Written responses of New Zealand to the questions put by Judge Cançado Trindade at the end of the public sitting held on 8 July 2013 at 10 a.m.

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195 Lambton Quay
Private Bag 18-901
Wellington 5045
New Zealand

T +64 4 439 8000

.,.,.,
12 July 2013 -~:;

His Excellency

Mr Philippe Couvreur

Registrar

International Court of Justice

Carnegieplein 2
2517 KJ The Hague

Dear Sir

With reference to the oral proceedings that opened on 26 June in the case concerning
Whaling in the Antarctic (Australia v Japan: New Zealand intervening), 1have the honour to

refer to your letter 142236 of 8 July 2013 regarding the questions put to New Zealand by

Judge Cançado Trindade at the end of the public sitting on 8 July 2013.

1 have the honour to enclose the answers from New Zealand to the questions posed by

Judge Cançado Trindade.

Yours sincerely

Penelope Ridings

Agent of New Zealand

,. WHALING IN THE ANTARCTIC

AUSTRALIA v JAPAN (NEW ZEALAND INTERVENING)

RESPONSES OF NEW ZEALAND TO THE QUESTIONS

FROM JUDGE CANÇADO TRINIDADE

ON MONDAY 8 JULY 2013

1. How do yon interpret the terms "conservation and development" ofwhale stocks

under the International Convention for the Regulation of Whaling?

1. The tenns "conservation and development" must be interpreted by reference to their

ordinary meaning in their context and in the light of the object and purpose of the
1
Convention •

2. The ordinary meaning of the tenns "conservation and development" incorporates the
2
concepts of "preservation and protection" and "restoration or expThis meaning is

confinned by the Preamble to the Convention, which emphasises: "the interest of the nations

of the world in safeguarding for future generations the great natural resources represented by

whale stocks";and that it is "essential to protect all species ofwhales from oinrfishing"

order to allow for the "recovery" ofwhale .tocks

3. Effective "conservation and development" may lea:d to circumstances that might

allow for the sustainable use ofwstoe 6.cHowe~ver, ilight prviout ehc~sses of

commercial whaling, there needs to be clear scientific evidence of the rebuilding of whale

populations before use can be contemplated. This is clearly expressed in the Preamble to the

Convention, which provides that whales may be captured only where that is possible

1
2Article 31(1) of the Vienna Convention on the Law of Treaties.
"Conservation" means "the action of conserving something, in particular: preservation, protection, or
restoration ofthe natural environment and ofwildlife" (Oxford Dictionaries Online:
http://oxforddictionaries.com/definition/english!conservasynonyms for "development"
include "growth", "increase" or "enlargement" (Colllins Eng/ish Thesaurus Online:
http://www.collinsdictionary.com/dictionary/english-thesaurus/developmen
t?)
3Paragraph 1 of the Preamble to the Convention.
4Paragraph 2 of the Preamble to the Convention.
5
6Paragraphs 3 and 5 of the Preamble to the Convention.
Paragraphs 3 and 7 of the Preamble to the Convention. 2

endangering these natural resources" 7, and that "whaling operations should be confined to

those species best able to sustain exploitation" 8 • Further, even if clear evidence were

developed that sorne whale populations had rebuilt to levels at which a sustainable harvest

might be possible, the question of whether such a harvest should be undertaken should be

weighed carefully in the light of other considerations, consistent with the other provisions of

the Convention as a whole.

4. Any such use must be agreed by the parties to the Convention through the collective

regulation mechanism of the IWC. That is the essence of the "system of international
9
regulation for the whale fisheries" established under the Convention, reflected in the

function of the Commission to adopt regulations with respect to whaling that are binding on
10
all parties to the Convention . Such regulations may be amended and adjusted by the

Commission from time to time as provided in Article V. In this way, the Convention gives

effect to the general duty under international law for States to cooperate in relation to the

conservation of resources having "regard to the rights of other States and the needs of

conservation for the benefit of a11" 11.

5. It is not correct to interpret the terms "conservation and development" to require the
12
"optimum utilization" ofwhale stocks as has been argued by Japan • That is clear from the

text of the Convention itself. Article V, paragraph 1, refers to "conservation and optimum

utilization" (emphasis added). Similarly, Article V, paragraph 2(a) refers to "conservation,

development and optimum utilization" (emphasis added). If "optimum utilization" were

intended to be included within the terms "conservation and development" it would not have

been necessary to include a specifie reference to it in this way. Further, the language of

Article V, paragraph 2(a) expressly distinguishes between "optimum utilization" and the

object and purpose of the Convention itself.

7
8Paragraph 3 of the Preamble to the Convention.
Paragraph 5 of the Preamble to the Convention.
9Paragraph 6 of the Preamble to the Convention.
10Article V of the Convention.
11
As recognized in the Fisheries Jurisdiction (United Kingdom v !celand), Merits, Judgment, LC.J.Reports
1974, p. 31., para 72; Fisherieslurisdicti(Federal Republic ofGermany v. Iceland), Merits, Judgment, I.C.J.
1974, p. 200, para 64. The role of the Convention in respect of the duty of cooperation is further reflected in
Article 65 of the 1982 United Nations Convention on the Law of the Sea.
12CR 2013/13, p. 42, para 11 (Boyle); CR 2013/13, p. 59, para 31,32 & 63 (Boyle). 3

6. Nor is Japan's emphasis on a requirement of "optimum utilization" in relation to

whales correct as a matter of general international law. Contrary to Japan's assertion that

"there is nothing here that distinguishes whales from other marine living resources covered

by the Law of the Sea Convention or the Fish Stocks Agreement" 13,whaling is not subject to

14
the fisheries management provisions of the Law of the Sea Convention as Japan implies ,
15
but rather to the specifie provisions of Article 65 of that Convention • That provision

preserves the ability of States and the IWC to regulate whaling more strictly than other

marine living resources 16. "The regime to be implemented with respect to marine mammals

is a conservation regime; it does not have the dual role of exploitation and conservation as the
17
other regimes for transboundary marine fisheries resources do." Accordingly, the norm of

optimum utilization does not apply 18.

7. Further, rather than supporting a general international legal requirement of "optimum
19
utilization" the agreements referred to by Japan in support of its contention are in fact

evidence of the:

"limits placed by international law on the rate of use or manner of

exploitation of natural resources, including those that are shared or in an
area beyond national jurisdiction. These standards cannat have an

absolute meaning. Rather their interpretation is, or should be,
implemented by States acting co-operatively, or by decisions of
20
international organizations [...]" • (emphasis added)

13
14CR 2013/13 p. 54, para 45 (Boyle).
CR 2013/13, p. 49, para 31, 42 & 45 (Boyle)
15Nordquist ed. UN Convention on the Law of the Sea 1982: A Commentary Vol II (2002, Kluwer Law
International) at pp. 663-664, para 65.11(c) & (d). See also Article 120 of the 1982 United Nations Convention

on the Law of the Sea which applies Article 65 to the conservation and management of marine mammals in the
high seas.
16The provision reads: "Nothing in this Part restricts the right of a coastal State or the competence of an
international organization, as appropriate, to prohibit, limit or regulate the exploitationine mammals more

strict}y than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals
and in the caseof cetaceans shaH in particular work through the appropriate international organizations for their
conservation, management and study."
17Ellen Hey "The Provisions ofthe United Nations Law of the Sea Convention on Fisheries Resources and

Current International Fisheries Management Needs" in Hey, Burke, Ponzoni, Sumi The Regulation of Driftnet
Fishing on the High Seas: Legal Issues (FAO Legislative Study 47, Rome, 1991) at p. 7.
18Francisco Orrega Vicuna The Changing International Law of High Seas Fisheries (Cambridge University
Press, 1999) p. 37 citing P W Birnie & A E Boyle International Law and the Environment (1' ed: Clarendon,

1992) at 533; and see sirnilarly W Birnie, A E Boyle & C Redgwell International Law and the Environment
(3ed: Oxford University Press, 2009) at 724 "[Article 65] removes ali marine mammals from the full application
of Part V in that optimum utilization is not required".
19CR 2013/13, pp 50-52, para 34-41, pp. 54-56, para 48-53 (Boyle).
20
Philippe Sands and Jacqueline Peel, Princip/es of International Environmental Law, 3rded, (Cambridge
University Press, 2012), at p. 213. 4

2. In y our view, can a programme that utilizes lethal methods be considered

"scientific research" in line with the object and purpose of the International

Convention for the Regulation of Whaling?

1. Article VIII, paragraph 1, provides that a Contracting Government may issue a

Special Permit authorizing its nationals to "kill, take and treat whales for purposes of

scientific research". The terms of the Article therefore recognize that the killing of whales

may be permitted "for purposes of scientific research".

2. However, that statement of purpose requires that a Special Permit may on1ybe issued

to permit lethal research where science requires it. That is, where lethal research methods are

the only means available. Further, the use of lethal research methods must be reasonable in

proportion to Article VIII's limited role as a mechanism for the conduct of scientific research

within the collective framework of the Convention as a whole. That is, the contribution of

the research to the work of the IWC must be sufficient to justify the use of lethal research

methods. Finally, lethal research methods may be used only where they create no risk of

adverse effect on the stock.

3. This is confirmed by the requirements of Paragraph 30 of the Schedule, which

requires that the Scientific Committee review the "objectives of the research", the "number,

sex, size and stock" of the whales to be taken, and "the possible effect on conservation of

stock". It is further confirmed by the resolutions adopted by the IWC, which demonstrate a

consistent expectation that whales will be killed "for purposes of scientific research" only

where there are no other research methods available and the research is essential to rational

management by the IWC or other critical research needs 21. It is also reinforced by the

general principle of international law requiring States to adopta precautionary approach 22•

21IWC Resolution 1986-2 "Resolution on Special Permits for Scientific Research" (adopted by consensus) at

paragraphs 5 & 8 (M.A. Ann. 43, Vol II, p. 148); IWC Resolution 1987 "Resolution on Scientific Research
Programmes" (adopted by majority vote) at paragraph 1 (MA, Ann 44, VII,pp. 150-156); IWC Resolution
1990-5 "Resolution on Redirecting Research towards Non-Lethal Means" (adopted by majority vote) at
paragraph 2, http://iwc.int/resolutions; IWC Resolution 1995-9 "Resolution on Whaling under Special Permit"
(adopted by majority vote) at paragraphs 1 & 6 (MA, Ann. 46, Vol. II pp. 153-154); IWC Resolution 1999-2
"Resolution on Special Permits for Scientific Research" (adopted by majority vote) at paragraph 1(MA, Annex
47, Vol II, p. 155); IWC Resolution 2003-2 "Resolution on Whaling under Special Permit" (adopted by majority

22te) at paragraph 5 (MA, Annex 38, Vol II, p. 143.)
Written Observations of New Zealand, para 73-75; CR 213/17, pp. 39-41, para 15-18 (Ridings). 5

4. New Zealand considers that any alternative interpretation would be inconsistent with

the object and purpose ofthe Convention. 6

3. In your view, does the fact that the International Convention for the Regulation

ofWhaling is a multilateral treaty, with a supervisory organ ofits own, have an

impact on the interpretation of its object and purpose?

1. The establishment by the International Convention for the Regulation of Whaling

23
(ICRW) of apermanent commission, distinguished it from the earlier 1937 Agreement . The

setting up of a Commission which is empowered to carry out decision-making and

recommendatory functions indicates that the parties to the multilateral treaty are to cooperate

with each other in good faith in order to achieve the purposes for which the organisation was

established. This interpretation is supported by the travaux to the ICRW, in which it was

24
recognised that whale conservation "must be an international endeavour" •

2. The supervisory powers given to the Commission are evidence of that collective

enterprise. As Australia has indicated in its oral presentation, this can be contrasted with a

bilateral treaty, such as in the Pulp Mills case 25• This was recognized by this Court in its

Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed

Conjlict. With respect to treaties of this nature, the constituent treaty establishes an
26
organisation to which "the parties entrust the task of realizing common goals" •

Furthermore, as Judge Lachs said in his Separate Opinion in the Advisory Opinion in

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, the

supervisory organ both represents and is subject to the collective will of the members.

Although the decisions of the organ may "conflict with the will of its individual members",

27
the individual member still "shares in the collective interest" and must therefore act

accordingly.

3. In a Convention such as the ICRW, therefore, the existence of a supervisory organ

reinforces that the object and purpose must be interpreted in light of the collective interest of

23
"Minutes of the Opening Session", IWC/11 (20 November 1946), JCM Annex 16, Vol. II, pp. 129-131 at p.
129.
24Secretary of State Dean Acheson, "Minutes of the Opening Session", IWC/11 (20 November 1946), JCM

25nex 16, Vol. II, pp. 129-131 at p. 130.
CR 2013/19, p. 65, para 23 (Crawford).
2Legality of the Use by aState ofNuclear Weapons in Armed Conjlict, Advisory Opinion, IC.J. Reports 1996,
p. 66 at p. 75 (paragraph 19).
27
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advismy Opinion, I C.J.
Reports 1980, p. 73 at p. 111. 7

the parties. In the case of the ICRW this means the collective interest of the parties in the

conservation and management of whale stocks. 8

4. You have stated in your Written Observations (of 4 April 2013) that the object

and purpose of the International Convention for the Regulation of Whaling is:
"to replace unregulated, unilateral whaling by States witb 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). ln your view, is this a widely
accepted interpretation nowadays of the object and purpose of the International

Convention for the Regulation of Whaling?

1. The object and purpose of the Convention, as cited above, is drawn from the Preamble

to the Convention and is confirmed by the travaux to the Convention 28•

2. The collective regulation purpose of the IWC was recognised in Article 65 of the

United Nations Law of the Sea Convention, which requires States to cooperate with aview to

the conservation of marine mammals and to work through the appropriate international

organisation. It is widely accepted that the International Whaling Commission is the

appropriate organisation for the conservation and management of whales 29•

3. This object and purpose of the IWC has been also accepted in recent years by key

members of the IWC. For example, at the 58thmeeting in 2006, Denmark reminded the

Commission that "it is on1ythrough international regulation that the long-term conservation

30
of whales can be ensured ."The following year, the US Chair of the IWC in 2007 stressed

"the importance of finding a way for the Commission members to work together [...] so as to

find a way for the IWC to be the effective organisation for the management and conservation
31
of whales itwas intended to be" (emphasis added} • At the 60thAnnual Meeting, St Kitts

and Nevis,known as a 'pro-whaling' IWC member, "reminded Parties that whales in the high

seas are considered common property that therefore required a collective management

32
approach within the framework of the ICRW" •

28
CR 2013/17, pp. 17-20; para 4-19 (Finlayson).
291992 United Nations Conference on Environment and Development, Chapter 17 of Agenda 21, paragraph
17.61: "States recognize: (a) The responsibility of the International Whaling Commission for the conservation

and management of whale stocks and the regulation of whaling pursuant to the 1946 International Convention
for the Regulation ofWhaling. http://www.un.org/depts/los/consultativeprocess/documents/ A21-Ch17 .htm
° Chair's Report of the 58thAnnual Meeting, Annual Report of the International Whaling Commission 2006, at
p. 24; Australia's Judges' Folder, Second Round, Day 2, Tab 50.
31
Chair's Report of the 59thAnnual Meeting, Annual Report of the International Whaling Commission 2007,
JCM, Vol II, Annex 66, p. 417. At the same meeting Australia stated [ibid, p. 419] that it believed "that the
Convention bad been brought in to replace unilateral action with the protection of whales through international
regulation."
32Chair's Report of the 60thAnnual Meeting, Annual Report of the International Whaling Commission 2008,

JCM, Vol II, Annex 67, p. 425. 9

4. Although, admittedly, there was no united single view of the purpose of the IWC

during the Small Working Group (SWG) process on the Future ofthe IWC, the Chair ofthe

fourth meeting of the SWG in 2010 urged the SWG to remember that "while respecting

individual national interests, ali must recognise that a future of good, international
33
conservation and management of whales requires collective responsibility" • Furthermore,

there was general agreement on the proposed "vision" espoused during the SWG process

that: "[T]he IWC will work co-operative/y to improve the conservation and management of

whale populations and stocks on a scientific basis and through agreed policy measures"

(emphasis added) 34•

33
Report of the fourth meeting of the Smal! Worlàng Group (SWG) on the Future of the !WC, Florida, United
34ates, 2-4 March 2010, IWC 62/62-6 Rev "Future of the IWC", p. 3: http://iwc.int/iwc62docs
Ibid, p. 3.