passed by the relevant majority, are binding upon the parties
unless they are validly objected to in accordance with the clear provisions of Article V-
which 1have recited.
(3) Other action of the IWC or its organs is recommendatory only, and not binding. But this does
not mean that it is without legal significance. You pointed that out in the Advisory Opinion on
175
Threat or Use of Nuclear Weapons • As stated in the leading French textbook "mêmeleur
valeur juridique n'est pas négligeable" 176• Although to hear Professor Pellet last week, one
would have thought that that statement was incorrect. The precise weight to be afforded to
such recommendations is a matter for the Court, and generalizations are of limited use. But in
this respect, Australia agrees with the helpful observations made by the Attorney-General of
177
New Zealand on Monday •
171
eR 2013113, p. 40, para. 7 (Boyle).
174
eR 2013112, pp. 63-64.
17LeKality of the Tlzreat or Use of .Vuclear Weapons, Advis01y Opinion, /.C.J. Reports 1996 (/),p. 254.
17P. Daillier, M. Forteau, Q. D. Ngu)en, A. Pellet, Droll illlernational public (8e), (Paris, LGDJ, 2009), p. 415.
1 eR 2013117, pp. 30-31, paras. 51-54 (Finla)son) . -64-
(4) There is no better statement of this juridical value of recommendations than the separate
opinion of Judge Sir Hersch Lauterpacht in the Voting Procedure case which 1cited in the first
round, and which Japan also cited with approval 178•
The standard of review
17.This brings me to the issue of the standard ofreview.
18. Reasonable as Professer Lowe made it sound, the effect of his argument was that the
Court's role is limited to a preliminary check for apparent good faith 17•
19. Mr. President, Members of the Court, allegations of bad faith should be made only with
very great caution, especially when the question is an objective one. lt does not contribute to
continued good relations between States for protestations of good faith or allegations of bad faith to
be thrown around, nor does it contribute to the judicial process for courts to be required to find on
the one hand, a dubious compliance, or on the other, an inference of bad faith.
20. ln that regard, let me tell you a cautionary tale. The Southem Bluefin Tuna Arbitral
Tribunal implausibly suggested that its jurisdictional decision of 4 August 2000 would have been
180
different if Australia had been able to prove bad faith on the part of Japan • Not having actual
evidence of bad faith, no such allegation was made by counsel before the Tribunal. Like-minded
States do not ordinarily accuse each other of bad faith. Counsel appearing for them in international
courts and tribunals are bound not to do so unless they have actual evidence.
21. Yet it turns out that during this period, the period in question in the Southern Bluefin
Tuna cases, Japan was deliberately and substantially overfishing its quota of tuna. That
information was subsequently discovered by Australia after the end of the proceedings and Japan,
in due course- 1 give it full credit- repaid its over-catch by under-catching in subsequent
178
Voting Procedure on Questions relating to Reports and Petittons concerning the Territ01y of South West
Aji-ica, Advis01y Opinion, I.C.J. Reports 1955, sep. op. Judge Lauterpacht, p. 106; CR 2013/8, p. 37, para. 37
(Crawford): and CR 2013/16, pp. 53-54, para. 42 (Pellet).
179
CR 2013/15, p. 15, para. 5; p. 21, para. 38; p. 24, para. 54 (Lowe).
180
Southem Blue!YnTuna case between Australia and Japan and between Ne\\ Zealand and Japan, Award on
Jurisdiction and Admissibility, Decision 4 August 2000, Reports of International Arbitral AwardsVol. XXIII, p. 46,
para. 64, available at:http://untreaty.un.org/cod/riaa/caseslvol_xxiii/l-57.pdf> on 8 July 2013. -65-
years 181• Order was restored - except for the jurisdictional disorder created by the unnecessary
and unhappy finding ofthat Tribunal.
22. The lesson of this cautionary tale is that judicial review, notably in relation to resources
in the public domain which do not belong even prima facie to any individual State, and which are a
matter of collective interest, should not be regulated by the Court wholly or primarily on the basis
of such tluctuating and subjective notions as bad faith. The normal criterion for breach of treaty is
whether the terms of the treaty, or any obligations reasonably to be inferred from them, are to be
applied fairly and objectively. ln respect of resources in the international public domain, to
recognize a wide margin of appreciation is, in effect, to allocate those resources to the exploiting
State. Likewise, to operate on a strong presumption of good faith is, in effect, to allocate those
resources to aState good at concealment. This ali suggests that the classic objective mode of State
responsibility is underpinned not merely by the actual language of a treaty such as the
1946 Convention, but by good sense and experience.
23. ln this regard, it was surprising, and significant, that Professor Boyle analogized the
position of Japan with respect to the whale stocks of the southern hemisphere under the
Convention, with the position of Uruguay in relation to the River Uruguay under the bilateral treaty
182
with Argentina which was concerned in the Pulp Mills case • The 1946 Convention is a
collective enterprise. lt is not a bilateral treaty between Japan and the rest of the world. Japan does
not "own" the whales it catches in the way that Uruguay has sovereignty over its part of the course
of the River Uruguay and its banks. The whales of the Southern Ocean are subject to collective
regulation on the terms of the Convention. If Japan does not like that it has choices at its disposai.
What 1 suggest it cannat do is to invent new forms of opting out of the Convention by legal
sophistry after the event.
24. Professor Lowe made two more specifie arguments for deference, to Japan, which 1
should brietly note. First, he said that the Court is not given any specifie role under the
18Commission for the Conservation of Southem Bluetin Tuna, Report of the Thirtecnth Annual Meeting of the
Commission. pp. 10-13, Oct. 2006, Miyazaki Japan. availablc at: <http://www.ccsbt.org/uscrfilcs /file/docs_
cnglish/mectings/mecting_reports/ccsbt_l3/report _u(_CCSBTI3.pdf> on 8July 2013. Sec, csp., para. 46; Ait. 4-1,
opening statcment by Australia; Ait. 4-3 opening statement by the Fishing Entity of Taiwan; Att. 4-5, opcning statemcnt
by Japan.
182
CR 2013/16, p. 36, paras. 24-25 (Boyle). -66-
183
Convention • ln other words, there is nojurisdictional clause. But that is irrelevant. International
law, including treaties, binds States independently of jurisdictional clauses, and your jurisdiction
under the Optional Clause extends to determination of any legal dispute between Australia and
Japan. The independence of the application of law from jurisdictional clauses has been emphasized
by this Court in a series of cases. lt operates in both directions. lt operates to ensure that
international law applies irrespective of the absence of jurisdiction as weil as operating in the
Germany and Italy context in the reverse way. ln other words, the validity of the conduct of States,
or for that matter of international organizations, is independent of the source of jurisdiction-
especially so far as this Court is concerned. Secondly, Professor Lowe noted that Article VIII did
184
not require a special permit to conta in any statement of reasons • Again, that is irrelevant; a
special permit will only be exempt under Article VIII if it satisfies the requirements of research for
scientific purposes, and it is for the State relying on Article VIII to establish that, whether by
reference to the terms of the special permit or, if they are silent, by other means.
Conclusions on interpretation
25. Mr. President, Members of the Court, as 1said yesterday, the questions you face are ali
questions of State responsibility involving the interpretation and application of a treaty. lt is
extravagant to read Article VIII as a sort of national security exception, couched in subjective
terms, and intended to reserve core rights of sovereignty against international incursion. Of course
Japan is a sovereign State, but so are the other parties to the Convention, which seeks to regulate
their interaction in the matter of whaling, an issue of public interest occurring outside the
jurisdiction of any single State, and not the prerogative of any single State. lt is wholly
inappropriate to interpret Article VIII as if the words "for purposes of scientific research" meant
"for purposes the proponent State regards as scientific". lt is inappropriate to interpret the words of
a convention for the conservation and recovery of a group of seriously depleted species as if it gave
special rights to harvest, notwithstanding the views of other parties and the best scientific advice.
Japan accuses Australia of seeking to convert the Convention into a convention for the elimination
18CR 2013/15, p.24, para.50 (Lowe).
184/bid.p.21, para.34 (Lowe). - 67-
of whaling, but Japan's interpretation carries with it a real risk of converting the Convention into a
convention for the elimination ofwhales.
26. lt is submitted that the governing principle is that of effectiveness, and that an
interpretation of Article VIII which allows unrestricted, unilateral taking of whales on an indefinite
basis with a view to "monitoring the Antarctic ecosystem" cannot be accepted. The solution is to
maintain Article VIII as part of the Convention- which indeed it is- and to require a proper
showing from proponent States that their proposais are genuinely motivated by scientific
considerations and adapted appropriately to achieve scientific goals. Similarly, it is submitted that
in accordance with the principle of effectiveness, the views of the IWC and its subsidiary organs
must be considered seriously by proponent States, that notification is not just for the purposes of
information- of saying goodbye to the escape capsule as it hurtles on its way- and that a failure
to take these views seriously into account is capable of leading you to the conclusion that the
project is not being carried out for the purposes of scientific research, but for sorne other purpose
inconsistent with the Convention as it stands at the time.
27. Mr. President, Members of the Court, 1should add that in characterizing this case as a
normal instance oftreaty interpretation and application, and in suggesting that the Court can decide
it without getting into invidious and subjective questions of bad faith, 1do not suggest that these
would be irrelevant if duly established. You do not need to decide them, but you could decide
them. The Attorney-General will retum to this issue this afternoon.
Mr. President, that completes part A of my presentation; this would be a convenient moment
to break.
The PRESIDENT: Thank you, Professor Crawford. The Court will retum at 3 o'clock, so
you can continue.
Before adjouming, 1 understand that Judge Greenwood has a short factual question relating
'
to this moming's presentation by Australia. So, 1give him the tloor. Judge Greenwood, please.
Judge GREENWOOD: Thank you very much, Mr. President. 1apologize if the answer to
my question is already in the papers and 1 have missed it. But would Australia this aftemoon
please explain to the Court: - 68-
"After 63 scientists decline to participate in a review of JARPA Il, how many
members of the Scientific Committee were left?"
Thank you, Mr. President.
The PRESIDENT: Thank you. lt would be appreciated if the answer is provided this
afternoon, and certainly, Japan will have the opportunity to comment if it so wishes. The text will
be sent to bothParties as soon as possible. Thank you. The sitting is adjourned.
The Court rose at 12.55 p.m.
Audience publique tenue le mercredi 10 juillet 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))