Corrigé
Corrected
CR20J3/J7
International Court Cour internationale
of Justice de Justice
LAHAYE THE HAGUE
YEAR2013
Publicsitting
lleldon Monday 8 July2013,atJO a.m.,attllePeacePalace,
PresidentTomkapresiding,
in thecaseconcemi11gWhaling in the Antarctic (Australia v.Japan:
New Zealand intervening)
VERBATIM RECORD
ANNÉE2013
Audie11cepublique
te1tuele lu11di8jui20J3,à JO heures,au Palaisdela Paix,
souslaprésidencedeM. Tomka,président,
eltl'affairerelativeà la Chasse 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-
Présenls: M. Tomka, président
M. Sepùlveda-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-
Tlle Govemment of Au.\·tmlift i.\'repre.\·entetlhy:
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 Advocale;
H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Justin Gleeson, S.C., Solicitor-General of Australia,
Mr. James Crawford, A.C., S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government Solicitor,
Mr. Philippe Sands, Q.C., Professor of Law, University College London, Barrister, Matrix
Chambers, London,
Ms Laurence Boisson de Chazournes, Professor oflnternational Law at the University ofGeneva,
as Counse/ and Advocates;
Ms Kate Cook, Barrister, Matrix Chambers, London,
Dr. Makane Mbengue, Associate Professor, University ofGeneva,
as Counsel;
Ms Anne Sheehan, Acting Assistant-Secretary, Attorney-General's Department,
Mr. Michael Johnson, Principal Legal Officer, Attorney-General's Department,
Ms Danielle Forrester, Principal Legal Officer, Attorney-General's Department,
Ms Stephanie Ierino, Acting Principal Legal Officer, Attorney-General's Department,
Ms Clare Gregory, Senior Legal Officer, Attorney-General's Department,
Ms Nicole Lyas, Acting Senior Legal Officer, Attorney-General's Department,
Ms Erin Maher, Legal Officer, Attorney-General's Department,
Mr. Richard Rowe, Senior Legal Adviser, Department of Foreign Affairs and Trade,
Dr. Greg French, Assistant Secretary, Department of Foreign Affairs and Trade, - 5 -
Le GlJuvemement tle I'Amtlrtllie e!l·treprésenté pllr:
L'honorable Mark Dreyfus, Q.C., M.P., Allorney-General d'Australie,
comme conseil et avocat ;
M. Bill Campbell Q.C., General Counsel (droit international), services de l'AIIorney-General
d'Australie,
comme agent, conseil et avocat ;
S. Exc. M. Neil Mules, A.O., ambassadeur d'Australie auprès du Royaume des Pays-Bas,
comme coagent ;
M. Justin Gleeson, S.C., Solicitor-General d'Australie,
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l'Université de
Cambridge, titulaire de la chaire Whewell, membre de l'Institut de droit international, avocat,
Matrix Chambers (Londres),
M. Henry Burmester, A.O., Q.C., Special Counsel, Solicitor du Gouvernement australien,
M. Philippe Sands, Q.C., professeur de droit au University College de Londres, avocat,
Matrix Chambers (Londres),
Mme Laurence Boisson de Chazournes, professeur de droit international à l'Universitéde Genève,
comme conseils et avocats ;
Mme Kate Cook, avocat, Matrix Chambers (Londres),
M. Makane Mbengue, professeur associéà l'Universitéde Genève,
comme conseils;
Mme Anne Sheehan, secrétaireadjoint par intérim,services de 1'Attorney-General,
M. Michael Johnson, juriste principal, services de l'Attorney-General,
Mme Danielle Forrester,juriste principal, services de l'Attorney-General,
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, secrétaireadjoint, ministère des affaires étrangèreset du commerce, -6-
Mr. Jamie Cooper, Legal Officer, Department of Foreign Affairs and Trade,
Ms Donna Petrachenko, First Assistant Secretary, Department of Sustainability, Environment,
Water, Population and Communities,
Mr. Peter Komidar, Director, Department of Sustainability, Environment, Water, Population and
Communities,
Dr. Bill de la Mare, Scientist, Australian Antarctic Division, Department of Sustainability,
Environment, Water, Population and Communities,
Dr. David Blumenthal, Senior Adviser, Office of the Attorney-General,
Ms. Giulia Baggio, First Secretary, Senior Adviser, Office of the Attorney-General,
Mr. Todd Quinn, First Secretary, Embassy of Australia in the Kingdom of the Netherlands,
as Advisers;
Ms Mandy Williams, Administration Officer, Attorney-General's Department,
as Assistant.
Tlle Government of Japan is representee[ by:
Mr. Koji Tsuruoka, Deputy Minister for Foreign Affairs,
as Agent;
H.E. Mr. Yasumasa Nagamine, Ambassador Extraordinary and Plenipotentiary of Japan to the
Kingdom of the Netherlands,
as Co-Agent;
Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense,President of the
Société française pour le droit international, associate member of the Institut de droit
international,
Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of International Law,
Oxford University, associate member of the Institut de droit international,
Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, member of the
English Bar,
Mr. Yuji Iwasawa, Professor of International Law at the University of Tokyo, member and former
Chairperson of the Human Rights Committee,
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International Law, McGill University,
member of the Bar ofNew York and the Law Society of Upper Canada,
Mr. Shotaro Hamamoto, Professor oflnternational Law, Kyoto University,
Ms Yukiko Takashiba, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
as Counsel and Advocates; - 7 -
M. Jamie Cooper, juriste, ministère des aftàires étrangèreset du commerce,
Mme Donna Petrachenko, premier secrétaire adjoint, ministère du développement durable,
de l'environnement, de l'eau, des populations et des communautés,
M. Peter Komidar, directeur, ministère du développement durable, de l'environnement, de l'eau,
des populations et des communautés,
M. Bill de la Mare, scientifique, division de l'Antarctique australien, ministère du développement
durable, de l'environnement, de l'eau, des populations et des communautés,
M. David Blumenthal, conseiller principal, services de l'Allorney-General,
Mme Giulia Baggio, conseiller principal, services de l'Aitorney-General,
M. Todd Quinn, premier secrétaire, ambassade d'Australie au Royaume des Pays-Bas,
comme conseillers ;
Mme Mandy Williams, administrateur, services de l'Aitorney-General,
comme assistant.
Le Gouvernement tlu Japon est représentépar:
M. Koji Tsuruoka, ministre adjoint des affaires étrangères,
comme agent ;
S. Exc. M. Yasumasa Nagamine, ambassadeur extraordinaire et plénipotentiaire du Japon auprès du
Royaume des Pays-Bas,
comme coagent ;
M. Alain Pellet, professeur à l'Université Paris Ouest, Nanterre-La Défense, présidentde la Société
française pour le droit international, membre associé de l'Institut de droit international,
M. Vaughan Lowe, Q.C., membre du barreau d'Angleterre, professeur émérite de droit
internationalà l'Université d'Oxford, membre associé de l'Institut de droit international,
M. Alan Boyle, professeur de droit international à l'Université d'Edimbourg, membre du barreau
d'Angleterre,
M. Yuji Iwasawa, professeur de droit international à l'Université de Tokyo, membre et ancien
présidentdu Comitédes droits de l'homme,
M. Payam Akhavan, LL.M., S.J.D (Harvard), professeur de droit international à l'Université
McGill, membre du barreau de New York et du barreau du Haut-Canada,
M. Shotaro Hamamoto, professeur de droit international à l'Université de Kyoto,
Mme Yukiko Takashiba, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
comme conseils et avocats ; - 8 -
Mr. Takane Sugihara, Emeritus Professor of International Law, Kyoto University ,
Ms Atsuko Kanehara, Professor of International Law, Sophia University (Tokyo),
Mr. Masafumi lshii, Director-General, International Legal Affairs Bureau, Ministry of Foreign
Affairs,
Ms Alina Miron, Researcher, Centre de droit international de Nanterre (CEDIN) , University of
Paris Ouest, Nanterre-La Défense,
as Counsel;
Mr. Kenji Kagawa, Director-General, Resources Enhancement Promotion Department, Fisheries
Ageney,
Mr. Noriyuki Shikata, Minister, Embassy of Japan in the United Kingdom of Great Britain and
Northern lreland,
Mr. Kenichi Kobayashi, Director, International Legal Affairs Division, Ministry of Foreign Affairs,
Mr. Joji Morishita, Director-General, National Research lnstitute of Far Seas Fisheries ,
Mr. Akima Umezawa, Ph.D., Director, Fishery Division, Ministry of Foreign Affairs,
Ms Yoko Yanagisawa, Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Naohisa Shibuya, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Ken Sakaguchi, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Ms Akiko Muramoto , ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Masahiro Kata, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Takaaki Sakamoto, Assistant Director, International Affairs Division, Fisheries Agency,
Mr. Shigeki Takaya, Assistant Director, Fisheries Management lmprovement Division, Fisheries
Ageney,
Mr. Toshinori Uoya, Assistant Director, Fisheries Management Division, Fisheries Agency,
Mr. Shinji Hiruma, Assistant Director, International Management Division, Fisheries Agency,
Mr. Sadaharu Kodama, Legal Adviser, Embassy of Japan in the Kingdom of the Netherlands,
Mr. Nobuyuki Murai, LL.D., First Secretary, Embassy of Japan in the Kingdom of the Netherlands, -9-
M. Takane Sugihara, professeur éméritede droit international de l'Universitéde Kyoto,
Mme Atsuko Kanehara, professeur de droit international à l'UniversitéSophia (Tokyo),
M. Masafumi lshii, directeur généraldu bureau des affaires juridiques internationales, ministère
des affaires étrangères,
Mme Alina Miron, chercheur, Centre de droit international de Nanterre (CEDIN), Université Paris
Ouest, Nanterre-La Défense,
comme conseils ;
M. Kenji Kagawa, directeur général du département de la promotion de la valorisation des
ressources, agence des pêcheries,
M. Noriyuki Shikata, ministre à l'ambassade du Japon au Royaume-Uni de Grande-Bretagne et
d'Irlande du Nord,
M. Kenichi Kobayashi, directeur à la division des affaires juridiques internationales, ministère des
affaires étrangères,
M. Joji Morishita, directeur généralde l'Institut national de recherche sur les pêcheriesen eaux
lointaines,
M. Akima Umezawa, Ph.D., directeur à la division des pêcheries,ministère des affaires étrangères,
Mme Yoko Yanagisawa, directeur à la division chargéede l'affaire de la chasse à la baleine devant
la CIJ, ministère des affaires étrangères,
M. Naohisa Shibuya, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
M. Ken Sakaguchi, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
Mme Akiko Muramoto, division chargée de l'affaire de la chasse à la baleine devant la CIJ,
ministère des affaires étrangères,
M. Masahiro Kato, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
M. Takaaki Sakamoto, sous-directeur à la division des affaires internationales, agence des
pêcheries,
M. Shigeki Takaya, sous-directeur à la division de l'amélioration de la gestion des pêcheries,
agence des pêcheries,
M. Toshinori Uoya, sous-directeur à la division de la gestion des pêcheries,agence des pêcheries,
M. Shinji Hiruma, sous-directeur à la division de la gestion internationale, agence des pêcheries,
M. Sadaharu Kodama, conseiller juridique à l'ambassade du Japon au Royaume des Pays-Bas,
M. Nobuyuki Murai, LL.D., premier secrétaire de l'ambassade du Japon au Royaume des
Pays-Bas, - 10-
Ms Risa Saijo, LL.M., Researcher, Embassy of Japan in the Kingdom of the Netherlands,
Ms HéloïseBajer-Pellet, member of the Paris Bar,
as Advisers;
Mr. Douglas Butterworth, Emeritus Professor, University of Cape Town,
Ms Judith E. Zeh, Ph.D., Researcher Professor Emeritus, University of Washington,
Mr. Dan Goodman, National Research lnstitute of Far Seas Fisheries,
Mr. Luis Alberto Pastene Perez, Ph.D., Director, Survey and Research Division, lnstitute of
Cetacean Research,
as Scientijic 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.
Tlle Govemment of New Zealaml is represented by:
The Honourable Christopher Finlayson Q.C., M.P., Attorney-General ofNew Zealand,
as Counsel and Advocate;
Dr. Penelope Ridings, International Legal Adviser, Ministry of Foreign Affairs and Trade,
as Agent, Counsel and Advocate;
H.E. Mr. George Troup, Ambassador ofNew Zealand to the Kingdom of the Netherlands,
as Co-Agent;
Ms Cheryl Gwyn, Deputy Solicitor-General, Crown Law Office,
Ms Elana Geddis, Barrister, Harbour Chambers, Wellington,
as Counsel;
Mr. Andrew Williams, Legal Adviser, Ministry of Foreign Affairs and Trade, - Il -
Mme Risa Saijo, LL.M., chercheur à l'ambassade du Japon au Royaume des Pays-Bas,
Mme HéloïseBajer-Pellet, membre du barreau de Paris,
comme conseillers ;
M. Douglas Butterworth, professeur éméritede l'Universitéde Cape Town,
Mme Judith E. Zeh, Ph.D., chercheur, professeur éméritede l'Universitéde Washington,
M. Dan Goodman, Institut national de recherche sur les pêcheriesen eaux lointaines,
M. Luis Alberto Pastene Perez, Ph.D., directeur à la division des enquêtes et de la recherche,
Institut de recherche sur les cétacés,
comme conseillers et experts scientifiques ;
M. Martin Pratt, professeur au département de géographiede l'Universitéde Durham,
comme conseiller expert ;
M. James Harrison, Ph.O., chargéde cours en droit international à l'Universitéd'Edimbourg,
Mme Amy Sander, membre du barreau d'Angleterre,
M. Jay Butler, professeur associé invité de droit à la faculté de droit de l'Université George
Washington, membre du barreau de New York,
comme conseillers juridiques .
Le Gouvernement tle la Nouvelle-Zélande est représentépar :
L'honorable Christopher Finlayson, Q.C., M.P., Attorney-General de Nouvelle-Zélande,
comme conseil et avocat;
Mme Penelope Ridings, conseiller juridique pour le droit international, ministère des affaires
étrangèreset du commerce,
comme agent, conseil et avocat ;
S. Exc. M. George Troup, ambassadeur de Nouvelle-Zélande auprèsdu Royaume des Pays-Bas,
comme coagent ;
Mme Cheryl Gwyn, Solicitor-General adjoint, Crown Law Office,
Mme Elana Geddis, avocat, Harbour Chambers (Wellington),
comme conseils ;
M. Andrew Williams, conseiller juridique, ministère des affaires étrangèreset du commerce, - 12-
Mr. James Christmas, Private Secretary, Attorney-General's Office,
Mr. James Walker, Deputy Head of Mission, Embassy of New Zealand in the Kingdom of the
Netherlands,
Mr. Paul Vinkenvleugel, Policy Adviser, Embassy of New Zealand 111the Kingdom of the
Netherlands,
as Advisers. - 13-
M. James Christmas , chef de cabinet, services de l'AIIorney-Genera/,
M. James Walker, chef de mission adjoint, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
M. Paul Vinkenvleugel , conseiller politique, ambassade de Nouvelle-Zélande au Royaume des
Pays-Bas,
comme conseillers. - 14 -
The PRESIDENT: Please be seated. Good morning. The sitting is open. The Court meets
this morning to hear New Zealand give its oral observations on the subject-matter of its
intervention. Thus 1 shall now give the floor to Dr. Ridings, the Agent. Vou have the tloor,
Madam.
Ms RIDINGS:
[Siide 1: logo]
1. Mr. President, Members of the Court, it is a great honour and privilege for me to appear
before this Court on behalf of my country.
2. Mr. President, New Zealand appears here today because of our systemic interest m
ensuring that the Convention at issue in this dispute is properly interpreted and applied.
3. New Zealand was a founding member of the International Whaling Commission and
participates actively in its work. We recognize that this Court's decision will have significant
implications for ali members of the IWC. As a party to the Convention we wish to place before the
Court what we believe to be the correct interpretation of the obligations under the Convention. ln
doing so, we acknowledge that the points we make may differ in substance or in emphasis from
those of the Parties- that is entirely to be expected.
4. At the same time, we accept that we will be bound by the construction of the Convention
that the Court determines in this case. But we are confident that the Court will be mindful of the
need for the members of the IWC to work together constructively in the future- and, to that end,
that its decision will assist in bringing about a meaningful and effective settlement to this
long-standing issue.
Historical context
5. Mr. President, this case takes place within its distinct historical context. An understanding
of this context is key to the interpretation of the Convention. Whaling in the Antarctic has had a
chequered and controversial past. Rampant over-exploitation, particularly prior to World War Il,
led to significant declinesin whale stocks. Calls to take international action to address this came in - 15-
the early 1930s. [SIide 2: quote] Let me recall the words spoken by the British Minister at the
opening ofthe International Conference on Whaling in 1937, which is on the screen in front ofyou:
"The path of conservation is beset by many difficulties, but as we are ali
gathered to pursue a common abject, 1 hope that your united efforts will find a way
through or over these difficulties, and that we may reach an agreement which will be
beneficiai for us ali, and which because of its reasonableness and its practical
character1 may induce those who are not with us today to work with us in the near
future."
6. Those words are as true today as when they were spoken in 1937. [Siide 3: logo] White
an Agreement was reached at the 1937 Conference, the Final Act foreshadowed that the purpose of
the agreement could be defeated by unregulated whaling by other countries 2• And it was. lt was
not until the post-World War Il era that the time was ripe for countries involved in whaling to come
together- in the words of its US sponsor- to advance the "international cooperative effort in
whale conservation" 3 • The result of their common endeavour was the conclusion of the
Convention and the establishment of the International Whaling Commission.
7. During the initial years of the IWC, the action taken to protect whale stocks may be
characterized as tao little, tao late. Professor Iwasawa characterized the 1960s as the "heyday of
commercial whaling'"', but it was this insensitivity to conservation that was one of the principal
reasons for New Zealand's decision to leave the IWC in 1968 5• The failure to conserve whales led
to strong international concern, not only for whale stocks, but for the conservation and management
of shared resources. The IWC responded positively to these concerns in recognition of the fact that
natural resources are not unlimited. It was this responsiveness, and the confidence that the IWC
6
could fulfil its objective of collective regulation, that led New Zealand to re-join in 1976 •
However the collective sense of optimism that followed the 1982 commercial moratorium, and the
1Minister's Speech at the Opening of the Contèrence, International Contèrence on Whaling I.C.W./1937/3; CMJ,
Vol li, Ann. 7, p. 101.
2Final Act of the Agreement for the Regulation of Whaling, 1937, (1940) 34 AJIL, p.llCMJ, Vol. Il, Ann. 13,
p. 119.
3
1nternational Whaling Conlèrence, Washington DC, 1946, Minutes of the Opening Session, IWC/11;
20 Nov. 1946; CMJ, Vol. Il, Ann. 16, p. 129.
4
CR 2013116, p. 28, para. 40 (Iwasawa).
5
1nternational Whaling Commission, Verbatim Records. IWC 28 21-25 June 1976, pp. 10-14, at
http://download.iwc.int/verbatim/pdl7VR 1976 28th.pdf (accessed 29 June 2013).
6
/bid. - 16-
Japanese withdrawal of its objection to the moratorium in 1986, was soon dispelled by the decision
of Japan to initiate the JARPA programme in 1987.
8. Japanese special permit whaling continues to be controversial within the IWC, not least
because of the decision to proceed ahead with JARPA Il, without a proper review of JARPA. The
common purpose of those parties, which came together in 1946 to conclude the Convention, has
been overshadowed by this controversy. And it is inhibiting the effective operation ofthe IWC.
9. Mr. President, this historical context informs the understanding of the object and purpose
of the Convention, and is central to this case. The drafters of the Convention intended to replace
unilateral whaling with a system of collective regulation. This object and purpose will be expanded
upon by the Attorney-General. He will also address the roteof Article VIII within this system of
collective regulation, and the central requirement that Article VIII permits whaling only "for
purposes of scientific research".
10. 1will then address two further requirements placed on Contracting Governments which
issue special permits under the Convention. These are that the number of whales to be kilied under
special permit must be necessary and proportionate, and that the Convention imposes a duty of
meaningful co-operation upon those Governments.
Il. Mr. President, Members of the Court, 1thank you for your attention. 1now request that
you give the tloor to the Attorney-General, the Honourable Christopher Finlayson.
The PRESIDENT: Thank you very much, Madam. Now 1 cali on the Honourable
Christopher Finlayson, Attorney-General ofNew Zealand. You have the tloor, Sir.
Mr. FINLAYSON:
THE OBJECT AND PURPOSE OF THE CONVENTION AND THE ROLE OF ARTICLE VIII
FOR SCIENTIFIC RESEARCH
1. Mr. President, Members of this Court, this is the first time 1have had the honour to appear
before this Court, and1have the particular privilege to do so as counsel on behalfofmy country.
2. Mr. President, Article VIII, and particularly the first paragraph of that Article, is at the
heart ofthe legal dispute in this case. My task today is to address the rote ofthat provision within - 17-
the Convention as a whole. That is, a provision that was created exclusively for, and limited to, the
purposes of genuine scientific research, that forms an integral part of the Convention, and that must
necessarily be interpreted and applied in a manner consistent with the Convention as a whole.
3.1will address three points:
(a) First, the object and purpose of the Convention, which is to establish a system of collective
regulation for the conservation and management ofwhales;
(b) Second, the rote of Article VIII as an integral part of that system of collective regulation; and
(c) Third, the requirement that whaling under Article VIII be conducted exclusively "for purposes
of scientific research".
The object and purpose of the Convention
4. 1turn first to the object and purpose of the Convention.
5. Mr. President, the Agent has outlined the historical context to the development of the
Convention. The Convention arose from the recognition by its negotiating parties that they had a
shared interest in the long-term future of whale stocks. That shared interest couId never be secured
by individual States acting atone. As the nineteenth and early twentieth centuries show, the
unrestricted freedoms of the high seas descended into the tragedy of the commons. The negotiating
States recognized that the only way to achieve the long-term future of whale stocks was to work
together. Putting aside their individual interests, the negotiators of the Convention decided to
replace unilateral whaling with a system of collective regulation. They agreed to constrain their
traditional high seas freedoms through a system of joint co-operation, so as to provide for the
proper long-term conservation and management of whales.
The object and purpose recorded in the Preamble to the Convention
6. The object and purpose is clearly recorded in the Preamble to the Convention. [Siide 4:
Preamble]
7. Paragraph 1 begins by recognizing "the interest of the nations of the world in safeguarding
for future generations the great natural resources represented by whale stocks".
8. The Preamble then records that: "it is essential to protect ali species of whales from
further over-fishing"; that whale stocks may be restored "if whaling is properly regulated"; that - 18-
there is a "common interest" in the revitalization of whale stocks; and, therefore, that "whaling
operations should be confined".
9. The objective of the negotiating parties in light of those considerations was clear. As
stated in paragraph 6, they desired "to establish a system of international regulation for the whale
fisheries to ensure proper and effective conservation and development ofwhale stocks".
1O. To that end, the Preamble concludes, the parties "decided to conclude a convention to
provide for the proper conservation of whale stocks and thus make possible the orderly
development of the whaling industry".
Il. Mr. President, Japan has tried to make much of that final preambular paragraph. ln their
submission everything turns on the final clause and the words "and thus". Under Japan's
interpretation, the object and purpose of the Convention is contained in those ten words, so that the
Convention is solely a vehicle for the "optimum utilization" of whales through commercial
7 8
whaling - nothing more than an industry "cartel" •
12. To adopt that reading would be to distort the sense of the Preamble as a whole. It
extracts those few words from the Preamble at the expense of everything that cornes before- not
!east the preceding paragraph, which is clear that the objective of the parties was to "establish a
system of international regulation of the whale fisheries to ensure proper and effective conservation
and development of whale stocks". "Whale stocks", that is, not "the whaling industry". [SIide 5:
logo]
13. The object and purpose of the Convention thus cannot be reduced to the protection of
commercial whaling. States may have, and do have, differing individual interests with respect to
whales and whaling. The purpose of the Convention was to provide a system through which those
individual interests could be managed and resolved in the light of the greater shared interest of the
parties in the long-term future of whale stocks. That shared interest would be achieved not through
unilateral action, but by a comprehensive system of collective regulation.
7CMJ,para.6 .11; WOJ,para . l9; CR2013/13,p . 59,para.63(13o ylc).
8CR 2013/12, p. 44, para. 19(Akhavan). - 19-
14. That system is not "super-imposed on a pre-existent freedom of whaling" as Japan seeks
9
to persuade you • lt represents a conscious and deliberate decision on the part of its parties to
constrain that freedom, so as to secure their shared interest in the long-term future of whale stocks.
The object and purpose reflected in the scherne and structure of the Convention
15. That abject and purpose is also retlected in the scheme and structure of the Convention
as a whole.
16. The Convention covers ali whaling by its parties, whether it is industrial commercial
10
whaling, aboriginal subsistence whaling, or whaling for the purposes of scientific research •
A collective organization is established to set the rules under which whaling may be conducted:
11
the International Whaling Commission • Membership of the Commission is universai. It is open
12
for ali countries to join, whether they have a whaling industry or not • The Commission is
empowered to adopt regulations to control whaling activitiesu and to make recommendations "on
any matters which relate to whales or whaling" 14• ln so doing, the Commission must considera
wide range of factors 15• Ali decisions of the Commission are taken collectively by a vote of its
members 16• And the regulations so adopted are binding on members of the Commission 1• This is
far from a "tyranny of the majority" as Japan has repeatedly alleged 18• To the contrary, a specifie
reservation mechanism has been included in the Convention so that a member may apt out of a
19
decision where it feels that its individual interests have not been sufficiently protected • That is
the proper mechanism for aState to use where it disagrees with a decision of the Commission.
''WOJ,para. 28.
10
Art. 1(2) of'the Convention and the Schcdulc to the Convention.
11
Arts. Ill and V of'the Convention.
12
Arts. Ill and X (2) of the Convention.
1Art. V (1)of the Convention.
1Art. VI of the Convention.
"Art. V (2) orthe Convention.
16
Art. V and VI of the Convention.
17
Arts. V (3) and Art. IX of'the Convention.
18
CMJ, para. 8.101. Sec also: CR 2013/12, p. 55, para. 57 (Akhavan); CR 2013/16, p. 61, para. 58 (Pellet).
1Art. V (3) orthe Convention. - 20-
17. Mr. President, those are ali of the hallmarks of a collective regulatory régimeestablished
to manage the interests of States in relation to common shared stocks. If the goal of the
Convention were to protect the whaling industry rather than whale stocks, it would have been
structured quite differently. lts membership would be limited to States with an established whaling
industry . Decisions under the Convention would be guided solely by industrial considerations.
The Commission's functions would centre on economie and financial forecasting and analysis. ln
short, it would look something like the OPEC Statute 20•
18. But the IWC is not OPEC. lt does not look like OPEC and it does not make the same
kind of decisions. That is because it is not an industry cartel. To the contrary, the Convention was
the first multilateral instrument to have expressly recognized the "interest of the nations of the
world" in the proper long-term conservation and management ofwhale stocks.
19. In light of that interest, whatever their individual interests in whales, parties to the
Convention have agreed to work collectively through the Commission and abide by the obligations
they have assumed, whether they see whales as an industrial commodity, or as living beings of
value in their own right.
Role of Article VID within the Convention
20. Mr. President, those obligations include those contained in Article VIII, to which 1 now
turn.
21. 1will make four points:
(a) First, Article VIII forms an integral part of the system of collective regulation under the
Convention, not a free-standing exemption from it.
(b) Second, it provides for Contracting Governments to tssue special permits subject to three
requirements: they must be issued "for purposes of scientific research"; subject to restrictions
asto number; and in accordance with the Convention, including paragraph 30 of the Schedule.
20
Statutc of the Organization of the Petrolcum Exporting Countries (2006 revision), availablc at:
http://\\ww.opcc.org (acccsscd on 7 July 2013). - 21-
(c) Third, the power to issue a special permit must be exercised for the specifie purpose for which
it is given, in a reasonable way and consistent with the object and purpose of the Convention .
It cannot be used to undermine or circumvent the other obligations of the Convention.
(d) Finally, whether those requirements have been met is not subject to any margin of appreciation
on the part of the State issuing the special permit, but is a simple question of fact to be
determined by the Court in the ordinary way.
Article VIII forms an integral part of the Convention
22. Special permit whaling under Article VIII is part of the fabric of the Convention. It is
one of severa! designated mechanisms for the collection of scientific information relevant to the
Commission's work 2• As such, it does not stand alone as a "free-standing" or "self-contained
22
regime" independent of the Convention as Japan attempts to argue •
23. Nor is Article VIII simply an "affirmation" of a right existing under the freedom of the
high seas 23• The freedoms of the high seas are, without question, principles of the greatest pedigree
and importance. But they are not the principles in question in this case. The freedoms of the high
seas may be exercised only to the extent that they have not been constrained by other, more
specifie, rules of international law 24• ln this case, those rules are found in the Convention and,
specifically, in Article VIII. Thal is the provision which Japan has repeatedly invoked as the legal
justification for its whaling activities and that is the provision at the centre of this case.
24. As an integral part of the Convention, Article VIII must be interpreted and applied
consistently with the Convention's other provisions. lt is not a carte blanche allowing a
Contracting Government to side-step the rest of the Convention and the other obligations it has
21See also Arts. IV, VIl and VIII (3) & (4).
22
CMJ, p. 299, para. 111.6and para. 7.8.
21
WOJ, para. 51; CR 2013/15, p. 15, paras. 7-8 (Lowe).
24
See, lor c.xample, Art. 87 of the 1982 United Nations Convention on the Law of the Sea. - 22-
assumed. The parties to the Convention have themselves unanimously confirmed their acceptance
25
of this point •
26
25. This is, and always has been, New Zealand's interpretation of Article Vlll • Consistent
with that interpretation, New Zealand put forward informai proposais for discussion in 2005 to
amend Article Vlll 27• Those proposais sought to constrain more closely the conditions under which
special permits could be issued, in the interests of the proper operation of the Convention as a
who le.
26. The integral role of Article VIII within the Convention is apparent from the structure of
the Article itself. [Siide 6: Art. VIII] Article VIII has four paragraphs. Only the first two relate to
special permits. Paragraphs 3 and 4 are broader in scope, relating to scientific information acquired
by Contracting Governments more generally. Paragraph 3 includes a specifie obligation to report
ali scientific information to the Commission. On its own terms Article VIII ties directly into the
work of the Commission and the system of collective regulation established by the Convention.
27. The integral role is also apparent from the obligations in the Convention for a
Contracting Government to submit any special permit to the Scientific Committee for review and
28 2
comment before it is issued , to notiiy the Commission once the special permit has been issued '\
and to transmit the results of the research to the Commission once it has been completed 30 •
[Siide 7: logo] Far from being a "self-contained regime", special permits under Article VIII are
inextricably linked to the role of the Commission and the rest of the Convention. That is further
retlected in the Commission's active attention to special permits since the earliest days of its work,
monitoring the purpose for which special permits have been issued, the type and the value of the
21WC Resolution 1986-2 "Resolution on Special J>ennits for Scientitic Research" at preambular paragraph 5:
"WII EREAS the killing, taking and treating of vhales for purposes of scientilic research should only be undertaken in a
manner consistent with the princip les andin accordance with the provisions of the Convention ."; MA, Ann. 43, Vol. Il,
p. 148.
2Statemcnt by New Zealand, Chainnan 's Report of the 40th Annuai Meeting, Rep. /nt. Whal. Commn. 39, 1989,
p. Il : "lt considcrcd that the rights undcr Article VIII arc not unlcttcrcd and must be cxerciscd in good faith and in light
of othcr prov1s1ons of the Schedule." http://iwc.int/cachc/downloads/71 ca0bcvz44kocs4wgkskggwo /
IWC 1989 Thirty-Ninth %20Rcport %20ol%20thc%20Commission.pdf.
27
WOJ, para. 24 and Ann. 4.
28
J>aragraph30 of the Schcdulc to the Convention.
2
'Art. VIII (1) of the Convention.
1Art. VIII (3) of the Convention. -23-
research to be conducted, and the number of whales to be killed 31• That practice provides critical
context to, and reinforces the interpretation of Article VIII.
Special permits are not an ''exemption" from the Convention
28. Japan has put forward a strained interpretation of Article VIII that highlights snippets of
the language of the provision at the expense of the whole. lt attempts to sew together tluee pieces
of language from the first sentence of paragraph 1 of the Article to construct a blanket exemption
from the rest of the Convention, those being the phrases "notwithstanding anything contained in
this Convention", "as the Contracting Government thinks fit", and "shall be exempt from the
operation of the Convention" 32•
29. Those three phrases need to be given their ordinal)' meaning in their context. When the
first sentence of paragraph 1 of Article VIII is read in its natural sense, it contains three distinct
elements:
(a) [Siide 8: Art. VIII (1)] First, the phrase: "Notwithstanding anything contained in this
Convention any Contracting Government may grant to any of its nationals a special permit
authorizing that national to kili, take and treat whales for purposes of scientific research."
33
Contraty to Professor Pellet's assertion , the phrase "notwithstanding anything contained in
this Convention" is not an overarching chapeau to the Article as a whole. lt clearly attaches
only to the words that follow it: "may grant to any of its nationals a special permit". The
phrase enables the Contracting Government to issue a special permit for the specifie purposes
of "scientific research" despite the other rules of the Convention. ln that sense it forrns a
34
limited exception, as Australia has described to you • But it provides no greater exemption
from the obligations of the Convention than that.
(b) [SIide 9: Art. VIII (1)] Next, the paragraph reads "subject to such restrictions as to number
and subject to such other conditions as the Contracting Government thinks fit".
11WON, paras. 90-93.
12CMJ, paras. 7.8 and 7.11; WOJ, para. 33; CR 2013/13, pp. 61-62, paras. 4, 10 & Il (Pellet).
JJCR 2013/13, p. 62, para. 6 (Pellet).
J4CR 2013/8 Corr., pp. 42-46, paras. 54-67 (Crawford). -24-
This is the second element, the requirement to impose conditions, including "restrictions as to
number", on any special permit that is issued. Again, it is clear that the words "as the
Contracting Government thinks fit" attach only to this element. They do not create a general
exemption allowing the Contracting Government to do "whatever it thinks fit" under the
Article.
(c) [Siide 10: Art. VIII (1)] Finally, the paragraph provides that "the killing, taking and treating of
whales in accordance with the provisions of this Article shall be exempt from the operation of
this Convention".
The text does not say that "special permit whaling is 'exempt from the operation of this
Convention"', as Japan wouId read it 3• To the contrary, only the killing, taking and treating of
whales "in accordance with the provisions" of Article VIII is exempt from the ordinary rules of
the Convention. Far from creating a blanket exemption, the words create an obligation on the
Contracting Government to act "in accordance with the provisions" of Article VIII when
issuing a special permit. [SIide Il: logo]
Requirements on special permits under Article VID
30. Article VIII contains three narrowly framed obligations on a Contracting Government
seeking to issue a special permit:
(a) First, it must do so for the specified and articulated "purposes of scientific research".
(b) Second, it must set restrictions on the number of whales to be taken or kilied under that special
permit.
(c) Third, it must issue a special permit only "in accordance with the provisions of [Article VIII]",
including, as the Agent will outline to you shortly, the provisions of paragraph 30 of the
Schedule to the Convention and the duty of meaningful co-operation they entai!.
3 1. Whether a Contracting Government has met those obligations is a simple question of
compliance with its treaty obligations. As such, it is a question that must be determined by this
36 37
Court. The Court made that principle clear in the La Grand case ,among others •
15CMJ, para.7.8.
36La Grand (Germany v.United States of America), Judgment, I.C.J. Reports 2pp.485-486, para.52. - 25-
No mnrgin of apprecintion
32. Japan has rightly conceded that Article VIII "does not establish a completely
unreviewable and self-judging right" 3• But its observations do not explain what constraint, other
than outright arbitrariness, applies. ln fact, Japan suggests that any such review is circumscribed
39
by deference to "a margin of appreciation in cases such as this" • What "cases such as this" may
be is left unexplained. Similarly, Japan's assertion that the margin of appreciation must be a
generally applicable "axiom of international law and relations" is also unsupported. Despite its
reference to "extensive jurisprudence on the subject", no citation to any decision of this Court is
given in support of the existence ofsuch an "axiom" 40•
33. The reason for that is clear. There is no decision of this Court to support Japan's
proposition. lndeed, outside of the specifie context of the European Court of Human Rights, there
is no widespread acceptance of a separate doctrine of "margin of appreciation" as a general
principle of international law. The one judicial decision cited by Japan -the Hormones
case- does not even use the term. lts reasoning turns on considerations specifie to the provision
and Agreement in question in that case 41•
Article VIII must be applied for its specifie purpose, reasonably, and consistent with the
object and purpose of the Convention
34. Rather than importing a "margin of appreciation", this Court need only rely on its own
principles of interpretation and application. As a first principle, the Court has stated on numerous
occasions that a provision must be applied in a reasonable manner. That principle is confirmed in
17Scc, c.g., Oi/1'/atforms (lslamic Republic of Iran v. United States of America), JudKment, I.C.J. Reports 2003,
p. 161.
18WOJ, para. 9.
3''WOJ,para. 9.16.
40/bid., sec also footnotc 1104 and para. 9.7.
41United States - C'ontinued Suspension of Obligations in the EC Hormones Dispute, WT/DS320/AB/R
(16 Oct. 2008). -26-
the case of the Righi.\'of Nationals of the United States of America in !vlorocco 42, Barcelona
Traction 43,and Gabëikovo 44to name but a few.
35. Closely linked with the principle of reasonableness, this Court has required that a power
must also be exercised properly, that is, for the purpose for which it has been given 45. Similarly,
this Court has repeatedly emphasized the principle of e.ffectiveness- that a power must not be
exercised in a manner that would undermine the object and purpose of provisions of the treaty as a
36. On the basis of fundamental principles of interpretation relied upon by this Court,
Article VIII must be applied for its stated purpose, "scientific research", "in a reasonable way", and
in such a manner that the purpose of the Convention can be realized. Article VIII cannot be
applied to permit whaling where the effect of that whaling would be to circumvent the other
obligations of the Convention, orto undermine its central objective.
37. Mr. President, that conclusion is a straightforward application ofestablished principles of
interpretation as stated by this Court. To interpret Article VIII as providing a special margin of
appreciation to a Contracting Government, placing it beyond the ordinary review of the Court,
would be inconsistent with this Court's established jurisprudence.
38. lt would also be inconsistent with Article VIII and the Convention itself. Such an
interpretation would have to read something into the language of Article VIII that is not there in the
text. lt would be inconsistent with the structure ofthe Convention, which clearly establishes a link
between the Commission and special permit research. And it would be fundamentally inconsistent
with the object and the purpose of the Convention. Creating such a loophole in the middle of its
42
RiKhls of .Vationals of the United States of America in Alorocco (France v. United States of America),
Jud~men IlC.J. Reports 1952p.212.
41Barcelona Traction. Light and Power Company, Limited (Belgium v. •')'pain),Judgment, I.C.J Reports /970,
p. 48, para. 93.
44
GabL'ikovo-NaJzymarosl'rojec/ (lfzmgary/S/ovakia), Judgmen/, I.C.J. Reports 19pp.78-79, pam. 142.
45
Certain Questions of ,'v/utual Assistancein Criminal ,'v/allers (Djiboutiv. /·/·ance). Judgmen/,
/.C.J. Reports 2008p. 229, para. 145;Dispute reKarding .VaviKalionaland Related Rights (Cos/a Rica v.NicaraKlta),
JudKmenl, /.C.J. Reports 2009p. 241, para. 61.
46See, tor example,Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgmenl, /. C. J. Reports /99p. 25,
para. 51. -27-
carefully constructed system of collective regulation would effectively destroy the Convention
altogether.
Whaling "for purposes of scientitic research"
39. Mr. President, 1now turn to the central requirement of Article VIII, that a special permit
must be issued "for purposes of scientific research". 1will address tinee points:
(a) First, Article VIII requires that whaling be conducted exclusive/y "for purposes of scientific
research".
(b) Second, whether a programme of whaling is "for purposes of scientific research" is a factual
question to be objectively determined by the Court in the usual way.
(c) Third, that objective determination can be ascertained from the programme's scale, its
structure, the manner in which it is concluded and its results.
Scientitic research is the only purpose permitted onder Article vm (1)
40. lt is clear from the language of the Article that "scientific research" is the only and
exclusive purpose for which a special permit may be issued. Using the words of this Court in the
Navigationa/ and Related Rights case: "expressly stating the purpose for which a right may be
exercised implies in principle the exclusion of ali other purposes" 47•
41. The test to be met is not whether "scientific research" is a purpose of the whaling
programme. Any whaling programme has the potential to deliver some scientific information,
hence the reporting requirements of Article VIII, paragraphs 3 and 4, and the detailed requirements
of Part VI of the Schedule. The distinction between special permit whaling and other whaling
under the Convention is that special permit whaling is authorized exclusive/y "for purposes of
scientific research". The test is whether "scientific research" is the on/y purpose for which the
whaling is conducted.
48
42. To respond to the question raised by Judge Gaja on this point , if a programme of
whaling is designed for, or directed towards, achieving commercial purposes, even in part, it cannot
4Dispute reKarding NaviKational and Related Rights (Costa Rv.Nicaragua) , JudKment, I.C'.J. Reports 2009,
p.241, para61.
4CR 2013/16, p.63. -28-
claim to be special permit whaling under Article VIII. The other rules of the Convention regarding
commercial whaling, including the regulationsin the Schedule, would therefore apply.
49
43. Japan itselfhas accepted thisoint • But it has tried to use the provision in Article VIII,
paragraph 2, to avoid its application.Paragraph 2 can be read to allow the sale of whales killed
50
under special permit, although it certainly does not require such sale as Japanies • But that is
a statement of permitted incidental consequence, not of purpose. Paragraph 2 says nothing about
why whales may be kilied. That statement is contained in paragraph 1of the Article, which states a
single purpose for which whales may be killed under special permit. That purpose is "scientific
research". If whales are kilied for the sale of their meat, then their killing is not exclusively for
"scientific research" and must, on any ordinary meaning of the words, be "commercial".
Purpose is a matter of fact to be determined objectively
44. The purpose for which a special permit is issued is the first question to be determined
under Article VIII. Whether a special permit is "for purposes of scientific research" cannot be
determined simply by deferring to the stated intention the Contracting Govemment issuing it. lt
is clear from the language of the provision that Article VIII is not "self-judging" in that sense.
Again, to borrow from the words of the Court, this time in the NicaraKua case, "the text does not
51
refer to what the party 'considers necessary' for thatose" •
45. The question is not whether a Contracting Govemment has determined correctly that its
whaling is "for purposes of scientific research" as Japan would like to frame•iThe question is
whether the whaling has infact been conducted exclusively for those purposes.
46. How is the Court to approach that question? The answer is, as it always does, by
assessing the evidence before it. There is nothing special about Article VIII in this respect. The
purpose for which whaling is conducted can be determined by the Court just as it determines any
other question of compliance with international obligations. Science, Professor Pellet says, "est
49WOJ, para. 9.
5°CR 2013/13, p. 64, para. 15 (Pellet).
51Militmy and Paramilitmy Activitiea~inasnticara~ (Naicar vaUnitadStates of America), .\lerits,
Jud~men IC.J.Reports 198p. 141, para. 282.
52
WOJ, para. 53. -29-
53
une ignorance qui se sait" . But there can be little doubting the observation of the Nobel laureate
54
Sir Peter Medawar that "research is surely the art of the soluble" • lt is in that practical spirit that
the words "scientific research" -like any other words in a treaty- can be interpreted and applied
by this Court. To barrow the Court's words from the LaGrand case: "The exercise of this
function, expressly mandated by Article 8 of its Statute, does not convert this Court into a court of
55
appeal." Japan seeks to obfuscate the point by raising illusory arguments about standards and
56 57
intensity ofreview , and issues of"science policy" , for which it offers no authority. To the same
end, Japan seeks to question the ability of the Court to perform its judicial function 58• ln short, it
attempts by another means to turn Article VIII into a self-judging provision, despite its disclaimer
of that purpose elsewhere in its observations.
47. Mr. President, Japan further attempts to convert Article VIII into a self-judging provision
by suggesting that New Zealand is seeking to "reverse the burden of proof under international
law" 5• But to the contrary, New Zealand leaves the burden of proof where it naturally falls. As
stated in the Nicaragua case: "Uitimately, it is the litigant seeking to establish a fact who bears the
burden of proving it.'o6° Consistent with that principle, this Court has also recognized in the
ELSI case that it falls to the party invoking the protection of a provision to establish that provision
properly applies 61• ln this case, Australia alleges that Japan has breached the Convention's
prohibitions on commercial whaling, and Japan has invoked Article VIII in its defence. That
includes the onus to convince the Court that its whaling was, in fact, conducted "for purposes of
1
'CR 2013112, p. 23, para. 1(3) (Pellet).
54New Statesman, 19 June 1964, reproduccd in Robert Andrc\\s (cd.). New Pen}{uin Diclionmy of Modern
Quota/ions (Pcnguin, London,2003).
"La Grand (Germany v. United States of America), Jud}{menl, I.C.J. Reports 2p. 486, para. 52.
'"WOJ, par .a4-57; CR 2013/15, p. 15,para. 15(Lowe).
~WOJ .para. 58; CR 2013/15, p. 19, para. 24 (LO\\C).
'8WOJ, para. 58: CR 2013115p. 19,para.26 (Lowe).
;qWOJ,paras. 43-47.
"0,'vi/litary and Paramilitmy Activilies in and againsl .Vicaragua (Nicara}{v. United States of America),
Jurisdiclion and Admissibility,dgmenl, /.C.J. Reports 198.p. 437, para. 101.
"1Eiellronica Sicula S.p.A (ELS/) (United States of Ameriv. fla/y), Judf{menl. I.C.J. Reports 19pp. 47-48,
paras. 62-63. Sec also BinCheng General Princtples of Law as Applied by the International Courts and Tribuna1953,
pp. 326-335. -30-
scientific research". It is the role of the Court, in turn, to reach its own determination asto whether
Japan has done so.
48. The WTO Appellate Body wrestled with the task of determining objectively the purpose
for which a measure had been taken in the Japan Alcohol casé 2• ln that case, the Appellate Body
looked to "the design, the architecture, and the revealing structure of a measure", giving "full
63
consideration to ali the relevant facts and ali the relevant circumstances in any given case" •
49. That approach provides sorne useful signposts for the Court to follow. Whether or not a
programme is "for purposes of scientific research" can be determined from its "design, architecture
and revealing structure" or, to put it another way in the scientific context, its "methodology, design
and characteristics". That determination is made by giving full consideration to ali relevant facts
and circumstances.
50. Further signposts can be found in the work of the International Whaling Commission
itself. The IWC has adopted a series of Resolutions in relation to special permit whaling, many by
consensus 64•
51. In response to a question from Judge Greenwood 65, New Zealand does not assert that
those Resolutions are themselves legally binding texts. But they do have two consequences. First,
they provide valuable guidance as to how the parties themselves have interpreted "scientific
research" under Article VIII. As such, they are legitimate interpretative aids of the kind frequently
relied upon by this Court in accordance with the rules of Articles 31 and 32 of the Vienna
Convention on the Law of Treaties 66• Together, they describe the conditions that the parties to the
Convention themselves consider that "scientific research" under Article VIII must meet.
52. Second, the duty of meaningful co-operation requires that a Contracting Government
67
must give due account to those conditions. Japan says it has no quarre) with that proposition •
62
Japan- TaTes on Alcoholic BeveraKes, Report of the Appellate Body, WT/DS8/AB/R, WT/DSIO/AB/R,
WTIDSII/AB /R (4 Oct. 1996), p. 29.
6WON, paras. 55-60.
6CR 2013/12, pp. 63-64.
6bWON, para.li and the authorities cited therein.
bCR 2013/16, p. 43, para. 18(Pellet). - 31-
Where a proposed special permit programme has not met those conditions, the members of the
Commission are entitled to expect it will not proceed without amendment or further dialogue. That
68
expectation has been expressed repeatedly by the Commission in numerous Resolutions •
53. The precise language of the Commission's Resolutions and guidelines may have changed
over time, but their essence has been consistent throughout. [Siide 12: criteria] That can be
distilled to the following elements:
(a) First, "scientific research" must be specifically defined. The aims, methodology and samples to
be taken must be adequately specified.
(b) Second, the research must be "essential for rational management, the work of the Scientific
Committee or other critically important research needs".
(c) Third, the research must identify a question and the methodology and sample size used must be
"likely to provide reliable answers" to that question.
(d) Fourth, it must avoid lethal research methods, giving preference to "non-lethal methods".
(e) Fifth, it must be conducted without having an "adverse effect on the stock".
54. These elements can be traced through numerous IWC Resolutions, particularly
Resolutions 1986-2, 1987-1, 1995-9, and 1999-2. The language you see in front of you is a useful
distillation prepared by the IWC Secretariat itself9, with references to the original texts. Copies of
the Resolutions themselves are in your judges' folders at tabs 12 to 15. lt is simply not correct to
70
state that Annex P has revoked those Resolutions as Professor Boyle asserted • The Commission
made no such statement when it adopted Annex P 71,as it has expressly done on other occasions. ln
any event, Annex P was adopted in 2008, three years after the commencement of the programme at
the centre of this case.
6KWON,note 195.
6qSee website of the International Whaling Commission "Scientilic Permit Whaling: Scientilic Committee
Review" http:lliwc.intlpermits (accesscd on 7 July 2013).
7
°CR 2013/15, p. 55. para. 38 (Boyle).
71
Chair's Report of the 60th Annual Meeting, Report of the International Whaling Commission, 2008, p. 26,
para. 10.1.2. -32-
Tite purpo.5eof tt progrllmme of wlwling emerges from tt cmtsitlemtimt of ils .5cttle,its structure,
tite mmmer in wlticlt is comluctetl, mu/ its results
55. The Court's assessment of whether a particular programme of whaling is conducted
exclusively "for purposes of scientific research" can be determined by considering a range of
factors. [SIide 13: factors]
56. A first factor to look ats the scale of the programme. That is, the type and the number
of the whales to be killed. lt will be relevant for the Court to consider the evidence before it asto
how that number was arrived at. Likewise, it will be relevant to compare the number of whales to
be killed to the levels of other catch under the Convention, including both commercial and special
permit catch prior to the introductionof the moratorium. Similarly, the Court may find it helpful to
consider any comments made by the scientific experts in relation to the number of whales to be
killed.
57. A second factor to consider is the structure of the programme. Here, relevant
considerations include the timing of commencement and the stated duration of the programme, its
objectives, and how these relate to the work of the Scientific Committee. Other relevant factors
include the organization that carries out the whaling, how it is funded, what other scientific
research it conducts- if any- and the professional background and qualifications of the
personnel involved.
58. A third factor to consider is the manner in which the programme is conducted. The
Court may question whether a programme has been conducted "for purposes of scientific research"
if it is instituted using lethal research techniques at the expense of available non-lethal alternatives,
particularly where other members of the Commission have demonstrated that those lethal
techniques may be unnecessary and are unlikely to deliver any meaningful results. The Court
should also have regard to the fact that the whaling is carried out in previously valuable
commercial whaling grounds now specifically set aside by the Commission as a sanctuary for the
protection of whales.
59. Finally, itis also important to look at the results of the programme. The utility of the
data obtained will be relevant here. Similarly, a relevant consideration will be what happens to the
whales once they have been kilied. Forexample, are they sold on the commercial market? -33-
60. Full consideration must be given to ali these factors. The assessment must be made as a
whole. Those factors that retlect purely scientific requirements must be balanced against those that
retlect commercial considerations. Where there is direct evidence that a programme has been
structured to take account of economie considerations, then that evidence would strongly militate
against the programme being one exclusively "for purposes of scientific research".
61. For example, serious questions would arise asto whether a programme of special permit
whaling were exclusively "for purposes of scientific research" if:
it was commenced at exactly the point that the door was closed to commercial whaling;
it was conducted in the same whaling grounds, using the same vessels, and the same personnel
as prior commercial whaling;
it was entirely isolated from other research programmes and institutions;
meat from the whales killed was sold on the commercial market to generate revenue;
the number of whales to be kilied under the special permit was significantly in excess of the
levels setin special permits by other States; and
expert witnesses had questioned the scientific basis for that number.
[Siide 14: logo]
62. The task of assessing the application of Article VIII to the facts in this case lies beyond
New Zealand's role as intervener. That is for the Court. 1 cannot describe the task more clearly
than the members of the Commission have put it themselves: whaling under special permit must be
"conducted solely in accordance with scientific requirements" 72and "in a manner consistent with
73
the principles and in accordance with the provisions ofthe Convention" •
Conclusion
63. Mr. President, Members of the Court, the Convention is a collective enterprise, in
recognition of the shared interest of its parties in the long-term survival of whale stocks. Under
that collective enterprise, parties to the Convention have agreed to conduct ali of their whaling
activities in accordance with the Convention's rules.
72
IWC Resolution 1985-2, "Resolution on Scientific Permits" (adbytconsensus), para. 4.
7
JIWC Resolution 1986-2, "Resolution on special permits for Seientific Research (adopbydconsensus), at
preliminary paragraph 5; MA, Vol. Il, Ann. 43, p. 148. -34-
64. Those rules include specifie rules around the provision of special permits for the
purposes of scientific research, set out in Article VIII. Article VIII is not a "stand-atone régime".
lt is not an exemption from the Convention. lt is an integral part of the Convention's system of
collective regulation.
65. To reiterate, Article VIII, paragraph 1, allows for a Contracting Government to issue
special permits subject to three requirements: first, the special permit must be issued exclusively
"for purposes of scientific research"; second, it must be issued subject to restrictions as to number;
and, third, it must be issued consistent with the procedural requirements of paragraph 30 of the
Schedule, and the duty of meaningful co-operation they entait.
66. ln accordance with the established principles of interpretation applied by this Court,
Article VIII must be applied in a reasonable way, consistent with its purpose of scientific research,
and in accordance with the abject and purpose of the Convention as a whole. No margin of
appreciation exists that allows it to be used to side-step the other rules of the Convention, or to
undermine the management measures that have been adopted under it. Whether Article VIII has
been applied properly in a particular case is a question of fact that is open for the judicial
determination of this Court in the usual way.
67. Mr. President, Members of the Court, thank you for your attention. Mr. President, may 1
invite you to cali on the Agent to address the two further requirements of Article VIII, and so to
conclude New Zealand's observations.
The PRESIDENT: Thank you, Sir. And 1give the tloor to the Agent of New Zealand. You
have the floor, Madam.
Ms RIDINGS:
NECESSITY, PROPORTIONALITY AND THE DUTY
OF MEANINGFUL CO-OPERATION
1. Mr. President, Members of the Court, the Attorney-General has explained the key
requirement of Article VIII that whaling under special permit must be conducted exclusively "for
purposes of scientific research". My presentation will address the two remaining elements of
Article VIII: - 35-
(a) first, the requirement that a Contracting Government that issues a special permit must restrict
the number of whales to be kilied under that permit; and
(b) second, that such a Contracting Government must first discharge its duty of meaningful
co-operation with the IWC.
Setting the number ofwhales that may be taken
under special permit
2. Turning to the setting of the number of whales that may be kilied under special permit,
Article VIII, paragraph 1, requires that special permits are to be granted "subject to such
restrictions asto number and subject to such other conditions as the Contracting Government thinks
fit". As Japan has accepted, this obliges the Contracting Government to set a limit on the number
of whales to be killed 74• Japan aIso accepts that the number must be set at a level that will not have
75
an adverse effect on the status of the stocks • lt further concedes that this discretion is "not wholly
76
unlimited- it is not a blank cheque" •
3. These points are therefore not in contention. However, what is in contention is how the
number is to be determined, and whether that determination is entirely self-judging and completely
77
beyond the review of this Court. ln light of your decision in the Mutual Assistance case that
cannot be so. The number should be determined objectively in accordance with the ordinary rules
of interpretation. As 1 will explain, this means that the following factors must be taken into
account:
(a) first, the number of whales kilied must be the lowest necessary for, and proportionate to, the
purposes of scientific research;
(b) as a consequence, there is an expectation that non-lethal methods of research will be used;
(c) third, the number of whales to be killed must be set at a level which takes into account the
precautionary approach; and
7WOJ,para. 9.
7~/b iada,9.
7/bid, para65.
7Certain Questions of .'vlutua/ Assistancein Criminal .'v!atter.\·(Djibouti vFrance), JudKment,
I.C.J. Reports2008, p. 177. -36-
(d) finally, the discretion to set the number ofwhales to be killed must be exercised reasonably and
consistent with the object and purpose of the Convention.
The numbers killed must be necessary and proportionate
4. Taking the first point: the number ofwhales to be killed must be the lowest necessary for,
and proportionate to, the purposes of scientific research. That is, there must be a direct relationship
between the number of whales to be taken and the purposes for which a special permit is granted.
There can be no rationale, other than scientific rationale, for determining the number of whales to
be taken under special permit.
5. Japan claimed in its Written Observations that a requirement that the number of whales
killed must be necessary and proportionate cannot be inferred from the obligation in Article VIII to
impose "restrictions as to number" 78• Professor Boyle then accepted that "the number of whales
79
taken must be 'necessary and proportionate' to the objectives of the research" • He could not do
otherwise. The obligation to set a restriction as to number must be interpreted in light of the
express purpose for which special permits may be issued- "scientific research". However, what
Professor Boyle fails to appreciate is that the obligation must also be interpreted in light of the
context of Article VIII, which creates a mechanism for parties to the Convention to obtain the
scientific research necessary for the IWC to carry out its functions. And it must be interpreted in
light of the object and purpose of the Convention, namely to replace unilateral whaling with
collective regulation in order to provide for the interests of the parties in the proper conservation
and management of whales. ln other words, the sample size must be proportionate to the role of
Article VIII within that system of collective regulation. The collective interest means that the
killing ofwhales must bejustified by the utility ofthe data obtained for the Commission's needs.
6. The justification for this is clear. Once a whale has been kilied it is gone. lt cannot be
used in the future by another Government for research, or for any other purpose. ln this way,
killing under special permits directly impacts on the interests of the other parties to the Convention.
78WOJ, para.65.
7CR 2013/15, p. 65,para.78 (Boyle). -37-
ln a system of collective regulation, those impacts should be kept to a minimum- where they can
be justified as both necessary and proportionate.
7. This interpretation is supported by the Guidelines and Resolutions of the IWC.
[SIide 15: quotes] They provide evidence of the factors that may be taken into account in
determining whether the number of whales to be killed is necessary and proportionate. At its
Fifteenth meeting in 1963, the IWC agreed that "the numbers shown in each permit should be the
Iowest necessary for the purposes indicated in that permit" 8• ln 1986, it agreed that Contracting
Governments should take into account whether the numbers taken are "necessary to complete the
81
research" • These show the need for there to be a direct link between the number killed and the
scientific objectives of the research.
8. But the Guidelines and Resolutions also evidence concern for the broader role of
Article VIII as a mechanism which supports the IWC in carrying out its functions.
[Siide 16: quotes] Thus, in 1986, it was agreed that the numbers of wha1es that are sacrificed for
the scientific good should "contribute information essential for rational management of the
82
stock" • And, in 1987 and 1995, that any lethal programme should address "critically important"
research needs 83• [Siide 17: logo]
9. Professor Boyle has criticized New Zealand for not saymg anything about the
84
methodology of calculating sample sizes • We do not wish to try the Court's patience by delving
into factual matters. That is not our role as an intervener. We would, however, invite the Court to
look at whether, according to the expert evidence that the Court has beard, there is a clear scientific
reason for the number ofwhales to be taken.
1 O.The Court may aIso wish to look at the scientific research being undertaken, and whether
it will contribute to the operation of the IWC, and not just the interests of one of its members.
8°Chairman 's Report of the 15th Meeting, 15th Report of the Commission, 1965, p. 20, para. 17,
http://iwc.intlcache/downloads/drr7 ewtgj88c8ggc0kck8c04w /RIWC15.pdf.
811WC Resolution 1986-2 "Resolution on Special Permits for Scientilic Research" (adobyeconsensus); MA,
Ann. 43, Vol. Il, p. 148.
82
/bid.
81
1WC Resolution 1987-1. "Resolution on Scientilic Research Programmes"; MA, Ann. 44, Vol. Il, pp. 150-156;
IWC Resolution 1995-9, "Resolution on Whaling under Special Permit"; MA, Ann. 46, Vol. Il pp. 153-154.
84CR 2013/15, p. 65, para 78 (Boyle). -38-
Where, for example, a large number of whales is to be kilied in order to establish a fact that is not
in dispute, or to collect information which does not contribute to, nor is relevant for, the
Commission's central management tool, there must be a question mark over whether that is
necessary and proportionate. An indication that the stock might bear the killing of a certain
number is not in itself a licence for failing to place realistic limits on the number kilied for science.
Il. Setting the number that is necessary and proportionate requires balancing the means
employed against the end sought. Where the means employed are disproportionate to the actual or
anticipated scientific results, or are not necessary to achieve the objective of the scientific research,
the discretion to set a catch Iimit has been exercised improperly.
12. Japan seeks to evade this point in its Written Observations by suggesting that the number
of whales to be killed is beyond this Court's review- claiming it is the technical result of the
85
application of standard algorithms to the identified research objectives of a particular programme •
At this hearing Japan presented the formula as proof to the Court, even though counsel for Japan
admits that he does not understand it86• Nevertheless he invites the Court to rely on it. But the
research objectives can be reverse engineered to supply a desired sample size. The assessment of
"necessity and proportionality" is not a technical scientific calculation, as Japan seeks to present it.
To the contrary, "necessity" and "proportionality" are established concepts in international law-
87
which this Court has applied on numerous occasions, in numerous different factual contexts • To
concede to Japan's interpretation is to leave Article VIII wide open. lt would render meaningless
and ineffective the obligation to restrict the number of whales to be killed. And it would be
inconsistent with the object and purpose to interpret Article VIII as permitting whales to be killed,
even where that is "unnecessary" or "disproportionate".
85
WOJ, para. 66.
86
CR 2013115, p. 63, para. 69 (Boyle).
87
Scc, for cxamplc, Gabéikovo-Nagymaros Project (1/ungary/S/ovakia), Judgment, 1. C. J. Reports 1997, p. 7;
Armed Activities on the Territ01y of the Congo (Democratie Republic of the Congv.Uganda),Judgment, I.C.J. Reports
2005, p. 168; Oi/ 1'/atforms (Islamic Republic of Iran v. United States of America), Judgment, C. J.Reports 2003,
p. 161; Legality of the Threat ofNuclear Weapons, Advis01y Opinion, l.C.J. Reports /996, p. 244, para. 30. -39-
There is an expectation that non-lethal methods of research will be used
13. As a consequence of the requirement that the number taken must be necessary and
proportionate, there is an expectation that non-lethal methods of research will be used wherever
possible. ln 1986, the Commission recommended by consensus that Contracting Governments
issuing special permits are to take into account whether "the objectives of the research are not
88
practically and scientifically feasible through non-lethal research techniques" • Annex Y,
applicable to JARPA Il, repeats this and further asks "whether the research sought could be
obtained by non-lethal means" 89• The 2008 Guidelines also require assessments to be made ofthe
90
utility of lethal, compared to non-lethal, methods of research • It is not a question of what is
91
workable from a practical or financial perspective, as claimed by Japan • Rather, it comes down to
the simple proposition that you do not kill whales unless you need to. And you only do so if it is
necessary to answer a research question that is important for conservation and management
purposes.
14. This expectation that non-lethal means will be used wherever possible is supported by a
consistent pattern of IWC Resolutions highlighting the importance of obtaining scientific
information without needing to kill the objects of that research 92• The reason for this is clear. The
parties to the Convention have a collective interest in ensuring that whales are not killed
unnecessarily.
The Precautionary Approach applies
15. The expectation that non-lethal methods of research are to be used is reinforced when
recourse is made to general principles of international law. lt is widely accepted in international
agreements that Contracting Governments should act with prudence and caution when applying
provisions, such as Article VIII, which may have an effect on the conservation of natural
8
IWC Resolution 1986-2 "Resolution on Special Pcrmits lbr Scicntilic Rcscarch" (adoptcd b) consensus); MA,
Ann. 43, Vol.II, p. 148.
89Guidelincs for the Revicw of Scicntilic Permit Proposais, Ann. Y, "Report of the Scientilic Committcc",
J. C'etaceanRes Manage. 3 (Suppl.) 2001; MA, Ann. 48, Vol. II, pp. 156-157.
90''Proccss for the Rcview of Scientilic Permits and Rcsearch Rcsults from Existing Permits" Report of the
Scicntilic Committee, Annex P, J. Cetacean Res. Manage. II (Suppl.), 2009, 398-401 ; MA. Ann. 49, Vol. II
pp. 158-161.
91
WOJ, para. 63; CR 2013/15, p. 61, para. 64 (Boyle).
92
See MA, Vol. II, Anns. 10-14. -40-
93
resources • The need for prudence and caution, or for the application of the precautionary
94
approach, is greatest when the information is uncertain, unreliable or inadequate •
16. Japan "does not dispute that it should act with prudence and caution" in line with the
95
precautionary approach • lt concedes that the precautionary approach may be invoked "for the
purposes of interpreting and applying Article VIII and in so far as permissible under the law of
treaties"96• lt even argues that JARPA Il "supports a precautionary approach" because it entails the
collection of more scientific information 97 - notwithstanding, 1 might add, the large number of
whales killed in the process. What Japan forgets, however, is that it is still necessary to be
precautionary in that collection of scientific data. And that data should serve sorne useful scientific
purpose.
17. A "prudent and cautious" approach would ensure that the number to be taken is
necessary and proportionate, and would give preference to the conduct of non-lethal methods of
research. It does not, contrary to what Japan argues, place the onus on a State to prove a risk of
serious or irreversible harm before the precautionary approach can come into play 98• lndeed to do
so would be to eviscerate the precautionary approach of any meaning. To first prove risk of serious
or irreversible harm would eliminate any uncertainty. Yet uncertainty is the very reason for acting
with caution.
18. The need to act with prudence and caution conditions the conduct of JARPA and
JARPA Il. Japan has made much of the abundance estimate for minke whales that was agreed by
the Scientific Committee in 2012 99• But it fails to take into account the uncertainty in stock
abundance that prevailed until that time. And it also fails to take into account the continuing
93Sce WON, p. 40, lootnotc 136.
94See Southern 8/uejin Tuna cases (New Zealand v Japan; Australia v. Japan), Provisional Measures Order,
27 August 1999; (1999) 38 /LM 1624 at para. 7. Sec also Rio Declaration on Environment and Development, adopted at
the United Nations Conference on Environment and Development on 13 June 1992 (UN doc. A/CONF.I51/26 (Vol. 1)),
Principlc 15.
95
CMJ, Vol. 1, p. 424, para. 9.33.
96
CMJ, Vol. 1, p. 298, para. .11.3
97
CMJ, Vol. 1, p. 424 para. 9.33.
98CMJ, Vol. 1, pp. 424-425, para. 9.34.
'J~R'2013/15, pp. 65-66, paras. 80-85 (Boyle). - 41-
uncertainty in the abundance of humpback and fin whalesum. ln those circumstances, New Zealand
should not be required to prove a risk of harm to the stocks before asking Japan to act with
prudence and caution.
A discretion must be exercised reasonably and consistent with its purpose
19. As 1 highlighted earlier, the crucial difference between New Zealand and Japan is that
Japan considers that it is entirely up to the Contracting Government issuing the special permit to
make the determination of the number of whales necessary for the completion of the proposed
101
research • lt argues that no other Contracting Government has any say in this. Japan even goes
102
so far as to eschew a role for this Court in reviewing that determination • lndeed, while it appears
to accept that a Court could criticize a Contracting Government for making a "clearly arbitrary"
decision 103,it nullifies this apparent concession by failing to provide any yardstick by which the
Court could make such an assessment.
20. Japan's contention that the Court is incapable of such an assessment is clearly
inconsistent with the approach you yourselves have taken. This Court dealt directly with the
104
review of the exercise of discretionary power in the Mutual Assistance case • ln that case, you
found that the question of whether the requirements for the exercise of a discretion have been met
remains open to the Court's review to ensure that the discretion is exercised in good faith 105• That
in turn requires that the discretion must be exercised for the specifie purpose for which it is
106
given • To use the words of this Court in Gabcikovo, the requirement of good faith "obliges the
100
Sce Report of the Scicntilic Committce and Anncx 01, Report of the Standing Working Group on Scicntilic
Permits, J. Cetacean Res. Manage. 8 (Suppl.), 2006, 48-52; MA, Vol. Il, Ann. 52, pp. 172-182.
10WOJ, paras. 9 and 64.
10WOJ, para. 66.
10WOJ, para. 66.
10Certain Questions of Mutual Assistance in Criminal Mal/ers (Djibouti v. France), Judgme/11, I.C.J.
Reports 2008, p. 177.
105
/bid., p. 229, para. 145.
106
/bid. See also Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J.
Reports 2009, p. 213, at p. 241 (para. 61). -42-
Parties to apply [the provision] in a reasonable way and in such a manner that its purpose can be
realized" 111•
21. Clearly this is a determination for the Court to make based upon the facts before it.
Procedural obligations
22. Mr. President, Members of the Court, 1 turn now to the procedural obligations which
must be complied with by a Contracting Government which proposes to issue a special permit. ln
this part of my presentation 1will review:
(a) First, the specifie procedural obligations which a Contracting Government must fulfil in such
circumstances;
(b) Second, the duty of meaningful co-operation which is fundamental to an understanding of the
duties of a Contracting Government; and
(c) Then, the nature of this duty ofmeaningful co-operation.
Specifie procedural obligations
23. Paragraph 30 of the Schedule establishes a prior review mechanism under which the
108
Scientific Committee is to review and comment on proposais that have been notified to it • lt is a
prior review mechanism of proposais, not an ex post facto review of permits already granted.
Under the Rules of Procedure, the Scientific Committee is to submit reports and recommendations
109
to the Commission • According to Article VI, the Commission may in tum make
recommendations to the Contracting Government in relation to the proposed special permit 11•
24. This process of notification, review, reporting, and recommendation is, in essence, a
process of dialogue between those parties seeking to issue special permits and the other parties to
the Convention. It is through such dialogue and consultations that the use of special permits can be
monitored, and the interests of the other parties can be protected. Such a requirement of prior
consultation is- in the words of the late Patricia Bimie- "a natural counterpart of the concept of
107
Gabc'ikovo-Nagymaros Project (1/ungary/Siovakia), Judgment, I.C.J. Reports /997, p. 79, para. 142.
10Para. 30 of the Schedule.
10Rules of Procedure, Rule M (4) (a).
11Art. VI of the Convention. -43-
111
equitable utilization of a shared resource" • lt is not up to the Contracting Government proposing
to issue a special permit to decide what interests of the other parties will be affected by its
proposais. That is essentially the point made in the Lac Lanoux Arbitration 112• Nor can those
interests act as a "veto" on the Contracting Government's actions 11• But, as this Court recognized
in Pulp Mills, it is incumbent on the Contracting Government to undertake genuine consultations in
114
good faith. Such consultations must not be mere formalities •
25. ln this way, the procedural obligations, to use the words of this Court in Pulp Mills:
"enable the parties to fulfil their substantive obligations" 115• In other words, they are a safeguard
which ensures the substantive obligations are complied with. Indeed, that is the very reason for
116
which the paragraph 30 review mechanism was adopted •
26. Japan bas sought to obscure this by citing Pulp Mills to the effect that a breach of
117
procedural obligations does not automatical/y entait the breach of substantive obligations • That
may be so. But in a system of collective regulation, procedure and substance are intrinsically and
necessarily linked. The procedural obligations serve to prevent parties from acting unilaterally
where to do so would be to undermine the object and purpose of the Convention. The failure to
comply with procedural obligations directly effects the performance by the Contracting
Government of its substantive obligations under Article VIII.
Duty of meaningful co-operation
27. 1turn now to the duty ofmeaningful co-operation.
28. The obligations of notification and consultation under paragraph 30 of the Schedule
provide a specifie expression of an overarching duty of co-operation. Japan initially sought to
11Patricia Bimie, Alan Boyle, Catherine Redgwell, International Law and the Environment, 3rd edition, (Oxford
University Press), 2009, p. 177.
11Lac LanozccArbitralion, 24 ILR (1957), 101, p. 119.
11/bid., pp. 128-130; 140-141.
11/bid., p. 119.
11Pu/p !vlil/son the River Untguay (Argentina v. Uruguay), JudgmentI.C.J.Reports 2010 (/), p 49, para. 78.
116Report of the Scientific Committee to the 29th Meeting of the Commission, Rep. /nt. Wlzal. Commn. 28, 1978,
p. 41, para. 9.3.2. http://www.iwc.int/annual-reports.
117
As indicatcd in the Court's decision in Pulp Milis on the River Uruguay (Argentina v. Uruguay). Judgment,
I.C.J. Reports 2010 (/), p. 49, para. 78. -44-
minimize the role of paragraph 30 by claiming that it merely introduced an obligation of
118
notification • lt then admitted that paragraph 30 is a "mechanism of co-operation" between
119
Contracting Governments and the organs of the IWC • StiJl later it conceded that a duty of
120
co-operation arises under the Convention • lt would have been difficult for Japan to do otherwise.
The obligation to co-operate permeates international environmental law. lt was recognized in
Principle 24 of the 1972 Stockholm Declaration 121 and in the 1982 Law of the Sea Convention 122•
And the relevance of the duty of co-operation is clear in light of the view of this Court in
Gabëikovo that treaties should be interpreted in light of other rules of international law, including
123
developing environmental norms •
29. Having conceded a duty of co-operation, Japan attempts to eliminate its application by
claiming that the rights of a Contracting Government under Article VIII cannat be diminished by
. 124
any proce urd o co-opfrat1on . Professor Pellet restated this in his presentation to you last
week 125• However Professor Lowe sought to confuse us by accepting that Japan was bound to
consider and take into account comments provided by the Scientific Committee under
126
paragraph 30 • This attempts to conceal Japan's failure to have regard to the proper role of
Article VIII as an integral part of the Convention. Furthermore, it is fundamentally at odds with
the object and purpose of the Convention. The negotiators decided to develop a Convention which
would provide for collective regulation in contrast to unilateral action.
118
CMJ, para. 8.28.
119
CMJ, para. 8.29.
120
WON. paras. 9 and 42.
12Principle 24, para. 2: •·cooperation through multilateral or bilateral arrangements or other appropriate means is
essential to effectively control, prevent, reduce and eliminate adverse environmental eflècts resulting from activities
condueted in ali spheres, in such a way that due account is takcn of the sovereignty and interests of ali States."; United
Nations doc. NCONF.49/14/Rev. 1, 11/LM 1421 (1972).
12Art. 65 United Nations Convention on the Law of the Sea: "States shall cooperate with a view to the
conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate
international organizations for their conservation, management and study".
1.1Gabéikovo-,/lgymaros Project (Hungmy /Siovakia). Judgment. I.C.J. Reports 1997, p. 7, paras. 112 and 140;
Arbitrationregarding the Iron Rhine Raliway (Belgium v. Netherlands), PCA (2005), pp. 28-29, paras. 57-60.
12CMJ, para. 8.12.
12CR 2013113, p. 65, para. 18. (Pellet).
1bCR2013/15, p. 23, para. 46. (Lowe). -45-
30. The duty of co-operation requires that co-operation be meaningful. This Court
recognized in the North Sea Continental She(f cases that parties under a duty to negotiate must
127
conduct themselves so that the negotiations are meaningful • ln its Commentary on the Draft
Articles on Prevention, the International Law Commission commented that even though the Court
spoke of "negotiations" in that case, the good faith requirement applied equally to consultations 12•
As consultations and negotiations are but two aspects of an overarching duty to co-operate, a duty
of co-operation must itself aIso be meaningful.
The nature of the duty ofmeaningful co-operation
31. There are four aspects to the duty of meaningful co-operation.
129
32. First, consultation procedures must be allowed to run their course • There cannot be
meaningful co-operation where a party acts without waiting for the consultation process to be
completed. lt would be contrary to the fundamental duty of meaningful co-operation for a party to
initiate a new proposai without receiving and considering a proper scientific review of the earlier
proposai. As 1mentioned earlier, one of the reasons that JARPA Il has come under such criticism
within the IWC is because it was commenced without Japan waiting for a review by the Scientific
130
Committee ofthe results of JARPA • This was contrary to the requirements ofparagraph 30, and
the guidelines developed by the Scientific Committee.
33. Second, in its work on prevention, the International Law Commission confirmed that
meaningful co-operation requires that account be taken of the views and legitimate interests of
131
others • This includes a willingness to modify one's approach in light of the views of others.
132
lndeed, Japan has conceded this • The requirement for meaningful consultation does not mean
12North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47, para. 85.
128
1ntemational Law Commission , "Draft Articles on Prevention of Transboundary Harm", Commentary on
Art. 9,p. 161, para. 4.
12Pulp lvlills on the River Urrt!{llay(Argen/ina v. Uruguay) Judgment. I.C.J. Reports 2010 (/),p. 67, para. 147.
JJSee Chair's Report of the 57th Annual Meeting, Annual Report of the International Whaling Commission 2005
p. 5, paras. 37-39; CMJ, Vol. Il, Ann. 64, pp. 409-412.
1
D 1ntemational Law Commission, "Draft Articles on Prevention of Transboundary Harm", Commentai) ' on
Art. 9, at p. 160, para. 2.
132WOJ, para. 9. -46-
that the consulted party has a right of veto over the activitym. However, and this has been made
clear by the International Law Commission, while the party may decide to go ahead, it is stiJl
134
obliged to take into account the interests of others • lt does not merely have to provide an
135
explanation for its reasons, as claimed by Japan • Neither is it sufficient for the Contracting
Government to merely state that the comments of the Scientific Committee have been given due
consideration - as Japan indicates in both its Written Observations 13, and even more categorically
137
in its oral presentation • lt requires that the legitimate interests of the parties can be seen to have
been objectively taken into account. To say otherwise would be to deny paragraph 30 of any
meaning. Rather, the duty of meaningful co-operation ensures that the party- in the words of the
Lac Lanoux Arbitral Panel- gives "a reasonable place to adverse interests" 138• Ms Takashiba has
139
misrepresented our position. lt is not a question ofbending to the views ofothers • Rather, even
if you disagree with them, those views should be seen to have been taken into account.
34. The third aspect of a duty of meaningful co-operation is that, where a discretion ts
exercised, due process must be observed in order to avoid encroaching on the rights of others. As
the WTO Appellate Body has said in the Shrimp!Turtle case: there is a "need to maintain a balance
of rights and obligations between the right of a Member to invoke one or other of the
exceptions ... on the one hand, and the substantive rights of the other Members ... on the other
140
hand" • The Convention and paragraph 30 establish a role for the Scientific Committee in the
issuance of special permits. lt is contrary to due process for the rights of other Contracting
Governments, in the effective functioning of an international organization, to be ignored by a
Contracting Government intent on asserting a unilateral, and unregulated, power to issue special
permits under Article VIII.
11Lac Lanoux Arbitra/ion, 24 ILR (1957), 101 at pp. 128-130; 140-1.
131nternational La\\ Commission, "Draft Articles on Prevention ofTransboundary Harm", commentary, p. 161,
para. 10.
mCMJ, Vol. 1,paras. 8.63 and 8.76.
IJWOJ, para. 9.
meR 2013/15, p. 37, para. 28 (Takashiba).
138
Lac LanozccArbitra/ion, 24 ILR (1957), 101 at p. 141.
13
qCR 2013115, p. 35, para. 24 (Takashiba).
140
Uniled States - lmporl Prohibition of Certain Shrimp and Shrimp l'roducls, Report of the Appcllate Body,
WT/DS58/AB/R, ( 12 October 1998), para. 156. -47-
35. Finally, the duty of meaningful co-operation requires that a party not only to take into
account the interestsf other parties, but to increase the levet of engagement where the interests of
those other parties are adversely affected4• Where the co-operation is in respect of a shared
142
resource, as pointed out by the ITLOS Chamber in the Area Advisory Opinion , the duty to
co-operate must take into account these shared interests. One party atone cannot dictate how that
shared resource is to be utilized. lndeed, the greater the degree of unilateral action, the greater the
expectation that the views of others will be taken into account.
36. lt is therefore incumbent on a Contracting Government issuing a special permit to pay
heed to the concerns of parties, where those concerns have been consistently, and unambiguously,
expressed over a number of years. The resolutions of the IWC on special permit whaling, and on
special permits issued by Japan, provide clear evidence of those concerns. Failure to engage with
those concerns, and the exercisef strident unilateralism in a Convention for collective regulation,
would be contrary to the duty of meaningful co-operation .
37. To return to Judge Greenwood's question, the IWC Resolutions, white not themselves
binding, in this way give content to the duty of meaningful co-operation. ln fulfilling this duty, a
Contracting Government must take into account the interests of others as expressed in the
143
Resolutions. Contrary to the suggestionof Japan ,New Zealand does not seek to reverse the
burden of proof at international law. But where there is prima facie evidence that other parties to
the Convention consider that their legitimate interests have not been taken into account, the onus is
on a Contracting Government to show that it has done so, and that it has properly fulfilled its duty
of meaningful co-operation.
Concluding Observations
38. Mr. President, Members of the Court, 1now wish to make sorne concluding observations
regarding the issues which New Zealand believes are of critical importance to the correct
construction of the Convention.
14WON, para. 104.
14Re~p sionit ineOsblil{ations of States Sponsoring Persans and Ere~pietowAttivities in the
Area, Advis01yOpini1 Fcbruary 2011; (2011/LM0458 at paras. 147, 148 and 150.
14WOJ, paras. 43-47. -48-
39. Mr. President, the interpretation of the Convention in this case boils clown to a question
of stark choices. ls Article VIII to be interpreted as permitting unregulated and unreviewable
unilateral action,oris it to be interpreted within the context of a system of collective regulation? ls
Article VIII to be interpreted as a stand-alone provision, or as part of the fabric of the Convention
as a whole? ls it a self-judging provision, so that it is purely up to the Contracting Government to
determine the nature, scale and purpose of a special permit? Or are there reasonable constraints
placed upon that Contracting Government which may be objectively determined by this Court?
40. Mr. President, the Convention establishes a system of collective regulation for the
conservation and management of whale stocks. Article VIII must be interpreted in light of that
object and purpose.
41. Article VIII permits the grant of special permits only to take whales "for purposes of
scientific research" . Japan has sought to mystifY the determination of what is scientific research,
and to accord for itself the right to decide whether a programme of whaling is for that purpose.
Mr. President, Members of the Court, New Zealand rejects this ousting of your interpretative role
in this case.
42. Even where a Contracting Government issues a special permit "for purposes of scientific
research", it is still required to ensure that the number ofwhales to be kilied under that permit is the
lowest necessary for, and proportionate to, the scientific purpose, and takes into account the
collective interestsof the parties. This is a matter for objective determination in light of the facts,
as evidenced through the Guidelines and Resolutions of the Scientific Committee and the
Commission.
43. There is, in any case, a substantive duty of meaningful co-operation on a Contracting
Government which proposes to issue a special permit. This requires it to show that it has taken into
account the legitimate interests of the other parties to the Convention; that it has balanced the
interestsof ali the parties in the conservation and management of whale stocks.
44. Finally,1wish to recall the historical context of this Convention- the initial optimism
of a common international endeavour, which was eroded by unilateral action. New Zealand
believes that this Court is the gateway to the resolution of the dispute over the interpretation of
Article VIII of the Convention. lt is only through recourse to international dispute settlement that -49-
the fundamental legal issue, which has hampered the effective functioning of the IWC, can be
resolved.
45. Mr. President, Members of the Court, this concludes New Zealand's observations on this
case. Thank you for your attention.
' The PRESIDENT: Thank you very much, Dr. Ridings. Before concluding this morning's
sitting,give the floor to two Judges who have questions. 1shall now give the floor to
Judge Cançado Trindade. Judge Cançado Trindade, ifyou please.
Judge CANÇADO TRINDADE: Thank you, Mr. President. After listening to the arguments
of Australia and Japan, as weil as of New Zealand, 1have questions to putto the three participating
Delegations, in arder to obtain written or oral clarifications from them, on their views as to the
interpretation and application of the International Convention for the Regulation of Whaling. My
questions are put, first, to Australia, Japan andew Zealand together; secondly, only to Japan; and
thirdly, only to New Zealand.
- So,first, my questions to Australia, Japan and New Zealand together are thefollowing ones:
- How do you interpret the terms "conservation and development" of whale stocks under the
International Convention for the Regulation of Whaling?
- ln your view, can a programme that utilizes lethal methods be considered "scientific research", in
tine with the abject and purpose of the International Convention for the Regulation ofWhaling?
- Second/y, my questions on/y to Japan are thefollowing ones:
- To what extent would the use of alternative non-lethal methods affect the objectives of the
JARPA-11programme?
- What would happen to whale stocks if many, or even ali States Parties to the International
Convention for the Regulation of Whaling, decide to undertake "scientific research" using lethal
methods, upon their own initiative, similarly to the modus operandi of JARPA-11?
-And thirdly, my questions on/y to New Zealand are thefollowing ones:
- ln your view, does the fact that the International Convention for the Regulation of Whaling is a
multilateral treaty, with a supervisory organof its own, have an impact on the interpretation of its
abject and purpose?
- You have stated in your Written Observations (of 4 April 2013) that the abject and purpose of the
International Convention for the Regulation of Whaling is: "to replace unregulated, unilateral
whaling by States with collective regulation as a mechanism to provide for the interests of the
parties in the proper conservation and management of whales" (p. 16, para. 33). In your view, is -50-
this a widely accepted interpretation nowadays of the object and purpose of the International
Convention for the Regulation of Whaling? Thank you, Mr. President.
The PRESIDENT: Thank you, Judge Cançado Trindade. And now 1 give the tloor to
Judge Charlesworth. Judge Charlesworth, you have the tloor.
Judge CHARLESWORTH: Thank you, Mr. President. My questions are both of r
clarification also. My first question is for Australia.
"ls Australia's argument that Japan's conduct of JARPA Il is an abuse of right
an alternative to its argument about the proper construction of Article VIII of the
Convention, or is it made on a subsidiary basis to the treaty construction argument?"
And my second question of clarification, Mr. President, is for Japan.
"ln Japan's view, are there any objective elements in the phrase 'for the
purposes of scientific research' as used in Article VIII of the Convention, or is the
definition of scientific research solely a matter for the determination of those
Contracting Governments that issue special permits under Article VIII?"
Thank you, Mr. President.
The PRESIDENT: Thank you, Judge Charlesworth. The written text ofthese questions will
be sent to the Parties and the intervening State as soon as possible. The Parties are invited to
provide a reply orally during the second round of arguments. Japan can present its comments on
replies orally next week. Australia, if it wishes, may submit its brief comments on Japan's replies
in writing not later than on 19 July 2013. New Zealand is invited to answer the questions in writing
by this Friday, 12 July, by 3 p.m., so that Japan can comment on New Zealand's replies. And
Australia will be entitled to comment on New Zealand's answers in a written form by the same
deadline of 19July 2013. This sitting is adjourned.
The Court rose at 11..10a.m.
Public sitting held on Monday 8 July 2013, at 10 a.m., at the Peace Palace, President Tomka presiding, in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)