Corrigé
Corrected
CR20J3/20
International Court Cour internationale
of Justice de Justice
LAHAYE THE HAGUE
YEAR2013
Public sitting
held on Wednesday JO July 2013,at 3 p.m., at the Peace Palace,
President Tomka presiding,
in the case concerninWhaling in the Antarctic (Australiav.Japan:
New Zealand intervening)
VERBATIM RECORD
ANNÉE2013
Audience publique
tenue le mercrediO juille20J3,à J5 heures, au Palais de la Paix,
sous la présidencedeM. Tomka, président,
en l'affaire relativeaChasse à la baleine dans l'Antarctique
(Australie c. Japon; Nouvelle-Zélande (intervenant))
COMPTE RENDU - 2-
Present: President Tomka
Vice-President Sepulveda-Amor
Judges Owada
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Sebutinde
Bhandari
Judge ad hoc Charlesworth
Registrar Couvreur - 3-
Présents: M. Tomka, président
M. Sepùlveda-Amor, vice-président
MM. Owada
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 Govemme11tof Austrttlia Î!represe11tet ly:
The Honourable Mark Dreyfus Q.C., M.P., Attorney-General of Australia,
as Counsel and Advocate;
Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,
as Agent, Counsel and Advocate;
H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Justin Gleeson, S.C., Solicitor-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 of International Law at the University ofGeneva,
as Counsel 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 Gouvemement de /'Austrtllie est représentéptlr:
L'honorable Mark Dreyfus, Q.C., M.P., Attorney-General d'Australie,
comme conseil et avocat;
M. Bill Campbell Q.C., General Counsel (droit international), services de l'Altorney-General
d'Australie,
co1mneagent, conseil el 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,
co1mneconseils et avocats ;
Mme Kate Cook, avocat, Matrix Chambers (Londres),
M. Makane Mbengue, professeur associéà l'Universitéde Genève,
comme conseils ;
Mme Anne Sheehan, secrétaireadjoint par intérim,services de l'AIIorney-General,
M. Michael Johnson, juriste principal, services de l'Attorney-General,
Mme Danielle Forrester, juriste principal, services de l'Altorney-General,
Mme Stephanie Ierino,juriste principal par intérim,services de l'AIIorney-General,
Mme Clare Gregory, juriste hors classe, services de l'AIIorney-General,
Mme Nicole Lyas, juriste hors classe par intérim,services de l'AIIorney-General,
Mme Erin Maher,juriste, services de l'AIIorney-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 Govemment of Japan is represented by:
Mr. Koji Tsuruoka, Deputy Minister for Foreign Affairs,
as Agent;
H.E. Mr. Yasumasa Nagamine, Ambassador Extraordinary and Plenipotentiary of Japan to the
Kingdom of the Netherlands,
as Co-Agent;
Mr. Alain Pellet, Professorat the University of Paris Ouest, Nanterre-La Défense, President of the
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 ofthe Human Rights Committee,
Mr. Payam Akhavan, LL.M., S.J.D. (Harvard), Professor of International Law, McGill University,
member of the Bar of New York and the Law Society of Upper Canada,
Mr. Shotaro Hamamoto, Professor of International Law, Kyoto University,
Ms Yukiko Takashiba, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
as Counsel and Advocates; - 7 -
M. Jamie Cooper, juriste, ministère des affaires étrangèreset du commerce,
Mme Donna Petrachenko, premier secrétaire adjoint, ministère du développement durable,
de l'environnement, de l'eau, des populations et des communautés,
M. Peter Komidar, directeur, ministère du développement durable, de l'environnement, de l'eau,
des populations et des communautés,
M. Bill de la Mare, scientifique, division de l'Antarctique australien, ministère du développement
durable, de l'environnement, de l'eau, des populations et des communautés,
M. David Blumenthal, conseiller principal, services de l'Attorney-General,
Mme Giulia Baggio, conseiller principal, services de l'Attorney-General,
M. Todd Quinn, premier secrétaire, ambassade d'Australie au Royaume des Pays-Bas,
co1mneconseillers ;
Mme Mandy Williams, administrateur, services de l'Attorney-General,
co1mneassistant.
Le Gouvernement du Japon est représenté par :
M. Koji Tsuruoka, ministre adjoint des affaires étrangères,
comme agent ;
S. Exc. M. Yasumasa Nagamine, ambassadeur extraordinaire et plénipotentiaire du Japon auprès du
Royaume des Pays-Bas,
comme coagent ;
M. Alain Pellet, professeur à l'Université Paris Ouest, Nanterre-La Défense,président de la Société
française pour le droit international, membre associéde l'Institut de droit international,
M. Vaughan Lowe, Q.C., membre du barreau d'Angleterre, professeur émérite de droit
international à l'Universitéd'Oxford, membre associéde l'Institut de droit international,
M. Alan Boyle, professeur de droit international à l'Université d'Edimbourg, membre du barreau
d'Angleterre,
M. Yuji Iwasawa, professeur de droit international à l'Université de Tokyo, membre et ancien
présidentdu Comitédes droits de l'homme,
M. Payam Akhavan, LL.M., S.J.D (Harvard), professeur de droit international à l'Université
McGill, membre du barreau de New York et du barreau du Haut-Canada,
M. Shotaro Hamamoto, professeur de droit international à l'Universitéde Kyoto,
Mme Yukiko Takashiba, directeur adjoint à la division chargéede 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 Ishii, 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
Agency,
Mr. Noriyuki Shikata, Minister, Embassy of Japan in the United Kingdom of Great Britain and
Northern Ireland,
Mr. Kenichi Kobayashi, Director, International Legal Affairs Division, Ministry of Foreign Affairs,
Mr. Joji Morishita, Director-General, National Research ln'ititute of Far Seas Fisheries,
Mr. Akima Umezawa, Ph.D., Director, Fishery Division, Ministry of Foreign Affairs,
Ms Yoko Yanagisawa, Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Naohisa Shibuya, Deputy Director, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Ken Sakaguchi, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Ms Akiko Muramoto, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Masahiro Kato, ICJ Whaling Case Division, Ministry of Foreign Affairs,
Mr. Takaaki Sakamoto, Assistant Director, International Affairs Division, Fisheries Agency,
Mr. Shigeki Takaya, Assistant Director, Fisheries Management lmprovement Division, Fisheries
Agency,
Mr. Toshinori Uoya, Assistant Director, Fisheries Management Division, Fisheries Agency,
Mr. Shinji Hiruma, Assistant Director, International Management Division, Fisheries Agency,
Mr. Sadaharu Kodama, Legal Adviser, Embassy of Japan in the Kingdom of the Netherlands,
Mr. Nobuyuki Murai, LL.D., First Secretary, Embassy of Japan in the Kingdom of the Netherlands , -9-
M. Takane Sugihara, professeur émérite dedroit 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 chargée de l'affaire de la chasseàla baleine devant
la CIJ, ministère des affaires étrangères,
M. Naohisa Shibuya, directeur adjoint à la division chargée de l'affaire de la chasse à la baleine
devant la CIJ, ministère des affaires étrangères,
M. Ken Sakaguchi, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
Mme Akiko Muramoto, division chargée de l'affaire de la chasse à la baleine devant la CIJ,
ministère des affaires étrangères,
M. Masahiro Kato, division chargée de l'affaire de la chasse à la baleine devant la CIJ, ministère
des affaires étrangères,
M. Takaaki Sakamoto, sous-directeur à la division des affaires internationales, agence des
pêcheries,
M. Shigeki Takaya, sous-directeur à la division de l'amélioration de la gestion des pêcheries,
agence des pêcheries,
M. Toshinori Uoya, sous-directeur à la division de la gestion des pêcheries,agence des pêcheries,
M. Shinji Hiruma, sous-directeur à la division de la gestion internationale, agence des pêcheries,
M. Sadaharu Kodama, conseiller juridique à l'ambassade du Japon au Royaume des Pays-Bas,
M. Nobuyuki Murai, LL.D., premier secrétaire de l'ambassade du Japon au Royaume des
Pays-Bas, - 10-
Ms Risa Saijo, LL.M., Researcher, Embassy of Japan in the Kingdom of the Netherlands ,
Ms HéloïseBajer-Pellet, member of the Paris Bar,
as Advisers:
Mr. Douglas Butterworth, Emeritus Professor, University of Cape Town,
Ms Judith E. Zeh, Ph.D., Researcher Professor Emeritus, University of Washington,
Mr. Dan Goodman, National Research Institute of Far Seas Fisheries,
Mr. Luis Alberto Pastene Perez, Ph.D., Director, Survey and Research Division, lnstitute of
Cetacean Research,
as Scienti.ficAdvisers and Experts;
Mr. Martin Pratt, Professor, Department ofGeography, Durham University,
as Expert Adviser;
Mr. James Harrison, Ph.D., Lecturer in International Law, University ofEdinburgh,
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 Government of New Zealand is represented hy:
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 émérite del'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,
co1mneconseiller expert ;
M. James Harrison, Ph.D., chargéde cours en droit international à l'Universitéd'Edimbourg,
Mme Amy Sander, membre du barreau d'Angleterre,
M. Jay Butler, professeur associé invité de droit à la faculté de droit de l'Université George
Washington, membre du barreau de New York,
comme conseillersjuridiques.
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,
co1mneagent, conseil et avocat ;
S. Exc. M. George Troup, ambassadeur de Nouvelle-Zélande auprès du Royaume des Pays-Bas,
comme coagent ;
Mme Cheryl Gwyn, Solicitor-General adjoint, Crown Law Office,
Mme Elana Geddis, avocat, Harbour Chambers (Wellington),
comme conseils;
M. Andrew Williams, conseiller juridique, ministère des affaires étrangèreset du commerce, - 12-
Mr. James Christmas, Private Secretary, Attorney-General's Office,
Mr. James Walker, Deputy Head of Mission, Embassy of New Zealand in the Kingdom of the
Netherlands,
Mr. Paul Vinkenvleugel, Policy Adviser, Embassy of New Zealand 111the Kingdom of the
Netherlands,
as Advisers. - 13-
M. James Christmas, chef de cabinet, services de 1'Allorney-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 afternoon. The sitting is open and 1 give the
floor to Professor Crawford to continue with his presentation of Article VIII. After having
provided interpretation he is now to speak about the application. You have the floor, Sir.
Mr. CRAWFORD: Thank you, Mr. President.
B. Application of Article VIII
28. Mr. President, Members of the Court, 1 turn to the question of the application of the
Convention, notably Article VIII, to the present case.
29. 1first note four points of apparent cornmon ground:
( 1) First, the Convention only contemplates three types ofwhaling 1•
2
(2) Secondly, the Convention establishes a comprehensive régime •
(3) Thirdly, that Article VIII is an integral part of the Convention, although that view was not
3
apparently shared by ali counsel •
(4) Fourthly, that Article VIII is an exception: "l'article VIII ... constitue une exception au regard
des autres règles applicables à la chasse à la baleine, contenues dans la convention ... '"'.
30. So, there are two questions: is JARPA Il a scientific research program within
Article VIII, and is it conducted for the sole purpose of such research?
JARPA II is not a scientific research program: the scientific research requirement
31. Asto the first point, JARPA Il is not a program of scientific research capable of being
justified by Article VIII. The Solicitor-General and Professor Sands have already highlighted this
morning the total Jack of independent or objective evidence led by Japan to answer fundamental
questions concerning the conduct of its supposed "research", questions which require a credible
scientific answer. 1will not repeat what they have said on those matters.
32. 1will only make three further points.
1CR 2013112, p. 44, para. 14 (Akhavan).
2
CR 2013113, p. 40, para. 7 (Boyle).
3CR 2013/13, p. 65, para. 17 (Pellet).
4CR 2013114, p. 60, para. 36 (Pellet). - 15-
(1) An endless program involving an uncounted number ofwhales
33. The first point involves the possible character of the program in terms of whether it is a
continuing program or not. The evidence has established that a scientific research program should
have a reasonably well-defined goal and a reasonably well-defined endpoint. "Monitoring the
Antarctic ecosystem", is something one could do until the day of Judgment- and 1do not refer to
your judgment. ln the context of Article VIII of the Convention, monitoring the Antarctic
ecosystem is not a scientific research program: it is something that could go forever. If it were a
scientific research program, any State party could kill at any time, any number of whales for
monitoring purposes. The Convention disciplines would break down completely. The simple fact
is that JARPA Il is an endless program involving an uncounted number ofwhales .
34. ln this context Judge Cançado Trindade asked last week whether one could determine the
total number ofwhales to be kilied to attain such objectives 5• Professor Boyle asserted, quoting the
JARPA Il plan, that JARPA Il "willlast for six years and, at the end ofthat period, 'a review will
be held and revisions [will be] made to the program ifrequired"' 6• On this basis, Japan would have
you believe that JARPA Il might end following its 2014 review.
35. But this suggestion is contradicted by the plain terms of the plan, as quoted by
Professor Boyle 7• How cana research program be said have a defined six-year term, when the plan
expressly states that the program will be revised, if required, following the review held at the end
ofthat time? lt is revised in order to be continued.
36. Professor Boyle's suggestion is also entirely inconsistent with Japan's characterization of
the JARPA Il research period in the Counter-Memorial: "JARPA Il is a long-term research
programme and has no speci.fied end date because its primary objective [that is to say, monitoring
8
the Antarctic ecosystem] requires a continuing programme of research." (Emphasis added.) lt is
further contradicted by Japanese ministerial statements confirming their determination to
perpetuate the program until the moratorium is lifted. For example, in May 20 Il the Senior
~CR 2013/14, p. 51.
6CR 2013115, p. 51, para. 24 (Boyle).
7Govemment of Japan, "Plan for the Second Phase of the Japanese Whale Research Program under Special
Permit in the Antarctic (JARPA Il)-Monitoring of the Antarctic Ecosystem and Devclopment of New Management
Objectiveslor Whale Resourccs", 2005, SC/57/01, p. 13; MA, Ann. 105.
8CMJ, para. 5.42. - 16-
Vice-Minister of Fisheries confirmed that "we at MAFF are determined to continue [JARPA Il]
9
until commercial whaling is resumed, whenever that may happen" • 1quoted this in our first round:
Japan in its first round neither explained nor denied it.
37. Accordingly, the answer to your question, Judge Cançado Trindade, is: an unknown and
indefinite number ofwhales will be taken under JARPA Il.
(2) The real reasons for JARP A and JARP A 0 catch limits
38. My second point concerns the real reason for JARPA and JARPA Il catch limits.
39. Australia has already established the totallack ofclarity in Japan's purportedly scientific
10
method for determining sample sizes • The scientific façade Japan has attempted to construct, in
purported reliance on an undergraduate text on mathematical statistics 11, does not stand up to
scrutiny, as Professer Sands has shown. But we have historical evidence as weil. Let us return
briefly to the beginning of this story, and look at Japan's internai discussions in determining the
initial catch limits for JARPA.
40. Upon taking the decision to withdraw its objection to the moratorium, as required by the
12
exchange of letters with the United States in 1984 ,Japan began to devise a "research" plan, which
would enable it to continue whaling in the Southern Ocean. ln describing the process for arriving
at the sample size for this program, the Japanese IWC Commissioner, Tatsuo Saito, recalls (tab 39):
[Screen on: graphie of Saito quote]
"As 1saw it, the research had to be something that made proper sense. At the
time, the commercial whaling quota was ... about 1,800, so my gut feeling was that
[the research quota] would be somewhere between 400 or 500. So 1asked Mr. Ikeda
(then General Manager, Deep Sea Fish Wild Resources Department, lnstitute of Far
Seas Fisheries; first Director-General of the ICR) to draw us up a research plan.
Mr. Ikeda said that the quota would be 825." 13 [Screen off]
9Govemment of Japan, Minutes or the Second Meeting of the Committee on the Whale Research Progmm,
17 May 2011, Statcment by Committee Chairman, Nobutaka Tsutsui, Senior Vice-Minister of Agriculture, Forestry und
Fisheries, pp.-10; CR 2013/10, p. 51, paru. 32 (Crawford).
10
CR 2013/9, pp. 24-28 (Sands); CR 2013/10, pp. 42-43, para-;. 6-10 (CraY.lord); CR 2013/14, pp. 41-47.
11CR 2013/15, pp. 62-64 (Boyle).
12CR 2013/10, pp. 49-50, paras. 27-29 (Crawford).
11The lnstitute of Cetacean Research- The First Ten Years (ICR, Tokyo, 30 Oct. 1997), pp. 85-86
(Tutsuo Saito, former Jupunese Commissioner to the IWC), Whuling Librul) website:
http://luna.pos.to/whale/jpn zadan1 and http://lunu.pos.to/whalc/jpn zadun2 on 8 July 2013. - 17-
41. One high leve( official remembers Mr. Saito's involvement 111determining JARPA's
sample sizes as follows:
"1 can remember clearly what Mr. Saito said at the time. He pointed out in very
strong terms that, sinee the commercial whaling take was 1,900 whales, if we were to
take 1,700 whales for the research, then nobody would believe it was research, and
that it would be nothing more than a name change.
Mr. Saito said that he thought that about 500 would be probably the maximum
at the start."14
42. ln fact, Japan established catch quotas of 825 minke whales and 50 sperm whales in the
15 16
original proposal • Six months later, it significantly reduced these sample sizes • The reduction,
like the original setting, was not dictated by scientific considerations. Again, 1would describe the
reasons for the reduction in the words of another persan involved, Kazuo Shima, another Japanese
IWC Commissioner, who said:
"lt was after the 1987 meeting ended that the sample number was decided at
300. There was a Cabinet Meeting prior to Prime Minister Nakasone's departure for a
visit to the United States, and in addition to the outcomes of the Scientific Committee,
it was decided to reduce the sample number in consideration of relations with the
United States. . .. 1 will never forget that, when we went to brief Mr. Tanaka [a
leading Japanese whale scientist], his response was, 'lt's ali right for you bureaucrats.
Scientists need to conduct surveys with numbers that have significance
scientifically."'17
43. This dialogue, drawn from a roundtable held in Japan and published in the lnstitute of
Cetacean Research, firmly establishes that Japan did not have scientific considerations in mind
14The lnstitute of Cetacean Research- The First Ten Years (ICR, Tokyo, 30 October 1997), p. 91
(Junichiro Okamoto, Director,Fisheries Conservation Division, Japan Fisheries Agcncy; Director, Ecosystem
Conservation Onicc), Whaling Library website: http://luna.pos.tn/whale/ipnaan1 and
http://luna.pos.to/whalc/jpn zadan2 on 8 July 2013.Sec also Kazuo Shima, IWC Commissioner; Chairman, Japan
Fisheries Rcsourcc Conservation Association , p. 91.
15
Govemment of Japan, ''The Program for Rescarch on the Southem Hemisphere Minke Whale and lor
Prcliminary Research on the Marine Ecosystcm in the Antarctic", 1987, SC/39/04: MA, Ann. 156.
16
Government of Japan, "The Rcsearch Plan lor the Feasibilit) Study on 'The Program lor Research on the
Southcm Hemisphere Minke Whale and for Prcliminary Rescarch on the Marine Ecosystcm in the Antarctic"', Oct. 1987,
SC/D87/1.
17The lnstitute ofCetacean Research- The First Ten Years(ICR, Tokyo, 30 October 1997), p. 91 (Shima, IWC
Commissioner; Chairman, Japan Fisheries Resourcc Conservation Association), Whaling Library website:
http://luna.pos.to/whalc/jpn zadannd http://luna.pos.to/whalc/jpn zadan2, on 8 Jul) 2013. - 18-
when devising catch limits for JARPA. The catch limits were set by "bureaucrats"; the number
18
of 300 was devised for political considerations and to avoid criticism •
44. The sample sizes for JARPA Il are no more scientifically defensible than those of its
predecessor. Japan has yet to provide any explanation why, when setting its sample sizes for
JARPA Il, it more than doubled the sample size [for minke whales] up to 850 whales. This only
emphasizes the continuity between JARPA- which Professor Wallae did not even attempt to
19
defend - and JARPA Il. We look forward to hearing Japan attempt once more a scientific
explanation of its sample sizes next week, though, of course, without new evidence.
(3) Wh y Japan 'sJARP A II research objectives do not account for JARP A II
45. 1 turn to my third point. The plain fact is that JARPA Il research objectives do not
account for JARPA Il.
46. If Japan had been really serious about scientific research on the Antarctic ecosystem it
would have focussed on:
(a) first, developing a preliminary ecosystem madel to guide program design and identification of
the items of study;
(b) two, identifying breeding grounds and estimation of whale movements using satellite tracking
and biopsy samples;
(c) three, collecting sighting data using standard methods to achieve an agreed abundance estimate
for numbers ofwhales and not only minke whales.
47. But in fact asto each ofthose things, first:
(a) an agreed estimate based on IDCRISOWER data was not achieved until 2012 2, many decades
later;
21
(b) the abundance estimate which was achieved in 2012 did not derive from JARPA data ;
tH"FishcricsAgcnc) Dircctor-Gcncral Told by l'rime Ministcr: Do Scicntilic Whaling that Won't be Criticiscd",
Asahi Shimbun, 26 April 1987 (morning edition), 2; MA, Ann. 127. Sec, also, T. Kasuya, "Japancsc Whaling and Othcr
Cctaccan Fishcrics", (2007) 14(1) J:nv. Sei. Po/lut. Res. 39, 45-6; MA, Ann. 77.
19CR 2013/14, p. 50.
20Report of the Scicntilic Committcc, J. Cetacean Res. Man/-1(Suppl.), 2013, 27.
21
/bid. 26-29. - 19-
(c) and this condemns JARPA as a scientific programme in and of itself, after 25 years of JARPA
effort, we do not know whether minke numbers are (i) stable; (ii) increasing, or (iii)
decreasing; ali three scenarios are possible on the basis of the existing knowledge 2;
(d) we know more about humpback nlllnbers than we do about minke numbers, despite the
following JARPA/JARPA Il death tally- minkes, 10,410; humpbacks , zero.
48. If Japan had been really serious about scientific research on the Antarctic ecosystem, it
would also have focused on obtaining a much better understanding of krill distribution and
abundance.
49. But in fact:
(a) there has only been one collaboration between JARPA and a krill survey by the Far Seas
Fisheries Research Laboratory during the 18 years of JARPA (that was published in 2013) 23;
(b) JARPA Il has put no more than a token effort into studying krill.
There are in fact excellent Japanese krill scientists but, this one paper aside, there is little evidence
of contact between them and JARPA scientists. 1 refer in that context to Judge Keith's question
24
last week •
Conclusion on the scientific research requirement
(Tab 40) [Screen on- Annual quota and take numbers]
50. To conclude on the scientific research requirements, for ali these reasons, in addition to
those given by the Solicitor-General and Professor Sands, JARPA Il is not a program of scientific
research for which a special permit under Article VIII can lawfully be granted. There is no testable
hypothesis, no relation between means and ends, no peer review, no calculation of the need for
lethal taking, no endpoint in sight.
51. But 1would add something here, and it is a slightly different way of looking at the same
problem. Even if JARPA Il as proposed, and that is what is in the special permits, was a scientific
22"Report of the Sub-Committee on ln-depth Assessments ", Ann. G to the "Report of the Scientific Committec
Annual Meeting 2013", p. 4, availablc at <http://iwc.inUscrcport > on 8 July 2013.
21
Murasc, J., Kitakado, T., Hakamada, T., Matsuoka, K., Nihiwaki, S., and Naganobu, M., "Spatial Distribution
of Antarctic minkc whales (Balaenoptera bonaerensis) in relation to spatial distribution distributions of krill in the Ross
Sca,Antarctica", 2013 Fisheries Oceanography 22, 154-173.
24CR 2013/14, pp. 57-58. -20-
programme - quod non - there is a glaring discrepancy between the special permit and the actual
conduct of the program. lt is such that it cannat be said that "the killing, taking, and treating of
whales in accordance with" the permit is occurring within the meaning of Article VIII. Article VIII
requires that the "the killing, taking, and treating of whales" be in accordance with the permit.
What is happening bears no relationship to the permit. Vou can see from the table which shows the
annual quota and take numbers (tab 41 in your folders) , that "the killing, taking, and treating of
whales" bears no relationship to the research program envisaged by the permit. This was a
multi-species program aimed- 1 am putting it charitably- at monitoring competition between
different predators. ln fact in the last four years the percentage of the whales taken by the three
species for which the special permit is granted is: minkes, 30.7 percent; fin whales, 2 percent;
humpbacks, 0 per cent. The special permit is indefensible in its own terms; but the JARPA Il
program bears no relationship to the special permit. This is not science; it is random hunting and
gathering. But from another perspective it is not so random; it is attuned to the wavering Japanese
market for whale meat. [Screen off]
The purpose requirement: JARP A II is conducted for commercial purposes
52. Mr. President, Members of the Court, that brings me to the second requirement for the
invocation of Article VIII, which is that the real purposes of the program be scientific and not any
other purpose or purposes. ln particular, with a moratorium in force prohibiting the taking of
whales for commercial purposes, a moratorium which is part of the system of the Convention as it
stands, Article VIII cannat be used to authorize conduct which is actually commercial or
significantly motivated by commercial considerations . But JARPA Il is a commercial operation; it
is materially motivated by commercial considerations. There are five points here.
(l)Japanese conduct in commencing JARP A
53. First there has been considerable discussion by both Parties about the process of
introduction of JARPA at the same time as the moratorium came into effect for Japan. Both sides
agree that this was no coïncidence: they disagree asto the inference to be drawn from that fact 25• 1
2CR 2013/8, p. 61, para. 15 (Sands); CR 2013/10, p. 50, para. 28 (Cra\\tord) ; CR 2013/12, p. 50, para. 41
(Akhavan); CR 2013/13, p. 23, para. 41 (1-lamamoto); CR 2013/16, p. 25, para. 32 (Iwasawa). - 21 -
need to say something more about this, but 1would first observe that the transition from JARPA to
JARPA Il is actually much more important, and on this Japan has much Jessto say.
54. Last week, Japan was asked by Judge Bhandari to comment on a statement translated by
Australia, as follows: "[t]he implementation of scientific whaling was viewed as the on/y method
26
available to carry on with the traditions ofwhaling" (emphasis added). Japan's response was that
Australia had been "misleading"- a rejoinder it seemed to apply indiscriminately to ali Japanese
Ministerial and officiais' statements which we cited as evidence of Australia's case 27, and it is
evidence. The serious allegation- that Australia had misled this Court- had two bases,
28
according to Professor lwasawa • The first was that Australia had mistranslated this statement,
and that it properly read: "scientific whaling was viewed as the only method to pass on the
tradition ofwhaling" (emphasis added).
k,...o:.o........,.
55. 1am instructed, not~ Japanese myself 1regret to say, that Australia's translation is )(
defensible and not inaccurate, but that Japan's is better. Although the nuance of the interpretations
may be different, both signifYthat special permit whaling was the only method available for Japan
to continue its whaling traditions. This is hardly grounds for an allegation of misrepresentation.
56. The second basis for Professor lwasawa's allegation is equally groundless. This ts
Japan's unsubstantiated assertion that "under paragraph 10 (e),special permit whaling was indeed
the on/y method available for Japan to achieve the lifting of the moratorium ... " 29• Now that is a
mere assertion, which we reject. Japan's own conduct in authorizing and implementing JARPA for
18years belies the truth ofthis statement. ln 1987, before the commencement of JARPA, the IWC
adopted no Jess than eight Resolutions which noted that JARPA would not materially contribute to
the comprehensive assessment nor contribute information required or essential for the rational
30
management of the relevant whale stocks • If Japan had wanted to contribute to the lifting of the
26
G. Satake, Japanese Fisheries and Overseas Fisheries Cooperation in the ü·a of Globalisation
(Seizankdo-Shoten Publishing Co. Ltd, 1997), 113 [MA, Ann. 75].
27
CR 2013/16. pp. 21- 22, paras. 22- 23; pp. 24- 25, paras. 29 and 31 (Iwasav.a).
28
CR 2013/16,p. 24, para. 29 (h\asawa).
29
/bid.;emphasis added.
30Resolution 1987-4 [MA, Ann. 10]; Resolution 1989-3 [MA, Ann.16]; Resolution 1990-2 [MA, Ann. 18]:
Resolution 1991-2 [MA, Ann. 19]; Resolution 1992-5; Resolution 1993-7 [MA, Ann. 21]; Resolution 1994-10 [MA,
Ann. 25]; Resolution 1997-5 [MA, Ann.29]. -22-
moratorium, there were different things it could have done, most of which it did not do. ln
addition, as Professor Sands noted last week, Resolution 1995-9 recommended that "scientific
research intended to assist the comprehensive assessment of whale stocks and the implementation
of the Revised Management Procedure shall be undertaken by non-lethal means" 31• Yet Japan
persisted with JARPA, killing 6,777 whales in the process, purportedly in pursuit of"research" to
lift the moratorium, research which the IWC repeatedly affirmed was not required for management,
and therefore not relevant to the lifting of the moratorium. This was borne out in 2007, when the
IWC noted the failure of the program to meet any of its objectives or to obtain any results which
32
were required for management under the RMP, and therefore relevant to the moratorium • But by
this time, Japan had already transitioned, without pause or proper review, into the conduct of
JARPA Il.
57. Professor Iwasawa also asserts that numerous statements cited by Australia, quoting
Japanese Ministers and officiais and stating their determination to continue whaling "in sorne form
33 34
or another" ,are "taken out of context and misrepresented" • He says that: "[d]uring the period
between 1982 and 1987, different views were expressed asto the future of Japan's whaling. The
views supporting the continuation ofwhaling need to be read in this context." 35
58. 1invite you to turn to the Chronology of the years 1982 to 1987 at tab 42.
On 17 March 1982, Japan's Prime Minister affirmed: "The Government intends to place even
greater efforts than it has to date into the protection and growth of the whaling industry into the
36
future."
ln July 1982, the IWC adopted the moratorium.
ln early 1984, a select group of individuals were asked by the Government to make a plan for
the conduct of scientific whaling, on two conditions:
31CR 2013/ 10, p. 36 (Sands); emphasis added.
12Resolution 2007-1 [MA. Ann. 41).
ncR 2013/10, pp. 50-51, para. 31 (Crawford); MA, paras. 3.18-3.19.
14
CR 2013/16, p. 24-25, para. 31 (Iwasawa).
uCR 2013116, p. 25, para. 31 (Iwasawa).
36
Government of Japan, National Diet Debates, Ilouse of Councillors- Budget Committee- No. 10,
17 March 1982, Speaker: 23/360 (Zenko Suzuki, Prime Minister) [MA, Ann. 88]. -23-
(1) the project had to be "self sustainable", funding its continued operations through
the sale of whale meat; and
""" \"';
(2) the project had to reqUire a "long period perhaps ~ the reopening of )C
commercial whaling" 3•
July 1984- About six months later, the Study Group recommended that Japan "should seek
38
the understanding of relevant countries for Japan to undertake scientific whaling" in that
precise context.
August 1984- The Director-General of the Japan Fisheries Ageney stated in the Diet, "the
path to ensure the continuation ofwhaling would be, for Southem Ocean whaling, to position il
39
as a research whaling activity" (emphasis added).
40
1 May 1987- the moratorium came into effect for Japan •
January 1988- JARPA came into force.
There is no element here of scientific planning; there is every element of continuing whaling
into the future for other reasons. This is the "context" for the statements of Japanese determination
to continue whaling "in sorne form or another". 1 will leave the Court to draw your own
conclusions.
(2) Alleged contrast with commercial whaling
59. (Tab 43) [Screen on - Iwasawa Graphie- Japanese Catches] Japan argued, again
through my good friend and colleague, Professor Iwasawa, that JARPA Il is not a commercial
operation because the catch limits fall weil below those of the period of commercial whaling 4•
Vou will remember the graphie he showed which seemed so striking. lt is certainly true that the
37
T. Kasuya, "Japanese Whaling and Other Cetacean Fisheries'',(2007)Ü1vSei Pol/ut Res 39, 45-46; MA,
Ann. 77.
18
MA, Ann. 98; Whaling Issues Study Group, Report on Preferred Future Directions for Japan 's Hhaling
(July 1984) in New Polh:v,'v/onthly(August 1984) 108.
3
qMA, Ann. 92; Govemment of Japan, National Diel Dehales, l·lou:-e of Representatives - Agriculture, Forestry
and Fisheriesommittee- No. 27, 2 Aug. 1984, Speaker: 211/342 (l-liro)a Sano, Director-General , Fisheries Agency).
40
MA, Ann. 54; IWC Circular Communication RG/VJI-I/16129, ''Withdrawal of Objection to Schedule
Paragraph 10 (e) by Japan", 1Jul) 1986 enclosing Note from the Ambassador of Japan to the United Kingdom to the
Secretary of the International Whaling Commission , 1 July 1986.
4CR 2013/16, p. 28, para. 40 (lwa~ av.a) -24-
catch limits for JARPA Il bear no relationship to the vast quantities that were taken when
commercial whaling was at its height. This is not surprising because during that period of whaling
the various species of whales were almost exterminated. However, if one looks at the ten years
before the moratorium, the position is rather different; Professor lwasawa's graphie did not deal
with that.
60. First of ali, the graphie he showed you showed ali pre-moratorium commercial whaling
for the whole world, whereas the areas we are interested in are the areas subject to JARPA and
JARPA Il operations. The relevant areas for comparison alternate annually between Areas A and B
and Areas B and C- JARPA Il alternates annually between those two Areas. Secondly, he
showed you actual catches under JARPA and JARPA Il, whereas, as you know, these actual
catches- especially under JARPA Il- bear no relationship to the catch targets. The presentation
-~~
)C of graphies which are as misleading as this one fie not assist the Court in reaching the correct
decision. [Screen offj
61. Let me show you something more credible. (Tab 44) [Screen on- Graphie Showing
Catches 1977-1986] The graphie on screen now shows you the southern hemisphere catches in the
areas for the ten years prior to the moratorium coming into effect for Japan. The tine on the
graphie, horizontal tine, represents the JARPA Il upper catch limit of 935 minke whales- only
minke whales were taken during this period. lt will be seen that in Areas A and B the commercial
catches of minke whales by Japan in this period were of the same order of magnitude as the
JARPA Il upper catch limit. ln the three years prior to the moratorium, the position is even clearer.
Looking at Areas B and C it will be seen that the upper catch limit for minkes is higher than the
actual commercial catch for four years, and not much lower for four other years. The conclusion is
that the proposed catch for scientific whaling was not much different than Japan's immediately
prior commercial take, and certainly not such as to justify a different characterization of the
operation. -25-
(3) Alleged contrast with commercial whaling: JARP A tracklines
[Iwasawa Trackline Graphie]
62. Third point: Japan alleged in the first round that "in JARPA Il, research vessels
faithfully follow a scientifically predetermined trackline set across every ten degrees in longitude in
zigzags, with a view to obtaining meaningful research data" 42 - again with Professor Iwasawa-
and he showed you this graphie on the screen (tab 45). He said "research vessels spend most of the
43
time in low-density areas and on/y about 20percent of the time in high density areas" • There is
no authority provided for those propositions in the speech. Again we have assertions without any
evidence.
[Show Cruise Report Graphie]
63. 1 invite you now to study the second graphie on screen, and compare it with
Professor lwasawa's graphie. The second figure shows the design of the survey trackline of the
Japanese "sighting and sampling vessels" submitted by Japan in its official reports- the JARPA Il
Cruise Reports 44• This figure entirely contradicts Professor lwasawa's graphie, and the
unsubstantiated assertions by Japan on the subject oftrackline 45•
64. On the basis of the trackline identified in Japan's Cruise Reports, the movement ofthese
JARPA Il vessels includes 22 short legs in the high density southem stratum, and only six legs in
the lower density northem stratum- 79 percent of the legs are in the high density area. ln terms
of distance covered, approximately 50 percent of the trackline is in the high density area. Given
that the tleet will cover a greater distance in less time when the density is lower, the JARPA Il tleet
is Iikely to have spent considerably more than 50 percent of its time in the productive whaling
grounds of the high density area. This scenario is based on Japan's own reports to the IWC; it is
the antithesis ofthat presented by Professor Iwasawa last week.
[Screen off]
41CR 2013/16, p. 26, para. 34 (h\aSU\\a).
4
.1/bid.
44
Scc MA, Ann. 57; Nishiwaki, Shigctoshi et al, Cruise Report of the Second Phase of the Japanese Whale
Research Program under Special Permit in the Anlarctic (JAR!'A Il) in 2005/2006- FeasibilityStudy,SC/58/07. p. 19,
Fig. 3.
1
4·CR 2013116, p. 26, para. 34 (l\\asawa); CMJ, para. 5.132. -26-
(4) Article VIII (2) and sales of"by-product"
65. Fourth point: Japan attempts to invoke Article VIII (2) as a shield to justify the
disproportionate focus of its purportedly "scientific" program on the production, sale and
distribution of whale meat, and on increasing sales in the face of falling demand 4• lt proclaims
that these activities arejustified, and possiblyrequired, by Article VIII (2) 47•
66. lt further submits that the use of proceeds obtained from the sale of research
48
"by-products" is a widely accepted practice, including by Australia • However, Australian
domestic legislation which permits the sale of fisheries research catch is irrelevant to the question
of Japan's compliance with the express terms of Article VIII which is a question of
characterization.
67. We have never claimed that the sale of "by-products" perse violates the moratorium 49•
But Article VIII (2) was written to avoid waste, not with the idea that the funds from whale meat
sales on the commercial market would constitute a major contribution to the continuation of
large-scale, long-term, self-sustainable programs of whaling, as Japan has attempted to arrange. lt
was not intended that the incidental processing of whales envisaged by Article VIII (2) become the
raison d'être of Article VIII whaling.
68. The predominant influence of commercial considerations on the design and
50
implementation of JARPA Il is clear from the material 1 cited the other week • On that basis,
JARPA Il falls outside the permitted scope of Article VIII (1). This approach is consistent with the
views of the Commission, which stated in Resolution 2003-2: "Article VIII of the Convention is
not intended to be exploited in order to provide whale meat for commercial purposes and shall not
be so used 51." That view ofthe Commission is entitled to considerable respect.
4CR 2013/11, pp. 18-19, pa.59-61 (Crawford).
4CR 2013/16, p. 16, para. 8 (lwa~.awa)
4CR 2013/16, pp. 17-18 (lwa~a SecalsoCR 2013/12, p. 60, para. 73 (Akhavan).
49
CR 2013/16. p. 16,para. 8 (Iwasawa).
5
°CR 2013/11, p. 24, para. 82 (Crawford).
51
MA, Ann. 38, Resolution 2003-2. -27-
(5) Dual purpose takings
69. This brings me to Judge Gaja's question, which followed Judge Donoghue's earlier
52
question • Judge Gaja asked Australia and New Zealand the following question: "If a whaling
programme is both for purposes of scientific research and for commercial purposes, what are the
applicable rules according to the ICRW?" 53
4
70. Australia agrees with the answer given to this question by New Zealand on Monda/ •
will add only a few clarifications.
71. First, having regard to Article VIII (2) any program of scientific research will have a
commercial element. The incidental sale of "by-product" is not enough to invalidate a genuine
program of scientific research, but it must be incidental. The facts show that it is much more than
incidental in the case of JARPA Il. lt is Australia 's position that the commercial considerations are
determinative. But even ifyou do not go as far as that, the position is that Article VIII requires the
program to be for the purposes of scientific research. Operating against the background of the
moratorium on commercial whaling by which Japan is bound, Article VIII should be strictly
interpreted so as to require that any commercial catch be purely incidental.
72. The answer to Judge Gaja's question is that a program which is characterized as both
commercial and scientific is not capable of justification under Article VIII.
Conclusions
73. Mr. President, Members of the Court, 1 come to my conclusion. 1 will first make the
point that this is the last opportunity for Australia to make oral submissions to the Court. We
therefore trust that the Respondent will not raise completely new legal arguments to which we have
had no opportunity to respond. Japan seeks to reassure the Court by assurances. But its core legal
theory is inconsistent with these assurances.
74. First, Japan says that the Court should trust the Scientific Committee, which has
endorsed the JARPA programs 55. Professor Sands has shown that this is not true- there has been
5Œ. 2013/9, pp.67-68.
5
.1CR2013116,p.63.
HcR 2013/17, pp. 27-28, paras. 42-43 (Finlayson).
5'CR 2013/12, p. 45, para. 21 (Akhavan); CR 2013/15, p. 68, para. 89 (Boyle). -28-
no such endorsement. ln any event, this contradicts Professor Pellet, who told you that the
Scientific Committee has no normative role or value in relation to the special permits under
6
Article VIII 5 - this is the Pellet void. The most it can do is to discuss them, but with no
obligation of any kind upon Japan to listen, stillless to learn from the views expressed.
75. Secondly, Japan accepts a qualified duty not to harm the stock 57• But that duty does not
arise, as a matter of substance , under Article VIII, and the Scientific Committee has no mandate to
do anything but receive the proposai. This does not make sense of the Convention.
76. The real point lies in what Professors Pellet and Lowe have argued- which 1 have
already summarized:
(a) the Convention is, vis-à-vis Article VIII, entirely procedural in its character; procedure is
58
ranked above substance, and it is said Japan has fully complied with the procedures -
although we say that is not true;
(b) secondly, as to the necessity, scope and conduct of a soi-disant scientific program, Japan is
effectively in a position of self-judgment: it issues the permit on its own sovereign authority,
the authority it had before the Convention, an authority not deriving from the Convention, and
for the exercise ofwhich Japan is not accountable to the other member States 59;
(c) thirdly, limits on Japan's authority revolve round an indeterminate notion of good faith-
60
which is presumed in the absence of clear contrary evidence •
Of'\
)( 1shall say a word about the question that the relationship of good faith, or bad faith,..W.our primary
argument based on the Convention. 1 said earlier on that, allegations of bad faith can create
problems for courts and tribunats. And the treaties based on the conservation of marine living
resources in the public domain should not have as their sole criterion for violation, allegations of
bad faith. But of course, if bad faith is shown, then it is highly relevant. And for the reasons we
explained in our pleadings, and in our first round, we do allege bad faith in relation to Japan as a
56CR 2013/13, pp. 61-62, para5and 7 (Pellet).
57CR 2013/15, p. 24, pam. 51 (Lowe); WOJ, para. 9.
58
CR 2013115,p. 15, para. 9; p. par a4-3. (Lowe); CR 2013/16, p. 50, para. 33 (Pellet).
59
CR 2013/13, p. 61, par5.(Pellet); CR 2 013/13, p. 64, para. 10 (Pellet): CR 2013115 p. 15, para. 7 (Lowe);
CR 2013/15, p. 21, para. 34 (Lowe); CR 2013/16, pp. 51-52, para. 37 (Pellet).
c,oCR2013/15, p. 5, para. 15; p. 21, para. 38; p. 24, para. 54 (Lowe); CR 2013/16, p. 53, para. 41 (Pellet). -29-
subsidiary matter, and we adhere to those allegations. We believe we have evidence that supports
them and it will be a matter for the Court to assess that. Mr. Gleeson will deal with that in a
moment. The position under Japan's tluee propositions that 1 have outlined, is that Japan has a
prior right to whale- for so-called science- a sovereign right to reduce whales to ownership
ad libitum. This is inconsistent with the collective regulation of the whale stocks, inconsistent with
the object and purpose of the Convention, inconsistent with the original understanding of
Article VIII. ln short ,Japan seeks to escape the lex specialis of the Convention in order to roam
the effectively unregulated high seas of"scientific research". This involves the assertion of science
in lieu of the evidence of science.
77. But, Mr. President, Members of the Court, even genuine scientific research needs to take
serious account of the views of the Scientific Committee and the IWC. To illustrate the point, in
the need for the integration of Article VIII into the Convention as an effective part of the
Convention, we have put in tab 46 of your folders, a proposed experiment involving the validation
of the well-known Allee effect on blue whales. The Allee effect, as you will recall, 1am sure, from
your biology classes at school, is the hypothesis that below a certain population density, a species
ore.
breeds more slowll 1• The mechanisms of recovery from near extinction...+s!poorly understood; )c
there is plenty of need for more research. Blue whales were nearly extinct in 1982, certainly Jess
than 1,000, probably Jess than 500. Now there may be 6,000 in Antarctic waters. As you will see
from tab 46, this proposed experiment is comparatively simple. There are two phases: phase one,
involves the lethal take of 1,050 blue whales over four years to determine the pregnancy rates-
that is the first thing you have to do; phase two, involves a lethal take of 500 blue whales each year
for ten years, that is to drive the population down by 50 per cent, to test the Allee effect.
78. The experiment will stop when either the pregnancy rate is statistically significantly
below the baseline, proving the Allee effect, or when 5,000 animais have been taken, disproving it.
Testing the hypothesis requires an experimental reduction of population size, non-lethal methods
will not do.
<Scc Courchamp F., Berce J., Gascoigne J. (2008).Allee effects in eco/ogy and conservatioOxford, New
York, USA: Oxford University Press. - 30-
79. Now Japan will no doubt say that it has no intention of taking blue whales: at (east 1
hope Japan will say so. But that is not the point of our thought experiment. The point is its legal
theory of Article VIII. The experiment 1have outlined, is without doubt scientitic. First, there is
an important gap in our understanding of the extinction and recovery of marine species. Secondly,
there is an identitied hypothesis- the Allee effect- based on existing knowledge. Thirdly, there
is a developed experiment designed to, and capable of, testing that hypothesis. Fourthly, there is a
defined endpoint, so we will know whether the experiment has succeeded. None of these four
features is true of JARPA Il. Our blue whale experiment would be a scientific experiment
cr
><conducted for scientific purposes. lt follows from Japan's interpretation of Article VIII, the voideA
x Vacuity, that a special permit to catch 6,050 blue whales over 14 years will be lawful under the
Convention, even though it involves killing more blue whales than presently exist. ln
Professor Pellet's words, "les permis spéciaux délivrés à de fins scientifiques échappent au
mécanisme de la convention ... "62• ln Professor Lowe's words, "the limits imposed by
Article VIII do no more than require that Japan comply with the procedural obligations set out in
the Convention',6 3; So much for the régimeof the 1946 Convention! So much for effectiveness! If
Japan's interpretation entails that the killing over 14 years of more blue whales that presently exist
in the southern hemisphere is a practice unreviewable by the Court, then Japan's interpretation
should be rejected.
80. 1 should add that we have drafted, proleptically, a set of likely comments from the
increasingly dysfunctional Scientific Committee on this modest proposai- to quote
Jonathan Swift. These suggested draft comments retlect the Committee's current division and
disarray: "sorne members ... other members .. .". There is currently no effective process for the
Court to defer to when it cornes to Article VIII. lt is time for the Court to act.
81. Mr. President, Members of the Court, the facts and expert evidence being now- 1
suggest- rather clear, what is the Court to do? This calis for a procedural remark and a
substantive one.
62
CR 2013113, p.61,para. (Pellet).
63CR 2013/15, p.15,para.9 (Lowe). - 31 -
82. First the procedural remark. ln its Counter-Memorial, Japan did not botl1erto produce its
own scientiftc evidence to refute that presented by Australia. Japan was evidently dismayed when
Australia, taking the view that the issues had been sufficiently joined, elected not to file a Reply.
We thought that the repeated protests of Japan at the absence of a second round must have implied
an intention to include large quantities of expert evidence and documentary evidence in its
Rejoinder. lt seems now that there was no such intention, and no such evidence. The Court gave
the Parties nonetheless a further opportunity to present expert evidence, and Japan presented a
report by Professor Wall0e, a close affiliate of the JARPA programs- a report that contained not
a single footnote. You've heard Professor Wall0e-you canjudge his evidence for yourself. lt is
sufficient to say that globally, he did not support Japan's case.
83. Then at the last moment, Japan produced observations which could have been filed in its
Counter-Memorial, but which were presented in such a way asto give us no further opportunity to
respond. The Court rightly treated this tate unscheduled filing as "observations of Japan". And
you, Mr. President, if 1may say so with great respect, rightly prevented Japan from raising them in
64
cross-examination as if they were an expert report duly filed •
84. Mr. President, Members of the Court, 1understand the reservations some Members of the
Court may have at what may seem the interposition of common law methods into the Court's
fact-finding and evidence assessing process. The Court will no doubt find its own balance in these
matters. But meanwhile, Japan has had access to senior members of the Bar, on bath sides of the
common law/civil law divide. Further, under your guidance, Mr. President, Japan has had a full
opportunity to present its case and to be heard, and the questions asked by the Court- on bath
sides of the common law/civil law divide- show, 1hope 1may say so, an acute understanding of
the issues and a grasp of the dossier. You are now in a position to act.
85. That brings me to the substantive remark. You are a court of law. lt is respectfully
submitted that you should focus on the precise issues presented. Do the JARPA Il special permits
so far issued exempt Japan from its undisputed obligation not to engage in whaling commercial in
scale white the moratorium remains in force? To that question, there is, 1suggest on the evidence,
t>~ 20R3/9,p.61 (President). - 32-
only one answer and that is, "no". The answer should be given now, with respect, irrespective of
the Japanese intimations of mutability in relatioThere are also twoiew".
questions concerningales under the Sanctuary and factory ship regulation. 1dealt with these
in the firstand we have heard from Japan no trace of a defence.
86. Mr.esident, Members of tWhat do we waAccountability under this
major multilateral Convention . When do we want it? Now.
Mr.President, Members of the Court, thank you, in particular for your acute questions and
your attention to the answers. Mr.would ask you to cali on Professor Sands to answer
Judge Greenwood's question and then toSolicitThank you, Mr. President,
Members of the Court.
ThePRESIDENT: Thank you, Professor Crawford , and 1give the tloor to Professor Sands
to provide his answer.r Sands, you have the tloor.
Mr. SANDS:1 can be very Mr.ef.ident, Members of the Court, 1 express our
gratitude that you gave us the lunch break and did not putse us to answer the
question immediately. But maybe that future cases. We went over the reports and we
counted thenbers: it is a question of looking at names and adding them up; if one or two errors
have crept numbers are out by one or two, we apologize in advance. We did our best to do it.
The situation is as follows: the total number of participants at the 2005 Scientific Committee was
that there were delegationsracting Governments, comprising 139 delegates, excluding
interpreters. There were,on, 44 invited participants, not associated with a delegation of a
Contracting Government and two obinternational organizations, excluding those
fH
observers already included in coThat cornes to a total of 185 members. If you
remove themembers who declined to participate in the discussions, it leaves 122 members. Of
the 122 members, on our counting, 27 were listed as members of the Japanese delegation and
subtracting that number, that leavesho were not in the 63 or on the Japanese
delegation, who did not remove themselves from the discussion.
6CR 2013111,pp. a47.and 79-80 (Crawford).
11
._____ ~"'L;a.fN"\ ."AM:e"- "-'~..c-oJ~c . c=c~ .~..c\..(»S)1.
~-~c: ~c~..t.)a~(~~.f 2-t,pp•)t-''c~:( f'.ck.l0~- .~~'1t4o~).-4"\
·,~,;~ lt is worth adding that the review of JARPA Il before it went to the Scientific Committee
was discussedbody called the Standing Working Group on Scientific Permits. That Standing
F.-1
Working Group, as documented in its report at Annex 01 of the Scientific Committee Reportk-
and we have footnoted it and will make the documents available, through the Registrar, to ali
Members of the Court and, of course, to our colleagues on the other side: that Standing Working
Group was composedmembers, excluding tinee interpreters. Of the 63 scientists who had
declined to participate, 28e also members of this Standing Working Group when
discussions were first held, leaving 59 members who had not removed themselves from the
Standing Working Group discussions.26 were listed as being members of the
Japanese delegation, excluding interpreters, which leftf the Standing
Working Group and also not members of 63, so to speak, who had not removed
themselves from discussions within the Standing Working Group. We are not able to indicate to
you the viewsose remaining members, because that is not recorded, either in the Standing
Working Group the Scientific Committee. Ali we can do is point you to tab 29, which is in
f"N
your judges' folder, which indicates the report of the Chairman of the 57th Commission Repo and
&......~---
tab from both of which you will see, if there was a discussion, a view was not expressed one
way or the other.
1hope thatelpful to you, Mr. President and to the Members of the Court. That is what
we have been able to do and we can come back with any more. 1think if
you could now invite the Solicitor-General to take the Bar, that would be appropriate.
The PRESIDENT: Thank you, Professor Sands, and 1give the tloor to the Solicitor-General
JAPAN'S LACK OF GOOD FAITH AND ABUSE OF RIGHT
Introduction
1. Mr. President, Members of the Court, Australia has now completed the substance of our
presentation on the questionsterpretalt remains for me to reply to
® ,.~""o \,Srcr-11..1,.6~~\'>'c"&'cc :rA.«o.+o:.~-•~.'~',
~e ~~-.: 1:o-.'~'(!cj,~=eh:~~..'f.'\a\i\l~..B(\t"."'"o\,)
?t~("e'o\p•..e~t-~~~\ a-'."',1. Sl;\-..,.~c."\. -34-
Japan's presentation on the tapie of Jack of good faith and abuse of right, in particular to
Professor Lowe, Ms Takashiba and Professor Pellet. 1might observe that it is now almost midnight
in Sydney and 11 p.m. in Tokyo. After a long day of our careful and detailed- and we hope
persuasive- presentations, 1trust it does not feel like 2 a.m. in The Hague. You may also be
asking whether our second round presentation distinguishes itself fromRPA Il in the sense that
it does at some point come to an end. The answer is,es", 1assure you.
2. What it leaves me to do, though, in this important, although alternative, part of our
presentation,is to respond to some matters raised by Japan which are of importance, in the tluee
speeches 1mentioned. Before 1do that, could 1deal with two preliminary matters. Firstly, our
answer to Judge Charlesworth's question.
3.Our answer is this: the Court does not need to make a finding on Jack of good faith or
abusive rightin arder to find success for Australia.The present arguments represent a legally
distinct partf the case. Australia could- of course, should not- but couId, Jose on treaty
interpretation and succeed on this partthe case. In that sense, the argument might be regarded as
a true alternative. The argument,observe, draws upon principles of international law, as applied
to this treaty and to these facts. International lawlied upon to apply the standards of bona fides
and reasonableness to the mannerof exercise of the right to determine whether, as we put it in the
first round, relying upon theO Appellate Body in the Shrimp case, whether the abuse or misuse
><is''sufficiently grave or extensive''such that Japan has, in effect, reduced its treaty obligations to
x '' mere facultative''ones, dissolved their juridical character and in so doing negated the rights of ali
other treaty members6•
4. The second preliminary matter IS that, as 1 made clear in the first round and
Professor Crawford made clear then and again today, Australia accepts we have a high burden on
~
>< this alternative part of the case. lt is common ground that Jack of good faith it~ally onleged
solid evidence. The case must be proved, not presumed and the Court will not~ make the
t:~l..\.oa.l"(
findings sought.
66
See Australia's speech in relation to good faith and abuse of right in the lirst round, as recorded in CR 2013111. - 35-
5. lt might then help before 1come to the tluee particular responsive aspects of this speech if
1just stood back for one moment from the detailed evidence you have heard and identify the three
broad categories of evidence that Australia relies upon for this part of the case.
6. The first category of evidence is that there is simply before you now too much material
over a 30-year period painting to commerce as a substantial driver for JARPA and then JARPA Il
for science to be the true purpose for which the Article VIII right has been invoked. Vou may
recall in the dim and distant past of two weeks ago 1commenced with seven indicia of commerce.
Professor Crawford has expanded upon the commerce argument in the first round and this
afternoon. The Jackof good faith lies in the intrusion into the exercise of the Article VIll power of
considerations so extraneous to that Article and so pervasive as to justifY the conclusion of Jack of
good faith.
7. The second broad area of evidence concerns Japan's response- or perhaps Jack of
consideration in response- to the body of IWC Resolutions over 30 years. Stepping back, it is
pretty hard to think of a like example in the history of a multilateral convention where one State has
so disregarded the statements of the common organ of the convention.
8. The third body of evidence concerns Japan's compliance with paragraph 30 to which 1
will return later. So they are the three bodies of evidence that Australia relies upon for these two
allegations and when the Court considers the body of evidence, we would respectfully invite you to
consider them through the framework of the following aggravating factors. Let me list the
aggravating factors:
this is not one-offbehaviour;
it is not a mere technical breach;
it is not at the edges of the compact.
It is hard to think of a more calculated, sustained course of conduct which threatens the integrity of
this very valuable Convention. -36-
Response to Professor Lowe
9. Mi!;!lt 1then turn to what Professor Lowe put to you last week. There are tluee matters
that 1wish to respond to. Firstly, you will recall that he made a correct concession that the good
67
faith of Japan must be considered in the context of the issue of each special permit year by year •
1O.This point has evidentiary significance at at least two levels. As is now clear from the
material, the relevant decision-maker simply cannot have given attention each year to the matters
which Professor Lowe correctly agrees must be attended to, and 1quote him "the number ofwhales
that, according to good scientific practice, should be caught, and the length oftime over which they
should be caught". You know now so clearly that, from the very first year of this plan onwards, the
plan to take three species in defined numbers lay in tatters. Why did the decision-maker in second
and subsequent years continue to authorize 50 humpback whales to be taken when, in departure
from the plan, none had been taken? Why did that person continue to authorize the take of 50 fin
whales when, in departure from the plan, a very small number of non-representative whales had
been taken? Why did the decision-maker continue to authorize a take of 850 minke whales when,
for reasons which cannot be wholly attributed to the Sea Shepherd, lower and varying numbers
were taken in previous years? Perhaps most significantly, arising out of last Wednesday, why did
the decision-maker continue to issue a permit in identical forrn each year in the face of
Professor Wallae's advice that there were fundamental difficulties, at least in the fin and humpback
68
aspects ofthe proposal ?
Il. That is the first evidentiary consequence of Professor Lowe's correct concession that
good faith has to be assessed year by year. The second evidentiary implication lies in
Professor Boyle's correct answer that there was no assessment year on year on the availability of
non-lethal alternatives. The failure to address those questions year on year, we would submit, of
itself establishes this part of the case.
12. The next matter from Professor Lowe's formulation is- and it was a careful
formulation, of course- when one re-reads it, what is missing from it is any recognition that good
faith requires any attention to the resolutions expressed by the IWC itself. As Professor Crawford
67
CR 2013/15, p.24 (Lowe).
6CR 2013/14, p.44 (Walloc). - 37-
has just outlined this afternoon, he accepts and contends that the only duties are procedural but,
more than that, the only procedural duty he expressly accepts is a duty to attend to the comments
from the Scientific Committee received under paragraph 30. Here we differ from him on the law.
The good faith obligation we submit undoubtedly requires each member to have regard to
resolutions expressed by the Commission under Article VI. You know the character of those
resolutions over 30 years only too weil, New Zealand accurately and usefully summarized their
effect on Mondal 9• We respectfully argue that it was an error of Professor Lowe to exclude from
a Contracting State's good faith duty in the issue of permits a requirement to have regard to the
views of the IWC. Certainly he offered you no legal reason to justify that permission.
13. The final matter from Professor Lowe's presentation, as you may recall, that he twice
uttered a polite but firm protest that Australia had not offered evidence in support of the submission
we put in chieë 0• The submission, if 1 may repeat it, was that Japan never opened its mind to a
consideration of making the slightest change to the core aspects of its lethal methodology, scale,
continuity and indefinite period have never been the subject of reconsideration by Japan. And so it
was that last Thursday Professor Lowe politely but firmly invited Australia to re-phrase, as in
withdraw, that claim. May 1tell you that after reconsideration, Australia does not do so. The claim
was made with the closest attention to the evidence and drew an important distinction between the
core aspects of Japan's lethal methodology, scale, continuity, indefinite period, and what might be
regarded as the details by which the core methodology is carried out. No doubt at the edges Japan
may have made one or two changes. Maybe it wouId do so again at the edges, if heavily pressed.
But the core proposition is 850 dead minke whales, 50 dead humpback whales, 50 dead fin whales,
permits to be issued in those terms, each year every year, no end in sight. They are the matters,
Professor Lowe, upon which Australia does not withdraw its claim that Japan has not opened its
mind to a genuine reconsideration.
14. Asto Professor Lowe's claim that we then offered no evidence in support, frankly, 1am
puzzled. ln the rather colourful presentation by Professor Pellet last Thursday, you will recall he,
6qCR 2013/17, p. 19 (Finlayson). Sec also tab47 rcproducing the slidc from Ncv. Lcaland's judgcs' foldcrs at
tub5.
7°CR 2013/14, pp. 18and 25 (Lowe). -38-
with some emphasis, referred to the four cardinal sins - or the four capital crimes - which he
claimed Australia had advanced against Japan. And he gave you his response 71• Clearly enough,
there was evidence, the question is: does it establish the standard?
15. Before leaving Professor Lowe, could 1 conclude on a methodological point and
underscore some matters which Professor Crawford has just addressed in a slightly different
context? The evidence which Australia marshalled in support of this submission, employed the
conventional legal tools of fact finding under domestic law and international law. We pointed to
documents. We pointed to conduct, including omissions in circumstances where action would be
expected. We pointed to statements by Japanese officiais, providing direct evidence as to state of
mind and intention of Japanese decision-makers. We invite the Court to draw the rational and
logical inferences which arise from this combined and compelling body ofmaterial.
16. No doubt there was some evidence we, for obvious reasons, could not place before this
honourable Court. lt was not in our power to campel the relevant decision-makers from Japan to
give evidence, nor to produce their internai documentary record. That does not mean our case
fails.
17. ln accordance with the ordinary tools of fact finding, as highlighted by this Court in
Corjit Channe/ 7, the Court would look at the body of material assembled by Australia and if the
natural and obvious inference is the one for which we contend, then in the absence of Japan
bringing forward evidence suggesting a contrary conclusion- which it has not done- the Court
may comfortably draw the conclusion.
18. So, Mr. President, Members of the Court, Australia's submission, we trust, was carefully
articulated on this tapie. lt was based on a sound evidentiary finding and it is one we respectfully
71
CR 2013116,p. 43 (Pellet).
12
C01jit Channel (United Kin!{dv. Albania), Merils, Jud!{ment, I.C.J. Reports p. 18:
"On the other hand, the fàct of this exclusive territorial control exercised by a State within its
frontiers ha<;a bearing upon the methods of proof available to establish the knowledge of that State as to
such events. By rea~o ofnthis exclusive control, the other State, the victim of a breach of international
law, is onen unable to furnish direct proof of fàcts giving rise to responsibility. Such a State should be
allowcd a more liberal recourse to inferences of tàct and circumstantial evidence. This indirect evidence
is admitted in ali systems of law, and its use is recognized by international decisions. lt must be regarded
as of special weight \\hen it is based on a series of fàcts linked together and leading logically to a single
conclusion." -39-
continue to ask the Court to give the closest consideration to. lt is proof of Jack of good faith, not
mere presumption of it.
Response to Ms Takashiba
19. Could 1 turn to the second speech, that of Ms Takashiba, and confine my remarks to
matters not yet addressed by Australia. You might recall that the primary purpose she gave for her
speech was to show you that Japan had scrupulously complied with paragraph 3073• 1need togo
back one step to how Japan, in the Counter-Memorial, said it would prove "scrupulous
compliance". As you know, one of Australia's complaints 74 was that, on a plain reading of
paragraph 30, Japan is required to provide the Secretary of the IWC with proposed permits before
they are issued in szifficient lime to allow the Scientific Committee to review and comment on
them. Australia's factual allegation was that this occurred only in 2005 and has not effectively
occurred since.
20. Japan's response in the Counter-Memoriaf 5 was that providing details of the JARPA Il
plan in 2005 was sufficient compliance then and for each year thereafter without a need to supply
further permits in advance.
21. Ms Takashiba took what might be a different approach- if you will forgive me to
express it in our English translation, before the official translations are available- she said this:
"lt is indisputable that Japan has never issued special permits without
beforehand giving the Scientific Committee the possibility to examine and formulate
an opinion on projected permits. This happened prior to the expiry of the deadlines
76
and throughout the entire periods of JARPA and JARPA 11."
22. 1would ask you to reflect upon those words of Ms Takashiba. If she was merely saying
what was said in the Memorial, namely the JARPA Il plan submission in 2005 was good enough
for every year thereafter, that is not "scrupulous compliance".
23. On the other hand, if she meant to assert that Japan positively, each year, in advance,
complies with paragraph 30 by providing proposed permits in advance, the evidence is to the
71
CR 2013/15, p. 27 (Takashiba); CMJ, para. 8.102 (iii).
74
MA, paras. 4.20-4.24.
7CMJ, para. 9.37.
7bCR2013/15, p. 30, para. 9 (Takash iba). -40-
contrary. 1will ask for you to be shown on the screen a siide for which the full document is found
at tab 48 of our materials. [Siide] That is what happened at the Scientific Committee the other day
and it is pretty clear that the permits are not being provided and considered and commented upon
on a year by year basis.
24. Ms Takashiba's second proof of "scrupulous compliance" was her assertion that the
partial and limited review of the JARPA Il proposai by the Scientific Committee in 2005 gave
Japan the approval it needed between 2005 and 2013 and beyond.
25. If you will forgive me for expressing it this way: Professor Sands has this morning
smashed this soft lob away and to go over his territory would be like trying to steal the Wimbledon
crown from the first English winner in 76 years, which 1do not do. 1will leave that topic.
26. Her third point was that "Japan was prepared to modiry its programme if necessary, on
77
the basis ofthe 2014 evaluation" • Professor Crawford has disposed ofthat point.
Response to Professor Pellet
27. Let me move finally to Professor Pellet's address last Thursday. Vou do not need me to
remind you now- earlier counsel have drawn attention to it- that a large part of this
presentation by Professor Pellet, ostensibly in defence of his client's good faith, consisted in a
rather indiscriminate attack upon Australia, other unidentified countries and other unidentified
78
scientists of from many nations • Could 1simply respond with these observations, looking at that
submission of Professor Pellet, through a good faith framework. As Professor Crawford reminded
you this morning, the decision to amend the Schedule, to introduce the moratorium or other
79
restrictions and subsequent decisions to vary it, are made by the three-quarters majority • They are
the terms ofthe bargain between the parties. If Japan wishes the current provisions of the Schedule
to change, it has options available to it and it may seek to obtain a 75 percent majority. As with
any voting majority, Contracting Governments are entitled to take into account a range of
considerations in determining how to vote on amendments . This Court would be very slow- very
77CR 2013/15, p. 36, para. 27 (Takashiba) .
78CR 2013/16, p. 49, para. 30 (Pellet).
79
1CRW, Art. Ill (2). -41 -
slow, we suggest - to impugn the good faith of many countries, not parties before the Court in
these proceedings, in the manner Professor Pellet invited you to.
28. Secondly, you will have observed that his attack had it at its heart the further legal error
which Professor Boisson de Chazournes dealt with yesterday. His assumption that conservation
and recovery can never be more than a mere means to a contractual end of killing commercially the
maximum sustainable number of whales wrongly subverts the Convention. There can be no bad
faith or departure from the Convention for Australia, or any other Contracting Government, when it
cornes to questions of voting on Schedule amendments to form views that a present larger rather
than smaller population of whales is a good thing, particularly having regard to intergenerational
equity and the precautionary principle.
29. Thirdly, you will recall Professor Pellet's rather savage attack on Australia and its
scientists in their dealing with the IWC and the community of scientists generally 80•
30. The Attorney-General has responded to this unfortunate attack. Might 1be permitted to
add this: Australia and its scientists have contributed in the most valuable and varied ways to
research, conservation and management ofwhales in the IWC and as you know in close partnership
with many other countries including Japan. This includes Australia's work in non-lethal methods
and the SOWER sighting surveys, in promoting SORP and other co-operative research between
States, under Article IV of the Convention, as Dr. Gales explained. [Siide] Also, 1might note that
Professor Pellet forgot that Australia has provided three of the Chairs of the Scientific Committee
of the IWC [tabs 56 and 57]- a not insignificant achievement- and he also forgets that it was in
fact Australian scientists whose pioneering research led to the development of the RMP itself. The
article which pioneered the RMP is at tab 58 81•
31. Let me move beyond submissions of counsel intlamed by an invective that Cicero would
have been proud of and retum to the substance: it is now common ground that Japan has an
obligation "to give a degree of consideration to the guidel ines and resolutions of the IWC and the
82
reports of its Scientific Committee" , that is common ground with Professor Pellet, although not
8°CR 2013116 p. 40, para. 7 (Pellet).
8William K. de la Marc, "Furthcr Simulation Studics on Management Procedures", Rep /nt Whal C'ommn
(Special Issue Il), pp. 157-169 [tab 58).
8CR 2013/16, p. 43, para. 18(Pellet). -42-
perhaps with Professor Lowe. The critical point of evidence- 1mentioned this in the first round,
and we submit it has not changed - is that Professor Pellet cannot point you to a single document,
or piece of evidence, where Japan gave real consideration to the recommendations of the IWC
under Article VI in any of the core aspects. No document where Japan considered reducing the
take - other than the temporary deferrai of humpbacks, for ostensible political reasons. No
document where Japan put measures in place to adopt or investigate alternative non-lethal methods.
No document where Japan gave consideration to revising its objectives to better align them with
critical research needs identified by the Scientific Committee.
32. Professor Pellet's only response was to attack the integrity of the IWC. Again, if you
will forgive the English, he described its recommendations as ultra vires, as the work of a
tyrannous majority, and so on, as a work violating Japan's large margin of appreciation 83• We, to
the contrary, would respectfully suggest that Japan was required to take into account the interests of
the other members of the Treaty as weil reflected in these resolutions, made under the voting rules
84 5
adopted by the parties • We respectfully adopt what New Zealand putto you on Mondal ,about
the content of this part ofthe good faith obligation.
33. What 1have said this afternoon has focused on the facts through the prism of good faith.
For similar reasons, Australia reiterates that, if it be necessary to find, Japan has exercised its rights
in a manner so departing from the standards of bona fides and reasonableness to have eviscerated
its treaty obligations.
Conclusion
34. Finally, Mr. President, Members of the Court, you may recall that tate last Thursday,
Professor Pellet ended his presentation on this topic, by telling you that he or his client, or both,
were left feeling rather bitter and disillusioned. To the contrary, 1trust that Australia has succeeded
in presenting our submissions on this difficult, but important, alternative part of our case, 111a
manner which neither displays nor provokes bitterness.
8CR 2013/16. p.58,para.54 (Pellet).
841CRW, Art. Ill (2).
85
CR 2013/17, p.19. -43-
Mr. President, that is the end of my presentation. lt may be convenient after a short
adjournment, ifthat were suitable, to callupon the Attorney-General.
The PRESIDENT: Thank you, Mr. Solicitor-General. The Court is ready to listen to the
Attorney-General now. If you would like to take the tloor. So, 1 give the tloor to the
Honourable Mark Dreyfus, Attorney-General of Australia. You have the tloor, Sir.
Mr. DREYFUS:
AUSTRALIA'S CASE -CONCLUDING REMARKS
1. Mr. President, Members of the Court, it is an honour to present the concluding remarks of
Australia's case. 1want to conclude by looking forward to the resolution of this case rather than
looking back over the arguments that have been made with clarity and force by my colleagues
during the course ofthese oral presentations.
2. Mr. President, there is great interest in this case in Australia and in many other countries.
ln publicly addressing that interest, 1 have invariably made the point that Australia and Japan are
friends. And that, as friends, we have brought the dispute to the Court for resolution consistent
with the strong commitment of both countries to resolving disputes in accordance with
international law.
3. The vigour of the advocacy you have heard from counsel is part of litigation, and it serves
the important purpose of rigorously testing the evidence and arguments that are presented to the
Court. 1hope that the end product of our exchanges is a clearer view of the facts and legal issues
that are before you.
4. Mr. President, the Court has an important role in interpreting the Convention and
reviewing Japan's compliance with it. As the final arbiter of legal disputes between nations, the
Court's decision in this matter is of broad significance for international law, particularly in the
fields of environment and science. As Professor Crawford pointed out yesterday, this is the first
time the Court has been faced with a multilateral convention for the conservation of endangered
species. -44-
5. ln this case, the Court has an important opportunity to confirm what does and what does
not constitute genuine scientific research, and to ensure that activities conducted in reliance upon a
treaty that requires a scientific purpose are demonstrably undertaken on an objectively determined
scientific basis. ln particular, the Court now has an opportunity to assist in contributing to the
integrity and effectiveness of the Whaling Convention, a pioneering convention that has truly been
for the benefit of the "nations of the world". 1would add that the "future generations" to whom the
framers of the Convention referred in 1946 are here in this room. And 1 believe that we have a
matching and a continuing responsibility to the generations that will follow us.
6. As 1said at the outset, and 1am sure that you will be relieved to hear, 1will not attempt to
summarize the extensive arguments that Australia has made during the course of this case. 1would
only assert that Australia's arguments on the law and the facts are persuasive, and 1would urge the
Court to accept them and to make the specifie orders sought by Australia that will be outlined by
our Agent after 1conclude.
7. ln essence, Australia respectfully requests the Court to make orders to bring JARPA Il to
an end, because the large-scale killing of whales under that program is commercial, and wholly
outside what is permitted by Article VIII of the Convention. Of course, Australia understands that
Article VIII forms part of the 1946 Convention. Australia accepts too that lethal whaling for
scientific purposes may occur in exceptional circumstances to meet critical needs, and provided the
other relevant requirements of the Convention are met. lndeed, a paper entitled Addressing Special
Permit Whaling and the Future of the /WC submitted in 2009 to IWC 61 by the Government of
Australia (tab 37) recognizes that such lethal research on whales may take place, provided that ali
the necessary prerequisites are satisfied. ln the present case, the evidence is clear and compelling
that those prerequisites are not met.
8. If the orders sought by Australia are made we hope that this will bring an end to lethal
activity under Article VIII. ln any event, any lethal research that is undertaken under that article in
the future would need to meet the criteria of the kind outlined by Professor Sands earlier today,
including:
(a) A review of previous scientific practice to identify a real gap that would be filled by the
objective for the new proposai; -45-
(h) Evidence to show that critical needs relating to the conservation and recovery of whales will be
met by the research;
(c) ldentified objectives that set out clearly the questions (or hypotheses) that the research 1s
intended to explore and how those questions infonn the methodologies proposed;
(d) Evidence clearly demonstrating that lethal take is necessary because the research could not be
carried out by other means and that the level of that lethal take is strictly limited to the level
necessary to carry out the research;
(e) The undertaking of independent peer review, before any proposül is finalized, during the
implementation of the proposai and in the consideration of any results; and
(/) Strict adherence to the procedures of the Convention, and in particular, paragraph 30 of the
Schedule.
9. Mr. President, before closing, 1want to emphasize that orders of the nature that Australia
is seeking would have positive consequences. ln particular, such orders could lead to greater
co-operation and collaboration among the parties to the Convention on scientific research relating
to whales. This would assist in meeting the objective of the Convention of the conservation and
recovery of whale stocks, an objective with which both parties agree.
1O. Although Article VIII, properly implemented, would continue to be available, Australia
strongly holds the view that scientific research for the purposes of the Convention is best carried
out on a collective and collaborative basis using non-lethal methods. The effectiveness of these
non-lethal methods is no better demonstrated than in the activities of the Southem Ocean Research
Partnership, as illustrated by the satellite tagging of minke whales by Australian scientists which
the Court saw in the course of the presentation of evidence by Australia. ln undertaking such
research on a collective and collaborative basis, more attention should be paid by the Commission
and the Contracting Governments to undertaking co-operative efforts pursuant to Article IV of the
Convention, which envisages that the Commission will:
"(a) encourage, recommend, or . . . organize studies and investigations relating to
whales and whaling
(b)
(c) study, appraise and disseminate information concerning methods of
maintaining and increasing the populations ofwhale stocks." -46-
Il. Mr. President, bath science and international law have evolved significantly since 1946,
when the community of nations recognized the need for a binding convention to protect and
manage the world's whale stocks. ln the decades since, our collective efforts have given us a
second chance to conserve whale species that humanity once hunted to the brink of extinction.
12. Developing proper and more detailed models for Antarctic ecosystems that will allow us
to better understand whales and the environment in which they live is a huge task that is beyond the
reach of any one nation's research programme. On behalf of the Australian Government and the
Australian people, 1would welcome partnership with other countries, including Japan, in a new era
of collaborative non-lethal whale science. The Court has an opportunity to assist in creating the
conditions in which that collective action can occur. This will strengthen the Convention and also
strengthen respect for the scientific process and international law.
13. Mr. President, Members of the Court, 1thank you for your attention. 1 would now ask
that you give the floor to the Agent of Australia, Mr. Campbell, to make Australia's final
submissions.
The PRESIDENT: Thank you very much, Sir. 1give the floor to the Agent of Australia so
that he can present the final submissions of his Government. You have the floor, Sir.
Mr. CAMPBELL: Thank you, Mr. President. Mr. President, Members of the Court, it is a
privilege to appear before you in arder to bring to a close the oral arguments of Australia in this,
the second round. Before doing so, Mr. President, 1 would like to thank the Court for its
attentiveness and the manner in which it has conducted this case. ln particular, 1would mention, as
did my colleague, Professor Crawford, the Court's involvement in the examination of experts and
also the forensic questions from Members of the Court, bath to the witnesses and to the Parties,
which 1believe demonstrates the Court's interest in the case.
1 would also like to thank the Registrar and the staff at the Court for their assistance,
efficiency and professionalism which has assisted us greatly in presenting our case to the Court. 1
take this opportunity also to highly commend the work of the interpreters who have not only had to
cape with interpreting counsel sometimes at pace, but also the examination of the experts involving
as it did difficult scientific terms. - 47 -
Finally, 1 would like to thank sincerely our counsel and the whole of the Australian
delegation for the effort they have put into the presentation of a case which is so important to
Australia.
Mr. President, Members of the Court, 1 will now present Australia's formai submissions.
These are the final submissions of Australia.
FINAL SUBMISSIONS OF AUSTRALIA
1. Ao.~st rrqaestsathe Court to adjudge and declare that the Court has jurisdiction to hear
the claims presented by Australia.
2. Australia requests the Court to adjudge and declare that Japan is in breach of its
international obligations in authorizing and implementing the Japanese Whale Research Program
tmder Special Permit in the Antarctic Phase II (JARPA Il) in the Southern Ocean.
3. ln particular, the Court is requested to adjudge and declare that, by its conduct, Japan has
violated its international obligations pursuant to the International Convention for the Regulation of
Whaling to:
(a) observe the zero catch limit in relation to the killing of whales for commercial purposes in
paragraph 10 (e)of the Schedule;
(b) refrain from undertaking commercial whaling offin whales in the Southern Ocean Sanctuary in
paragraph 7 (b) ofthe Schedule;
(c) observe the moratorium on taking, killing or treating of whales, except minke whales, by
factory shipsor whale catchers attached to factory ships in paragraph 1(d) of the Schedule;
and
(d) comply with the requirements ofparagraph 30 ofthe Schedule.
4. The Court is requested to adjudge and declare that JARPA Il is not a program for purposes
of scientific research within the meaning of Article VIII of the International Convention for the
Regulation of Whaling.
5. Further, the Court is requested to adjudge and declare that Japan shall:
(a) refrain from authorizing or implementing any special permit whaling which is not for purposes
of scientific research within the meaning of Article VIII; -48-
(h) cease with immediate effect the implementation of JARPA Il; and
(c) revoke any authorization, permit or licence that allows the implementation of JARPA Il.
Mr. President, Members of the Court, that concludes Australia's oral submissions in this
case. Thank you, Mr. President; thank you, Members of the Court.
,
The PRESIDENT: Thank you, Mr. Campbell. The Court takes note of the final submissions ,
which you have now read on behalf of Australia. The Court will meet again on Monday 15July at
10.00 a.m. to hear Japan begin its second round of oral argument. The sitting is closed.
The Court rose at-1.40 p.m.
Public sitting held on Wednesday 10 July 2013, at 3 p.m., at the Peace Palace, President Tomka presiding, in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)