Australian Government
Attorney-General's Department
OfficeofInternational Law
19 July 2013
His Excellency
Mr Philippe Couvreur
Registrar
International Court of Justice
Peace Palace
Carnegieplein 2
2517 KJ The Hague
NETHERLANDS
Dear Mr Couvreur
Whaling inthe Antarctic(Australia v. Japan: New Zealand Intervening)
I have the honour to refer to the opportunity accorded Australia by the Court to comment on
responses provided by Japan in the course of the oral proceedings to questions asked of Japan by
Judgesof the Court.'This opportunicy applies in circumstances where the relevant questions were
responded toby Japan after the completion of Australia's oral pleadings to the Court.
The comments of Australia on the responses of Japan to the following questions are attached:
• Questions from Judge Donoghue on 2 July 2013 (CR 2013/12, p.64)
• Questions from Judge Greenwood on 4 July 2013 (CR 2013/16, p.62)
• Question from Judge Donoghue on 4 July 2013 (CR 2013/16, p.62)
• Question from Judge Cançado Trindade on 8 July 2013 (CR 2013/17, p.49)
• Question from Judge Cançado Trindade on 8 July 2013 (CR 2013/17, p.49)
• Question from Judge ad hoc Charlesworth on 8 July 2013 (CR 2013/17, p.SO)
In Iine with the instructions of the Court referred to in your letter of 10 July 2013 we assume, in the
absence of any request for further clarification by the Court, that the attached comments of Australia
will complete the process of response and comment from the Parties to these questions.
Yours sincerely
/il'/«. ~c4{
W M Campbell QC 1
Agent of Australia
3-5 National Circuit, Sarton ACT 2600 Telephonewww.ag.gov.aABN 92 66! 124436 Australian responses to Japan's answers to Judges' questions
1
On 2 July 2013, Judge Donoghue asked Japan the following guestions:
"What analysis of the feasibility of non-lethal methods did Japan conduct prior to the
setting of sample sizesfor each year of JARPA II?" and
"How did any such analysis bear upon those sample sizes?"
2
Japan offered an initial response in its frrst round, to which Australia responded in its second
3
round.
Japan offered a further response to the question in its second round, on 15 July, involving the
presentation of new documents. Professor Boyle referred Judge Donoghue to extracts of
"cruise reports", set out at Tab 19 of the Judges' Folder (Japan, Volume 3, Second Round):It
is plain that the "cruise reports" extracted at Tab 19 do not contain any analysis of the
feasibility of non-lethal methods. They do no more than offer an account of non-lethal
samples obtained between 1987/88 and 2012/13.
Further, Professor Boyle informed the Court that a "further analysis of the use of lethal and
non-lethal methods was carried out in 2007", referring to an article at Tab 20 of the Judges'
5
Folder (Japan, Volume 3, Second Round).
Australia notes that the document has not previously been put forward in these proceedings
and is undated. Australia further notes that the document does not respond to Judge
Donoghue's question as it relates to JARPA, 6 is general in its approach, and mainly addresses
7
issues of practicality and the need "to fund ... sorne cost recovery". The article notes that
'the ability to utilize the resource is also a factor' in weighing up lethal and non-lethal
8
methods.
1
2 CR 2013/12, p. 64 (Judge Donoghue).
CR2013/15, pp. 69-70, paras. 95-97 (Boyle).
3 CR2013/19, pp. 46-47, para. 56 (Sands).
4 CR 2013/22, p. 28, para. 64 (Boyle).
5
Ohsumi, S.,Goto, M, and Otani, S., "Necessity of combining lethal and non-lethal methods for whale
population research and their application in JARPA", doc. SC/59/02 (2007), avai/able at:
http://www. icrwhale.org/pdf/SC-59-02.pdf. accessed 14 July013
6Ibid., Table 2, p. 5
7Ibid, p.3.
8
Ibid, p.3 and table at p.5
1The response offered by Professor Boyle indicates that Japan has been unable to offer the
Court evidence that it conducted an analysis of the feasibility of non-lethal methods prior to
the setting of sample sizes for each year of JARPA II.
The responses to Judge Donoghue's questions are that:
(1) on the basis of the evidence before the Court Japan bas conducted no analysis
of the feasibility of non-lethal methods prior to the setting of sample sizes for
each year of JARP A II; and
(2) the adoption of sample sizes for each year of the JARP A II programme is not
informed in any way by any such analysis.
2 9
On 4 July 2013, Judge Greenwood asked Japan the following questions:
"(1) What emerged from Japan's analysis of the results from JARPA that ledit to
conclude that the sample size for Antarctic minke whales employed in JARPA was
inadequate and that it was necessary to employ in JARPA II a much larger sample
size for Antarctic minke whales, white the sample size for humpback and fin whales
remained unchanged?" and
"(2) Why did Japan proceed with the higher JARPA II sample sizefor Antarctic minke
whales before the Scientific Committee had the opportunity to study the final results
from JARPA?"
On 15 July, Professor Boyle attempted to respond to the first question. 10 He told the Court
that "JARPA II is not simply an extension of JARPA" and that its "new objectives ...
requires a larger sample size". He asserted that the matter was "a little complicated", and
referred the Court to a one page document ("Reasons for Enlarging Sample Size", at Tab 15-
6 in the Judges' Polder (Japan, Volume 3, Second Round)). Contrary to its title, that
document does not provide any chain of reasoning. It merely lists asserted facts un~er
headings such as "Research Items", "Expected Outcomes" and "Research Periods" leaving it
to the reader to deduce what the actual reason for the higher take might be.
Professor Boyle did not point to any "analysis of the results from JARPA", or any evidence
to explain how Japan concluded that "the sample size for Antarctic minke whales employed
in JARPA was inadequate and that it was necessary to employ in JARPA II a much larger
sample size for Antarctic minke whales".
As regards fin and humpback whales, Professor Boyle stated that "the JARPA programme
did not include the taking of fm or humpback whales since it did not cover multi-species
modelling, so there is no comparison therefore between the sample sizes for those species
from one programme to the other".n He offered no convincing explanation, let alone
evidence, to the Court to indicate the basis upon which Japan determined that "multi-species
modelling" met a critical research need. Professor Boyle's explanation of Japan's decision to
adopt different parameters and choices in setting sample sizes for fin and humpback whales,
9
CR2013/16, p.62 (Judge Greenwood)
1°CR 2013/22, p. 32, paras. 78-81 (Boyle).
11Ibid., para. 80.
3 as compared with m.inkewhales, was unconvincing and offered no basis for his assertion that
that "the sample sizes were calculated on the basis of carefully selected parameters, using a
standard scientific formula". Moreover, neither he nor any other counsel made any
substantiated case to maintain the killing of any fm or humpback whales in the future. Indeed,
in its second round, counsel for Australia noted that the part of the JARPA II programme
"appears on the basis of the first round, to ali intents and purposes, to have been
12
abandoned", and it was notable that no counsel for Japan, nor its Agent, clearly and
consistently contradicted that conclusion. In a contradictory fashion, Professor Boyle
asserted that the taking of fm and humpback whales were both "not essential" and "crucially
important", but he offered no evidence to support the killing of any fm or humpback whales,
and neither he nor any other counsel sought to deal with the concems expressed by Professor
13
Wall0e over the inclusion of humpback and fm whales in JARPA II. These assertions were
made by Professor Boyle without any evidence or authority, beyond a vague and
14
unreferenced assertion in the JARPA II Plan. Professor Pellet more or less confirmed that
the taking of these species were not required when he rationalised the killing of no
humpbacks and only a very small number of fm whales by stating: « Cette limitation va dans
le sens de la politique d'apaisement qu'a poursuivie le Japon au sein de la CBI ».15
Professor Hamainoto responded to Judge Greenwood's second question on the same day. 16
He offered a chronology, which helpfully confmns that Japan proceeded with the higher
JARPA II sample size for Antarctic m.inkewhales before the Scientific Committee had the
opportunity to study the fmal results from JARPA (Judges' Folder, Japan, Volume 3, Second
Round, Tab 23). Furthermore, not one of the five points made by Professor Hamamoto in his
oral introduction of the chronology 17addresses the question from Judge Greenwood. Ail of
the five points he made are matters that arose after the commencement of JARPA Il. As such
they provide no explanation of the reasons of Japan existing at the time the decision was
taken to proceed with JARPA II before its review was complete. The points are merely an ex
postfacto justification, of no support to Japan.
12CR 2013/19, p. 54, para. 78 (Sands).
13CR2013/22, p. 26, para. 53 (Boyle).
14Government of Japan, "Plan for the Second Phase of the Japanese Whale Research Program under Special
Permit in the Antarct(JARPAII)- Monitoring of the Antarctic Ecosystem and Development ofNew
Management Objectives for Whale Resources", 2005, SC/57/01 (JARPA II Plan), [MA, Annex 105], pp.l3-
15.
CR 2013/23, p. 24, para. 24 (Pellet).
16CR 2013/22, pp. 41-46, paras. 2-15 (Hamamoto).
17CR2013/22, p. 45, para. 12 (Hamamoto).
4 Professor Hamamoto stated that the decision to so proceed was taken « pour assurer la
cohérenceet la continuitédes donnéesobtenues dans la zone de recherché... en lançant un
nouveau programme de recherche qui suivrait JARPA sans interruption ».18
Australia notes the obvious inconsistency between the responses offered by Professors Boyle
19
and Hamamoto: the former presents JARPA II as a complete!y new program, whereas
Professor Hamamoto refers to the need for continuity between JARPA and JARPA II to
ensure that any break in the collection of data might be avoided. Professor Boyle asserted
(without the benefit of any supporting evidence) that the sample size had to be increased
because JARPA II was a new programme with new objectives. This supports the conclusion
that there was no need to commence JARPA II before the review of JARPA was complete.
Professor Hamamoto, on the other hand, asserted that JARPA II had to be initiated before the
Scientific Committee had studied the fmal results from JARPA because of the need to ensure
continuity between the JARPA and JARPA II programmes (an assertion that was also
unsupported by any evidence).
Australia further notes that Japan's expert, Professor Lars Walloe, was unable to offer a basis
to understand how Japan selected its sample sizes in jARPA II, or why it chose to proceed
with JARPA II before the results of JARPA could be studied.
The response to Judge Greenwood's questions is that:
(1) Japan has provided no convincing explanation, let alone any evidence, to
indicate any scientific basis for Japan "to conclude that the sample size for
Antarctic minke whales employed in JARPA was inadequate" or for Japan's
decision "to employ in JARPA II a much larger sample size for Antarctic minke
whales"; and
(2) Japan has not provided a convincing explanation, let alone evidence, to
indicate any scientific basis for the decision to "proceed with the higher
JARPA II sample size for Antarctic minke whales before the Scientific
Committee had the opportunity to study the final results from JARPA".
18
19CR 2013/22, pp. 46, para. 13 (Hamamoto).
CR 2013/22, pp. 32, para. 78 (Boyle).
5 20
On 4 July, Judge Donoghue asked Japan the following question:
"Today, tab 58-12 of the judges' folder contains sorne information about
Japan 's catch levels before the moratorium. I would like sorne more precise
information, please, as follows. For the ten years before the commercial
moratorium took effect for Japan, what was the annual commercial catch of
each of the three JARPA II target species (minke whales, fin whales and
humpback whales) by Japanese vessels in the JARPA and JARPA II research
areas? Ifit is notpossible to give aprecise answer as to the JARPA and JARPA
II research areas, please provide annual catch figures for each species with
respect to a larger area, e.g., the Southern Hemisphere. In such a case,you are
invited to offer any observations about the extent to which one can extrapolate
from catchfigures relating to the larger area, in order to gain an appreciation
of the pre-moratorium catch figures relevant to the JARPA and JARPA II
research areas."
21
Professor Hamamoto responded to this question on 15 July and used a number of graphs in
doing so (Judges' Polder, Japan, Volume 3, Second Round).
Putting to one side the other information contained in the graphie found at Tab 15-12 of the
Judges' Polder, Australia does not dispute the total figures for Japanese commercial catches
of Antarctic minke whales between 1977- 86 represented by the yellow bars on that graphie.
Australia also stands by the accuracy of the graphie entitled "Commercial catch numbers in
the JARPA II Areas in the 10 seasons prior to the Moratorium coming into effect for Japan",
which is located at Tab 44 of the Judges' Polder (Australia, Second round of oral arguments).
This was presented by Professor Crawford during the second round of oral argument by
Australia on 10 July. 22 This graphie contains aline depicting the maximum target catch of
935 minke whales per year. The graphie at Tab 15-23 of the Judges' Polder (Japan, Volume
3, Second Round) may have given the impression, by reference to aline described as "average
per annum", that the maximum target figure of 935 should be halved. That impression, if
conveyed, is wrong. The maximum target figure for JARPA II remains 935.
2°CR 2013/16, p. 62 (Judge Donoghue).
21CR 2013/22, pp. 49 -50, paras. 27-3(Hamamoto).
22
CR 2013/20, p. 24, para. 61 (Crawford).
6The response to Judge Donoghue's question is that:
the relevant total figures are reflected in the yellow bars on the graphie found at Tab 15-
12 of the Judges' Folder of Japan for the Second Round and, in respect of the area
covered by JARPA II, also at Tab 44 of the Judges' Folder of Australia for the Second
Round.
7 On Monday 8 July, Judge Cançado Trindade asked Japan the following guestion: 23
"To what extent would the use of alternative non-lethal methods affoct the
objectivesofthe JARPA-Jlprogramme?"
Professor Hamamoto sought to respond to this question on Monday 15 July.2 He did so by
general assertions unsupported by evidence.
As already shown by Australia, the objectives of JARPA II (i) are so vague and general as to
25 26
be unachievable, (ii) do not address critical research needs, and (iii) on their own terms
cannot be attained because they are premised on the use of lethal methods on three species of
27
whales, and in fact no humpbacks and only a limited number of fins have been taken. As a
result of these aspects, the objectives of JARPA II cannot be achieved in any case,
irrespective of the methods that are selected for use. Accordingly, the use of alternative non
lethal methods cannot adversely affect the objectives of the JARPA II programme.
Professor Hamamoto asserts that «ce sont les objectifs de recherche qui dictent les méthodes,
et non pas l'inverse», and that «En outre, il n'existe pas de méthodenon létale«alternative»
puisque certaines données indispensables ne peuvent êtreobtenues que par des méthodes
28
létales.» Once again, Japan offers no evidence to explain how the objectives of JARPA II
were elaborated, or how those objectives took into account alternative, non-lethal methods.
Professor Hamamoto simply asserts that the objectives dictated the methods but offers no
evidence to substantiate the claim. In the absence of such evidence, it appears that the
objectives were adopted - and are applied- so as to allow the killing of whales. That is, the
methods dictate the objectives, and not the other way around.
23CR2013/17, p. 49 (Judge Cançado Trindade).
24
25CR 2013/22, pp. 47-49, paras. 16-26 (Hamamoto).
CR 2013/8, p. 56, para. 4 (Sands); see also: M Mange!, "An Assessment of Japanese Whale Research
Programs Under Special Permit in the Antarctic (JARPA, JARPA II) as Programs for Purposes of Scientific
Research in the Context of Conservation and Management of Whales", April 2011, Appendix 2 to AM
(Mangel, Original Expert Opinion), paras. 5.4-5.10; M Mangel, "Supplement to An Assessment of Japanese
Whale Research Programs Under Special Permit in the Antarctic (JARPA, JARPA II) as Programs for Purposes
of Scientific Research in the Context of Conservation and Management of Whales", 15 April2013 (Mangel,
Supplementary Expert Opinion), paras. 3.1-3.10, 6.1-6.9; N Gales, "Statement by Dr Nick Gales", 15 April
2013 (Gales, Expert Statement), para. 43.13, 3.18-3.24
26CR 2013/10, p. 16 (Gales); CR 2013/10, pp. 36-37 (Sands); CR 2013119,p. 47, para. 59 (Sands); CR 2013/19,
P.P 52-53, para. 74 (Sands); Mange!, Supplementary Expert Opinion, para. 7.2.
CR 2013/19, p. 25, para. 4 (Sands); CR 2013/19, p. 53, para. 74 (Sands); Mangel, Supplementary Expert
28inion, paras. 5.15 and 5.36-37.
CR 2013/22, p. 47, para. 17 (Hamamoto).
8 Beyond these general observations, Australia makes the following comments in relation to
Japan's response as it relates to each objective:
Objective 1
In relation to Objective 1 (monitoring of the Antarctic ecosystem), Professor Hamamoto
asserts that «... on observe et examine un éventaild'éléments comme le taux de conception,
1'âge de la maturitésexuelle, les changements annuels de la quantitédes proies consommées,
l'épaisseur degraisse ou l'accumulation des polluants », and that, « [l]es donnéesrelatives à
9
ces élémentsne peuvent pas êtreobtenues au moyen des méthodes non létales... ».2
Australia has made clear that this objective is nothing more than monitoring and data
collection, neither of which are to be "considered research since there is no focused question
or hypothesis". 30The objective is premised on the collection oflethal data from three species,
yet Japan effectively only collects lethal data from one species: since the objective cannat be
31
met in any case, the use of non-lethal means would have no adverse effect.
Objective 2
In relation to Objective 2 (modeling competition among whale species and developing future
management objectives), Professor Hamamoto asserts that «les données relatives aux
tendances des contenus stomacaux, en particulier de leurs quantités,sont indispensables pour
32
atteindre cet objectif et ne peuvent êtreobtenues qu'au moyen de méthodeslétales». The
Scientific Committee has expressed serious doubts as to whether stomach contents can
provide useful information about the feeding behavior ofwhales, 33and about the reliability of
the stomach contents data arising from JARPA and JARPA II. 34 The Scientific Committee's
35
approach to ecosystem modeling does not require lethal data. Further, and as with
Objective 1, a multi-species programme cannat be undertaken by reference to a single
29CR2013/22, p. 47,para. 18 (Hamamoto).
30 Mangel, Original Expert Opinion, para 5.9; see also: CR 2013/9, p. 18, paras. 20-21 (Sands); Mangel,
Supplementary Expert Opinion, paras 3.6, 6.3.
31
32CR 2013/19, p. 25, para. 4 (Sands); CR 2013/19, p. 53, para. 74 (Sands); CR2013/9, p. 18, para. 20 (Sands),
CR 2013/22, pp. 47-48, para. 19 (Hamamoto).
33CR 2013119, p. 49, para. 64 (Sands); see also "Report of the Scientific Committee" (2007), J. Cetacean Res
Manage. JO (Suppl.}, 2008, available at: http://iwc.int/scientifc-committee-reports, p.45; "Report of the
ScientificCommittee" (2011), J. Cetacean Res Manage. 13 (Suppl.}, 2012, available at: http://iwc.int/scientifc
committee-reports, p.51; N Gales,"Statement by Nick Gales in Response to the Expert Statement by Professor
Lars Wall0e", 31 May 2013 (Gales, Response to ProfWalloe), paras. 4.5-4.10; Gales, Expert Statement, para.
5.9, eighth dot point; Mangel, Supplementary Expert Opinion, para. 3.28.
34CR 2013/19, p. 49, para. 64 (Sands); see also Report of the Scientific Committee" (2012), J. Cetacean Res
Manage. 14 (Suppl.), 2013, available at: http://iwc.int/scientifc-committee-reports, p.51.
35CR 2013/9, p. 21, para. 27 (Sands); see also: Gales, Expert Statement, para. 4.11.
9 36
species: since the objective cannot be met, the use of non-lethal means would have no
adverse effect.
Objective 3
In relation to objective 3 (elucidation of temporal and spatial changes in stock structure),
everything that is needed to be known about stock structure and whale movements can be
achieved through non-lethal techniques, including biopsy samples and attaching satellite
tags.37 Both of these techniques have been shown to be feasible for Antarctic minke whales
in the Southem Ocean. 38 Moreover, lethal techniques are inferior in this respect, as they
cannot monitor the movement of whales. 39 The use of non-lethal means would have no
adverse effect on this objective.
Objective 4
With respect to objective 4 (improving the management procedure for minke whale stocks)
Professor Hamamoto has simply referred back to his conclusions on the frrst three
objectives. 40 Professor Hamamoto asserts that «le projet de JARPA II de 2005 indique que
des donnéesbiologiques, y compris celles relatives à 1'âge, sont nécessairespour améliorer
les estimations du taux de rendement maximum de renouvellement, qui est essentiel à la mise
41
en oeuvre de la RMP ». To the extent that Japan relies on its assertions under objectives 1
through 3, the comments above are applicable. On the point of biological data being
necessary for parameters such as maximum sustainable yield rate (MSYR), three points may
be made: (1) the Scienti:fic Committee came to the conclusion long ago that deterrnining
sufficiently precise estimates of MSYR was not possible; 42 (2) the relevant Workshop of the
Scienti:ficCommittee concluded in 2009 that estimates of MSYR from JARPA and JARPA II
data were of "low reliability"; 43 and (3) the Scientific Committee at its 2013 meeting again
concluded that MSYR estimates derived from JARPA and JARPA II age data, and using the
36CR 2013/19, p. 25, para. 4 (Sands); CR 2013/19, p. 53, para. 74 (Sands); CR 2013/9, p. 20, para. 25 (Sands);
Mangel, Supplementary Expert Opinion, paras. 5.15 and 5.36-37.
37CR 2013/9, p. 22, para. 28 (Sands); see also: Gales, Expert Statement, para 4.8, third dot point of para. 5.9.
38
39Gales, Expert Statement, paras. 6.15-6.16; Gales, Response to ProfWal10e, paras 2.1-2.18.
Gales, Expert Statement, paras. 3.43, 4.8.
4°CR 2013/22, p. 48, para. 21 (Hamamoto).
41Ibid.
42Gales, Expert Statement, paras. 5.4, third dot point of para. 5.8; Gales, Response to ProfWall0e, para. 3.4.
43 "Report of the Intersessional Workshop on MSYR for Baleen Whales" (SC/61/Rep6), J. Cetacean Res
Manage 11 (Suppl. 2) 2010, 493-508 (available at: http://iwc.int/workshop-reports#!yeat=200at p.502; see
also: Gales, Expert Statement, seventh dot pointara 5.9; Gales, Response to ProfWall0e, para. 3.6.
10 Statistical Catch-at-Age ("SCAA'') model, were "not robust". 44 lt follows that the aims of
objective 4 are not being met, and the move to non-lethal means would have no adverse
effect.
The response to Judge Cançado Trindade's question is:
the use of alternative non-lethal methods by Japan would not affect the
objectivesof theJARP A-II programme.
44
CR 2013/19, p. 48, para. 62 (Sands); "Report of the Sub-Committee on In-depth Assessments", Annex G to
the"Report of the Scientific Committee Annual Meeting 2013" (available at: http://iwc.int/screport), p.2.
11 45
On Monday 8 July, Judge Cançado Trindade asked Japan the following guestion:
"What would happen to whale stocks if many, or even al! States Parties to the
International Convention for the Regulation of Whaling, decided to undertake
"scientific research" using lethal methods, upon their own initiative, similarly to
the modus operandi of JARPA II?"
46
Professor Hamamoto sought to respond to this question on 15 July. He avoided offering an
answer to the main point of Judge Cançado Trindade's question, namely "what would happen
to the whale stocks" if many or ali of States Parties to the ICRW used the "modus operandi"
of JARPA II. Instead, Professor Hamamoto pointed to a few select factors which might
mitigate the effects of multiple programs similar to JARPA II, including: a catch size that
does not prejudice the relevant stock; cooperation between programmes; submission of a
research programme under Annex P; and taking account of existing data obtained from other
programmes. 47
These factors do not adopt the "modus operandi" of JARPA II referred to in the question
from Judge Cançado Trindade. An indication offered by Professor Hamamoto as to the trUe
"modus operandi" referred to in that question is his statement that « ... tous les programmes
de recherche devraient se soumettre aux conditions que le Japon a explicitées dans son
contre-mémoireet au cours des audiences. »48 That modus operandi, expressed in Japan's
own words, includes the following :
• "In other words, the ICRW does not regulate special permit whaling: indeed, except
for Article VIII itself, the ICRW does not apply to special permit whaling. Special
permit whaling cannot be assessed against any criteria in the ICRW''.(In this respect
an exception is made in a footnote referring to the Scientific Committee's role under
49
paragraph 30 of the Schedule to review and comment).
• «Je continue de penser, Monsieur le président,qu'il est difficile d'envisager volonté
plus nette de conférer aux Etats parties à un traitéune marge d'appréciationplus
étenduedans son application. »50
45CR2013/17, p. 49 (Judge Cançado Trindade).
46
47CR2013/22, p. 49, paras. 23-26 (Hamamoto).
Ibid,paras. 24-25.
48Ibid,para. 24.
49JCM, para. 7.15.
5
°CR 2013/23, p. 15, para. 5 (Pellet).
12 • ''Noother State or body is given the power to impose restrictions or conditions upc,m
the exercise by a Contracting Government of its right to authorise special permit
whaling. No other State or body is given the power to overturn decisions taken by a
Contracting Government in the exercise of its right to authorise special permit
51
whaling. "
• « Ergo: aucun organe de la CBI ne peut s'opposer à la délivrancede permis spéciaU:X,
mêmes'ils peuvent, bien entendu, les examiner et les commenter. »52
• «Je le redis, Mesdames et Messieurs les juges: il ne vous appartient pas- il ne nous
appartient par, à nous juristes, de porter unjugement sur le bien-fondé au fond de telle
ou telle position scientifique..»53
This actual modus operandi adopted by Japan, as reflected in Professor Hamamoto's words,
makes it clear that each Contracting Government would be entirely free to decide for itself to
issue permits under Article VIII, for the taking of any number of whales, for any purpose that
the State itself deemed scientific and without any form of binding review, provided these
decisions are not arbitrary or capricious. If many, or all of the Contracting Governments to
the ICRW acted on the same basis, there would undoubtedly be adverse effects on fm,
humpback and other whale stocks, having regard to the current information available on
stocks.
The response to Judge Cançado Trindade's question is that:
if many, or even ali States parties, decided to undertake "scientific research" using a
similar modus operandi to JARP A II there would undoubtedly be adverse effects on
whale stocks, having regard to current numbers.
51JCM, para. 7.16.
52CR 2013/23, p. 16, para. 7 (Pellet).
53
CR 2013/23, p. 23, para. 21 (Pellet).
13 54
On Monday 8 July, Judge ad hoc Charlesworth asked Japan the following guestion:
"In 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 matterfor the determination of those
Contracting Governments that issue specialpermits under Article VIII?"
55
Professor Lowe responded to this question on 15 July. He expressly stated, "Yes: Japan
56
thinks that there are objective elements." In this context he also noted that Japan's position
was not "very far apart" from Australia's, quoting Australia's submission that the task of the
Court was to "determine objectively whether JARPA II is a program for the purpose of
57
scientific research pursuant to Article VIII."
This represents a significant change of position on the part of Japan, in contrast to that
previously adopted. In Japan's frrst round Professor Lowe submitted that "the limits imposed
by Article VIII do no more than require that Japan comply with the procedural obligations set
out in the Convention". 58 He also stated that "[t]he role of the Court... is to ensure the
integrity of the process by which the decision is made, and not review the decision itself.
Unless there is evidence that Japan acted in bad faith, there is no basis for holding that Japan's
59
decision to authorize JARPA II amounts to a violation of the Convention." By the
conclusion of the proceedings Japan had abandoned that extreme and untenable position, and
60
conceded that JARPA II must be "objectively justifiable" on a scientific basis.
Nevertheless, and contradictorily, it appears to hold the view that, in the absence of bad faith,
the determination of compliance with those objective elements is, in the fmal analysis; a
matter for Japan itself.
Australia is not wedded to any particular form of words. What matters substantively is that to
be "objectively justifiable" as a program "for purposes of scientific research" under Article
VIII, JARPA II must meet the essential characteristics of scientific research identified by
Professor Mangel - as minimum standards - consistent with generally accepted contemporary
54
CR 2013/17, p.50 (Judge ad hoc Charlesworth).
55CR 2013/22, pp. 58 60, paras. 14-22 (Lowe).
56Ibid, para. 14.
57
58Ibid, paras. 12-13.
CR2013/15, p. 15, para. 9 (Lowe).
59CR2013/15, p. 24, para. 54 (Lowe).
6°CR2013/22, p. 58, para. 12 (Lowe).
14 scientific practice and the Guidelines on Special Permit Whaling adopted by the IWC. These
are essential characteristics with which Japan's own expert, Professor Wal10e, offered
testimony that he largely agreed. 61
The response to Judge ad hoc Charlesworth'squestion is that:
(1) there are objective elements in the phrase "for purposes of scientific
research";
(2) the objective elements are reflected in the essential characteristics identified
by Professor Marc Mangel, with which Professor Walloe largely agrees;
and
(3) the objective elements are a matter for the Court to identify and apply to
the facts of this case; they are not matters solely for a Contracting Party to
the Convention.
61
CR2013/14, p. 53.
15
Written comments of Australia on Japan's responses to questions put by Judges during the oral proceedings