Corrigé
Corrected
CR2013/8
International Court Cour internationale
of Justice de Justice
LAHAYE THE HAGUE
YEAR2013
Public sitting
lteld on Wednesday 26 June 2013, at 3 p.m., at tite Peace Palace,
President Tomka presiding,
in tite case conceminWhaling in the Antarctic (Australv.Japan:
New Zealand intervening)
VERBATIM RECORD
ANNÉE2013
Audience publique
tenue le mercredi 26uin 2013, à 15 heures, au Palais de la Paix,
sous la présidencede M. Tomka, président,
en l'affaire relativeChasse à la baleine dans l'Antarctique
(Australie c. Japon ; Nouvelle-Zélande(intervenant))
COMPTE RENDU -2-
Present: President Tomka
Vice-President Sepulveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judge ad hoc Charlesworth
Registrar Couvreur - 3-
Présents: M. Tomka, président
M. Sepulveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
M. Bhandari, juges
Mme Charlesworth, juge ad hoc
M. Couvreur, greffier -4-
The Government of Australia is represented hy:
The Honourable Mark Dreyfus Q.C., M.P., Attorney-General of Australia,
as Counsel and Advocate;
Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,
as Agent, Counsel and Advocate;
H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Justin Gleeson, S.C., Solicitor-Generalof 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 Chazoumes, Professor oflnternational Law at the University ofGeneva,
as Counse/ and Advocates;
Ms Kate Cook, Barrister, Matrix Chambers, London,
Dr. Makane Mbengue, Associate Professor, University of Geneva,
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 Ierino, Acting Principal Legal Officer, Attorney-General's Department,
Ms Clare Gregory, Senior Legal Officer, Attorney-General's Department,
Ms Nicole Lyas, Acting Senior Legal Officer, Attorney-General's Department,
Ms Erin Maher, Legal Officer, Attorney-General's Department,
Mr. Richard Rowe, Senior Legal Adviser, Department of Foreign Affairs and Trade,
Dr. Greg French, Assistant Secretary, Department of Foreign Affairs and Trade, - 5-
Le Gouvernement de l'Am>tralieest représentépar:
L'honorable Mark Dreyfus, Q.C., M.P., Attorney-General d'Australie,
comme conseil et avocat ;
M. Bill Campbell Q.C., General Counsel (droit international), services de l'Attorney-Genera/
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., So/icitor-General d'Australie,
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l'Université de
Cambridge, titulaire de la chaire Whewell, membre de l'Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Henry Burmester, A.O., Q.C., Special Counse/, Solicitor du Gouvernement australien,
M. Philippe Sands, Q.C., professeur de droit au University College de Londres, avocat,
Matrix Chambers (Londres),
Mme Laurence Boisson de Chazournes, professeur de droit international à 1'Université de Genève,
comme conseils et avocats ;
Mme Kate Cook, avocat, Matrix Chambers (Londres),
M. Makane Mbengue, professeur associé à l'Université de Genève,
comme conseils ;
Mme Anne Sheehan, secrétaire adjoint par intérim, services de 1'Attorney-General,
M. Michael Johnson, juriste principal, services de l'Attorney-General,
Mme Danielle Forrester,juriste principal, services de l'Attorney-Genera/,
Mme Stephanie Ierino, juriste principal par intérim, services de l'Attorney-General,
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, ministère des affaires étrangèreset du commerce,
M. Greg French, secrétaire adjoint, 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.
Tire Government of Japan is represented by:
Mr. Koji Tsuruoka, Deputy Minister for Foreign Affairs,
as Agent;
H.E. Mr. Yasumasa Nagamine, Ambassador Extraordinary and Plenipotentiary of Japan to the
Kingdom of the Netherlands,
as Co-Agent;
Mr. Alain Pellet, Professorat the University of Paris Ouest, Nanterre-La Défense,President of the
Sociétéfrançaise pour le droit international, associate member of the Institut de droit
international,
Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of International Law,
Oxford University, associate member of the Institut de droit international,
Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, member of the
English Bar,
Mr. Yuji Iwasawa, Professor of International Law at the University of Tokyo, member and former
Chairperson of the Human Rights Committee,
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International Law, McGill University,
member of the Bar ofNew York and the Law Society of Upper Canada,
Mr. Shotaro Hamamoto, Professor 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 1'Attorney-Genera/,
Mme Giulia Baggio, conseiller principal, services de l'Attorney-Genera/,
M. Todd Quinn, premier secrétaire, ambassade d'Australie au Royaume des Pays-Bas,
comme conseillers ;
Mme Mandy Williams, administrateur, services de l'Attorney-General,
comme assistant.
Le Gouvernement du Japon est 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 associéde l'Institut de droit international,
M. Vaughan Lowe, Q.C., membre du barreau d'Angleterre, professeur émérite de droit
internationalà l'Universitéd'Oxford, membre associéde l'Institut de droit international,
M. Alan Boyle, professeur de droit international à l'Université d'Edimbourg, membre du barreau
d'Angleterre,
M. Yuji Iwasawa, professeur de droit international à l'Université de Tokyo, membre et ancien
présidentdu Comitédes droits de l'homme,
M. Payam Akhavan, LL.M., S.J.D (Harvard), professeur de droit international à l'Université
McGill, membre du barreau de New York et du barreau du Haut-Canada,
M. Shotaro Hamamoto, professeur de droit international à l'Universitéde Kyoto,
Mme Yukiko Takashiba, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
comme conseils et avocats ; - 8 -
Mr. Takane Sugihara, Emeritus Professor of International Law, Kyoto University,
Ms Atsuko Kanehara, Professor of International Law, Sophia University (Tokyo),
Mr. Masafumi lshii, Director-General, International Legal Affairs Bureau, Ministry of Foreign
Affairs,
Ms Alina Miron, Researcher, Centre de droit international de Nanterre (CEDlN), 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 Ireland,
Mr. Kenichi Kobayashi, Director, International Legal Affairs Division, Ministry of Foreign Affairs,
Mr. Joji Morishita, Director-General, National Research Institute of Far Seas Fisheries,
Mr. Akima Umezawa, Ph.D., Director, Fishery Division, Ministry of Foreign Affairs,
Ms Yoko Yanagisawa, Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Naohisa Shibuya, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Ken Sakaguchi, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Ms Akiko Muramoto, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Masahiro Kato, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Takaaki Sakamoto, Assistant Director, International Affairs Division, Fisheries Agency,
Mr. Shigeki Takaya, Assistant Director, Fisheries Management Improvement Division, Fisheries
Agency,
Mr. Toshinori Uoya, Assistant Director, Fisheries Management Division, Fisheries Agency,
Mr. Shinji Hiruma, Assistant Director, International Management Division, Fisheries Agency,
Mr. Sadaharu Kodama, Legal Adviser, Embassy of Japan in the Kingdom of the Netherlands,
Mr. Nobuyuki Murai, LL.D., First Secretary, Embassy of Japan in the Kingdom of the Netherlands, -9-
M. Takane Sugihara, professeur éméritede droit international de l'Université de Kyoto,
Mme Atsuko Kanehara, professeur de droit international à l'Université Sophia (Tokyo),
M. Masafumi Ishii, directeur généraldu bureau des affaires juridiques internationales, ministère
des affaires étrangères,
Mme Alina Miron, chercheur, Centre de droit international de Nanterre (CEDIN), Université Paris
Ouest, Nanterre-La Défense,
comme conseils;
M. Kenji Kagawa, directeur général du département de la promotion de la valorisation des
ressources, agence des pêcheries,
M. Noriyuki Shikata, ministre à l'ambassade du Japon au Royaume-Uni de Grande-Bretagne et
d'Irlande du Nord,
M. Kenichi Kobayashi, directeur à la division des affaires juridiques internationales, ministère des
affaires étrangères,
M. Joji Morishita, directeur généralde l'Institut national de recherche sur les 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 chargée de l'affaire de la chasse à la baleine devant
la CIJ, ministère des affaires étrangères,
M. Naohisa Shibuya, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
M. Ken Sakaguchi, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
Mme Akiko Muramoto, division chargée de l'affaire de la chasse à la baleine devant la CIJ,
ministère des affaires étrangères,
M. Masahiro Kato, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
M. Takaaki Sakamoto, sous-directeur à la division des affaires internationales, agence des
pêcheries,
M. Shigeki Takaya, sous-directeur à la division de l'amélioration de la gestion des pêcheries,
agence des pêcheries,
M. Toshinori Uoya, sous-directeur à la division de la gestion des pêcheries,agence des pêcheries,
M. Shinji Hiruma, sous-directeur à la division de la gestion internationale, agence des pêcheries,
M. Sadaharu Kodama, conseiller juridique à l'ambassade du Japon au Royaume des Pays-Bas,
M. Nobuyuki Murai, LL.D., premier secrétaire de l'ambassade du Japon au Royaume des
Pays-Bas, - 10-
Ms Risa Saijo, LL.M., Researcher, Embassy of Japan in the Kingdom of the Netherlands,
Ms HéloïseBajer-Pellet, member of the Paris Bar,
as Advisers;
Mr. Douglas Butterworth, Emeritus Professor, University of Cape Town,
Ms Judith E. Zeh, Ph.D., Researcher Professor Emeritus, University of Washington,
Mr. Dan Goodman, National Research Institute of Far Seas Fisheries,
Mr. Luis Alberto Pastene Perez, Ph.D., Director, Survey and Research Division, Institute of
Cetacean Research,
as 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.
The Government of New Zea/and is represented by:
The Honourable Christopher Finlayson Q.C., M.P., Attorney-General ofNew Zealand,
as Counse/ and Advocate;
Dr. Penelope Ridings, International Legal Adviser, Ministry of Foreign Affairs and Trade,
as Agent, Counse/ and Advocate;
H.E. Mr. George Troup, Ambassador ofNew Zealand to the Kingdom of the Netherlands,
as Co-Agent;
Ms Cheryl Gwyn, Deputy Solicitor-General, Crown Law Office,
Ms Elana Geddis, Barrister, Harbour Chambers, Wellington,
as Counse/;
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 Héloïse Bajer-Pellet, membre du barreau de Paris,
conune conseillers ;
M. Douglas Butterworth, professeur éméritede l'Université de Cape Town,
Mme Judith E. Zeh, Ph.D., chercheur, professeur éméritede l'Université de Washington,
M. Dan Goodman, Institut national de recherche sur les pêcheriesen eaux lointaines,
M. Luis Alberto Pastene Perez, Ph.D., directeur à la division des enquêtes et de la recherche,
Institut de recherche sur les cétacés,
comme conseillers el experts scient[fiques ;
M. Martin Pratt, professeur au département de géographie de l'Université de Durham,
comme conseiller expert ;
M. James Harrison, Ph.D., chargé de cours en droit international àl'Université d'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 el avocat ;
Mme Penelope Ridings, conseiller juridique pour le droit international, ministère des affaires
étrangèreset du commerce,
comme agent, conseil el avocat ;
S. Exc. M. George Troup, ambassadeur de Nouvelle-Zélande auprès du Royaume des Pays-Bas,
comme coagent ;
Mme Cheryl Gwyn, Solicitor-General adjoint, Crown Law Office,
Mme Elana Geddis, avocat, Harbour Chambers (Wellington),
comme conseils ;
M. Andrew Williams, conseiller juridique, ministère des affaires étrangèreset du commerce, - 12-
Mr. James Christmas, Private Secretary, Attorney-General's Office,
Mr. James Walker, Deputy Head of Mission, Embassy of New Zealand in the Kingdom of the
Netherlands,
Mr. Paul Vinkenvleugel, Policy Adviser, Embassy of New Zealand in the Kingdom of the
Netherlands,
as Advisers. - 13-
M. James Christmas, chef de cabinet, services de l'Attorney-Genera/,
M. James Walker, chef de mission adjoint, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
M. Paul Vinkenvleugel, conseiller politique, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
comme conseillers. - 14-
The PRESIDENT: Please be seated. The sitting is open. This afternoon the Court will hear
the continuationof the first round of oral arguments of Australia and 1invite Mr. Henry Burmester
to address the Court.ou have the tloor, Sir:
Mr. BURMESTER:
THE IWC AT WORK- A ROAD MAP
1. Mr. President, Members of the Court, it is a privilege to appear again before this Court as
a representative of Australia. 1do so with sorne nostalgia as 1recall the other occasions 1have so
appeared, including thatfirst sat in this courtroom 40 years ago when Australia was last a plaintiff
before this Court.
2. ln this presentation 1intend to do two things. The first, building on the presentation you
heard before lunch from Professor Boisson de Chazournes, is to offer a road map as to how the
International Convention for the Regulation of Whaling- 1946 Convention- underpins an
active international organization, the International Whaling Commission (the IWC). The
Solicitor-General has already given an outline of the features of the régime. My airn is to give the
Court an insight into the key features the international institutional régimeby showing how the
ongoing work of the Commission and its subsidiary bodies, particularly the Scientific Committee,
takes place. Despite Japan's attempts to dismiss its relevance, this ongoing work is directly
relevant when interpreting the 1946 Convention. lt is relevant when considering the object and
purpose of the Convention and the content of Japan's obligations under the Convention. And this
will become clear in further detail in the following days, particularly in the presentation following
mine ofProfessor Crawford on the interpretation of Article VIII ofthe Convention.
3. The second matter 1will cover is to introduce the Court to sorne of the abbreviations and
acronyms that will be regularly used over the next few days and that already appear in the written
materials. To assisk you will find in the judges' folders at tab 15 a Glossary of key terms and
ir-..1.r\'~\"~•
abbreviations that will enable the Court better to understand sorne of the terms that may be used.
Justas lawyers have their own terms, so do scientists. 1will take the Court to certain of the key - 15-
tenns, particularly those that may be used in connection with the scientific evidence. And the
easiest way to do this will beas part of my presentation on the work of the IWC and its bodies.
1. The ICRW Framework
4. As you have already heard, the 1946 Convention establishes the IWC in Article Ill. And
the Convention is set out in tab l in your folders. The IWC is the principal body composed of ali
Contracting Governments with important tasks set out in Articles IV, V and VI of the Convention.
And these tasks include organizing studies and investigations relating to whales, amending the
Schedule by making regulations and making recommendations relating to the abject and purpose of
the Convention. I need to say something more about these functions.
5. First, however, I mention the current key subsidiary bodies established by the Commission
that also have an important role to play in ensuring the implementation of the abject and purpose of
the Convention. [Screen on] On your screen, and in your folders, is a simple diagram showing the
key IWC bodies.
6. The key subsidiary bodies are:
(i) the Scientific Committee;
(ii) the Conservation Committee; and
(iii) the Finance and Administration Committee.
7. The Scientific Committee is ofparticular importance to this case. It meets annually, holds
workshops on specifie tapies and appoints Working Groups. It primarily comprises nominees of
Contracting Governments, but also includes advisors from relevant international organizations and
invited participants. At the recent 2013 meeting, there were about 100 government nominated
scientists and around 50 invited scientific observers.
1
8. The Conservation Committee was established in 2003 as part of the Berlin Initiative of
which I will say more a little later. It has been tasked with preparing and recommending to the
Commission a conservation programme and with exploring means of collaborating with other
organizations on that programme. The Finance and Administration Committee advises the
Commission on expenditure, budgets and financial regulations. [Screen off]
1
MA, paras. 2.94- 2.97. - 16-
8oth Australia in its Memoriaf and Japan in its Counter-Memorial 3 have outlined these
bodies and the work that they do. So Japan obviously agrees with Australia that an understanding
of the work of the bodies established by the Commission is relevant to the resolution of this case.
They spend a lengthy chapter three of its Counter-Memorial outlining much of this work. Japan,
however, paints a picture of this work as nothing more than adopting changing management
measures to ensure the sustainable utilization of whale resources. lt argues that its own so-called
"scientific" programmes are directly correlated with the changing management measures 4• And it
otherwise purports to dismiss the work done within the organization as irrelevant to its so-called
"scientific" whaling.
9. Japan's skewed account faits to acknowledge the significant emphasis given to
conservation in the work of the Convention bodies. lt faits to acknowledge the consistently critical
attitude expressed by those bodies towards Japan's special permit whaling. Contrary to Japan's
assertion, Australia does not argue that evolution has changed the object and purposes of the
5
1946 Convention • Rather, as you heard this moming from Professor Boisson de Chazoumes, there
has been an evolution in the manner in which the object and purpose of the Convention has been
given effect.
lO.Mr. President, the Court will be taken in forthcoming presentations to detailed accounts
of particular resolutions and to work done by the Commission and Scientific Committee of
relevance to this case. My task is to outline the important and extensive work and to show the
increasing focus on conservation and to point to the critical scrutiny given to so-called "scientific"
whaling by Japan. This outline that 1intend to give is to make it easier for the Court to understand
the context in which Convention bodies adopted particular resolutions and took particular actions
that will subsequently be referred to in sorne detail.
2MA, paras. 2.22 - 2.29, 2.96.
3CMJ, paras. 2.44- 2.57, 3.1-3.107.
4/bid.para. 3.3.
5
/bid.para. 6.4. - 17-
2. The Commission (IWC)
Il.1 tum first to the Commission in tenns of convention bodies. This had met annually until
2012 when it was decided to meet only once every two years. lt is the body comprising
representatives of ali the Contracting Govemments. And, as 1 have mentioned, among its main
functions are amendment of the Schedule and adoption of recommendations under Article VI,
commonly referred to as resolutions.
(a) The Schedule
12. So let me say sorne more about the Schedule . The Commission has power to amend the
6
Schedule by a three-quarters majority of members voting • And Article V (2) sets out the
requirements for a Schedule amendment. Since 1946 the IWC has exercised its collective rote by
making regular amendments to the Schedule retlecting the Commission's changing understanding
ofhow best to give effect to the abject and purpose of the Convention.
13. The Schedule as it currently stands is at tab 2f the judges' folders directly behind the
7
Convention , of which it is an integral partAnd as can be seen, the Schedule is very detailed, with
definitions, prohibitions on certain operations and restrictions on catch limits, supervisory and
reporting requirements , and so on.
14. The Solicitor-General has already mentioned the key provisions which Australia says
Japan has breached. 1do so again to indicate sorne of the key terms referred to in this case. And so
I want to draw the Court's attention specifically to:
[screen on] (Tab 35) Paragraph 7 (b) ofthe Schedule-the Southem Ocean Sanctuary-and
on your screen, you will notice references in that provision to pelagie operations, land stations,
baleen and toothed whales.
[next screen] (Tab 36) In Paragraph 10 (d)- the factory ship moratorium- you will see
references to factory ships, whale catchers , sperm, killer, baleen and minke whales.
[next screen] (Tab 37) And in Paragraph 10 (e)- the commercial whaling
moratorium-there are referenc stocks.lAnd 'Stock' is defined in the Glossary . [Screen
off] \-o """..L fuo.\0\
61CRW, Art. Ill (2).
7
/bid., Art. 1(1). - 18-
15. As you have seen in these paragraphs of the Schedule, there are references to a number
of different whales, such as baleen and minke whales. 1will provide a brief introduction to these
different types of whales. Whales are members of the mammalian order, cetacea. There are two
8
suborders: baleen whales and toothed whales, based on their feeding mechanism • The Glossary
contains relevant definitions. Paragraph 1 (a) of the Schedule to the Convention lists the various
species of whales under these two categories. Sperm and killer whales are toothed whales. The
whales of relevance to this dispute, Antarctic minke, humpback and fin whales are baleen whales.
16. At times you may also hear references to "blue whales" or "blue whale unit". The blue
whale is the largest animal on earth and was previously close to extinction. The blue whale unit, or
BWU, was used in the early days of the IWC to set catch limits- one blue whale was considered
9
equivalent to 2 fin, 2.5 humpback or 6 sei whales • This unit is no longer used. lnstead, the blue
whale is today the subject of a scientific study under the Southern Ocean Research
10
Partnership (SORP), to which I will return and say more •
17. In the Schedule, as you have seen, reference is made to "factory ship", "land station",
"whale catcher" and "pelagie operations". (Tab 38) [Screen on] In Article II of the Convention
there are definitions of those first three terms, also set out in the Glossary. "Pelagie operations"
simply means operations on the open sea as opposed to coastal or land-based.
18. [Next screen] On the screen, and at tab 39, is a diagram that shows the different sizes of a
number of whale species, including those of relevance to this case, with the minke whale in the
middle, at the top there. In Appendix 1 to the Australian Memorial you can find a description of
the history of whaling in the Antarctic in relation to the main relevant species of wha1es and an
estimate of current stock numbers.
19. [Next screen] 1 have now put up on your screen, and at tab 40 in the folder, a graphie
which shows the changing catches of the different species of whale. As various species were
hunted to low stock levels, so industry attention turned to another species. Minke whales, the main
HMA,para. 2.113.
9Mangel, An Assessment of Japanese Whale Research Programs Under Special Permit in the Antan·tic (JARPA,
JARPA Il) as Programs for Pwposes of Scientific Research in the Comext of Conservation and Management of Whales
("Original Expert Opinion"), para. 3.2; MA, App. 2.
1Statement by Dr. Nick Gales dated /5 April 20/3 ("Expert Statement ·68-a.13.. - 19-
focus of JARPA Il- and that 1s the light brown - have only been subject to exploitation
relatively recently.
20. (Tab 41) [Next screen] The other key provision of the Schedule is paragraph 30 dealing
with proposed special permits. The Scientific Committee is given a specifie rote in reviewing
proposed permits and this rote is retlected in the IWC Rules of Procedure. The permits are
required to specify a number of matters, set out, as you can see, in sub-paragraphs (a) to (d).
[Screen offJ
(b)Resolutions oftlte /WC
21. 1 turn next to the resolutions of the IWC and obviously the Commission is the key
Convention body in this regard. The relevance of the work of the Commission in passing
resolutions is retlected in the fact that many of its resolutions and records of its meetings are
attached as annexes to both the Australian Memorial and the Japanese Counter-Memorial 1•
Resolutions, as recommendations of the principal Convention body, are obviously of importance
and matters to be taken seriously by members. Their legal significance will be further elaborated
by Professor Crawford and the Solicitor-General in subsequent speeches.
22. Mr. President, you will be pleased to know I do not propose to take the Court to a myriad
of resolutions that have come from the Commission. Rather, I wish to draw attention to just a
couple of illustrative examples to show, in particular, how closely involved the Commission has
been in reviewing and commenting on special permit whaling, both generally and specifically in
relation to Japan.
23. In many of its resolutions relating to Japan, the Commission, reflecting the widespread
view of the Convention's Contracting Governments, has been robust in its criticism. The
Commission has over the years passed resolutions stating, for instance: that special permit whaling
should only be permitted where it is required or essential for the management of whales; that it be
conducted in accordance with the Commission's conservation policy; that it only be permitted in
exceptional circumstances; that it should be replaced by research using non-lethal techniques; and
11
See MA, Anns. 7-47; CMJ, Anns. 27-72. -20-
that it not undennine conservation of whales in sanctuaries or other conservation measures adopted
by the IWC 1• This can be found in the resolutions at Annexes 7 to 36 ofthe Australian Memorial.
24. These broad proscriptions for special pennit whaling have been accompanied by specifie
criticism of JARPA and JARPA Il. For instance, as long ago as the l990s, the Commission, taking
into account the views of the Scientific Committee, was calling on Japan to restructure its research
program so that research interests could be properly addressed without using lethal methods 1•
25. There have been Commission resolutions repeatedly calling on Japan to refrain from
14
issuing pennits to take whales in the Southem Ocean • I mention as an example specifically
15
Resolution 1997-5 ,which is on your screen (tab 42) [screen on]. In its language, as can be seen,
it is highly critical of Japan's issue of special perrnits. Among other matters, the Commission
"reiterates its deep concem" over Japan's taking of whales in the Southem Ocean and "strongly
urges" Japan to "refrain from issuing any further special permits for the take of any whale ... ". In
1998 and 1999 the relevant resolutions noted the grave concems of eminent members of the
16
international scientific community • But what these resolutions- these numerous resolutions-
have not done is commend or support JARPA or JARPA II or confinn that those programs are
consistent with Article VIII. [Screen off]
26. The Solicitor-General in his overview has already summarized the three common
concems reflected in the collective view of the Commission. The Court will hear more about these
resolutions, as I have indicated, in presentations by other counsel. What becomes clear from
considering Commission resolutions in relation to whaling by Japan in the Southem Ocean is that
the Commission, for a long period, has, firstly:
(a) consistently emphasized the conservation object and purpose of the Convention, reflected in
many resolutions including, but not only, in the 2003 Resolution on the Berlin Initiative 17;
1~MA , nns. 7-36.
1/bid., Anns. 18-19,21,25,28-29.
1/bid., Anns. 27-29,31-33.
15
/bid., Ann. 29.
16
/bid., Anns. 28-29,31-33.
17
/bid., Ann. 37. - 21-
(b) second!y, it has been concemed with lethal take of whales, including in the sanctuaries under
the guise of special pennit whaling; and
(c) thirdly, it has been constantly critical of Japan's research program, affirming that it does not
address critically important research needs for management of whaling in the Southem Ocean
or require lethal take.
27. The 2003 Resolution, the Berlin Initiative, is at tab 43 in the judges' folders. In that
Resolution, the Commission decided to establish a Conservation Committee with the task of
::t"~\-'~
identifying a conservation agenda. (Tab 44) [Screen on] f"\fthird preambular paragraph, which is
on your screen, the resolution highlighted that the Commission had evolved into an organization
recognized for its meaningful contributions to the conservation of great whales, and that through
resolutions and Schedule amendments, the Commission had developed an extensive conservation
agenda. [Screen offJ In that Resolution, Annex 1 sets out a long history of more than
18
lOOconservation-oriented resolutions • Annex II to the Resolution sets out an annotated
compilation of IWC conservation work from 1976 to 2001. Among the issues dealt with in the
compilation in Part 10 is management of lethal scientific research and the Annex records the
response of the Commission up to that time 19•
(c) Guide/ines
28. An important aspect of the work of the Commission in relation to special pennits and the
adoption of resolutions has been the adoption of resolutions calling on the Scientific Committee to
adopt and revise Guidelines goveming the grant of these pennits. These Guidelines have been
designed to assist the Scientific Committee and Commission to assess proposais to take whales
under special pennits which, as you have heard, under paragraph 30 of the Schedule, are required
to be submitted to the Scientific Committee in advance. The first Guidelines were adopted in 1985
as Annex L and the most recent Guidelines, known as Annex P, were adopted by the Scientific
Committee by consensus and endorsed by the Commission in 200820.
txsee MA, Vol. 114-7.
19
Berlin Initiative, Annex Il, !WC Conservation Work (An Annotated Compilation, 1976-2001), para. 1Onbis,
("Berlin initiative"); MA, Ann. 37.
20
MA, Ann. 49, paras. 4.25-4.29. -22-
29. And copies of the key instruments containing the Guidelines are in the folders
chronologically at tabs 5 to 12. The first resolution by the Commission on this issue in 1986, at
tab 5, sets out detailed recommendations to Governments considering the issue of special permits,
including whether the objectives of the research are feasible through non-lethal means, whether the
proposed research is intended and structured to contribute information essential for rational
management of the stock, and whether the number, age and sex of whales to be taken will facilitate
the comprehensive assessment proposed to be completed following the adoption of the commercial
whaling moratorium. One can see similar recommendations in Commission resolutions in 1988
and in 1999.
30. The most recent Guidelines, adopted by the Scientific Committee as Annex P in 2008,
have been closely scrutinized by the Commission. As recent!y as its last meeting in 2012, the
Commission endorsed revised Guidelines especially reiated to data availability and timing adopted
that year by the Scientific Committee, and now known as Annex P3. Tab 45 in your foiders
contains the extract from the 2012 IWC Annual Report. What Annex P contains is a detailed set of
requirements as to how special permits should be structured. A proposai for a special permit
should set out: the objectives; the methods to achieve the objectives; an assessment of the
potential effects of catches on the stock involved. The Guidelines also contain details of a review
process, involving initial, interim and final reviews at specialist workshops. Not surprisingly, the
expert evidence by Professor Mange!- as essential indicia of any scientific program- points to
similar things to those identified in the Guidelines as being necessary to support a notification
under paragraph 30 of the Schedule.
31. And to summarize the contents of the Guidelines, 1draw on the words of the Australian
delegation in 1988 but still applicable:
"[T]he guidelines make it clear that it is incumbent on those who draft proposais
[for the conduct of research under Article VIII] to ensure that the scientific
justification for the researchis fully presented. The proposai document shouid explain
how the research will lead to reliable answers to the questions being addressed, if the
research is intended to [meet] critically important research needs then it is aiso
critically important that the proposai explain why this is the case. If a case is made
which establishes that the research is critically important, then the next step is to show
that the proposed kill of whaies makes a sufficient contribution to the aims of the -23-
research and that no other practical approach to the problem 1s possible through
21
non-lethal means."
And that statement still applies today under the Guidelines.
32. You will hear more from Professor Sands about the essential indicia of a proper program
of scientific research. And you will also be referred to these Guidelines again by
Professor Crawford in relation to the interpretation of Article VIII.
3. The Scientific Committee
33. Mr. President, 1 tum then to the next important body, the Scientific Committee. The
primary and important rote of the Scientific Committee is that of reviewing scientific research
carried out by Contracting Govemments and making recommendations for future research needs.
The statement by Dr. Gales, including particularly Annexure 2, contains detail on how the
Scientific Committee goes about its work. As part of its work, it has a particular rote in reviewing
special permits issued under Article VIII in accordance with paragraph 30 and the Guidelines to
22
which 1have just referred •
34. Among the other important work done by the Committee has been that leading to the
adoption by the IWC of the New ManagementProcedure- the NMP- used from 1975 to 1981,
and the acceptance of the Revised Management Procedure- the RMP- in 1994 23• And the
Court will hear these abbreviations NMP and RMP regularly mentioned so 1 need to say a little
more about them.
35. The NMP was adopted by the Commission in 1975 and incorporated in paragraphs 10 (a)
to 10 (c) of the Schedule to the Convention. The NMP was designed to calculate catch limits for
whale populations using mathematical models, where the key focus was the change in population
24
size from one year to the next • In so doing, it utilized concepts of maximum sustainable yield
(MSY), maximum sustainable yield level (MSYL) and maximum sustainable yield rate (MSYR).
Definitions ofthose terms are in the Glossary in your folders.
2IWC40, Verbatim Record of Fourth Plenary Session, 3 June 1988, IWC/40NR, 71-72.
22
MA, paras. 2.25-2.29. The Scientific Committee's Rules of Procedure arc located at CMJ, Ann. 121.
23
MA, paras. 2.47-2.54; 2.71-2.78.
2/bid., paras. 2.48-2.49. -24-
36. The NMP was dependent on precise knowledge of various biological parameters in the
whale population. However, the experience of the Scientific Committee in attempting to
implement the NMP showed that it was not possible to know these parameters to the required levet
25
of precision to make the NMP work •
37. By 1976-1977 it became apparent that the Scientific Committee could not provide the
necessary advice on MSY for a number of stocks. Sorne alternative approach was needed.
38. The adoption of the commercial whaling moratorium in 1982 provided a circuit breaker
and allowed the Scientific Committee to develop revised management procedures. Work was done
in the Scientific Committee from 1986 to 1993 that led to adoption by the Commission in 1994 of
26
the RMP • Japan describes the RMP in its Counter-Memorial as "a precautionary, risk-averse
procedure designed to calculate catch limits ... [with] many built-in safety factors" 27• The RMP is
a conservative management tool designed to eliminate the need for data obtained through lethal
28
whaling • It does not require a precise knowledge of biological parameters such as the
productivity of a whale population. These parameters simply cannat be known with sufficient
precision. lnstead, what the RMP does is it eliminates the need for reliance on biological
parameters and uses computer modelling to examine a range of plausible scenarios as to how catch
29
limits could be set •
39. The RMP has been accepted by the Commission as the appropriate vehicle for
determining any future catch limits 30• In that respect, it forms the scientific part of a suite of
management measures known as the Revised Management Scheme (RMS). The broader RMS
would need further work before commercial whaling could resume. However, it is clear that the
RMP is the accepted procedure by the Commission for setting future catch limits.
25
Gales,Expert Statemellfparas. 3.4, 5.4, 5.8, and Annexure 2, para. 8; MangSupplement ta An Assessment of
Japanese Whale Research Programs Under Special Permit in the Antarctic (JARPA, JARPA Il) as Programs for
Pwposes of Scientific Research in the Context of Conservation and Management of Whales ("Supplementmy Expert
Opinion"), para. 4.1.
26MA, paras. 2.50-2.54.
27CMJ, para. 3.71.
2
HMA,para. 2.72-2.75; Mangel, Original Expert Opinion,paras. 3.21-3.27 [MA, Appendix 2].
29
Gales,Expert Statement,Annexure 2, paras. 13-18.
30
MA, paras. 2.76-2.78, Mangel, Original Expert Opinion, paras. 3.21-3.31 [MA, Appendix 2];
Gales,Expert Statement,Annexure 2, paras. 7-21. -25-
40. The RMP uses a catch limit algorithm- a CLA, a term defined in the Glossary. This
algorithm calculates catch limits and, in so doing, takes into account the uncertainties in biological
parameters referred to earlier. The RMP also uses Implementation Stimulation Trials (ISTs), also
defined in the Glossary, to account for uncertainties over stock structure and movements.
41. lmportantly, the RMP only requires abundance estimates and data on past catches and is
not reliant on lethal data sources. As you will hear shortly, lethal take under JARPA II is irrelevant
and of no assistance in the use of this management tool, a management tool described by Dr. Gales
as "a new paradigm of fishery type models" which "has now become increasingly embedded in
modern approaches to fisheries management" 31•
42. Non-lethal research has become the key research approach embraced by the IWC. In this
context, two abbreviations that are used in discussions about the previous work of the Scientific
Committee in estimation of the abundance of whale stocks are IOCR and SOWER. IOCR stands
for the International Decade of Cetacean Research. SOWER means Southern Ocean Whale and
Ecosystem Research. These were non-lethal research programs overseen by the Scientific
Committee which included sighting surveys. They provided the most important sources for current
estimation of Antarctic baleen whale numbers 32• The notable current program involving non-lethal
research on whales is the Southern Ocean Research Partnership (SORP). Dr. Gales, in his
evidence, outlines the projects currently being undertaken by SORP 33• These projects were
reviewed and endorsed by the Scientific Committee and were drawn from scientific questions
previously identified by the Scientific Committee as priorities.
43. One of the Scientific Committee's other important tasks, other than developing
management techniques based on population abundance, has been review of special permit whaling
in accordance with the Guidelines which 1have mentioned.
44. This review of special permits has led to trenchant criticism of JARPA and JARPA II in
the Scientific Committee, which has then been taken up in the resolutions of the Commission, to
which 1have already referred. And the Court will hear in coming days more detail about this. For
31
Galcs,Expert StatementAnncxure 2, para. 12.
3See de la Mare et al, Antarctic Baleen Whale Populatiom, [MA, Appcndix 1]. Sce also Gales,
Expert Statementparas. 5.1-5.7.
JJGalesExpert Statementpara. 6.3. -26-
example, in its final review of JARPA in 2006, the Scientific Committee was unable to conclude
that any of the objectives of JARPA had been met 34• 1 have already mentioned the many
35
resolutions by the Commission where Japan was formally urged to withdraw from JARPA • ln
2005 Japan presented JARPA Il-the new program designed to replace JARPA which had run for
18years. JARPA Il, as you have heard, has no proposed end date.
45. Japan was criticized for bringing forward JARPA II before there had been a proper
opportunity for the Scientific Committee to review JARPA itsetë 6• And this is reflected in critical
comments by 63 scientists 37• A very brief review of the JARPA Il proposai by the Scientific
Committee took place in the absence of participation of these scientists. The Committee could not
reach a consensus on any of the objectives or methods of JARPA IL And Japan, as the Court will
hear, has not materially responded to any of the comments of the Scientific Committee in relation
to JARPA II. It has had a completely deaf ear in this regard and Professor Crawford will say more
on this.
46. The Scientific Committee has also established a number of working groups to assist its
work. One is a working group on Maximum Sustainable Yield Rate and that, among other things
has been looking at the plausible range of MSYR currently used in the RMP with a view to
determining whether current evidence suggests the range needs modification. In 2009 the Working
Group dismissed as of low reliability estimates of MSYR derived from lethal data collected by
Japan 38• And at its most recent meeting in 2013, the Scientific Committee, after receiving the
Working Group's most recent report, agreed to raise slightly the lower end of the plausible range.
But importantly the Scientific Committee reached this conclusion based entirely on non-lethal data
and made no use of lethal data arising from either JARPA or JARPA II in its considerations. That
is, JARPA and JARPA II data proved absolutely useless in trying to amend the assumptions made
in the RMP regarding MSYR and productivity.
34MA, para. 5.11, fn 536.
35Ibid.para. 5.16.
36
/bid.para. 5.24.
37
"Report of the Standing Working Group on Scientific Committee", Annex 01, Appendix 2, J. Cetacean Res.
Manage. 8 (Suppl.), 2006, 260 [AM 5.86, Annex 52].
38
MA, para. 5.91. -27-
Conclusion
47. Mr. President, in this presentation 1 have sought, as weil as introducing key terms, to
provide a snapshot or roadmap as to how the international organization, the IWC, has adopted
changing approaches to management of whales as scientific information and understanding of
conservation requirements has developed. 8oth the Commission and its Scientific Committee have
been particularly criticalf Japan's JARPA programs in considerable numbers of resolutions and
reports. And you will hear more about this in coming days.
48. The organization, the IWC, and its views cannot be dismissed as legally irrelevant. The
Court cannot shut its eyes to this material as Japan would want you to do. And this will be made
clear in the presentations that follow, including that by Professorwford on Article VIII. 1invite
you, Mr. President to now cali ProfessorCrawford. Thank you.
The PRESIDENT: Thank you very much, Mr. Burmester, and 1 give the tloor to
Professor Crawford. You have the floor, Sir. This time to plead on behalf of your native country.
Please.
Mr. CRAWFORD:
ARTICLE VIII (INTERPRETATION AND APPLICATION)
Introduction
Mr. President, Members of the Court, it is an honour to appear before you on behalf of
Australia in these proceedings.
l. In the conduct of its whaling program in the Southem Ocean, Japan relies on Article VIII,
which allows Contracting Govemments to grant special permits authorizing whaling operations
"for purposes of scientific research". That presents you with a binary question: either Article VIII
covers JARPA II or it does not. My task today is to discuss how Article VIII should be interpreted.
1will, Mr. President, with your permission, retum tomorrow to discuss, in light of the evidence and
the documentary record, how Article VIII is to be applied in this case. -28-
2. My presentation today is in three parts. First, 1 will explain the development of
Article VIII from its origins in the 1937 Agreemene 9•
3. Secondly 1will address the essential characteristic of Article VIII as a limited exception to
the regulatory régimefor the conservation and recovery of whale populations established under the
1946 Convention, rather than the free-standing, effectively self-judging, general exception which
Japan presents.
4. The third part will discuss the requirements which must be satisfied for a Contracting
Govemment to be able to rely on Article VIII.
l. The Development of Article VIII
5. 1tum then to the development of Article VIII. Three key points must be emphasized:
First, the originsof Article VIII reveal the exceptional character of the power to issue special
permits. Special permits are exact!y that- they are "special", adapted to the specifie
proposai, specially justified. They are not proforma, a mere piece of bureaucratie routine.
Secondly, the drafters envisaged that Article VIII would be used only to authorize killing of
relatively small numbers of whales, and not to authorize continuous, long-term, open-ended,
indefinite, nondescript research involving large, incessantly increasing numbers ofwhales.
Thirdly, when the IWC was established in 1946, it was already intended that it would have
collective oversight of special permits under Article VIII. The subsequent elaboration of that
function involves no new principle.
(a) The antecedents of Article VIII
6. Mr. President, Members of the Court, the precursor of Article VIII was Article 10 of the
1937 Agreement- you'll find the 1937 Agreement in tab 4. This provided for whaling under
special permit for purposes of scientific research for the first time in an international agreement. lt
was the UK which proposed the text of Article 10: in doing so it drew upon its own legislation, the
3lntcmational Agreement for the Regulation ofWhaling, London, 8 June 1937,LNTS 79 (cntercd into force
7 May 1938) ("the 1937 Agreement") [MA, Ann. 3). -29-
40
Whaling Industry (Regulation) Act of 1934, which is tab 46 • The language of Article 10 was
41
almost identical to the special pennit exception contained in section 7 of the 1934 Act •
7. The United States' whaling legislation of 1936 also contained a special pennit whaling
42
exception, the Act is tab 47 and 1am pleased to say that the Regulations are tab 48 • Through the
Congressional Hearings relating to this Bill, which are at tab 49 43,the origin of the provision in the
regulations may be traced back to Article 2 of the bilateral UK-US Convention for the Protection of
Migratory Birds of 1916, which likewise contained an exception for hunting for scientific purposes
44
under pennit •
8. But there was a notable distinction between Article 2 of the Migratory Birds Convention
and Article 10 of the 1937 Agreement. That was the addition of the qualifier "special" to describe
pennits issued under Article 1 O. The description of such permits as "special" records the belief of
the Contracting Govemments that Article 10pennits were to be exceptional.
9. Moreover the "special" character of such pennits is confinned by the practice of the
parties to the 1937 Agreement. As far as we can discover, pennits issued under Article 10
authorized the killing of only small numbers of whales.
45
1O.Article VIII was proposed at the 1946 Conference by the United States • lt was based
on Article 10 of the 1937 Agreement. The participants would have had in mind the small takes of
whales under Article 1O.
11. In short Article VIII of 1946 was intended to operate as a limited exception to the
commercial whaling regulations under the Convention. Special pennits were not intended to
40
24 & 25 Geo 5, c 49.
41
"Agreement for the Regulation ofWhaling : Additional Article", ICW/1937/31 (3 June 1931) [CMJ, Ann. 10).
42
Joint Regulations of the Secretary of the Treasury and the Secretary of Commerce Conceming Whaling,
9 October 1936, Article5 (a) made under the authority of section 2 of The Whaling Treaty Act 1936 Pub. No. 535, 74th
Cong. [49 Stat. 1247].
43Hearings before the Committee on Foreign Affairs House of Representatives, Seventy-Fourth Congress, First
Session on S. 3413: The Whaling Treaty Act (Il, 18, 25 February and 3, 7 and 10 March 1936), U.S. Government
Printing Office 1936, 76.
44
Convention between the United Kingdom and the United States of America for the Protection of Migratory
Birds in Canada and the United States, opened for signature 16 August 1916, TS 007/1917:Cd 8476 (entered into force
7 December 1916).
45
"United States Proposais for a Whaling Convention", International Whaling Conference, 29 October 1946,
1946/IWC/3, Il [CMJ, Ann. 14]. -30-
authorize something equivalent in size to commercial whaling, or to authorize long-term,
open-ended whaling.
12. lt is true that Article VIII (4) required Contracting Govemments to take ali practical
measures to collect biological data from their commercial whaling, the operations of their factory
ships and land stations. But this provides no support for Japan's suggestion that it requires
"continuous, long-term research" 46, involving the killing of a large number of whales during a
period when commercial whaling has ceased.
47
13. Japan claims that Article Vlll (4) had no parallel in the 1937 Agreement • But in fact it
derives from Article 16 of that Agreement. This required the parties to obtain, "with regard to ali
factory ships and land stations under their jurisdiction", specified biological data from their
commercial whaling operations. Article VIII (4) is likewise "focussed upon factory ships and land
4
stations" K.
14. Japan points to the travaux of the 1946 Convention, which it claims highlight the
importance of the continuous collection of biological data 49• But the discussions quoted at length
in the Counter-Memorial concemed the need to set stable commercial catch limits "for a few
50
years", in order to have sound data for determining stock populations • These discussions did not
envisage the conduct of continuous, long-term, open-ended programs of lethal research involving
large numbers of whales.
(b) The text of Article VIII in the context of the 1946 Convention as a whole
15. I tum, as eventually one must in interpretation, to the text of Article VIII. The core of
Article VIII (l) - when I refer to Article VIII 1 am referring, unless otherwise stated, to
paragraph 1-reads as follows-it is tab 52: [Screen on]
"any Contracting Govemment may grant to any of its nationals a special permit
authorizing that national to kill, take and treat whales for purposes of scientific
46
CMJ, paras. 5.42 and 7.19-7.21.
41/bid., paras. 7.18.
4Hfbid.
49CMJ, paras 7.34- 7.36.
50/bid., Ann. 19, "Minutes of the Fourth Session", IWC/22 (21 Novcmbcr 1946), 9; CMJ, Ann. 20, "Minutes of
the Seventh Session", IWC/32 (25 November 1946), 30-31. - 31 -
research subject to such restrictions as to number and subject to such other conditions
as the Contracting Govemment thinks fit ... ".
According toits ordinary meaning, this language envisages two separate functions.
[Screen off]
16.The first function is the act of granting the permit itself. A Contracting Govemment may
issue a special permit to a national which, on its face, authorizes an activity which can be
characterized as killing, taking and treating whales "for purposes of scientific research".
17. This function is limited to the power to issue a special permit, or not. The necessity of
the proposed research, whether the relevant activity is "scientific research" or not, are not matters
for determination by the Contracting Govemment alone. Article VIII (1) does not give Contracting
Govemments a discretion of a unilateral and subjective character as for the issue of a special
permit. Indeed Japan, eventually, concurs that Article VIII does not establish a "self-judging
51
right" •
18. The second function of Contracting Govemments arises from the second phrase of
Article VIII- "subject to such restrictions asto number and subject to such other conditions as the
Contracting Govemment thinks fit". lt must be stressed that the phrase "as the Contracting
Govemment thinks fit" relates only to the "number" of whales to be taken and the "other
conditions" attached to the special permit. lt does not extend to the description of a special permit
itself, notably the phrase "for purposes of scientific research".
19. Consistent with your decision in Gabcikovo-Nagymaros, the principle of good faith
obliges Contracting Govemments to exercise this second function in a reasonable way, and in such
a manner that the purpose of the Convention can be realized 52• Failure to do so- for example, by
taking many more whales than was necessary to achieve the objectives of the relevant research-
would indicate that the so-called research was in truth commercial whaling in disguise.
(c) The subsequent development of Article Vl/1 in practice
20. 1tum to address the central role of the IWC in defining the limited permission granted to
Contracting Govemments to authorize whaling operations "for purposes of scientific research".
51Written Observations of Japan on New Zealand's Written Observations (WOJpara.9.
52
GabCikovo-Nagymaros Project (Hungary/Siovakia), Judgment, I.C.J. Reports /99pp.78-79, para.142. - 32-
21. The lWC was established as the organ with collective responsibility for ensuring the
conservation and recovery of whale populations, an extreme necessity at that time. Consistent with
this mandate, the drafters envisaged that the IWC would act as a collective watchdog on the
operation of Article Vlll, and imposed reporting requirements on Contracting Govemments to that
end: first, a requirement under Article VIll (1) to report at once to the IWC each special permit
authorizing the killing of whales for purposes of scientific research; and secondly, an obligation
under Article Vlll (3) to report the results of the research.
22. As put by the Chairman of the 1946 Conference:
[t]he Commission is to have responsibility for planning and recommending research
on whales and whaling . . . It is believed that this will provide coordi53tion of
research programs and investigation in fields not adequately covered ... "
23. This explicit provision of collective oversight in relation, inter alia,to Article VIII, was
conspicuously absent from the 1937 Agreement. It was an early and important example of an
implementing body- an international commission established by a multilateral environmental
54
treaty. Indeed, as noted by the late lamented Patricia Bimie , the IWC was the first such
commission to be established on a global scale and it was given general powers. In this respect, the
role of the IWC was of high importance and, in accordance with its powers of oversight, the IWC
has taken significant steps to define the proper scope of Article VIII.
24. First, in 1979, it adopted a procedure for prior review of special permits- this is
Paragraph 30 of the Schedule, which Mr. Burmester showed you.
25. Secondly, in response to the exponential increase of special permit whaling following the
entry into force of the moratorium, it endorsed a series of instruments, which I shall refer to
collectively as "the Guidelines". The Guidelines set out criteria against which special permit
proposais are to be assessed prior to the issue of a special permit; they are also for use by the
Scientific Committee when providing advice in relation to proposed special permits. The
Guidelines sought to prevent what the United Kingdom and others described as "potential abuse of
5CMJ, Ann. 17, "Minutes of the Second Session", IWC/14, 20 Novcmber 1946, 25.
54
P. Bimie, International Regulation of Wha/ing: From Conservation of Wha/ing to Conservation of Whales and
Regulationof Whale,t'atching. Vol. 1, (Occana Publications lnc., 1985), 143. - 33-
the procedures for granting pennits for scientific purposes to [pennit] the continuation of
something which can only be regarded as commercial whaling" 55• (Tab 54)
(i) Paragraph 30
26. I tum first to paragraph 30 of the Schedule. Under Article I (l) of the Convention,
paragraph 30 constitutes an integral part of the Convention and is binding.
27. The development of a procedure of prior review was the result of concems expressed by
members of the Scientific Committee from 1963 onwards, of "rather large" samples being taken
pursuant to special pennit including, I freely admit, by Australia. These samples were much larger
than had been taken in previous years 56• The Report of the Scientific Committee expresses the
intent as follows: "to recognize and assure validity and utility of the proposed research, and to
assure that proposed pennits will not adverse!y affect the conservation of whale stocks" 57• Validity
and utility.
As you can see, [screen on], paragraph 30 expressly requires Contracting Govemments to
provide proposed special permits to the Secretary of the IWC in sufficient time to allow the
Scientific Committee to review and comment upon them.
28. Paragraph 30 also sets criteria to be addressed by the proponent Govemment. It is to
provide ali necessary infonnation on the objectives, methods and effects of the proposed pennit on
whale conservation to enable the Scientific Committee to assess the proposai. This process of prior
review confirms that the granting of special pennits is not left to the unilateral and subjective
detennination of the proponent Govemment. [Screen off]
29. Japan contends that there can be no question of the Scientific Committee assuming a
5
power to authorize or disallow a pennit under paragraph 30 x. But that is not the point. The
requirements of paragraph 30 are mandatory and must be complied with.
55
Intervention by the United Kingdom, IWC39, Second Plcnary Session, Wednesday 24 June 1987, 31. See aIso
Intervention by Australia, IWC39, Opening Plenary Session, Monday 22 June 1987, 18; Intervention by the United
States, IWC39, SecondPlenary Session, Wednesday 24 June 1987, 38.
56Report of the Scientific Committee, Appendix IV, Fourteenth Report of the Commission, 1964, 25-26, para. 15.
Sec also Chairman's Report, Appendix lll, Sixteenth Report of the Commission, 1966, 20, para. 18.
57Report of the Scientific Committee, Rep. int. Whal. Commn 28, 1978, 41, para. 9.3.2.
58
CMJ, para. 8.30. - 34-
30. Moreover, the Guidelines recommend that Contracting Govemments refrain from issuing
permits or revoke permits already issued if the IWC considers they are inconsistent with its
9
conservation polic/ • While the ability to issue and revoke special permits rests with the
proponent Govemment, it is not unconstrained. ln this respect, the views of the IWC as to the
proper scope of special permit whaling operations are highly relevant.
(ii) The Guidelines
31. As Mr. Burmester has outlined, the Guidelines comprise six instruments, which are in
60
your folders in chronological arder, beginning at tab 5 with Annex L of 1985 ,and concluding at
tab 12 with Annex P, entitled "Process for the Review of Scientific Permits and Research Results
61
from Existing Permits", adopted in 2008 •
32. As noted by the United States at the IWC meeting in 1987 (tab 55), these instruments
represent a collective statement as to "the minimum criteria that should be met before whales are
62
killed for research" • If a research proposai does not satisfy each of these criteria, the proposed
63
research is inconsistent with the IWC's conservation policy •
33. The criteria have evolved between 1985 and 2008 m arder "to bring [the IWC's]
approach to research conducted under Article VIII up to date", the words are those of the United
Kingdom delegate in 1995 (tab 56) 64• In particular, the IWC has placed increasing emphasis on
non-lethal means, reflecting developments in modem research techniques, and the increasing
ability to obtain necessary information, without killing the abjects of the putative research.
34. In ali, the IWC has adopted 40 resolutions since 1985 setting out its views on special
permit whaling: these are set out in a table which is at tab 57 of your folders. No Jess than 21-
59MA, Ann. 44, Resolution on Scientifie Research Programmes, Appendix 1, Chairman's Report of the Thirty
Ninth Annual Meeting, Report of the International Whaling Commission 38, 1988, 27-28 (Resolution 1987-1); MA,
Ann. 46, Resolution on Whaling under Special Permit, Resolution 1995-9, Appendix 10, Chairman's Report of the
Forty-Seventh Annual Meeting, Annual Report of the International Whaling Commission /995, 46-47 (Resolution
1995-9).
60
Proposed Guidelines for Review of Scientific Permits, Annex L, Report of the Scientific Committee,Rep. int.
Whal. Commn 36, 1986, 133 (Ann. L); MA, Ann. 42.
61Process for the Review of Scientific Permits and Research Results from Existing Permits, Report of the
Scientific Committee, Annex P, J.Cetacean Res. Manage. 11 (Suppl.). 2009,pp. 398-401 (Ann. P); MA, Ann. 49].
62IWC39, Verbatim Record ofOpening Plenary Session, 22 June 1987, IWC/39NR, pp. 16-17.
63Resolution 1987-1, MA, Ann. 44; Resolution 1995-9, MA, Ann. 46.
64
Intervention by the United Kingdom, IWC47, Verbatim Record of the Fourth Plenary Session, 1 June 1995,
pp. 146-147. -35-
more than 50 percent- of these resolutions urge Japan to reconsider its programmes of lethal
65
research; to refrain from issuing special permits and to hait the lethal aspects of its programmes •
(iii) Status of subsequent practice
35. Mr. President, Members of the Court, the IWC resolutions concerning special permit
whaling, in particular the Guidelines, retlect the subsequent practice of the Parties, establishing
their understanding of Article VIII, as contemplated under Article 31 (3) (b) of the Vienna
Convention. As noted in the ILC's Commentary to that paragraph, "[s]ubsequent practice in the
application of a treaty . . . is authoritative evidence as to its interpretation when the practice is
l>5Resolutionon Japanese Proposai for Special Permits, App. 4, Chairman's Report of the Thirty-Ninth Annual
Meeting, Rep. int. Whal. Commn 38, 1988,29 (Resolution 1987-4) [MA, Ann. 10]; Resolution on the Proposed Take by
Japan ofWhales in the Southem Hemisphere under Special Permit, App. 3, Chairman's Report of the Forty-First Annual
Meeting, Rep. int. Whal. Commn 40, 1990, 36 (Resolution 1989-3) [MA, Ann. 16]; Resolution on Special Permit
Catches by Japan in the Southem Hemisphere, App. 2, Chairman's Report of the Forty-Second Meeting, Rep. int. Whal.
Commn 41, 1991, 47-48 (Resolution 1990-2) [MA, Ann. 18]; Resolution on Special Permit Catches by Japan in the
Southem Hemisphere, App. 2, Chairman's Report of the Forty-Third Meeting, Rep. int. Whal. Commn 42, 1992, 46
(Resolution 1991-2) [MA, Ann. 19]; Resolution on Special Permit Catches by Japan in the Southcm Hemisphere,
App. 5, Chairman 's Report of the Forty-Fourth Meeting, Rep. int. Whal. Commn 43, 1993, 71 (Resolution 1992-5);
Resolution on Special Permit Catches by Japan in the Southem Hemisphere, App. 7, Chairman's Report of the
Forty-Fifth Annuai Meeting, Rep. int. Whal. Commn 44, 1994, 33 (Resolution 1993-7) [MA, Ann. 21]; Resolution on
Special Permit Catches by Japan in the North Pacifie, Resolution 1994-9, App. 15, Chairman's Report of the Forty-Sixth
Annual Meeting, Rep. int. Whal. Commn 45, 1995, 47 (Resolution 1994-9) [MA, Ann. 24]; Resolution on Special Permit
Catches by Japan in the Southem Hemisphere, Resolution 1994-10, App. 15, Chairman's Report of the Forty-Sixth
Annual Meeting, Rep. /nt. Whal. Commn 45, 1995, 47 (Resolution 1994-10) [MA, Ann. 25]; Resolution on Special
Permit Catches by Japan, Resolution 1996-7, App. 7, Chairman's Report of the Forty-Eighth Meeting, Rep. int. Whal.
Commn 47, 1997, 51-52 (Resolution 1996-7) [MA, Ann. 28]; Resolution on Special Permit Catches in the Southcm
Ocean by Japan, Resolution 1997-5, App. 5, Chairman's Report of the Forty-Ninth MeetingRep. int. Whal. Commn 48,
1998, 47 (Resolution 1997-5) [MA, Ann. 29]; Resolution on Special Permit Catches in the North Pacifie by Japan,
Resolution 1997-6, App. 6, Chairman's Report of the Forty-Ninth Annual Meeting, Rep. int. Whal. Commn48, 1998,48
(Resolution 1997-6) [MA, Ann. 30]; Resolution on Whaling under Special Permit, Resolution 1998-4, App. 4,
Chairman's Report of the Fiftieth Annual Meeting,Annual Report of the International Whaling Commission 1998, 43
(Resolution 1998-4) [MA, Ann. 31]; Resolution on Whaling undcr Special Permit, Resolution 1999-3, App. 4,
Chairman's Report of the Fifty-First Annual Meeting, Annua/ Report of the /11/ernationa/Whaling Commission /999,
52-53 (Resolution 1999-3) [MA, Ann. 32]; Resolution on Whaling under Special Permit in the Southem Ocean
Sanctuary, Resolution 2000-4, App. 1, Chairman's Report of the Fifty-Second Annual Meeting, Annual Report of the
International Whaling Commission 2000, 56 (Resolution 2000-4) [MA, Ann. 33]; Resolution on Whaling under Special
Permit in the North Pacifie Ocean, Resolution 2000-5, App. 1, Chairman's Report of the Fifty-Second Annual Meeting,
Annual Report of the International Whaling Commission 2000, 56 (Resolution 2000-5) [MA, Ann. 34]; Resolution on
Southcm Hemisphere Minke Whales and Special Permit Whaling, Resolution 2001-7, Ann. C, Chair's Report of the
Fifty-Third Annual Meeting, Amwal Report of the International Whaling Commission 200/, 57 (Resolution 2001-7)
[MA, Ann. 35]; Resolution on Expansion of JARPN Il Whaling in North Pacifie, Resolution 2001-8, Ann. C, Chair's
Report of the Fifty-Third Annual Meeting, Annua/ Report of the International Whaling Commission 2001, 57
(Resolution 2001-8) [MA, Ann. 36]; Whaling under Special Permit, Resolution 2003-2, Ann. F, Chair's Report of the
Fifty-Fifth Meeting,Annual Report of the International Whaling Commission 2003, 102 (Resolution 2003-2) [MA,
Ann. 38]; Resolution on Southem Hemisphere Minke Whales and Special Permit Whaling, Resolution 2003-3, Ann. G,
Chair's Report of the Fifty-Fifth Annual Meeting,Annual Report of the International Wha/ing Commission 2003, 103
(Resolution 2003-3) [MA, Ann. 39]; Resolution on JARPA Il, Resolution 2005-1, Ann. C, Chair's Report of the
Fifty-Seventh Annual Meeting, Annua/ Report of the International Whaling Commission 2005, 1 (Resolution 2005-1)
[MA, Ann. 40]; Resolution on JARPA, Resolution 2007-1, Ann. E, Chair's Report of the Fifty-Fifth Annual Meeting,
Annua/ Report of the International Whaling Commission 2007,90 (Resolution 2007-1) [MA, Ann. 41]. -36-
consistent, and establishes [the parties'] understanding regarding the meaning of the provisions of
66
the treaty" (emphasis added).
36. ln his Hague Academy lectures, Sir Elihu Lauterpacht described the relevance of the
practice of international organizations in the following terms:
"reference to usage and practice of this nature has formed an important feature of the
judicial approach to international constitutional interpretation; ... [you notice that the
word 'constitutional' is not heard only in the mouths of the young] the tlexibility and
potentiality for development which recourse to this mode of interpretation brings into
67
the life of international organizations are features of considerable value ... " •
Sir Elihu goes on to identify a "massive amount of judicial support" for reference to institutional
68
practice in treaty interpretation • This includes a number of cases in which institutional practice
was deemed relevant in the interpretation of substantive provisions imposing obligations on States;
that is, where the words in question established substantive rights and duties 69• For example, in the
Conditions of Admission Advisory Opinion, you made reference to the practice of the Security
Council in interpreting the scope of the discretion accorded to Members in voting under
70
Article 4 (1) ofthe Charter •
66
"Draft Articles on the Law of Treaties with Commentaries", Commentary to Article 38, Yearbook of the
lntemational Law Commission, /966, Vol. Il, p. 236.
67
E.Lauterpacht, "The Development of the Law of International Organization by the Decisions of International
Tribunals", 152 Recueil des Cours ( 1976-IV), pp. 377, 447.
6
KCompetenceof the lLO in regard to /ntemational Regulation of the Conditions of the Labour of Persans
Employed in Agriculture, Advisory Opinion of 12 August 1922, P.C./.J., Series. B, No. 2, pp39-41; Competence of the
lLO to Regulate lncidentally the Persona/ Work of the Employer, Advisory Opinion of 23 July 1926, P.C.l.J., Series B,
No. 13, pp. 19-20; Jurisdiction of the European Commission of the Danube, Advisory Opinion of 8 December 1927,
P.C./.J., Series B, No. 14pp. 57-58; Admission of aState to the United Nations (Charter, Art. 4), Advisory Opinion of
28 May 1948, /. C.J. Reports 1948,p 63 (Conditions of Admission); Reparationfor Injuries Suffered in the Service of the
United Nations, Advisory Opinion of Il April 1949, /.C.J. Reports /949, p. 179; The UNESCO Constitution case,
Annual Digest and Reports of Public lntemational Law Cases (1949), p. 335; Competence of Assembly regarding
admission to the United Nations, Advisory Opinion of 3 March 1950, /.C.J. Reports 1950, p. 9;South West Afi·ica
Voting Procedure, Advisory Opinion of 7 June 1955, l.C.J. Reports 1955; separate opinion of Judge Lauterpacht,
pp. 105 and 106; Judgments of the Administrative Tribunal of the lLO upon Complaints made against the UNESCO,
Advisory Opinion of 23 October 1956, l.C.J. Reports 1956, p. 91 (lLO Administrative Tribunal); Admissibility of
Hearings of Petitioners by the Committee on South WestAfi'ica, Advisory Opinion of 1 June 1956, l.C.J. Reports 1956;
separate opinion of Judge Lauterpacht, p. 43; Constitution of the Maritime Safety Committee of the flller-Govemmental
Maritime Consultative Organization, Advisory Opinion of 8 June 1960, /. C.J. Reports 1960, p. 168; Certain Expenses of
United Nations (Article /7,paragraph 2 of the Charter), Advisory Opinion of 20 July 1962, /.C.J. Reports 1962,
pp. 160-178 (Certain Expenses); Legal Consequencesfor States of the Continued Presence of South Afi'icain Namibia
(South West Afi'ica)notwithstanding Security Council Resolution 276 (/970), Advisory Opinion of21 June 1971, /.C.J.
Reports 1971, pp. 22, 36: cited in E Lauterpacht, "The Development of the Law of International Organization by the
Decisions oflnternational Tribunals", 152 Recueil des Cours (1976-IV) pp. 377,448-452.
6For example, Conditions of Admission,l.C.J. Reports 1948, p. 63; lLO Administrative Tribuna/,l.C.J. Reports
1956, p 91; Certain Expenses,/ .C.J. Reports /962, pp. 159-177.
°Conditions of Admission,l.C.J. Reports /948, p. 63. -37-
37. This judicial support also includes the separate opinion of Sir Hersch Lauterpacht in the
Voting Procedure Opinion-from one Lauterpacht to another-where he said:
"A proper interpretation of a constitutional instrument must take into account
not only the formai Jetter of the original instrument, but also its operation in actual
11
practice and in the light of the revealed tendencies in the /ife of the Organization."
(Emphasis added.) [A very "Lauterpachtian" phrase.]
38. The Guidelines are a textbook illustration of such institutional practice. An express
motivation of Contracting Governments in adopting the Guidelines was to develop a common
2
understanding amongst the parties asto the proper scope of Article vne •
39. Although the specificity of the criteria laid down in the successive instruments evolved
between 1985 and 2008, the criteria themselves- and the underlying concerns that they seek to
address- have remained substantively consistent.
40. Other resolutions on special permit whaling adopted by the IWC, including those
criticizing the Japanese programs, have also been substantively consistent. They have particularly
repeated three common concerns: first, that special permit whaling should not undermine
conservation measures, in particular, the moratorium and designated whale sanctuaries 73; secondly,
74
that special permit whaling should not assume the characteristics of commercial whaling ; and
75
thirdly, that research should be conducted using non-lethal techniques where possible •
11
South West Aji·ica- Voting Procedure,separate opinion of Judge Lauterpacht,I.C.J. Reports 1955p. 106. On
the question of resolutions of organs of international organisations adoptcd as subsequent practicc sec aIso P. Sands and
P. Klein,Bowel/'s Law of lntemalional lnslitutions, (London, Sctt & Maxwell, 2001), 11-047, p. 290; M Virally,
"Sources of International Law: Unilateral Acts of International Organisations" in Bcdjaoui (Ed.)International Law:
Achievements and Prospects (UNESCO, Paris; NijhotT,Dordrecht, 1991), pp. 241, 259; J A Frowcin, "The Internai and
External Effectsof Resolutions by International OrganizationsMax Planck Institutfiir ausliindisches o.ffentliches Recht
und Vülkerrecht,1989, p. 790.
72
1ntcrvention by the United States Delegation, IWC39, Verbatim Record of Second Plenary Session,
24 June 1987, IWC/39NR , 40.
138er/in InitiativeAnnex II, !WC Conservation Work (An Annotated Compilation, 1976-2001), pp. 28-29,
para.10 (Berlin Initiative) [MA, Ann. 37]; Resolution on Whaling under Special Permit in Sanctuaries,
Resolution 1995-8, Chairman 's Report of the Forty-Sevcnth Annual Meeting, Rep. illl. Whal. Commn 46, 46
(Resolution 1995-8) [MA, Ann. 27]; Resolution 1996-7 [MA, Ann. 28]; Resolution 1997-5 [MA, Ann. 29];
Resolution 1998-4 [MA, Ann. 31]; Resolution 1999-3 [MA, Ann. 32]; Resolution 2000-4 [MA, Ann. 33];
Resolution 2001-7 [MA, Ann. 35]; Resolution 2007-1 [MA, Ann. 41].
74Resolution on Scientific Permits, Appcndix 2, Chairman's Report of the Thirty-Seventh Annual MeetingRep.
illl. Whal. Commn 36, 1986, 26 (Resolution 1985-2) [MA, Ann. 7]; Resolution on Special Permits for Scientific
Rcseareh, Appcndix 2, Chairman's Report of the Thirty-Eighth Annual Meeting, Rep. in/. Whal. Commn 37, 1987, 25
(Resolution 1986-2) [MA, Ann. 43]; Resolution 2003-2 (MA, Ann. 38].
75
Resolution 1992-5; Resolution 1993-7 (MA, Ann. 21]; Resolution 1994-9 [MA, Ann. 24]; Resolution 1994-10
[MA, Ann. 25]; Resolution 1994-11 [MA, Ann. 26]; Resolution 1995-9 [MA, Ann. 46]; Resolution 1996-7 [MA,
Ann. 28]; Resolution 1997-5 [MA, Ann. 29]; Resolution 1997-6 [MA, Ann. 30]; Resolution 1998-4 [MA, Ann. 31];
Resolution 2000-5 [MA, Ann. 34]; Resolution 2001-8 [MM, Ann. 36]; Resolution 2003-2 [MA, Ann. 38];
Resolution 2003-3 [MA, Ann. 39]; Resolution 2005-1 [MA, Ann. 40]; Resolution 2007-1 [MA, Ann. 41]. -38-
41. The concern not to undennine IWC conservation measures counters Japan's contention
that Article VIII is "self-contained" or "free-standing"u'. The collective view of Contracting
Govemments is that Article VIII may only be invoked in a manner consistent with the object and
purpose of the Convention as a whole, and should not undermine the moratorium or the Southem
77
Ocean Sanctuary - which 1shall cali, for short, "the Sanctuary". This puts paid to any notion
that Japan's view of Article VIII as self-contained is shared by other Contracting Parties. As you
will see from the table in tab 57, most of the resolutions conceming the conduct of special permit
whaling operations, including the Guidelines, were adopted either by consensus or by substantial
78
majorities •
42. For example Resolution 1986-2 was adopted by consensus. lt set out the Commission's
79
first iteration of the minimum criteria to be met before whales were killed for research • Ail
Contracting Govemments, including Japan, accepted the principles embodied in this Resolution;
likewise the IWC rote in setting out the criteria under which special permits would be issued.
Japan devotes severa! pages of its Counter-Memorial to its purported compliance with these
criteria80•
43. The most recent iteration of the Guidelines- Annex P of 2008- was also agreed by
consensus. In discussions conceming the adoption of Annex P, Japan noted (tab 58) that it "was
actively involved in achieving this success and we like to express our commitment to follow this
81
process in reviewing the scientific research activities" •
44. Japan now contends that Australia's reliance on subsequent practice constitutes "an
unacceptable revision of Article VIII under the guise of interpretation" 82• But we do not invoke the
subsequent practice of the IWC for the purpose of modifying the terms of Article VIII. To the
76CMJ, paras. 111.6,7.8.
77See, e.g., Resolution 1986-2 [MA, Ann. 43]; Resolution 1995-9 [MA, Ann. 46]; Berlin Initiative, pp. 28-29,
para.10 [MA, Ann. 37].
78
E.g., Resolution 1995-8, adopted 23/7, with 1 abstention [MA, Ann. 27]; Resolution 1995-9, adopted 2117,
with 1 abstention [MA, Ann. 46]; Resolution 1996-7, adopted 21/7, with 1 abstention [MA, Ann. 28];
Resolution 2007-1, adopted 40/2, with 1abstention [MA, Ann. 41].
79Resolution 1986-2 [MA,Ann. 43].
8
°CMJ, para. 8.68.
KIIntervention by Japan,IWC60, Verbatim Record of Agenda Item 9 -Seientific Permits [0:07:42].
82CMJ, paras. 111.13-14,8.1. -39-
contrary, the resolutions serve to clarify the IWC's views as to the proper conduct of special permit
whaling, and hence its views on the proper interpretation and application of Article VIII.
45. This view is shared by the Contracting Governments which proposed the Guidelines.
For example, the UnitedStates, the proponents of Resolution 1987-l, stated (tab 59):
"[T]his resolution does not diminish the rights of Contracting Governments to
authorise their citizens to conduct scientific research in accordance with Article VIII.
Rather, the resolutions intended to ensure that the exercise of such rights is consistent
with the objectives and purposes of the Convention, of which Article VIII is a part,
and to develop a common understanding among the Parties to the Convention as to the
3
scope of Article VIII."K
46. In its commentary to Article 31 (3) (b), the ILC was explicit that it was not necessary to
show that ali parties to a treaty have engaged in a practicearder for it to qualify as subsequent
84
practice; they only need to have accepted it • Having accepted the application of paragraph 30
and the 1986 Resolution as in conformity with Article VIII, it is difficult to fathom how Japan can
now abject to other IWC resolutions which give content to the requirements of Article VIII in the
same manner.
47. As noted in a legal opinion by Professor Birnie, a decision of the IWC "taken through the
_v,-a.h0
normal voting procedures laid dawn in Article Vis determinative, and musqoe regarded as having
85
taken account of ali the relevant factors, guidelines and its own relevant practice in thiï'fi..'~
eMri"'C Q.«~"~&~.'"'a'to.\ca""'~l"\c..
48. Consistent with your Advisory Opinion in the Certain Expenses case, there is a
presumption that these institutional acts areultra vires. Resolutions adopted under Article VI,
"on any matters which relate to whales or whaling and to the objectives and purposes of this
Convention", are presumed to be valid. Japan has singularly failed to rebut that presumption.
3
x Intervention by the United States, IWC39, Verbatim Record of Second Plenary Session, 24 June 1987,
IWC/39/VR,40.
84
"Draft Articles on the Law of Treaties with Commentaries", Commentary to Article 27, Ye01·bookof the
International Law Commission, 1966,Il, p. 222.
5
x Chairman's Report of the Forty-Seventh Annual Meeting, Rep. int. Whal. Commn 46, 1996, p. 28; P Birnic,
"Opinion on the Legality of the Southern Ocean Sanctuary by the International Whaling Commission" [MA, Ann. 155].
6
x Certain Expenses ofthe United Nations (Article 17, paragraph 2, ofthe Charter), Advis01y Opinion of20July
1962, 1.C.J. Reports p.168. -40-
(iv) The role of the IWC in the implementation of Article VIII
49. By Japan's account, the IWC is a political body with no Jegitimate place in judging the
87
scientific attributes of proposed special pennits • But the IWC is the body tasked with ensuring
the proper and effective conservation of whales, and it has a perfect right to express its views under
Article VI.
50. As stated by the United Kingdom delegation in 1988, speaking on behalf of nine other
Contracting Governments (tab 60):
"We believe that the IWC is the body responsible for effective and appropriate
action relevant to ali management and conservation aspects of ali whale stocks. lt is
therefore ... incumbent on the IWC in discharging this very important responsibility
to ensure that ali proposed research, no matter who undertakes it, is appropriately
designed; that it clearly meets defined and accepted criteria which have been laid
down by the IWC; that the proposed research has an acceptable chance of producing
useful results; and in particular, if lethal methods are required, then the results of the
research are considered essential and the killing unavoidable." 88
51. In the exercise of this role, the IWC has adopted more than 25 resolutions since 1987,
which, on the basis of advice from the Scientific Committee, confirrn the view that certain
scientific permit programs proposed and implemented by Contracting Governments do not satisfy
xSee, c.g. CMJ, paras. 4.31, 4.60, 8.24 and 8.87.
xxiWC40, Vcrbatim Record of Fourth Plenary Session, 3 June 1988, IWC/40/VR, 81. -41 -
9
the criteria laid clown in the Guidelinesx • No Jess than 15 of these resolutions specifically address
90
the Japanese programs •
52. Japan attempts to dismiss the practice of the IWC as irrelevant to the interpretation of
91
Article Vlll • However, the practice of an organization is the retlection of the collective acts of its
92
members • The Guidelines and other relevant resolutions represent collective acts of the
Contracting Govemments, establishing their common understanding asto the scope of Article VIII
as contemplated by Article 31 (3) (b) of the Vienna Convention; they are authoritative evidence as
93
toits proper interpretation •
Conclusion
53. Mr. President, Members of the Court, 1 have outlined the development of Article VIII
from its origins in the 1937 Agreement to its subsequent development in practice. From
paragraph 30 and the resolutions adopted within the IWC- by consensus or by a substantial
9
HMA, Ann. 8, Resolution on Republie of Korea's Proposai for Special Permits, Appendix 2, Chairman's Report
of the Thirty-Ninth Annual Meeting, Report of the International Whaling Commission 38, 1988, 28; MA, Ann. 9,
Resolution on lcelandic Proposai for Scientific Catches, Appendix 3, Chairman's Report of the Thirty-Ninth Annual
Meeting, Report ql the International Whaling Commission 38, 1988, 28; MA, Ann. 10, Resolution 1987-4; MA,
Ann. Il, Resolution on Norwegian Proposai for Special Permits, Appendix 1, Chairman's Report of the Fortieth Annual
Meeting, Report of the International Whaling Commission 39, 1989, 30 (Resolution 1988-1); MA, Ann. 12, Resolution
on the lcelandic Proposai for Scientific Catches, Appendix 2, Chairman's Report of the Fortieth Annual Meeting, Rep.
int. Whal. Commn 39, 1989, 30-31; MA, Ann. 14, Resolution on the lcelandic Proposai for Scientific Catches, Appendix
1, Chairman's Report of the Forty-First Annual Meeting, Report of the International Whaling Commission 40, 1990, 35;
MA, Ann. 15, Resolution on Norwegian Proposai for Special Permits, Appendix 2, Chairman's Report of the Forty-First
Annual Meeting, Report of the International Whaling Commission 40, 1990, 36 (Resolution 1989-2); MA, Ann. 16,
Resolution 1989-3; MA, Ann. 17, Resolution on Norwegian Proposai for Special Permits, Appendix 1, Chairman's
Report of the Forty-Second Meeting, Report of the International Whaling Commission 41, 1991, 47 (Resolution 1990-1);
MA, Ann. 18, Resolution 1990-2; MA, Ann. 19, Resolution 1991-2; MA, Ann. 20, Resolution on USSR Proposai for
Special Permit Catches in the North Pacifie, Appendix 3, Chairman 's Report of the Forty-Third Meeting, Report of the
International Whaling Commission 42, 1992,47 (Resolution 1991-3); MA, Ann. 21, Resolution 1992-5; Resolution on
Norwegian Proposai for Special Permits, Appendix 6, Chairman's Report of the Forty-Fourth Meeting, Report of the
International Whaling Commission 43, 1993, 49 (Resolution 1992-6); Resolution 1993-7; MA, Ann. 22, Resolution on
Norwegian Proposai for Special Permits, Appendix 8, Chairman's Report of the Forty-Fifih Annual Meeting, Report of
the International Whaling Commission 44, 1994, 33; MA, Ann. 24, Resolution 1994-9; MA, Ann. 25, Resolution
1994-10; MA, Ann. 26, Resolution on Special Permit Catches by Norway, Appendix 15, Chairman's Report of the
Forty-Sixth Annual Meeting, Report of the International Whaling Commission 45, 1995, 48: MA, Ann. 28, Resolution
1996-7; MA, Ann. 29, Resolution 1997-5; MA, Ann. 30, Resolution 1997-6; MA, Ann. 31, Resolution 1998-4; MA,
Ann. 34, Resolution 2000-5; MA, Ann. 36, Resolution 2001-8; MA, Ann. 41, Resolution 2007-1.
9MA, Ann. 10, Resolution 1987-4; MA, Ann. 16, Resolution 1989-3; MA, Ann. 18, Resolution 1990-2; MA,
Ann. 19, Resolution 1991-2; Resolution 1992-5: MA, Ann. 21, Resolution 1993-7; MA, Ann. 24, Resolution 1994-9;
MA, Ann. 25, Resolution 1994-10; MA, Ann. 28, Resolution 1996-7; MA, Ann. 29, Resolution 1997-5; MA, Ann. 30,
Resolution 1997-6; MA, Ann. 31, Resolution 1998-4; MA, Ann. 34, Resolution 2000-5; MA, Ann. 36, Resolution
2001-8; MA, Ann. 41, Resolution 2007-1.
9WOJ, para. 14.
9E Lauterpacht, "The Development of the Law of International Organization by the Decisions of International
Tribunats", 152 Recueil des Cours (1976-IV), p. 459.
93
"Draft Articles on the Law of Treaties with Commentaries", Commentary to article 27, Yearbook of the
International Law Commission, /966, Vol. Il, p. 236. -42-
majority- and in particular from the Guidelines, emerge the minimum requirements that must be
met by a special pennit under Article VIII. These requirements reflect generally accepted scientific
practice. They are not optional extras, a code for the virtuous abstainer. They are requirements
under the Convention.
The PRESIDENT: Professor Crawford, unless you advise otherwise, this might be a good
moment 1think for you to pause so that the Court could enjoy teatime.
Mr. CRAWFORD: 1was going to suggest the words "requirement" and "caffeine" seem to
be closely related.
The PRESIDENT: Thank you. So, the hearing is suspended for 15 minutes.
The Court adjournedfrom 4.10 p.m. lo 4.35 p.m.
The PRESIDENT: Please be seated. The hearing is resumed and the floor is yours,
Professor Crawford.
Mr. CRAWFORD: Thank you, Sir.
2. Article VIII as a Limited Exception to the 1946 Convention
(a) The 1946 Convention as a régime
54.Mr. President, Members of the Court, 1tum to the second part of my presentation. By its
terms, Article VIII operates as a limited exception to the general regulatory régime established
under the Convention- far from a "free-standing provision" 9, it is part of a coherent regulatory
régime.
55. The ordinary meaning of the opening phrase of Article VIII- "[n]otwithstanding
anything contained in this Convention ... "- creates an exception to the general rules and
regulations goveming the conduct of commercial whaling. But Article VIII remains part of the
Convention, to be interpreted in the light of its abject and purpose.
94CMJ, para. 7.8. -43-
56. Japan's arguments as to this opening phrase are contradictory. On the one hand, it is said
to mean "[s]pecial permit whaling under Article VIII is entirely outside the scope of the ICRW. lt
95
is not regulated by or under the ICRW, except by Article VIII itself." On the other hand, Japan
accepts that Contracting Governments must act in furtherance of the Convention's abject and
purpose in implementing a special permit program 96• These propositions cannat bath hold. Having
conceded that the abject and purpose of the Convention are relevant to the implementation of a
special permit whaling program, Japan cannat maintain that special permit whaling is not affected
by the rest of the Convention: that Article VIII is a tloating world, ali to itself, like a wood black
by Utamaro or Hiroshige.
57. The characterization of Article VIII as an exception to the Convention régime has
evident implications for interpretation. Exceptions are to be construed narrowly and in accordance
97
with their terms • Reliance on Article VIII must be limited so as not to undermine the operation of
the primary obligations that reflect the abject and purpose of the Convention. In this case, the
principal conservation measures adopted by the IWC in giving effect to its mandate- including
the Moratorium and the Sanctuary- are of obvious relevance.
58. Securing the effectiveness of the Convention, these primary obligations and its abject
and purpose, calls for a narrow interpretation of Article VIII. As you stated in Libya/Chad: [a]ny
other construction would be contrary to one of the fundamental principles of interpretation of
98
treaties, consistently upheld by international jurisprudence, namely that of effectiveness" •
59. Japan's argument that the provisions of Article VIII are "free-standing" 99 would
represent a return to unilateral whaling. An indeterminately broad "scientific research" exception
95CMJ, para. 7.8.
96CMJ, para. 8.13.
97See, e.g., GATT: Report of the Panel on "Canada- Import Restrictions on lee Cream and Yoghurt",
L/6568-36S/68, para. 59; Report of the Panel on "US- Countervailing Duties on Fresh, Chilled and Frozcn Pork from
Canada", DS7/R- 38S/30, para. 4.4; Report of the Panel on "Norway- Procurcment of To11Co11ectionEquipment",
GPR.DS2/ R, para. 4.5. WTO: Report of the Panel on "Indonesia- Certain Mcasurcs Affccting the Automobile
Industry", WT/DS54/R, para. 5.238; Report of the Appe11ateBody on "United States-Import Prohibition of Certain
Shrimp and Shrimp Products", WT/DS58/AB/R, paras. 156-157. ECtHR: Guzzardi v.lta(v(App. No. 7367/76), ECHR
(1990)Series A. No. 39, 36,para. 98, citinWintenvelp v. The Netherlands(App. No. 6301/73), ECHR (1979) Series A.
No. 33, 16, para. 37. See alsoVogt v. Germany (App. No. 17851/91), Judgment of26 September 1995, para. 52; The
Observer and the Guardian v. The United Kingdom (App. No. 13585/88), ECHR (1991)Series A, No. 216, para. 59.
9HTerritorialDispute (Libyan Arab Jamahiriya/Chad), Judgment, l.C.J. Reports 1994p. 25, para. 51.
99CMJ, para. 7.8. -44-
that could be invoked and defined at the discretion of one or indeed ali of the 89 Parties would
entirely defeat the Convention régime.
(b) Japan 'soriginalist tllesis
60. Japan contends that a number of key conservation measures that now form an integral
part of the Convention régime in its present form cannat serve as context in interpreting
Article VIII 100• According to Japan, Article VIII (4) is the only relevant context in determining the
101
proper scope of Article VIII • But the Moratorium and Sanctuary are an integral part of the
102
Convention • The "context" for interpretation under Article 31 (1) of the Vienna Convention
103
includes the treaty as a whole • Article VIII must be interpreted by reference to the Convention
régimeas it has developed to the present day, including these central conservation measures. There
is not an archaic convention including Article VIII and a modem convention excluding it.
(c) Japan's reliance on a "margin of appreciation"
61. Japan enthusiastically invokes the notion of "margin of appreciation" to broaden the
already broad discretion it accords itself under Article VIII. lt admits that a special permit whaling
operation may be challenged on the ground that its authorization is "arbitrary or capricious", a
phrase for which it offers no authority 10• But it questions whether the Court has any further power
to decide whether "JARPA II has been designed in a manner that is completely consistent with
105
Article VIII .. ." • Japan contends that Contracting Govemments are accorded a large margin of
discretion under Article VIII, a broad power of appreciation with respect bath to the need for
10
°CMJ, paras. 8.54-8.56.
101
CMJ, paras. 7.17-7.22.
102
Article 1(1), 1946 Convention.
103
"Draft Articles on the Law of Treaties with Commcntaries", Commentary to article 27, Yearbook of the
International Law Commission, 1966, Vol. Il, 221. Sec also R Jennin gs & A Watts (Eds), Oppenheim 's International
Law (9'hEdn), Volume 1: Peace (The Bath Press, Avon 1992), 1273; 1Sinclair, The Vienna Convention on the Law of
Treaties (2"' Edn) (Manchester University Press, 1984), 127; A Aust, Modern Treaty Law and Prac:tice (2nd Edn) (CUP,
2007), 235. Competence of the lLO in regard to International Regulation of the Conditions of the Labour of Persans
Employed in Agriculture, Advisory Opinion of 12 August 1922, P.C.J.J., Series. B, No. 2, 23; Case of the Free Zones of
Upper Savoy and the District of Gex, P.C.I.J., Series. AIB, No. 46, 140; Air Transport Services Agreement Arbitra/ion
(USA v.France) (1963) 38 ILR 182, 228-9.
10CMJ para. 9.7.
10CMJ para. 9.7. -45-
research and the conditions attached to permits, including limits on the number of whales to be
62. In response, I would make two points. First, Australia's daims concern the
interpretation and application of the Convention- in particular, Article VIII. You have confirmed
in numerous cases that it is your function to interpret and apply the provisions of the treaty to
107
determine whether a State has complied with its obligations • It is ultimately for this Court to
decide whether a whaling program does or does not fall within Article VIII 10•
63. Secondly, the margin of appreciation is not, as Japan suggests, an "axiom of international
109
law and relations" • Its suggestion that this notion is a "sensible safeguard against unwarranted
110
accusations of bad faith" is entirely unfounded • There is no case where the Court has expressly
accepted or applied a general "margin of appreciation" test. In Oi/ Platforms, you explicitly
rejected this latitudinarian idea 111•
64. Japan's assertion of a wide "margin of appreciation" would undermine the operation of
the regulations adopted by the IWC to ensure the effective conservation and management of whale
populations.
65. To conelude on this point, the meaning of the phrase "for purposes of scientific research"
and the question as to whether a special permit whaling operation is authorized and conducted for
that purpose is not left to the discretion of Japan or any other individual Contracting Government.
Nor is this question one to which a "margin of appreciation" test may properly be applied.
(d) Relevant ru/es of international law
66. 1 mentionM briefly relevant rules of international law. In accordance with
Article 31 (3) (c) of the Vienna Convention, a number of rules of international law are relevant to
106
" CMJ, paras. 61, 9.7 and 9.21; WO~pa3r 7.a.
107
Scc, c.g., Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, /.C.J.
Reports 2009, p. 213; LaGrand (Germany v. United States of America), Judgment, /.C.J. Reports 200/, p.466; Oi/
Platforms (/slamic Republic of Irav.United States of America), Judgment, /.C.J. Reports 2003p.161.
toHTothe contrary, sec, .c.g., CMJ, para. 9.7; WOJ, paras. 54, 66 and 70.
109
CMJ, para. 9.16.
11
°CMJ, para. 9.16.
111
Oi/ Platforms (lslamic Republic of Iranv. United States of America), Judgment, 1.C.J. Reports 2003,p. 196,
para. 73. -46-
the interpretation of Article VIII. The relevance of these rules to questions of treaty interpretation,
including developments in them since the treaty was concluded, is weil recognized 11• For
example, in Oil Platforms, you confirmed that "[t]he application of the relevant rules of
international law relating to this question ... forms an integral part of the task of interpretation",
and thus you had regard to "relevant rules of international law on the use of force" in interpreting
the bilateral Friendship Treaty between Iran and the United
Professor Boisson de Chazournes has already reviewed the relevant rules and principles of
international law, and 1will not repeat what she has said.
(e) Conc/11sion
67. Mr. President, Members of the Court, to summarize on this second point, Article VIII is
not a "free-standing" or "self-contained" provision left to the discretion of Contracting
Governments. lt is not for a Contracting Government to decide that it is free to issue special
permits according to its own asserted view that the whaling operation so authorized is "for
purposes of scientific research". lt is ultimately for this Court to decide whether a whaling
program satisfies Article VIII, in light of relevant principles of international law and the essential
characteristics of scientific research.
3. The three requirements of Article VIII
68. 1 turn then to the third part of my presentation. The express terms of Article VIII (l)
require that special permits may only be issued for the conduct of whaling operations "for purposes
of scientific research". A plain reading of this phrase reveals two separate but related
requirements. The "scientific research requirement" means that the activity authorized by the
permit must properly be characterized as "scientific research". The "purpose requirement" requires
that a special permit authorize whaling "for purposes of scientific research", and not for other
purposes. 1will deal with these in turn.
112
Legal Consequencesfor States of the Continued Presence of South A/rica in Namibia (South West Aji'ica)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 197/,31, para. 53;
Gabéikovo-NagymarosProject (Hungmy/S/ovakia), Judgment, J.C.J. Reports /99pp. 67-68, para. 112.
110il Platforms (Jslamic Republic of Iv.nUnited States of America), Judgment, J.C.J. Re2003, p. 182,
para. 41. -47-
(a) Tite "scientific research requirement" ·,\-aSIC.)
69. The Guidelines lay dawn the minimum criteria for special permits. Consistent with these
criteria and with generally accepted scientific practice, a research program "for purposes of
scientific research" in the context of the Convention must possess four essential characteristics 114•
These are cumulative 115•
70. First, it must possess defined and achievable objectives that atm to contribute new
knowledge important to the conservation and management of whale stocks. The research
proponents should set out testable hypotheses, defined with sufficient precision to make it possible
116
to obtain answers using available methods • A program that Jacks a testable hypothesis may
117
collect considerable amounts of data, but it is not a program "for purposes of scientific research" •
71. The Guidelines emphasize the need for special permit whaling under Article VIII to
contribute knowledge that is important to the conservation and management ofwhalesm. lt is not
sufficient that information gathered under Article VIII permits is ofpotential utility in sorne general
sense. We alllike to know more about the universe, but in wanting that we do not necessarily act
as scientists. The Guidelines confirm that the research must be "required" or "necessary" for
119
management of relevant whale stocks • In his Expert Statement, Professor Wallee contends that it
is a "fundamental misunderstanding" to suggest that lethal research under Article VIII must be
120
motivated by its importance to the conservation and management of whale stocks • He asserts
that the 1986 Resolution included the following criterion for assessment of the proposed research:
"the research addresses a question or questions that should be answered in arder to conduct the
11Mangel, An Assessment of Japanese Whale Research Programs Under Special Permit in the Antarctic (JARPA,
JARPA Il) as Programs for Pwposes of Scientific Research in the Context of Conservation and Management of Whales
(Original Expert Opinion), paras. 1.3, 4.38 - 4.39 [MA, App. 2]; Mange!, Supplement to An Assessment of Japanese
Whale Research Programs Under Special Permit in the Antarctic (JARPA, JARPA Il) as Programs for Pwposes of
Scientijic Research in the Collfext of Conservation and Management of Whales (Supplementmy Expert Opinion),
paras. 1.2-1.4.
11Mangel, Supplementmy Expert Opinion, para. 1.3.
11Mangel, Original Expert Opinion, paras. 4.9 - 4.13 [MA, App. 2]. Mange!, Supplementmy Expert Opinion,
paras. 3.1-3.10; Mangcl, Response to "Scientific review of issues raisby the Memorial of Australia including its two
Appendices" by Professor Lars Walloe, paras. 2.1-2.7.
11
Mange!, Supplemellfary Expert Opinion, para. 3.1O.
11
KMA,Ann. 43, Resolution 1986-2; MA, Ann. 46,Resolution 1995-9; MA, Ann. 47,Resolution on Special
Permits for Scientific Research, !WC Resolution 1999-2, App. 3, Chairman's Report of the Fifty-First Annual Meeting,
Amwal Report of the lllfemational Whaling Commission 1999, 52 (Resolution 1999-2); MA, Ann. 49,Ann. P.
11MA, Ann. 43,Resolution 1986-2; MA, Ann. 47, Resolution 1999-2.
12Walloe, Scientific Review of Issues Raised by the Memorial of Australia including ifs two Appendices,
9 April2013 (Walloe, Expert Statement), 13. -48-
comprehensive assessment orto meet other critically important research needs" 121• But the relevant
criterion in the 1986 Resolution, adopted by consensus, actually requires an assessment as to
whether: "the proposed research is intended, and structured accordingly to contribute information
122
essential.for the rational management of the stock" (emphasis added).
72. That Resolution was supplemented by Resolution 1987-1, Whiel'lils the correct citation
"' w"''ck
for the criterion quoted by Professor Wallee. What he does not tell you is that the criteria in the
w~
1987 Resolution{s"upplemental to those specified in 1986- Resolution 1987-l * expressly states
~.cl
that a special permit still AM to satisfy the criteria specified in the 1986 Resolution. This is
confirmed by the IWC's approach in resolutions regarding special permit whaling programs, which
expressly note that the proposed research does not satisfy al/ of the criteria specified in bath the
1986 Resolution and the 1987 Resolution 123•
124
73. The relevant text is now contained in Resolution 1995-9 , as supplemented by
Resolution 1999-2. lt is required that the Scientific Committee should consider whether the
information is: "required for the purposes of management of the species or stock being
125
researched" •
74. The IWC's records confirm that it was a deliberate decision to set a high thresho1d-
126
Article VIII research must be "required" or "essential" for management •
75. The IWC resolutions addressed to specifie programs confirm this high threshold. In
particular, the 1990 12, 1991 128, 1992 12, 1993 130 and 1994 131Resolutions in respect of JARPA,
121Wall0e, Expert Statement, 13.
122MA, Ann. 43, Resolution 1986-2.
123See, e.g., MA, Ann. Il, Resolution 1988-1; MA, Ann. 12, Resolution 1988-2; MA, Ann. 15, Resolution
1989-2; MA, Ann. 16, Resolution 1989-3; MA, Ann. 17, Resolution 1990-1; MA, Ann. 18, Resolution 1990-2; MA,
Ann. 19, Resolution 1991-2; MA, Ann. 20, Resolution 1991-3; MA, Ann. 21, Resolutions 1992-5, 1992-6 and 1993-7;
MA, Ann. 22, Resolution 1993-8; MA, Ann. 24, Resolution 1994-9; MA, Ann. 25, Resolution 1994-10; MA, Ann. 26,
Resolution 1994-11.
124MA, Ann. 46, Resolution 1995-9.
125MA, Ann. 47, Resolution 1999-2.
126See, e.g., Intervention by the United States, IWC49, Plenary Day 4, 23 Oetober 1997, 133.
127MA, Ann. 18, Resolution 1990-2.
12HMA,Ann. 19, Resolution 1991-2.
129Resolution 1992-5.
IJ0MA, Ann. 21, Resolution 1993-7.
131MA, Ann. 25, Resolution 1994-10. -49-
expressly noted that, although the proposed research addressed "general" or "certain" research
needs, JARPA did not satisfy the criteria specified in the Guidelines in that the proposed research
was not structured so as to contribute information "essential" or "required" for management of
relevant whale stocks. The 1997 Resolution emphasized: "the JARPA programme does not
address critically important research needs for the management of whaling in the Sou/hern
132
Ocean" (emphasis added).
76. The second essential characteristic is that the program must use appropriate methods
which are likely to achieve the stated objectives, which are capable of doing so.
77. The fundamental principle worthy of emphasis here is that, when conducting scientific
133
research, the killing of animais is only permissible where it is unavoidable • A program of
science should embrace new non-lethal technologies, rather than summarily dismissing them so as
134
to continue lethal business as usual • If the use of lethal methods is unavoidable, the number of
animais killed should be limited to those necessary to conduct the research 13•
78. The Guidelines confirm that this principle, that lethal means may only be used where the
136
information sought could not be obtained using existing data, or by non-lethal means • Japan's
attempts to adopt a lower threshold for use of lethal methods were explicitly rejected by the IWC.
In particular, Japan attempted to suggest that the appropriate test should be whether a research
question cannot "practically" be answered using non-lethal means. 1 quote- this is from Japan
(tab 61):
132
MA, Ann. 29, Resolution 1997-5.
133MA, App. 2, Mange!, Original Expert Opinion, para. 4.35; Statement by Dr Nick Gales, para. 3.11. Sec also,
e.g.,Guide/ines for the treatment of marine mammals in field research, Society for Marine Mammalogy, 25 (3) Marine
Mammal Science 725 (July 2009), 736; Annex Il to the Protoco/ on Environmental Protection to the Antarctic Treaty:
Conservation ofAntarctic Flora and Farma, Madrid, 4 October 1991, 30 /LM 1476 (entered into force 14 January 1998),
Art. 3;Agreement on the Conservation of Seals in the Wadden Sea, 16 October 1990, UN Reg. No. 48123 (entered into
force 1 October 1991), Art. VI (2); Convention on the Conservation of European Wildlife & Natura/ Habitats,
19 September 1979, CETS No. 104 (entered into force 1 ~une 1982), Art. 9; ACCOBAMS, Art. 2 (2); Convention for
the Conservation of Antarctic Seals, 1 June 1972, Cmnd. 7209 Treaty Series 45 (1978) (entered into force
Il March 1978), as clarified by the parties to the Convention in 1988, Report of the 1988 Meeting to Review the
Operation of the Conventionfor the Conservation of Antarctic Seals, London, 12-16 September 1988, para. 17.
134Mangel, Supplementary Expert Opinion, para. 5.14.
135As to the internationally accepted tenet governing the conduct of research on animais, widcly known in
scientific circles as the "Three Rs" (replacement, reduction and refinement) sec W. Russell and R. Burch, The Princip/es
of Humane Experimental Technique (Allen & Unwin, 1959); World Organisation for Animal Health (OIE), Terres/rial
Animal Health Code, 19th edition, May 2010, Chap. 7.8, Use of Animais in Research and Education, esp. Art. 7.8.3.
116
MA, Ann. 43, Resolution 1986-2; MA, Ann. 44, Resolution 1987-1; MA, Ann. 46, Resolution 1995-9; MA,
Ann. 47, Resolution 1999-2. -50-
"In detennining whether or not non-lethal research techniques could achieve the
objectives of the research, economie feasibility of the non-lethal techniques as weil as
the reasonableness of the time required to collect relevant data using the techniques
137
must also be considered."
That suggestion was resoundingly dismissed by the IWCm.
139
79. The substantial majority of the Contracting Govemments- including Australia ,
EC.
140 141 142 143 144
New Zealand ,South Africa ,the ~ , the United States and the Buenos Aires Group -
share the view that the conduct of lethal research is unnecessary, on the basis that the infonnation
currently needed to improve conservation and management of whale populations can be collected
through non-lethal means.
80. The third essential characteristic for the purposesthe'~ cesiareh retuiem eni lc
is that there must be periodic independent peer review of proposais and results and adjustment in
145
response to suchreview •
81. The necessity for an independent and impartial process of peer review would seem to be
uncontroversial. In the words of the United States Supreme Court, "submission to the scrutiny of
146
the scientific community is a component of 'good science"' • Participation in this process also
implies an acceptance by the research proponents that the outcome of the peer review, and any
criticisms or concems expressed will be given due consideration.
137
Comment by the Japanese Govemment to the Working Group on Special Permits for Scientific Research,
TC/38/SPI C,p. 3.
138
Japanese amendments proposed to the 1987 Resolution: Japanese Amendment to the Proposed Resolution on
Scientific Research Programs contained in the Document IWC/39/24 Rev.2. The relevant amendment was rejected by
the Commission 6 votes in favour, 21 agai5abstentions: IWC39, Verbatim Record of Second Plenary Session,
24 June 1987, IWC/39NR, pp. 59 and 72.
u9See, e.g., IWC51, Verbatim Record ofPienary Session of26 May 1999, 153.
140
See, e.g.,IWC52, Plenary Session of5 July 2000, 146-7.
141
IWC64, Verbatim Record of Agenda Item 14- Scientific Permits, Wednesday, 4 July 2012, Moming Session
[02:47:56].
142 cre.
1ntervention by Slovenia (on behalf of the ~).IWC60, Verbatim Record of Agenda Item 9 - Scientific
Permits0:15:38].
143
Intervention by the United States, IWC61, Verbatim Record of Agenda Item 9. 2b - Scientific permits -
Commission discussions and action arising, United States
144
'Members of the 'Buenos Aires Group' protes! against Japan's new whaling campaign in the Southem Ocean
Sanctuary and urge the Japanese govemmentend the so-called "scientific whaling"', Press Release No. 022/13,
4 February 2013.
145
Mangel, Original Expert Opinion, paras. 4.17-4.26 [MA, App. 2]; Mange(, Supplementwy Expert Opinion,
paras. 3.29-3.32.
146
Daubert v. Me1.,.ellDow Pharmaceuticals, /ne. 509 US 579 (1992), p. 593. - 51 -
82. The importance of peer review and periodic review of results has been recognized by the
IWC, in particular in Annex P which creates a process of independent review, under which
scientists independent of the Scientific Committee conduct an initial review of scientific permit
proposais, thus removing the research proponents, such as Japan, from these initial deliberations 147•
83. The Guidelines confirm that Contracting Governments should take account of the
14
comments and criticisms of the Scientific Committee K.
84. 1 turn to the fourth essential characteristic- the research must be designed to avoid
149
adverse effects on the stocks being studied •
85. Consistent with the precautionary approach, this requires the proponents to show that the
proposed research will not adversely affect the relevant whale stocks. Again, this requirement has
150
consistently been recognized by the Scientific Committee and the IWC •
86. In its Counter-Memorial, Japan does not even attempt to address these characteristics or
to propose any alternative to them. lnstead, it is disdainful. The best it could come up with having
had Professor Mangel's report for up to 10 months is the contention that Australia has merely hired
one expert, putting forward his report as evidence of a general "scientific truth" 151•
87. But the characteristics 1 have mentioned are reflected in contemporary international
152
standards governing the conduct of scientific research • They are not idiosyncratic; they are not
an invention of Professor Mangel. Japan concedes that these sources support "uncontroversial
propositions" concerning the conduct of scientific research 153• lt has recognized the importance of
establishing common standards governing the conduct of scientific research, "to avoid that
Contracting Parties would establish such thresholds, individually, which could undermine the
147
Ann. P [MA, Ann. 49].
14
xResolution 1985-2 [MA, Ann. 7]; Resolution 1986-2 [MA, Ann. 43].
149
Mangcl, Original Expert Opinion, paras. 4.27-4.29 [MA, App. 2].
150
Schedule, para. 30; Ann. L [MA, Ann. 42]; Resolution 1987-1 [MA, Ann. 44]; Ann. P [MA, Ann. 49].
15CMJ, paras. 9.9-9.12.
152See, e.g., "Assessment Framework for Scicntific Rescarch lnvolving Ocean Fertilisation", adoptcd at the
32nd Consultative Meeting of Contracting Parties to the London Convention and 5th Meeting of Contracting Parties to
the London Protocol under Resolution LC-LP.2(2010), 14 Oct. 2010; Resolution 4.18 "Guidclincs on the granting of
exceptions to Article Il, paragraph 1, for the purpose of non-lethal in situ rescarch in the Agreement arca", adopted by the
Fourth Meeting of the Contracting Parties to ACCOBAMS, Monaco, 9-12 Nov. 2010,
ACCOBAMS-MOP4/201 O/Res4.18.
153CMJ, para. 9.12. -52-
efficacy of [these standards]" 154• For example, Japan was an active participant in the Drafting
Group for the Assessment Framework for Scientific Research involving Ocean Fertilization,
adopted by the Contracting Parties to the London Convention and Protocol in October 20lO. How
our international law is ramified these days. The Assessment Framework identifies four threshold
criteria that a proposed activity should have to meet "proper scientific attributes" 155•
156
88. Japan denies that these "essential characteristics" are mandated by law • But as with
any undefined term in a treaty, the term "scientific research" must be given its ordinary meaning.
Constituting, as they do, "uncontroversial" or "generally accepted" principles of scientific practice,
the essential characteristics of a programme for purposes of scientific research give content to the
ordinary meaning of the term in Article VIII.
(b) The ''purposerequirement"
89. I now tum to the second requirement -the "purpose requirement". This may be simply
stated as follows. A good faith interpretation and application of Article VIII, requires that any
special permit which authorizes whaling "for purposes of scientific research" do so for that purpose
and not for any other purpose or purposes. That is, special permit whaling must be genuinely
motivated by the purpose of conducting scientific research, and not by any other purposes. It is not
there simply as a front.
90. It is not sufficient that the conduct of scientific research is a secondary or incidental goal.
Rather, in accordance with your reasoning in Costa Rica v.Nicaragua, the express statement of the
purpose for which permission in Article VIII is accorded- the conduct of "scientific research"
157
implies the exclusion of other purposes • And you rightly rejected my argument in that case that
it did not.
15Report of the Thirty-Second Consultative Meeting of Contracting Parties to the London Convention and the
Fifth Meeting ofContracting Parties to the London Protocol, LC/32/15, para. 4.2.2.
15"Assessment Framework for Scientific Research lnvolving Ocean Fertilisation",adopted at the
32nd Consultative Meeting of Contracting Parties to the London and 5th Meeting of Contracting Parties to the London
Protocol under Resolution LC-LP.2 (2010), 14 Oct. 2010, para 2.2.
156
CMJ, para. 9.12.
15Dispute regarding Navigaliona/ and Related Rights (Costa Ricav. Nicaragua), Judgmenl, /.C.J. Reports 2009,
p. 241, para. 61. -53-
91. The "scientific research requirement" and the "purpose requirement" are cumulative.
Even if the "scientific research requirement" is satisfied, a permit does not fall within Article VIII
unless the real reason and basis for the activity so authorized "scientific research".
92. Moreover, these requirements are intrinsically linked. In assessing the actual purpose of
a Contracting Govemment in issuing a special permit it is instructive to have regard to the design
and implementation of the whaling programme, as weil as any results obtained.
93. For example, if the relevant proposai is structured in such a way that it is highly unlikely
that itwill generate any new information required for the proper conservation and management of
whales, it cannot be said that the reason for conducting the whaling programme is "scientific
research".
94. It is also relevant to have regard to any results obtained. For example, if a research
programme is conducted over a period of years, killing thousands of whales in the process, and the
results are inconclusive, unreliable or not important to the conservation or management of whales,
this would suggest that the real motivation in authorizing the programme was not the conduct of
"scientific research", but something else.
(c) The requirement ofgoodfaith
95. Mr. President, Members of the Court, there is a third requirement, the requirement of
good faith. The good faith application of Article VIII requires that Contracting Govemments have
due regard to the views of the IWC regarding the proper conduct of special permit whaling. This
obligation flows from the duty of Contracting Govemments to co-operate in good faith to promote
the objects and purposes of the Convention, in particular through the IWC.
96. In the WHO Agreement Advisory Opinion, you recognized that the obligation to
co-operate in good faith is "the very basis of the legal relations" between an international
15
organization and its member States \ emphasizing that the obligation to co-operate in good faith
must be the "paramount consideration" for the organization and its member Stat 1~e. s
1K!nte1pretationof the Agreement o25March 1951 between the WHO and Egypt, Advis01y Opinion,
/.C.JReports1980, p95,para. 48.
1/ntelpretation of the Agreement 25 Marc·h 1951 between the WHO and Egypt, Advismy Opinion,
1.C.JReports1980, p. 96, para. 49. -54-
97. The paramount consideration of Contracting Governments, including Japan, must be to
co-operate in good faith to further the IWC's primary abject and purpose of ensuring the
conservation and recovery of whale populations. The Solicitor-General will deal in sorne detail
with this paramount consideration on Friday. 1 leave you to await his words with ali due
anticipation.
4. Conclusion
98. Mr. President, Members of the Court, 1conclude. lt is true that the text of Article VIII is
the same today as it was in 1946. But this does not signify that its ordinary meaning has remained
static through that60-year period. lts proper interpretation in accordance with Articles 31 and 32
of the Vienna Convention must be informed by its current content and context.
99. In particular, five key propositions must inform the interpretation and application of
Article VIII:
first, lethal research permits under Article VIII are "special". They are only to be issued in
special circumstances, and in a manner that does not undermine the effectiveness of the
Convention;
secondly, Article VIII is not self-judging. Its scope and application are a matter for your
determination;
thirdly, any special permit whaling operation conducted under Article VIII ( 1) must satisfy the
four essential characteristics of the "scientific research requirement";
fourthly, a programme "for purposes of scientific research" must be conducted with the
genuine motivation of conducting scientific research, and not for other purposes entirely; and
fifthly, Contracting Govemments must apply Article VIII in good faith, having due regard to
the views of the IWC.
Mr. President, Members of the Court, that finishes this exposition of Article VIII. Thank
you for your attention.
The PRESIDENT: Thank you, Professor Crawford. 1give the floor to Professor Sands to
continue. You have the floor, Sir. -55-
Mr. SANDS:
JAPAN'S "SCIENTIFIC" WHALING IN THE SOUTHERN OCEAN (FIRST PART)
1. Mr. President, Members of the Court, it is an honour to appear before the Court on behalf
of Australia in a case that raises issues of such significance and interest. lt is not every case, after
ali, that allows a court, and counsel who appear before it, the privilege of involvement in so
significant a matter as the meaning of "scientific research", and its application to so iconic a
species as the whale.
2. My colleagues have addressed you on the international rules that are set forth in the
1946 Convention. My task is to assist the Court, by taking its Members more closely to what Japan
is actually doing and seeking to justify as being "for purposes of scientific research". This requires,
in our submission, a careful assessment of the facts and of the evidence. 1 apologize in advance
that 1am going to invite you to familiarize yourselves and to roll up your s1eeves in so doing with
various body parts ofwhales, including the ear plug, stomach contents and blubber thickness.
3. My presentation over the course of this afternoon and tomorrow morning will be in six
parts. lt is,in effect, an introduction to the expert evidence of Professor Mangel and Dr. Gales,
from whom you will hear tomorrow and to whom you will be able to address questions ifyou wish.
These submissions that 1am making today and tomorrow morning are contextual: they provide a
framework against which the Court will be able to see the real differences that exist between the
Parties on these issues of fact and evidence.
4. 1will begin today with Part 1,a summary ofwhat JARPA II program actually involves, so
that you may understand the location and scale of the program, the species that are taken, the
means by which the whales are kilied, and the storage and subsequent use of body parts that Japan
invites you to treatas "scientific" activity. 1will then tum to a second part, addressing the question
of how others have characterized Japan's activities and, in our submission, this demonstrates
clearly the manifest absence of support for Japan's case as put by the IWC and its Scientific
Committee. 1will then break, with your permission, and resume tomorrow morning, moving on to
a third part of this presentation, setting out the essential characteristics which Australia says must
be met for activity to be characterizedas "scientific research". The fourth part will then address the -56-
purported objectives of the JARPA Il program: 1will take you to those objectives and 1will show
you that they are so vague and so general that they are unachievable. 1will also show you that they
are not founded on any testable hypothesis and do not permit of measurable assessment. For these
reasons alone, we say, it is plain that they are incapable of being characterized as "scientific
research". The fifth part of this presentation will hone in on three key elements, not exclusive, of
the JARPA Il program which confirm that the activity 1am going to describe to you today is not
"scientific research". Firstly, 1will take you to Japan's arbitrary and unprincipled approach to the
setting of sample sizes, that is to say, the number of whales it seeks to kili and does kill each year;
second! y, Japan's commitment to killing, a prerequisite of its activity, irrespective of whether it is
necessary to contribute to scientific knowledge; and thirdly, the complete absence of peer review
of JARPA Il. 1will then set out some brief conclusions.
Part 1: The JARPA II program
5. Let me begin with the JARPA Il program. Mr. President, Members of the Court, like its
predecessor, JARPA II takes place in an area of the Southem Ocean that is entirely within the
Southem Ocean Sanctuary, ofwhich you have already heard. That Sanctuary was created in 1994,
and it produced an immediate objection by Japan in respect of minke whales. Within the Sanctuary
160
al/ commercial whaling activity is prohibited • (Tab 62) [Screen on]. On your screens you can
see the area of the Sanctuary in a slightly darker blue. (Tab 63) [Show sub area] Now, in red at the
bottom, areas marked A, B and C, you can see the areas within which the JARPA II program
operates. The totality of this area A, B and C, spans a breadth of some 4,560 nautical miles- so it
161
is a very extensive area- of ocean at a latitude of around 65 degrees south • That area has not
been chosen by accident: it overlaps almost exactly with the whaling grounds within which Japan
conducted commercial whaling until 1988. You can now see these grounds on the screen (tab 64)
[show that area on same map], with points of commercial capture marked by a dot. That, I think,
makes the point rather clearly. And, to be clear, the global moratorium on commercial whaling-
adopted in 1982- also applies to whaling activities in this area. [Map off].
16MA, paras. 2.81-2.88.
16MA, para. 3.53 and Fig.5. -57-
6. JARPA Il is a program that is dedicated to the killing of three species of baleen whales:
the Antarctic minke whale (tab 65) [image on screen]- which you can see on your screen with the
outline image to give you a sense of size with a human image of someone swimming alongside it;
the humpback whale (for which permits are issued but none have been taken) [next image] and the
fin whale, which is the largest of the three [next image]. Each of these three species is highly
migratory. They spend a part of each year in temperate and sub-tropical waters, and that is where
they breed and calve. They then migrate thousands of kilometres to the Southem Ocean for the
Southem Hemisphere summer, and this is where they feed almost exclusively on Antarctic krill.
Japan conducts its killing activity whilst the whales are in these polar feeding grounds, generally
between December and April of each year 16• [Screen offJ
7. The scale of the JARPA Il program, like its predecessor JARPA, is striking by any
standard. Together with Japan's equivalent programs in the North Pacifie, JARPN and JARPN II,
JARPA II dwarfs any other special permit whaling program ever devised: under these programs
Japan has killed more whales for "scientific purposes" than the totality of ali other whaling
conducted under special permits since the Convention was adopted in 1946. In short, the Japanese
programs are responsible for about 95 percent of ali "scientific" killing since the 1985 moratorium;
95 percent. With respect to JARPA and JARPA II, this amounts to the killing of sorne
163
10,400 whales • Thatjust one country, in what is in effect a single program, should have killed so
many whales in the name of science would normally set alarm belis ringing 164• It is true that Japan
also conducts a little non-lethal research, by way of sighting surveys and biopsy samples. 1will say
more about that tomorrow. But, the simple point is, the central focus of JARPA II is, what is
euphemistically called "lethal sampling": Mr. President, that means killing, and JARPA II is a
killing program, like its predecessor.
8. The predecessor, JARPA, was launched in 1988. lt ran for 18 years. lt had a "sample
size"- that is to say, the number of whales to be kilied each season- that was initially set at
300 minke whales. The number was later increased to 400, plus or minus 10 per cent. On average,
16Scc MA, Chap. 3 para. 3.52.
1fThat is, 6,777 undcr JARPA and 3,651 under JARPA Il.
164
MA, para. 2.69. -58-
between the 198711988season and the 2004/2005 season, 377 whales were kilied each year; over
the18year period, that is 6,777 whales.
JARPA II was launched in 2005. The "sample size" for minke whales was more than doubled, to a
maximum of 935 minke whales- that is 850 plus or minus 10 percent. No compelling reason, no
compelling scientific reason has ever been offered by Japan for that sudden and significant
increase:indeed, it appears that the number was influenced entirely by non-scientific factors,
namely, the killing and processing capacity of the vessels, market forces, and other political factors.
These factors, it goes without saying, are totally unrelated to any elementic program, a
pointto which 1will retum. Now, JARPA II is not limited to minke whales: it is premised also on
the killingf 50 fin whales and 50 humpback whales each year. These "sample sizes" have not
been met: 18 fin whales have been killed under the whole of the JARPA II program, but no
humpbacks have been takenin the face of widespread protest around the world, including at the
165
IWC • So, the reality is, we have a so-called "scientific" program which is premised on the
killingf a specified number of whales, but that number is not met. That failure also should set
alarm belis ringing about what the realf the program are.
9. JARPA II has a number of problematic featurFirst, and the point has already been
made, itis entirely open-ended in timeanyone who has ever been involved in a research
project- and that includes those amongst you on the Bench who have had occasion to be
connected with a university or other researchram- knows that the basic norm for any
specified research program is that limited in time. The reason for that is that it allows progress
in meeting objectives to be assessed. Japan's program runs literally forever, irrespective of
166
what it actually achiev•There is a second problem with JARPA II, it is entirely a stand-a/one
program: it purports to address general eco-systemic concems in that part of the Antarctic, but
strangely it has not been integrated with other research that is going on on the Southem
1\o.\-\01'..) ;"~at-~\cr C'"~':)c.~
ecosystem, whether carried out by Japan un~atiotspglar F8S8arsiRsti trundet orne of
the international programs that have been already described to you. An example of such research is
ret.,." '~~
the multi-national Southem Ocean ResePrB~Ill 'OltP- which is described by Dr. Gales
16MA, 3.57, Japan refcrs to "diplomatie reasons".
16N. Gales, "Statcment by Dr. Nick Gales", 15 April2013 (Gales, Expert Statement), paras. 3.25-26. -59-
in his statement167• Now, if JARPA II was a genuine program of scientific research, dealing with
the issues it purports to address, you would expect it to have some association with scientific
research programs in the Antarctic, such as the SORP, or Japan's own national programs, but it has
none. There is a third problem with JARPA Il. When it was proposed and developed, it was not
subject to any meaningful peer review before it was launched. 1am going to retum to this point,
because it is an extremely important point. These three aspects of JARPA II raise immediate
concems about its true purpose and character as a scientific research program. They contribute to
the raising of the eyebrow of any informed observer and of a great number of reasonable members
of the public.
1O. Let us tum now to another aspect, and that is the manner in which JARPA II operates.
How is it actually done? JARPA II is undertaken by a fleet that currently consists of four vessels
and, in the 2012/13 season, a crew of 156. The largest of the four vessels is a factory ship, the
Nisshin-Mant. This vessel is used to store and process body parts taken from dead whales. We
168
understand that the refrigerated cargo capacity of the Nisshin-Maru is 3,200 cubic metres ; and
that translates to a carrying capacityf approximately 3,200 tonnes of "edible product" taken from
whales. Now, given that an Antarctic minke whale produces a little over four-and-a-quarter tonnes
169
of edible meat - you do not need to be a mathematical genius to work out the total from
850 whales roughly approximates the Nisshin-Mant 's capacity. That may of course be entirely
coincidental- we think that is unlikely. The Nisshin-Mant is accompanied by three smaller
vessels: they are used for chasing and harpooning whales- these are called "whale catcher
boats"- and they are also used for conducting sighting surveys170•
Il. When the fleet arrives in the so-called "research" area- which you saw on your
screens- the whale catcher boats engage in an activity which is euphemistically referred to as
"sampling". What sampling means is the finding and then killing of one or two whales from each
1NG Expert Statcment, paras. 6.1-17.
1KNippon Kaiji Kyoku [class NK- Japanese Ship Classification SocietNisshin Maru- Classification
No. 871811. Http://www.classnk.or.jp./register/rcgships, acccssed 29 April20 13.
1S. Ward,BiologicaS~m sand Balance Sheet(1990), lnstitute ofCetaccan Rcsearch, Tokyo, 36pp.
17MA, para 3.58. -60-
171
school that is sighted • To kil! a whale targeted for "sampling", the catcher boat pursues it and
then harpoons it with an explosive grenade- you can see one of those on the screen (tab 66)
[show photo 1on screen]. 1f the whale is struck, the grenade detonates inside the body- unless it
passes through the body (tab 67) [show photo 2 on screen]. Most of the whales do not die
immediately, and a period of half an hour or more can pass before death occurs. Sorne targeted
whales are struck by harpoons, but then not caught by the catcher boat 17•
12. (tab 68) [show photo 3 on screen] Whales that remain alive are either killed by a second
harpoon, or shot in the brain with a rifle- in the photograph on your screen, you can see the
)( gentleman at the top, with the rifle, leaning over the side of the vessel.(tab 69) [show photo 6 on
screen]" Caught wha1es are then secured to the side of the catcher boat by rope. Sorne whales
drown as they are being hauled to the bow of the ship, their restraint leaving them with tails above
the water and blowholes below. (tab 70) [show photo 7 on screen] The dead whales are then
hauled onto the factory ship, by means of the slipway which is at the rear of the vesse!. (tab 71)
[show photo 8 on screen] As the Nisshin-Mara cannot handle whales more than 18 rn in length,
Japan is only able to target smaller-sized fin whales. This creates an immediate and obvious bias in
the sampling of fin whales, further undermining the so-called "scientific" nature of the program.
[photo offj
13. After the dead whale is landed on the deck of the Nisshin-Mant, basic datais recorded, it
includes: gender, length, weight, blubber thickness and place of capture. The blubber is removed
from the whale- this is a process that is known as "flensing". Certain internai organs and body
parts are extracted. Foetuses are removed. Samples are taken of other tissues. Earplugs are
collected, stomach contents gathered. It is this act- the collection of body parts- that is said by
Japan to be so central to its scientific research program. So the question is, does the collection of
these body parts contribute to scientific knowledge and understanding? Does it contribute to the
conservation and management of whales? These are the central factual questions in this case and
they turn in part on the evidence before you.
1 1MA, para 3.59.
172MA, para 3.59. - 61 -
14. You will have noted, from the account that 1 have given you, that the so-called
"scientific" research program makes use of on1ya tiny part of each wha1e. So one might ask, what
happens to the rest of the whale? The carcass is processed: edible parts are frozen, for human
consumption. Not, however, ali of the carcass: crew members from the Kyodo Senpaku vesse!
have reported that, since Japan doubled the annual catch of minke whales from the
2005/2006 season for JARPA II, large quantities of whale meat have been routinely discarded-
that means, thrown overboard- because of the limited freezer storage capacity. What remains
is stored on the Nisshin-Mant and then transported to Japan. ln this way, severa! thousand tonnes
173
ofwhale meat are produced annually • Professor Crawford will in due course explain to you how
the meat is then commercially traded in Japan.
15. So, this is the "scientific" activity. lt is basically the collection of body parts, and of
data. lt takes place in the same waters where Japan's commercial killing of minke whales
174
occurred • It is not connected to any dedicated earlier scientific research program of analogous
175
scale and scope, because there was none before the mid-1980s • Again, as Professor Crawford
and others have noted, this supposed "scientific" research emerged as a happy coincidence when
the moratorium came into view in 1985. So, the question is, is it science?
Part 2: JARP A II is not "science": the views of third parties
16. 1turn to the second part of my presentation and 1begin by inviting you to reflect on the
i\-Î':)
views of third parties. In addressing the question of whether +.Hf science, the Court is bound to
address issues of fact as weil as issues of law. The law is being addressed by my colleagucs. As
regards the facts, this Court made it clear recent1y,in the Pulp Mills case, that it will "make its own
176
determination of the facts, on the basis of the evidence presented to it" • The Court has, on
occasion, drawn on findings of fact made by third bodies, independent third bodies, third parties
with no direct interest in the case.
17MA, Fig. 7.
17MA, para 3.53.
17Japan's largest pre-moratorium take was its 3-year SPW program on Southem Hemisphere Bryde's whales
between 1976/77and 1978/79- it look a total of 459 whales.
176
Pztlp Mills on the River Uruguay (Argen/ina v. Uruguay), Judgment, J.C.J. Reports 2010 (/), pp. 72-73,
para. 68. -62-
17. ln Armed Activities on the Territ01y of the Congo (Democratie Republic of Congo v
Uganda) (2005), for example, the Court took evidence from the Report of the Porter
Commission- an independent judicial inquiry- to assist in resolving certain factual issues11• ln
Bosnia and Herzegovina v.Serbia and Montenegro in 2007, the Court relied on certain factual
findings of the ICTY, and gained "substantial assistance" from a report prepared at the request of
the General Assemblyi1K . In the Pulp Mills case in 2010, the Court derived sorne assistance from
reports prepared at the instance of the International Finance Corporation, the IFC 17• This case is
different. Unlike the parties in those cases, Japan is not able to invoke the assistance of any
independent body to support its submission that the activity in which it is engaged purportedly "for
purposes of scientific research", is indeed scientific research. Put simply, there is no independent
body that supports Japan's claim to be engaged in science.
18. The two most relevant bodies are the IWC and its Scientific Committee, of course and
they have expressed views- as you have just heard from Professor Crawford- and criticisms
that are plainly very unhelpful to Japan, and rather supportive of Australia's case. The Scientific
Committee has declined to characterize Japan's activity as being "for purposes of scientific
research". lt is notable that the solitary expert tendered by Japan, Professor Walloe, has not
referred to any such support by the Scientific Committee and, of course, he is in a position to know
because he has been there for many years. That silence stands in very sharp contrast to situations
where the Scientific Committee has endorsed "scientific" programs, in particular those which offer
a multilateral approach and make use of non-lethal means: Mr. Henry Burmester mentioned the
International Decade of Cetacean Research (IOCR) and the Southern Ocean Whale and Ecosystem
Research, SOWER, and the SORP research programs. Earlier this month, at the 2013 meeting of
the Scientific Committee, the sub-committee on in-depth assessments warmly welcomed
Dr. Gales's non-lethal research in tagging and collecting biopsy samples from Antarctic minke
whales, and concluded that continuing such research would contribute substantially to the work of
17Armed Activities on the Territ01y of the Congo (Democratie Repub/ic of the Congo v. Uganda), Judgment,
/.C.JReports 2005,p. 201, para. 61.
11HApplicationof the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v.Serbia and Mollfenegro), Judgment, I.C.J. Reports 2(/),p. 137, para. 230. The report was "Fa//
of Srebrenica".
179
PztlpMilis,see in particular paras. 167, 210 and 252. -63-
the Scientific Committee. Look in vain for an equivalent endorsement of the Scientific Committee
in relation to the work of JARPA, or of JARPA II- it does not exist.
19. To the contrary, the Scientific Committee has expressed serious concems about JARPA
and JARPA Il. lt has never- never- offered any positive assessment of either program's
contribution to the conservation and management of whales, orto the IWC's Revised Management
Plan. Japan asserts that data obtained by its collection of body parts is "primarily for assessment
and use by the Scientific Committee" 18, yet the Scientific Committee has not requested it and the
Scientific Committee has offered no endorsement of the purported scientific purpose or value of
JARPA or JARPA Il. lndeed, in 2006 the Panel of the Scientific Committee responsible for the
Final Review of JARPA concluded that JARPA did not provide data required for the RMP (and
this concurred with the view taken nine years earlier by the Scientific Committee in its Interim
Review of JARPA), a copy of that conclusion is in your folders at tab 72 181• You will be able to
182
hear more on this tomorrow from Dr. Gales •
20. Dr. Gales's report sets out the Committee's longstanding and repeated criticisms of
JARPA Il, and, in particular, the fixation with lethal methods, with killing. Japan has offered no
expert evidence which counters his view. lt stands unrebutted. As Dr. Gales indicates, the high
point of the Scientific Committee's views- from a Japanese perspective- is the occasional
reference to the program's "potential" scientific utility. I place the word "potential" in quotation
marks and I emphasize the word "potential". There is a world of difference between "potential"
and "actual" scientific value. Over a period of more than a decade- over a period of more than a
quarter of a century if you also take into account JARPA- the Scientific Committee has not found
any actual scientific value from Japan's killing of whales and collection of body parts: over a
quarter of century, no "potential" has ever been realized 183•
21. Japan derives no more assistance from the International Whaling Commission itself. The
Commission has adopted numerous resolutions on special permit whaling, on JARPA and on
IHOCMJp,ara 4.15
IH.I.Report of the 1ntersessional Workshop to Review Data and Results from Special Permit Research on Minke
Whales in the Antarctic", Tokyo, 4-8 December 2006, J. Cetacean Res. Manage. 10 (Suppl.), 2008, pp.411-445 (!WC
JARPA Final Review Report), p.433.
mG ales, Expert Statement, paras 4.1-4.7.
IHGales, Expert Statement, paras 4.4-4.5. -64-
JARPA Il. They offer no endorsement whatsoever of Japan's claim that its whaling activity is to
be characterized as being "for purposes of scientific research". ln fact, Japan has not argued
otherwise in its Counter-Memorial. Since 1985, as Professor Crawford has explained, the
Commission has adopted 40 Resolutions on special pennit whaling: 21 of these urge Japan to
reconsider its program of lethal research, and to refrain from issuing pennits or hait the lethal
aspects of its special pennit programs. At !east fifteen Resolutions state that Japan's programs do
14
not meet the requirements of the lWC Guidelines x • There is no resolution- not one
resolution- that characterizes the whaling activity that 1 have described for you as being "for
purposes of scientific research". Nearly twenty years ago, IWC Resolution 1995-9
recommended- you will see on your screen- that Contracting Govemments [on screen]
"in the exercise of their sovereign rights, refrain from issuing ... pennits to its
nationals that the Commission, taking into account the comments of its Scientific
Committee, considers do not satisfy the criteria specified [in the Guidelines] and
therefore are not consistent with the Commission's conservation policy".
(Tab 73) Mr. President, Members of the Court, Mr. Bunnester and Professor Crawford have taken
you to these Guidelines, which include Annex Land Annex P, which are in your folders and which,
no doubt, you will have cause to look at very carefully.
22. This paragraph that is on the screen appears in almost identical tenns in the second of the
IWC Resolutions comprising the Guidel ines- Resolution 1987-1. [Screen off] Since 1995 there
has been nothing from the IWC to support Japan's claim that it is engaged in activity that has a
"scientific purpose". Japan is now asking this Court to step into that void. We say the Court
cannot do that and the Court should not do that.
23. Where else can Japan look for support? [On screen] More than a decade ago, in
May 2002, 21 eminent scientists, including three Nobel laureates, completely unconnected to the
world of whaling, wrote an Open Letter to the Govemment of Japan: it is on the screen and it is at
tab 74 of your folders. lt was published in the New York Times. The letter expressed the view of
these eminent individuals that Japan's whale research program failed to meet minimum standards
4
M MA, Ann. 10, Resolution 1987-4; MA, Ann. 16, Resolution 1989-3; MA, Ann. 18, Resolution 1990-2; MA,
Ann. 19, Resolution 1991-2; Resolution 1992-5; MA, Ann. 21, Resolution 1993-7; Resolution 1994-9; MA, Ann. 25,
Resolution 1994-10; MA, Ann. 28, Resolution 1996-7; MA, Ann. 29, Resolution 1997-5: MA, Ann. 30, Resolution
1997-6; Resolution 1998-4; MA, Ann. 34, Resolution 2000-5; MA, Ann. 36, Resolution 2001-8;MA, Ann. 41,
Resolution 2007-1. -65-
for credible science. (Tab 75) [Next slide) They expressed their concem that "Japan's whaling
program is not designed to answer scientific questions relevant to the management of whales".
The 21 stated that Japan has "refused to make the infonnation it collects available for independent
review", and that "its research program lacks a testable hypothesis or other perfonnance indicators
consistent with accepted scientific standards" x1 •
24. Now, Japan can raise questions about IWC Guidelines and what Professor Mangel has to
say, but here you have a wholly independent group, highly authoritative. Indeed, such a public
demonstration really should have put Japan on notice that it faced a very serious problem, not only
in the court of public opinion but in the court of infonned expert scientific opinion. This group
includes extraorclinarily eminent scientists, like Sir Aron Klug, fonner President of the United
Kingdom's Royal Society; Sylvia Earle, fonner Chief Scientist of the United States National
Oceanic and Atmospheric Administration; Professor Masakazu Konishi, winner of the
International Prize for Biology offered by the Japan Society for the Promotion of Science; and
Frederic Briand, Directeur General of la Commission Internationale pour 1'Exploration
Scientifique de la Méditerranée. These are hardly ecological extremists. They are not expressing a
political opinion or a cultural opinion, these are serious scientists expressing a view on science.
[Next extract] When such a group concludes that "Japan's whale research program kills hundreds
1 6
of whales each year in the absence of a compelling scientific need" x a serious response is called
for, from independent minds and one would have expected that to have happened. Did it happen?
No! Japan offered no independent science to counter that view. [Screen off] lt is true that a
response did come from Japan, from its own lnstitute of Cetacean Research, and it also came from
three individuals, Messrs Aron, Burke and Freeman. And you will be able to see the exchanges at
tab 76 and following. In a journal called BioScience, these three individuals complained about the
21 signatories' views and cited errors of science and law H • That letter of complaint produced a
1
very strong rebuttal from the signatories to the originalletter Hx,which you can see at tab 77 ofyour
1 5
K"An Open Letter to the Govcrnmcnt of Japan on Scicntific Whaling", The New York Times, 20 May 2002.
186/bid.
18W Aron, W Burke and M Frceman,"Scicntists versus Whaling: Science, Advocacy and Errors of Judgmcnt",
BioScience, Dcc. 2002 Vol. 52, No 12, pp. 1138 et scq.
IKK"Scientistsversus Whaling: Whose Errors of Judgment?" BioScience, March 2003, Vol. 53 No 3 pp. 200-203. -66-
folders, as weil as from 20 members of the International Whaling Commission Scientific
Committee, which you can see at tab 78 of your folders11• But even more significantly, it elicited
a further communication which pointed out that Messrs Aron, Burke and Freeman had failed to
disclose their links with Japan's whaling program: a copy ofthat letter and a further response from
190
the threeis found at tab 79 •ln short, Japan has no independent, truly independent, support for its
claim to be engaged in science. That is the evidence before you.
25. Over the past ten years Japan has not, in response to this expression, gamered any truly
independent support for the claim thatt is killing whales "for purposes of scientific research". ln
these proceedings, it has relied on a single expert opinion fromfessor Wallee, from whom you
Go.\«r>
')( will hear in due course. And he stands opposed by Professor Mange! and Dr. 6ttk\. These are the
three expertsin the case. The Court has, in its pre-hearing decisions communicated to the Parties,
drawn a clear distinction between the expert evidence and certain other materincl uma il ing·~
forrn received as observations.Of course, these should not be addressed to or through the three
experts.
26. Mr. President, that concludes that section of this presentation and, with your permission,
this may be a convenient place for me to break, as 1am about to move on to a new sectionof our
argument. When 1open tomorrow moming 1will address specifically and in detail the criteria for
deterrnining whether a particularctivity- the collection of body parts and data-is properly to
be characterizedas being "for purposes of scientific research". 1 thank you very much for your
attention.
IHPJ Clapham and others, "Whaling as science", BioScience, March 2003, Vol. 53 No 3 pp. 210-212.
19Sce the lctter from Richard N Mott, Vice President of International Policy for WWF International, "Neutra!
Judges in the Debatc on Scientific Merits", BioScience, March 2003 Vol. 53 No 3; and sec the responsc to Mott from
Aron, Burke and Freemana letter published in the same issue. -67-
The PRESIDENT: Thank you, Professor Sands. The Court will meet again tomorrow from
10.00 a.m. to 1.00 p.m., first to listen to the continuation of your pleading and then to hear the
examination of the first expert called by Australia. Thank you, the Court is adjoumed .
The Court rose at 5.40 p.m.
Public sitting held on Wednesday 26 June 2013, at 3 p.m., at the Peace Palace, President Tomka presiding, in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)