Summary of the Judgment of 31 March 2014

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
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Summary
Not an official document

Summary2014/3
31 March2014

Whaling in the Antarctic (Australiav. Japan:
New Zealand intervening)

Summary of the Judgment of 31 March 2014

Chronology of the procedure (paras. 1-29)

The Court recalls that, on 31 May 2010, Australia filed in the Registry of the Court an
Application instituting proceedings against Japan in respect of a dispute concerning “Japan’s
continued pursuit of a large -scale program of whaling under the Second Phase of its Japanese
Whale Research Program under Special Permit in the Antarctic (‘JARPA II’)”, in breach of
obligations assumed by Japan under the International Convention for the Regulation of Whaling
(hereinafter the “Convention” or the “ICRW”) . The Court further recalls that, on
20 November 2012, New Zealand, pur suant to Article 63, paragraph 2, of the Statute, filed in the

Registry of the Court a Declaration of Intervention in the case. In its Declaraon, New Zealand
stated that it “avail[ed] itself of the right . . . to intervene as a non-party in the proceedings brought
by Australia against Japan in this case”. By an Order of 6 February 2013, the Court decided that
the Declaration of Intervention filed by New Zealand was admissible.

I. URISDICTION OF THE C OURT (paras. 30-41)

The Court notes that Australia invokes as the basis of the Court’s jurisdiction the

declarations made by both Parties under Article 36, paragraph 2, of the Court’s Statute. It observes
that Japan, for its part, contests the Court’s jurisdiction over the dispute, arguing that it falls w ithin
reservation (b) of Australia’s declaration, which Japan invokes on the basis of reciprocity. This
reservation excludes from the Court’s jurisdiction “ any dispute concerning or relating to the
delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the
continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area
of or adjacent to any such maritime zone pending its delimitation ”.

The Court considers that t he disputes to which Australia’s reservation (b) refers must either

concern maritime delimitation in an area where there are overlapping claims or relate to the
exploitation of such an are a or of an area adjacent thereto. T he existence of a dispute concerning
maritime delimitation between the Parties is thus required according to both parts of the
reservation. After noting that both Parties acknowledge that the present dispute is not about
maritime delimitation, the Court examines whether JARPA II involves the exploita tion of an area
which is the subject of a dispute relating to delimitation or of an area adjacent to it. The Court
observes in this regard that part of the whaling activities envisaged in JARPA II take place in the
maritime zone claimed by Australia as relating to the asserted Australian Antarctic Territory or in - 2 -

an adjacent area, and the taking of whales, especially in considerable numbers, could be viewed as

a form of exploitation of a maritime area even if this occurs according to a programme for
scientific research. However, while Japan has contested Australia’s maritime claims generated by
the asserted Australian Antarctic Territory, it does not claim to have any sovereign rights in those
areas. The fact that Japan questions those maritime entitlements does not render the delimitation of
these maritime areas under dispute as between the Parties. The Parties to the present proceedings
have no overlapping claims to maritime areas which may render reservation (b) applicable.
Moreover, the Court conside rs that t he nature and extent of the clai med maritime zones are

immaterial to the present dispute, which is about whether or not Japan’s activities are compatible
with its obligations under the ICRW. The Court therefore concludes that Japan’s objection to the
Court’s jurisdiction cannot be upheld.

II. ALLEGED VIOLATIONS OF INTERNATIONAL OBLIGATIONS UNDER
THE C ONVENTION (paras. 42-243)

1. Introduction (paras. 42-50)

The Court notes that the ICRW was preceded by the 1931 Convention for the Regulation of
Whaling (which prohibited the killing of certain categories of whales and required whaling
operations by vessels of States parties to be licensed, but failed to address the increase in overall
catch levels) and the 1937 International Agreement for the Regula tion of Whaling (which,

inter alia, prohibited the taking of certain categories of whales, designated seasons for different
types of whaling, closed certain geographic areas to whaling and imposed further regulations on the
industry; it also provided for the issuance by Contracting Governments of special permits to their
nationals authorizing them to kill, take and treat whales for purposes of scientific research).
Adopted on 2 December 1946, the ICRW entered into force for Australia on 10 November 1948
and for Japan on 21 April 1951; New Zealand deposited its instrument of ratification on

2 August 1949, but gave notice of withdrawal on 3 October 1968; it adhered again to the
Convention with effect from 15 June 1976.

The Court notes that, in contrast to its predecessors, the ICRW does not contain substantive
provisions regulating the conservation of whale stocks or the mana gement of the whaling industry.
These are to be found in the Schedule, which forms an integral part of the Convention and which is
subject to amendments, to be adopted by the International Whaling Commission (the “IWC” or the

“Commission”). An amendment becomes binding on a State party unless it presents an objection .
In 1950, the Commission established a Scientific Committee which, according to paragraph 30 of
the Schedule, inter alia, reviews and comments on special permits before they are issued by States
parties to their nationals for purposes of scientific research under Article VIII, paragraph 1, of the
Convention. Since the mid -1980s, the Scientific Committee has conducted its review of special
permits on the basis of “Guidelines” issued or endorsed by the Commission. At the time that

JARPA II was proposed in 2005, the applicable Guidelines had been collected in a document
entitled “Annex Y: Guidelines for the Review of Scientific Permit Proposals” (“Annex Y”). The
current Guidelines are set forth in a document entitled “Annex P: Process for the Review of
Special Permit Proposals and Research Results from Existing and Complet ed Permits”
(“Annex P”).

The Court then proceeds with a presentation of the claims by Australia and responses by

Japan. It recalls, in this regard, that Australia alleges thbecause JARPA II is not a programme
for purposes of scientific research withi n the meaning of Article VIII of the Convention, Japan has
breached and continues to breach three substantive obligations under the Schedule: the obligation
to respect the moratorium setting zero catch limits for the killing of whales from all stocks for
commercial purposes (para. 10 (e)), the obligation not to undertake commercial whaling of fin
whales in the Southern Ocean Sanctuary (para. 7 (b)), and the obligation to observe the moratorium

on the taking, killing or treating of whales, except minke whales, by factory ships or whale catchers - 3 -

attached to factory ships (para. 10 (d)). Australia further alleges that Japan has violated procedural
requirements for proposed scientific permits set out in paragraph 30 of the Schedule . Japan

contests all of these allegations. With regard to the substantive obligations, it argues that none of
the provisions invoked by Australia applies to JARPA II, as this programme has been undertaken
for purposes of scientific research and is therefore covered by the exemption provided for in
Article VIII, paragraph 1, of the Convention . Japan also contests any breach of the procedural
requirements stated in paragraph 30 of the Schedule.

2. Interpretation of Article VIII, paragraph 1,

of the Convention (paras. 51-97)

The Court then turns to its interpretation of Article VIII, paragraph 1, of the Convention,
which reads as follows:

“Notwithstanding anything contained in this Convention any Contracting
Government may grant to any of its nationals a special permit authorizing that national
to kill, take and treat whales for purposes of scientific research subject to such

restrictions as to number and subject to such other conditions as the Contracting
Government thinks fit, and the killing, taking, and treating of whales in accordance
with the provisions of this Article shall be exempt from the operation of this
Convention. Each Contracting Government shall report at once to the Commission all
such authorizations which it has granted. Each Contracting Government may at any
time revoke any such special permit which it has granted.”

The Court first examines the function of this provision. It notes that Article VIII is an
integral part of the Convention and, therefore, has to be interpreted in light of its object and
purpose and taking into account its other provisions, including the Schedule. The Court considers,
however, that since Article VIII, paragraph 1, specifies that “the killing, taking, and treating of
whales in accordance with the provisions of this Article shall be exempt from the operation of this
Convention”, whaling conducted under a special permit which meets the conditions of Article VIII
is not subject to the obligations under the above -mentioned paragraphs 10 (e), 7 (b), and 10 (d) of

the Schedule.

The Court then analyses the relationship between Article VIII and the object and purpose of
the Convention. Taking into account the preamble and other relevant provisions of the Convention
referred to above, the Court observes that neither a restrictive nor an expan sive interpretation of
Article VIII is justified. The Court notes that programmes for purposes of scientific research
should foster scientific knowledge; they may pursue an aim other than either conservation or
sustainable exploitation of whale stocks. This is also reflected in the Guidelines issued by the IWC

for the review of scientific permit proposals by the Scientific Committee. In particular, the
Guidelines initially applicable to JARPA II, Annex Y, referred not only to programmes that
“contribute information essential for rational management of the stock” or those that are relevant
for “conduct[ing] the comprehensive assessment” of the moratorium on commercial whaling, but
also those responding to “other critically important research needs”. The current Guidelines,
Annex P, list three broad categories of objectives. Besides programmes aimed at “improv[ing] the
conservation and management of whale stocks”, they envisage programmes which have as an

objective to “improve the conservation and managem ent of other living marine resources or the
ecosystem of which the whale stocks are an integral part” and those directed at “test[ing]
hypotheses not directly related to the management of living marine resources”. - 4 -

The Court next discusses the power of the State issuing a special permit and considers that
Article VIII gives discretion to a State party to the ICRW to reject the request for a special permit

or to specify the conditions under which a permit will be granted, but that the question whether the
killing, taking and treating of whales pursuant to a requested special permit is for purposes of
scientific research cannot depend simply on that State’s perception.

The Court then sets out the standard of review it will apply when examining the grant of a
special permit authorizing the killing, taking and treating of whales on the basis of Article VIII,
paragraph 1, of the Convention: it will assess, first, whether the programme under which these

activities occur involves scientific research, and secondly, whether, in the use of lethal methods, the
programme’s design and implementation are reasonable in relation to ac hieving its stated
objectives.

The Court observes that, in applying the above standard of review, it is not called upon to
resolve matters o f scientific or whaling policy. The Court is aware that members of the
international community hold divergent views about the appropriate policy towards whales and
whaling, but it is not for the Court to settle these differences. The Court’s task is only to ascertain

whether the special permits granted in relation to JARPA II fall within the scope of Article VIII,
paragraph 1, of the ICRW.

With regard to the meaning of the phrase “for purposes of scientific research” the Court
considers that the two elements of that phrase  “scientific research” and “for purposes of”  are
cumulative. As a result, even if a whaling programme involves scientific research, the killing,
taking and treating of whales pursuant to such a programme does not fall within Article VIII unless

these activities are “for pu rposes of” scientific research. The Court notes that the term “scientific
research” is not defined by the Convention and that Australia, relying primarily on the views of one
of the scientific experts that it calle d, maintains that scientific research (in the context of the
Convention) has four essential characteristics: defined and achievable objectives (questions or
hypotheses) that aim to contribute to knowledge important to the conservat ion and management of
stocks; “appropriate methods”, including the use of lethal methods only where the objectives of the
research cannot be achieved by any other means; peer review ; and the avoidance of adverse

effects on stock. T he Court is not persuaded that activities must satisfy the four criteria advanced
by Australia in order to constitute “scientific research” in the context of Article VIII. The Court
states that these criteria appear largely to reflect what one of the experts called by Australia
regarded as well-conceived scientific research, rather than serving as an interpretation of the term
as used in the Convention. Nor does the Court consider it necessary to devise alternative criteria or
to offer a general definition of “scientific research”.

Turning next to the meaning of the term “for purposes of” , the Court observes that even if
the stated research objectives of a programme are the foundation of a programme’s design, it does
not need to pass judgment on the scientific merit or importance of those objectives in order to
assess the purpose of the killing of whales under such a programme, nor is it for the Court to decide
whether the design and implementation of a programme are the best possible means of achieving
its stated objectives. The Court reiterates that in order to ascertain whether a programme’s use of
lethal methods is for purposes of scientific research, it will consider whether the elements of a

programme’s design and implementation are reasonable in relation to its stat ed scientific
objectives. Such elements may include: decisions regarding the use of lethal methods; the scale of
the progr amme’s use of lethal sampling ; the methodology used to select sample sizes; a
comparison of the target sam ple sizes and the actual take; the time frame asso ciated with a
programme; the programme’s scientific output; and t he degree to which a programme
co-ordinates its activities with related research projects.

The Court notes that, as the Parties and the intervening State accept, Article VIII,

paragraph 2, permits the processing and sale of whale meat incidental to the killing of whales
pursuant to the grant of a special permit under Article VIII, paragraph 1. In the Court’s view, the - 5 -

fact that a programme involves the sale of whale meat and the use of pr oceeds to fund research is
not sufficient, taken alone, to cause a special permit to fall outside Article VIII. Other elements

would have to be examined, such as the scale of a programme’s use of lethal sampling, which
might suggest that the whaling is fo r purposes other than scientific research. In particular, a State
party may not, in order to fund the research for which a special permit has been granted, use lethal
sampling on a greater scale than is otherwise reasonable in relation to achieving the pr ogramme’s
stated objectives.

The Court observes that a State often seeks to accomplish more than one goal when it

pursues a particular policy. Moreover, an objective test of whether a programme is for purposes of
scientific research does not turn on the intentions of individual government officials, but rather on
whether the design and implementation of a programme are reasonable in relation to achieving the
stated research objectives. Accordingly, the Court considers that whether particular government
officials may have motivations that go beyond scientific research does not preclude a conclusion
that a programme is for purposes of scientific research within the meaning of Article VIII. At the
same time, such motivations cannot justify the granting of a special permit for a programme that

uses lethal sampling on a larger scale than is reasonable in relation to achieving the programme’s
stated research objectives. The research objectives alone must be sufficient to justify the
programme as designed and implemented.

3. JARPA II in light of Article VIII of the
Convention (paras. 98-227)

The Court then describes JARPA II and its predecessor, JARPA, before examining whether

the design and implementation of JARPA II are reasonable in relation to achieving th e
programme’s stated research objectives.

A. Description of the programmes (paras. 100-126)

The Court recalls that in 1982, the IWC amended the Schedule of the Convention to adopt a
moratorium on commercial whaling. Japan made a timely objection to the a mendment, which it

withdrew in 1986. The following season, it began the JARPA programme, for which it issued
special permits pursuant to Article VIII, paragraph 1, of the Convention. The 1987 JARPA
Research Plan described JARPA as, inter alia , “a program for research on the southern hemisphere
minke whale and for preliminary research on the marine ecosystem in the Antarctic” , which was
“designed to estimate the stock size” of southern hemisphere mink e whales in order to provide a
“scientific basis for res olving problems facing the IWC” relating to “the divergent views on the
moratorium”. To those ends, it proposed annual lethal sample sizes of 825 Antarctic minke whales

and 50 sperm whales from two “management areas” in the Southern Ocean. Later, the pro posal to
sample sperm whales by lethal methods was dropped from the programme and the sample size for
Antarctic minke whales was reduced to 300 for JARPA’s first seven seasons. Japan explains that
the decision to reduce the sample size from 825 to 300 res ulted in the extension of the research
period, which made it possible to obtain accurate results with smaller sample sizes. Beginning in
the 1995-1996 season, the maximum annual sample size for Antarctic minke whales was increased
to 400, plus or minus 10 per cent. In total, m ore than 6,700 Antarctic minke whales were killed

over the course of JARPA’s 18-year history.

In March 2005, Japan submitted the JARPA II Research Plan to the Scientific Committee
and launched the new programme in November 2005, prior to the December 2006 final review of
JARPA by the Scientific Committee . As was the case under JARPA, the special permits for
JARPA II are issued by Japan to the Institute of Cetacean Research, a foundation established in
1987 as a “public-benefit corporation” under Japan’s Civil Code . JARPA II contemplates the
lethal sampling of three whale species ( Antarctic minke whales, fin whales and humpback whales) - 6 -

and its Research Plan describes the key elements of the programme’s design, including: (i) its four
research objectives (monitoring of the Antar ctic ecosystem, m odelling competition among whale

species and futu re management objectives, elucidation of temporal and spatial changes in stock
structure, and i mproving the management procedure for Antarctic minke whale stocks); (ii) its
research period and area (structured in six- year phases, JARPA II is a long- term research
programme without a specified termination date, which operates in an area that is located within
the Southern Ocean Sanctuary establish ed in paragraph 7 (b) of the Schedule) ; (iii) its research
methods and sample sizes (a mixture of lethal sampling of 850 Antarctic minke whales, 50 fin
whales and 50 humpback whales, as well as non-lethal methods, namely biopsy sampling, satellite

tagging and whale sighting surveys) ; and (iv) the expected effect on whale stocks (the Research
Plan states that, based on current abundance estimates, the planned take of each species is too small
to have any negative effect).

B. Whether the design and impleme ntation of JARPA II are reasonable in relation to
achieving the programme’s stated research objectives (paras. 127-227)

In light of the applicable standard of review, the Court then examines whether the design and
implementation of JARPA II are reasonable in relati on to achieving the programme’s stated
objectives.

(a) Japan’s decisions regarding the use of lethal methods(paras. 128-144)

The Court considers that the evidence shows that, at least for some of the data sought by
JARPA II researchers, non-lethal methods are not feasible. On this basis, and given that the value

and reliability of data collected are a matter of scientific opinion, the Court finds no basis to
conclude that the use of lethal methods is per se unreasonable in the context of JARPA II. Instead,
it looks more closely at the details of Japan’s decisions regarding the use of lethal methods in
JARPA II and the scale of their use in the program me. In this regard, the Court mentions three
reasons why the JARPA II Research Plan should hav e included some analysis of the feasibility of
non-lethal methods as a means of reducing the planned scal e of lethal sampling in the programme:
(i) IWC resolutions and Guidelines call upon States parties to take into account whether research

objectives can be achieved using non-lethal methods; (ii) Japan states that, for reasons of scientific
policy, “[i]t does not . . . use lethal means more than it considers necessary” and that non -lethal
alternatives are not practical or feasible in all cases; and (iii) the two experts called by Australia
referred to significant advances in a wide range of non -lethal research techniques over the past
20 years and described some of those developments and their potential application with regard to
JARPA II’s stated objectives.

The Court finds no evidence of studies by Japan of the feasibility or practicability of
non-lethal methods, either in setting the JARPA II sample sizes or in later years in which the
programme has maintained the same sample size targets, or of any examination by Japan whether it
would be feasible to combine a smaller lethal take and an increase in non -lethal sampling as a
means to achieve JARPA II’s research objectives.

(b) The scale of the use of lethal methods in JARPA II (paras. 145-212)

The Court then examines the scale of the use of lethal methods in JARPA II. Comparing
JARPA II and JARPA sample sizes, the Court recalls that the JARPA II sample size for minke
whales (850 plus or minus 10 per cent) is approximately double the minke whale sample size for
the last years of JARPA, and that JARPA II sets sample sizes for two additional species  fin and
humpback whales  that were not the target o f lethal sampling under JARPA. The Court notes

however that the comparison of the two research plans al so reveals considerable overlap between - 7 -

the subjects, objectives, and methods of the two programmes. The Court considers that these
similarities cast doubt on Japan’s argument that the JARPA II objectives relating to ecosystem

monitoring and multi-species competition are distinguishing features of the latter programme that
call for a significant increase in the minke whale sample size and the lethal sampling of two
additional species. The Court also refers to Japan’s emphasis on the need for continuity be tween
the two programmes as a justification for launching JARPA II without waiting for the results of the
Scientific Committee’s final review of JARPA , noting that weaknesses in Japan’s explanation for
the decision to proceed with the JARPA II sample sizes prior to the final review of JARPA lend
support to the view that those sample sizes and the launch date for JARPA II were not driven by

strictly scientific considerations.

Regarding the determination of species- specific sample sizes, the Court examines t he
five steps in the process of sample size determination , noting those steps that give rise to
disagreement between the Parties. In this regard, it reiterates that it does not seek to pass judgment
on the scientific merit of the JARPA II objectives and t hat the activities of JARPA II can broadly
be characterized as “scientific research”. With regard to the setting of sample sizes, the Court

indicates also that it is not in a position to conclude whether a partic ular value for a given variable
has scien tific advantages over another ; it rather seeks only to evaluate whether the evidence
supports a conclusion that the sample sizes are reasonable in relation to achieving JARPA II’s
stated objectives. The Court concludes that, t aken together, the evidence relating to the
determination of species -specific sample sizes provides scant analysis and justification for the
underlying decisions that generate the overall sample size.

Comparing the sample size and actual take, the Court notes a significant gap between the

JARPA II target sample sizes and the actual number of whales that have been killed in the
implementation of the programme: a total of 18 fin whales have been killed over the first seven
seasons of JARPA II, including ten fin whales during the program me’s first year when the
feasibility of taking larger whales was under study. In subsequent years, zero to three fin whales
have been taken annually. No humpback whales have been killed under JARPA II. Japan recounts
that after deciding initially not to sample humpback whales during the first two years of JARPA II,
it “suspended” the sampling of humpback whales as of 2007. The Court observes, however, that

the permits issued for JARPA II since 2007 continue to authorize the take of humpback whales.
Concerning minke whales, n otwithstanding the target sample size of 850 , the actual take under
JARPA II has fluctuated from year to year : 853 minke whales during the 2005- 2006 season,
approximately 450 in the several seasons following, 170 in the 2010-2011 season and 103 in the
2012-2013 season.

Analysing Australia’s contention that the gap between the target sample sizes and the actual

take undermines Japan’s position that JARPA II is a programme for purposes of scientific research,
the Court observes that, despite the number of years in which the implementation of JARPA II has
differed significantly from the design of the programme, Japan has not made any changes to the
JARPA II objectives and target sample sizes, which are reproduced in the special permits granted
annually. In the Court’s view, Japan’s continued reliance on the first two JARPA II objectives to
justify the target sample sizes, despite the discrepancy between the actual take and those targets,
coupled with its statement that JARPA II can obta in meaningful scientific results based on a far
more limited actual take, cast further doubt on the characterization of JARPA II as a programme

for purposes of scientific research. Th is evidence suggests, in fact, that the target sample sizes are
larger than are reasonable in relation to achieving JARPA II’s stated objectives. The fact that the
actual take of fin and humpback whales is largely, if not entirely, a function of political and
logistical considerations, further weakens the purported relationship between JARPA II’s research
objectives and the specific sample size targets for each species — in particular, the decision to
engage in the lethal sampling of minke whales on a relatively large scale. - 8 -

(c) Additional aspects of the design and implementation of JARPAII (paras. 213-222)

The Court then turns to several additional aspects of JARPA II to which the Parties called
attention. With respect to the open-ended time frame of JARPA II, the Court observes that with
regard to a programme for purposes of scientific research, as Annex P indicates, a “time frame with
intermediary targets” would have been more appropriate. Examining the limited scientific output
of JARPA II to date , the Court observes that although the first research phase of JARPA II
(2005-2006 to 2010- 2011) has already been completed, Japan points to only two peer -reviewed
papers that have r esulted from the programme to date. Furthermore, the Court notes that t hese

papers do not relate to the JARPA II objectives and rely on data collect ed from minke whales
caught during the JARPA II feasibility study. In light of the fact that JARPA II has been going on
since 2005 and has involved the killing of about 3,600 minke whales, the Court considers that the
scientific output to date is limited. Concerning co- operation with other research institutions, the
Court observes that some further evidence of co -operation between JARPA II and other domestic
and international research institutions could have been expected in light of the programme’s focus
on the Antarctic ecosystem and environmental changes in the region.

(d) Conclusion regarding the application of Article VIII, paragraph 1, to JARPA II
(paras. 223-227)

The Court finds that the use of lethal sampling per se is not unreasonable in relat ion to the
research objectives of JARPA II. However, as compared to JARPA, the scale of lethal sampling in
JARPA II is far more extensive with regard to Antarctic minke whales, and the programme
includes the lethal sampling of two additional whale species . The Court thus considers that the

target sample sizes in JARPA II are not reasonable in relation to achieving the programme’s
objectives. First, the broad objectives of JARPA and JARPA II overlap considerably. To the
extent that the objectives are dif ferent, the evidence does not reveal how those differences lead to
the considerable increase in the scale of lethal sampling in the JARPA II Research Plan. Secondly,
the sample sizes for fin and humpback whales are too small to provide the information tha t is
necessary to pursue the JARPA II research objectives based on Japan’s own calculations, and the
programme’s design appears to prevent random sampling of fin whales. Thirdly, the process used

to determine the sample size for minke whales lacks transpa rency, as the experts called by each of
the Parties agreed. Fourthly, some evidence suggests that the programme could have been adjusted
to achieve a far smaller sample size, and Japan does not explain why this was not done. The
evidence before the Court further suggests that little attention was given to the possibility of using
non-lethal research methods more extensively to achieve the JARPA II objectives and that funding
considerations, rather than strictly scientific criteria, played a role in the programme’s design.

The Court states that these problems with the design of JARPA II must also be considered in
light of its implementation. First, no humpback whales have been taken, and Japan cites
non-scientific reasons for this. Secondly, the take o f fin whales is only a small fraction of the
number that the JARPA II Research Plan prescribes. Thirdly, the actual take of minke whales has
also been far lower than the annual target sample size in all but one season. Despite these gaps
between the Research Plan and the programme’s implementation, Japan has maintained its reliance
on the JARPA II research objectives — most notably, ecosystem research and the goal of

constructing a model of multi -species competition — to justify both the use and extent of lethal
sampling prescribed by the JARPA II Research Plan for all three species. Neither JARPA II’s
objectives nor its methods have been revised or adapted to take account of the actual number of
whales taken. Nor has Japan explained how those research o bjectives remain viable given the
decision to use six -year and 12- year research periods for different species, coupled with the - 9 -

apparent decision to abandon the lethal sampling of humpback whales entirely and to take very few
fin whales. Other aspects of JARPA II also cast doubt on its characterization as a programme for

purposes of scientific research, such as its open -ended time frame, its limited scientific output to
date, and the absence of significant co -operation between JARPA II and other related re search
projects.

Taken as a whole, the Court considers that JARPA II involves activities that can broadly be
characterized as scientific research, but that the evidence does not establish that the programme’s
design and implementation are reasonable in relation to achieving its stated objectives. The Court

therefore concludes that the special permits granted by Japan for the killing, taking and treating of
whales in connection with JARPA II are not “for purposes of scientific research” pursuant to
Article VIII, paragraph 1, of the Convention.

4. Conclusions regarding alleged violations of
the Schedule (paras. 228-233)

The Court turns next to the implications of the above conclusion, in light of Australia’s

contention that Japan has breached three provisions of the Schedule that set forth restrictions on the
killing, taking and treating of whales : the obligation to respect zero catch limits for the killing for
commercial purposes of whales from all stocks (para. 10 (e)); the factory ship moratorium
(para. 10 (d)); and the prohibition on commercial whaling in the Southern Ocean Sanctuary
(para. 7 (b)).

The Court observes that the precise formulations of the three Schedule provisions invoked by

Australia differ from each other. The “factory ship mo ratorium” makes no explicit reference to
commercial whaling, whereas the requirement to observe zero catch limits and the provision
establishing the Southern Ocean Sanctuary express their prohibitions with reference to
“commercial” whaling. In the view of the Court, despite these differences in wording, the three
Schedule provisions are clearly intended to cover all killing, taking and treating of whales that is
neither “for purposes of scientific research” under Article VIII, paragraph 1, of the Convention, nor
aboriginal subsistence whaling under paragraph 13 of the Schedule, which is not germane to this

case. The reference to “commercial” whaling in paragraphs 7 (b) and 10 (e) of the Schedule can be
explained by the fact that in nearly all cases this wo uld be the most appropriate characterization of
the whaling activity concerned. The language of the two provisions cannot be taken as implying
that there exist categories of whaling which do not come within the provisions of either
Article VIII, paragraph 1, of the Convention or paragraph 13 of the Schedule but which
nevertheless fall outside the scope of the prohibitions in paragraphs 7 (b) and 10 (e) of the
Schedule. Any such interpretation would leave certain undefined categories of whaling activity

beyond the scope of the Convention and thus would undermine its object and purpose. It may also
be observed that at no point in the present proceedings did the Parties and the intervening State
suggest that such additional categories exist.

Proceeding therefore on the basis that whaling that falls outside Article VIII, paragraph 1,
other than aboriginal subsistence whaling, is subject to the three Schedule provisions invoked by
Australia, the Court reaches the following conclusions.

(i) Concerning the moratorium on commercial whaling contained in paragraph10 (e) of the
Schedule, the Court observes that, from 2005 to the present, Japan, through the issuance of
JARPA II permits, has set catch limits above zero for three species  850 for minke
whales, 50 for fin whales and 50 for humpback whales. The Court concludes therefore
that Japan has not acted in conformity with its obligations under paragraph 10 (e) in each
of the years in which it has granted permits for JARPA II (2005 to the present) because
those permits have set catch limits higher than zero. - 10 -

(ii) Regarding the factory ship moratorium contained in paragraph 10 (d) of the Schedule, the
Court considers that by using the factory ship Nisshin Maru, as well as other vessels

which have served as whale catchers, for the purpose of hunting, taking, towing, holding
on to, or scouting for whales, Japan has not acted in conformity with its obligations under
paragraph 10 (d) in each of the seasons during which fin whales were taken, killed and
treated in JARPA II.

(iii) With respect to the Southern Ocean Sanctuary established by p aragraph 7 (b) of the
Schedule, the Court observes that this provision does not apply to minke whales in

relation to Japan (as a consequence of Japan’s objection to the paragraph ). It further
observes that JARPA II operates within the Southern Ocean Sanctuary and concludes that
Japan has not acted in conformity with its obligations under paragraph 7 (b) in each of the
seasons of JARPA II during which fin whales have been taken.

5. Alleged non-compliance by Japan with its obligations under
paragraph 30 of the Schedule (paras. 234-242)

The Court recalls that Australia further asks it to adjudge and declare that Japan violated its
obligation to comply with paragraph 30 of the Schedule . This provision requires Contracting
Governments to make proposed permits available to the IWC Secretary before they are issued, in
sufficient time to permit review and comment by the Scientific Committee , and sets out a list of
items that is to be included in proposed permits.

As regards the question of timing, the Court observes that Japan submitted the JARPA II

Research Plan for review by the Scientific Committee in advance of granting the first permit for the
programme, and that subsequent permits that have been granted on the basis of that proposal must
be submitted to the Commission pursuant to Article VIII, paragraph 1, of the Convention. The
Court notes that Australia does not contest that Japan has done so with regard to each permit that
has been granted for JARPA II. As regards the substantive requirements of paragraph 30, the Court
finds that the JARPA II Research Plan, which constitutes the proposal for the grant of special
permits, sets forth the informatio n specified by that provision, as was recognized by the Scientific

Committee in 2005 in its review of the JARPA II Research Plan. The Court is of the view that t he
lack of detail in the permits themselves is consistent with the fact that the programme is a
multi-year programme, as describ ed in the JARPA II Research Plan. Japan’s approach thus
accords with the practice of the Scientific Committee, and the Court concludes that Japan has met
the requirements of paragraph 30 as far as JARPAII is concerned.

III. REMEDIES (paras. 244-246)

In addition to requesting the Court to find that the killing, taking and treating of whales
under special permits granted for JARPA II is not for purposes of scientific research within the
meaning of Article VIII and that Japan thus has violated three parag raphs of the Schedule,
Australia asks the Court 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; (b) cease with immediate effect t he implementation of JARPA II; and
(c) revoke any authorization, permit or licence that allows the implementation of JARPA II.” The

Court observes that , because JARPA II is an ongoing programme , measures that go beyond
declaratory relief are warranted . The Court therefore orders that Japan shall revoke any extant
authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and refrain
from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance
of that programme. - 11 -

The Court sees no need to order the additional remedy requested by Australia, which would

require Japan to refrain from authorizing or implementing any special permit whaling which is not
for purposes of scientific research within the meaning of Article VIII. In the view of the Court, as
that obligation already applies to all States parties , it is to be expected that Japan will take account
of the reasoning and conclusions contained in this Judgment as i t evaluates the possibility of
granting any future permits under Article VIII, paragraph1, of the Convention.

IV.O PERATIVE CLAUSE (para. 247)

T HE COURT ,

(1) Unanimously,

Finds that it has jurisdiction to entertain the Application filed by Austra lia on 31 May 2010;

(2) By twelve votes to four,

Finds that the special permits granted by Japan in connection with JARPA II do not fall

within the provisions of Article VIII, paragraph 1, of the International Convention for the
Regulation of Whaling;

IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Keith, Skotnikov,
Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari;
Judge ad hoc Charlesworth;

AGAINST : Judges Owada, Abraham, Bennouna, Yusuf;

(3) By twelve votes to four,

Finds that Japan, by granting special permits to kill, take and treat fin, humpback and
Antarctic minke whales in pursuance of JARPA II, has not acted in conformity with its obligations
under paragraph 10 (e) of the Schedule to the Inter national Convention for the Regulation of
Whaling;

IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Keith, Skotnikov,
Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari;
Judge ad hoc Charlesworth;

AGAINST : Judges Owada, Abraham, Bennouna, Yusuf;

(4) By twelve votes to four,

Finds that Japan has not acted in conformity with its obligations under paragraph 10 (dof
the Schedule to the International Convention for the Regulation of Whaling in relation to the

killing, taking and treating of fin whales in pursuance of JARPA II;

IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Keith, Skotnikov,
Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari;
Judge ad hoc Charlesworth;

AGAINST : Judges Owada, Abraham, Bennouna, Yusuf; - 12 -

(5) By twelve votes to four,

Finds that Japan has not acted in conformity with its obligations under paragraph 7 (b) of the
Schedule to the International Convention for the Regulation of Whaling in relat ion to the killing,
taking and treating of fin whales in the “Southern Ocean Sanctuary” in pursuance of JARPA II;

IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Keith, Skotnikov,
Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Se butinde, Bhandari;
Judge ad hoc Charlesworth;

AGAINST : Judges Owada, Abraham, Bennouna, Yusuf;

(6) By thirteen votes to three,

Finds that Japan has complied with its obligations under paragraph 30 of the Schedule to the
International Convention for the Regulation of Whaling with regard to JARPA II;

IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,

Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue,
Gaja;

AGAINST : Judges Sebutinde, Bhandari; Judge ad hoc Charlesworth;

(7) By twelve votes to four,

Decides that Japan shall revoke any extant authorization, permit or licence granted in
relation to JARPA II, and refrain from granting any further permits in pursuance of that
programme.

IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Keith, Skotnikov,

Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari;
Judge ad hoc Charlesworth;

AGAINST : Judges Owada, Abraham, Bennouna, Yusuf.

Judges OWADA and A BRAHAM append dissenting opinions to the Judgment of the Court;

Judge K EITH appends a declaration to the Judgment of the Court; JudgBENNOUNA appends a
dissenting opinion to the Judgment of the Court; JudgANÇADO TRINDADE appends a separate
opinion to the Judgment of the Court; JudgeUSUF appends a dissenting opinion to the Judgment
of the Court; Judges GREENWOOD , XUE, SEBUTINDE and B HANDARI append separate opinions to
the Judgment of the Court; Judge ad hoc C HARLESWORTH appends a separate opini on to the

Judgment of the Court.

___________ Annex to Summary 2014/3

Dissenting opinion of Judge Owada

In his dissenting opinion, Judge Owada states that, to his greatest regret, he cannot associate
himself with the Judgment in terms of the conclusions stated in paragraphs 2, 3, 5 and 7 of its
operative part, as well as the reasoning stated in the reasoni ng part. Judge Owada writes that his
disagreement lies with the understanding of the Judgment on the basic character of the International
Convention for the Regulation of Whaling (“the Convention”), with the methodology the Judgment

employs for interpreting and applying the provisions of the Convention, and thus with a number of
conclusions that it reaches.

I. Jurisdiction

Judge Owada begins his dissenting opinion by noting that, on the issue of the Court’s
jurisdiction, he retains certain reservations on some aspects of the reasoning of the Judgment, but

concurs with the Judgment’s conclusion that the Court has jurisdiction. He also places on record
his reservation that under the somewhat unfortunate procedural circumstances, the Parties were not
provided in the proceedings with ample opportunities to develop their respective arguments on the
issue of jurisdiction.

II. The object and purpose of the Convention

Judge Owada next looks at the object and purpose of the Convention. He remarks that there
are two opposing views regarding the Convention. According to the first view, there has been an
evolution in the economic-social vista of the world surrounding whales and whaling over the years
since 1946, and this is to be reflected in the interpretation and the application of the Convention.
According to the second view, the juridico- institutional basis of the Convention has not changed
since it was drafted, based as it was on the well -established principles of international law relating
to the conservation and management of fishing resources, including whales, and this basic

character of the Convention should essentially be maintained. This, according to Judge Owada, is
the fundamental divide that separates the legal positions of Australia and New Zealand, on the one
hand, and Japan, on the other.

In examining the object and purpose of the Convention, Judge Owada notes that it was
created in the face of a history of unchecked whaling and weak regulation that came to threaten the
sustainability of whale stocks and thus the viability of the whaling industry, and should be
understood in the context of this situation. Judge Owada further observes that the object and

purpose of the Convention is clearly enunciated in its Preamble. According to Judge Owada, it is
clear that the object and purpose of the Convention is to pursue the goal of achieving the twin
purposes of the sustainability of the maximum sustainable yield of the stocks in question and the
viability of the whaling industry. Nowhere in the Convention is to be found the idea of a total
permanent ban on the catch of whales. Judge Owada also points out that this is confirmed by the
Verbatim Record of the International Whaling Commission which voted for the moratorium on
whaling.

According to Judge Owada, it is of cardinal importance that the Court understands this object
and purpose of the Convention in its proper perspective, which defines the essential characteristics
of the régime established under the Convention. In Judge Owada’s view, the Judgmen t has failed
to engage in analysing the essential characteristics of the régime of the Convention. The
Judgment’s laconic statement that “[t]he functions conferred on the [International Whaling] - 2 -

Commission have made the Convention an evolving instrument” does not specify what this
implies. Judge Owada finds that the Convention is not malleable as such in the legal sense,

according to the changes in the surrounding socio-economic environments.

III. The essential characteristics of the regulatory régime
under the Convention

Judge Owada states that, for the purpose of understanding the essential characteristics of the
régime established under the Convention, the structure of the Convention has to be analysed in

some detail. In this vein, Judge Owada observ es that (1) the Contracting Governments have
created an International Whaling Commission (“IWC”) as executive organ, which can take a
decision by a three- fourths majority, if action is required in pursuance of Article V; (2) under
Article V, the IWC may a mend provisions of the Schedule, which forms an integral part of the
Convention, by adopting regulations with respect to the conservation and utilization of whale
resources, subject to certain conditions; (3) the IWC may also make recommendations to any or all
Contracting Governments on any matters which relate to whales or whaling and to the objectives

and purposes of the Convention; and (4) notwithstanding anything contained in the Convention, a
Contracting Government may grant to any of its nationals a special permit authorizing that national
to kill, take and treat whales for purposes of scientific research, subject to such restrictions as to
number, and subject to such other conditions as the Contracting Government thinks fit, and the
killing, taking and treating of whales in accordance with the provisions of Article VIII shall be
exempt from the operation of the Convention.

Judge Owada states that, based on what has been summarized above, it seems fair to

conclude that the Convention has created a ki nd of self-contained regulatory régime on whales and
whaling, although it goes without saying that such a system providing for the autonomy of the
Parties is not free from the process of judicial review by the Court. Judge Owada further notes that,
within this self-contained regulatory régime, no power of decision-making by a majority is given to
the IWC automatically to bind the Contracting Parties, and no amendments to the Schedule will
become effective in relation to a Contracting Party who objects to the amendments in question.
Judge Owada recalls that, following the amendment to the Schedule to ban commercial whaling of

all species beginning in the 1985/86 season, Japan did eventually exercise its right to raise
objection under Article V, which it later withdrew under pressure from the United States.

According to Judge Owada, the argument advanced with regard to this situation by the
Applicant, and developed further by the Intervener, that the Convention has gone through an
evolution during these 60 years in accordance with the change in the environment surrounding
whales and whaling, would seem to be an argument that would be tantamount to an attempt to

change the rules of the game as provided for in the Convention and accepted by the Contracting
Parties in 1946. Judge Owada observes that, according to the Respondent, faced with this new
situation of the adoption of a moratorium on whaling for commercial purposes, it became necessary
for the Respondent to advance a programme of activities for purpos es of scientific research so that
scientific evidence could be collected for the consideration of the IWC (or its Scientific
Committee), with a view to enabling the IWC to lift or review the moratorium, which professedly
was a measure adopted to be of not unlimited duration and subject to future review. According to

Judge Owada, it would seem difficult to see anything wrong in the Respondent’s course of action.

Judge Owada remarks that, given the language of Article V, paragraph 2, and Article VIII,
paragraph 1, of the Convention, what the Respondent embarked upon under JARPA and JARPA II
is prima facie to be regarded as being in conformity with the Convention and its revised Schedule.
Thus, according to Judge Owada, the whole question of the legality of the whaling activities of
Japan under JARPA, and JARPA II as its continuation, has come to hinge upon the question of
whether these activities of the Respondent could fall under the heading of activities “for purposes

of scientific research” within the meaning of Article VIII of the Convention. - 3 -

IV. The interpretation of Article VIII

According to Judge Owada, the essential character of the Convention as examined above lies
in the fact that the Contracting Parties have created a self -contained regulatory régime for the
regulation of whales and whaling. The prescription contained in Article VIII of the Convention, in
Judge Owada’s view, is one important component of this regulatory régime. Judge Owada states
that it would be wrong in this sense to character ize the power recognized to a Contracting Party to
grant to its nationals special permits “to kill, take and treat whales for purposes of scientific
research” (Convention, Art. VIII, para. 1) as nothing else than an exception to the regulatory

régime established by the Convention. Judge Owada states that the Contracting Party which is
granted this prerogative under Article VIII is in effect carrying out an important function within
this regulatory régime by collecting scientific materials and data required for the promotion of the
objectives and purposes of the Convention. Judge Owada further notes that under this regulatory
régime of the Convention the power to determine such questions as what should be the components
of the scientific research, or how th e scientific research should be designed and implemented in a
given situation, is primarily left to the discretionary decision of the granting Government.

According to JudgeOwada, the Contracting Government is obligated to exercise this discretionary
power only for purposes of scientific research in good faith and to be eventually accountable for its
activities of scientific research before the executive organs of the Convention, the IWC and the
Scientific Committee.

Judge Owada emphasizes that this does not mean that the Court, as the judicial institution
entrusted with the task of interpreting and applying the provisions of the Convention, has no role to
play in this process. Given the nature and the specific characteristics of the regulatory framework

created by the Convention, however, this power of the Court has to be exercised with a certain
degree of restraint, to the extent that what is involved is (a) related to the application of the
regulatory framework of the Convention, and (b) concerned with the techno -scientific task of
assessing the merits of scientific research assigned by the Convention to the Scientific Committee.

Regarding the problem relating to the application of the regulatory framework of the
Convention (point (a) above), Judge Owada asserts that good faith on the part of the Contracting

State has necessarily to be presumed. According to Judge Owada, the function of the Court in this
respect is to see to it that the State in question is pursuing its activities in good faith and in
accordance with the requirements of the regulatory régime for the purposes of scientific research
that is conducive to scientific outcomes which would help promote the object and purpose of the
Convention. Judge Owada states, however, that the programme’s design and implementation
should by its nature not be the proper subject of review by the Court. Judge Owada notes that
Article VIII expressly grants to the Contracting Government the primary power to decide on this.

Judge Owada states that allegations made by the Applicant that the activities were designed
and implemented for purposes other than scientific research under the cover of scientific research
thus cannot be presumed, and will have to be established by hard conclusive evidence that could
point to the existence of bad faith attributable to the State in question.

On the second aspect of the problem relating to the determination of what constitutes
activities “for purposes of scientific research” (point (b) above), Judge Owada does not agree wit h

the approach of the Judgment that distinguishes between “scientific research” as such and
“[activities] for purposes of scientific research”. To Judge Owada, such a distinction is so artificial
that it loses any sense of reality when applied to a concre te situation. Instead, Judge Owada states
that the Court should focus purely and simply on the issue of the scope of what constitutes
activities “for purposes of scientific research” according to the plain and ordinary meaning of the
phrase. - 4 -

Judge Owada further remarks that, on the question of what constitutes activities “for
purposes of scientific research”, this Court, as a court of law, is not professionally qualified to give

a scientifically meaningful answer, and should not try to pretend that it can . Judge Owada argues
that what is “scientific research” is a question on which qualified scientists often have a divergence
of opinion and are not able to come to a consensus view. Nonetheless, Judge Owada observes that
the Judgment does get into a “scie ntific assessment” on various substantive aspects of
JARPA/JARPA II activities, in order to come to the conclusion that these activities cannot qualify
as activities conducted “for purposes of scientific research” because they cannot be regarded as
objectively reasonable, according to the Court’s own scientific assessment. According to

Judge Owada, the question that immediately arises is “in what context is this reasonableness to be
judged?” If the Court is speaking of the legal context, Judge Owada argues that the answer is clear,
as the Convention leaves this point primarily to the good faith appreciation of the party which
undertakes the research in question. If we are speaking of the scientific context, it would be
impossible for the Court to establish that certain activities are objectively reasonable or not without
getting into a techno -scientific examination and assessment of the design and implementation of
JARPA/JARPA II, a task which this Court could not and should not attempt to do.

V. The scope of review by the Court

Judge Owada writes that the Contracting Parties to the Convention expressly recognize the
need and the importance of scientific research for the purpose of supporting the “system of
international regulation for the whale fisheries to ensure proper and effective conservation and
development of whale stocks” (Preamble, para. 7). Judge Owada points out that the Conference

which was convened for the conclusion of the Convention in 1946 stressed the critical importance
of scientific research by scientific organizations engaged in research on whales. According to
Judge Owada, the intention of the Contracting Parties, in agreeing on the language of Article VIII,
was to provide for the right of a Contracting Government to grant to its nati onals special permits to
take whales for purposes of scientific research. Judge Owada argues that the Contracting
Government may take this action without prior consultations with, or the approval of, the IWC or
its Scientific Committee.

Judge Owada remarks that this is not to say that a Contracting Government has unlimited
discretion in granting a special permit. According to Judge Owada, it is the role of the Court
to examine from a legal point of view whether the procedures expressly prescribed by the
regulatory régime of the Convention, including those in Article VIII, are scrupulously observed.
Judge Owada notes that the Court can also review whether the activities in question can be
regarded as meeting the generally accepted notion of “scientific research” (the substantive
requirement for the Contracting Party under Article VIII). This process involves the determination

of the standard of review to be applied by the Court.

VI. The standard of review by the Court

Judge Owada notes that, in determi ning the standard of review, the Judgment concludes as
follows:

“When reviewing the grant of a special permit authorizing the killing, taking

and treating of whales, the Court will assess, first, whether the programme under
which these activities occur in volves scientific research. Secondly, the Court will
consider if the killing, taking and treating of whales is ‘for purposes of’ scientific
research by examining whether, in the use of lethal methods, the programme’s design
and implementation are reasonable in relation to achieving its stated objectives. This
standard of review is an objective one.” (Judgment, paragraph 67.) - 5 -

In Judge Owada’s view, the Judgment, in establishing this standard of review, ignores the
difference in the positions taken by the Parties on this question and, without further explanation,

seems to endorse the position of one of the Parties, namely that of the Applicant. According to
Judge Owada, the language used by the Judgment suggests that the application of this standard of
objective reasonableness had been accepted as the common ground among the Parties in relation to
the overall scope of the review, whereas, in reality, there was a wide difference of position between
the Parties, especially in relation to the scope of the revi ew. Further, according to Judge Owada,
the Judgment provides no explanation as to why it is legitimate or appropriate for the Court to
expand the scope of the review by engaging in an examination of the “design and implementation”

of the JARPAII programme.

Judge Owada observes that a careful examination of the arguments of the Parties reveals that
the genesis of this standard of review would appear to derive its origin from the jurisprudence of
the Appellate Body of the World Trade Organization (“WTO”) i n the United States — Continued
Suspension of Obligations in the EC -Hormones Dispute case (hereinafter “EC -Hormones”). In
Judge Owada’s view, the Judgment takes this magic formula of objective reasonableness out of the

context in which this standard was e mployed and applies it somewhat mechanically for our
purposes, without giving proper consideration to the context in which this standard of review was
applied.

Judge Owada notes that the Respondent stated the following with regard to the standard of
review:

“Japan agrees with Australia and New Zealand in regarding the test as being

whether a State’s decision is objectively reasonable, or ‘supported by coherent
reasoning and respectable scientific evidence and . . ., in this sense, objectively
justifiable’.” (Emphasis added).

According to Judge Owada, the Respondent is relying on a quotation, word- for-word, from the
EC-Hormones case. It is for this reason important to examine the precise context in which this
quoted passage appears, which is as follows:

“[S]o far as fact -finding by [the WTO] panels is concerned, the applicable
standard is ‘neither de novo review as such, nor ‘total deference’, but rather the
‘objective assessment of facts’ . . .

It is the WTO Member’s task to perform the risk assessment. The panel’s task
is to review that risk assessment. Where a panel goes beyond this limited mandate and
acts as a risk assessor, it would be substituting its own scientific judgment for that of
the risk assessor and making a de novo review and, consequen tly, would exceed its

functions under Article 11 of the [Dispute Settlement Understanding of the WTO].
Therefore, the review power of a panel is not to determine whether the risk assessment
undertaken by a WTO Member is correct, but rather to determine wh ether that risk
assessment is supported by coherent reasoning and respectable scientific evidence and
is, in this sense, objectively justifiable.” (Emphasis added.)

Judge Owada emphasizes that the WTO Appellate Body’s decision states that the body would

exceed its functions were it to act as a risk assessor and make a de novo review. In Judge Owada’s
view, therefore, the Judgment erred by taking this standard of objective reasonableness out of its
context, and by mechanically applying it for the opposite purpose, that is, for the purpose of
engaging the Court in making a de novo assessment of the activities of the Respondent, when that
State is given the primary power under the Convention to grant special permits for purposes of
scientific research. - 6 -

Judge Owada also points out that in the Dispute regarding Navigational and Related Rights
(Costa Rica v. Nicaragua), the Court referred to the contention of the Applicant (Costa Rica) which

argued that the way the Respondent (Nicaragua) restricted Costa Rica’s navigational rights on the
San Juan river was “not reasonable”. The Court stated that

“the regulator, in this case the State with sovereignty over the river, has the primary
responsibility for assessing the need for regulation and for choosing, on the basis of its
knowledge of the situation, the measure that it deems most appropriate to meet that
need. It will not be enough in a challenge to a regulation simply to assert in a general

way that it is unreasonable.”

Judge Owada states that the position of th e Respondent in the present case is analogous in law to
that of the Respondent in the above-mentioned case. According to Judge Owada, the dictum of this
Court in the latter case should be applicable to the situation in the present case.

VII. Application of the standard of review in the present case

Judge Owada states that he will refrain from engaging in the exercise of refuting the
conclusions of the Judgment resulting from its substantive assessment of each of the concrete
aspects of the design and impl ementation of the JARPA II programme, because to engage in this
exercise would be doing precisely what the Court should not have done under the Convention.
Judge Owada wishes, however, to critique the methodology that the Judgment employs in applying
the standard of objective reasonableness when assessing the concrete activities of JARPA II. In
Judge Owada’s view, there is a strong, though rebuttable, presumption that the granting

Government, in granting permits under Article VIII, has made this determination not only in good
faith, but also in light of a careful consideration that the activities carried out are for purposes of
scientific research. Judge Owada states that the function of the Court is to assess whether this
determination of the Contracting Government is objectively reasonable, in the sense that the
programme of research is based upon a coherent reasoning and supported by respectable opinions
within the scientific community of specialists on whales, even if the programme of research may
not necessarily command the support of a majority view within the scientific community involved.

In Judge Owada’s view, the Judgment appears to be applying the standard of objective
reasonableness in such a way that it is the granting Party that bears the bur den of establishing that
the scale and the size of the lethal take envisaged under the programme is reasonable in order for
the programme to be qualified as a genuine programme “for purposes of scientific research”.
Judge Owada states that it should be th e Applicant, rather than the Respondent, who has to
establish by credible evidence that the activities of the Respondent under JARPA II cannot be
regarded as “reasonable” scientific research activities for the purposes of Article VIII of the

Convention. In Judge Owada’s view, the Applicant has failed to make such a showing in this case.

Judge Owada states that, in his view, the activities carried out pursuant to JARPA II can be
characterized as “reasonable” activities for purposes of scientific research. Judge Owada notes that
evidence, including a statement of the Chair of the Scientific Committee, has clearly shown that
JARPA II provides some useful scientific information with respect to minke whales that has been
of substantial value to the Scientific Committee. Judge Owada further recalls that the IWC

Intersessional Workshop Report expressed the view that the JARPA programme, which is in many
respects substantively similar to JARPA II, can provide valuable statistical data which could result
in a reco nsideration of the allowed catch of minke whales under the Revised Management
Procedure. Judge Owada states that what is referred to in this report is precisely the type of data
that was envisioned as useful by the Convention, as evidenced by the language of Article VIII - 7 -

stating that “continuous collection and analysis of biological data in connection with the operations
of factory ships and land stations are indispensable to sound and constructive management of the

whale fisheries”. Judge Owada argues th at, in light of this evidence, it is difficult to see how the
activities of JARPA and its successor, JARPA II, could be considered “unreasonable”.

VIII. Conclusion

By way of conclusion, Judge Owada emphasizes that the sole and crucial issue at the centre
of the present dispute is whether the activities under the programme of JARPA II are “for purposes

of scientific research”, and not whether JARPA II has attained a level of excellence as a project for
scientific research for achieving the object and purpose of the Convention. Judge Owada states that
it may be true that JARPA II is far from being perfect for attaining such objective. Even if
JARPA II contains some defects, however, that fact in itself would not turn these activities into
activities for com mercial whaling. Judge Owada concludes that this certainly could not be the
reason for this Court to rule that “Japan shall revoke any extant authorization, permit or licence
granted in relation to JARPA II” (Judgment, paragraph 247 (7)).

Dissenting opinion of Judge Abraham

In his dissenting opinion, Judge Abraham states that, while he voted in favour of the point in
the operative paragraph whereby the Court dismisses the objection to jurisdiction raised by Japan,
he nonetheless disagrees with the reasoning followed by the Court in order to reach that conclusion.
Indeed, while the Court was correct in rejecting Japan’s literal interpretation of the second limb of
the Australian reservation, which excludes from the Court’s jurisdiction any dispute “arising out of,

concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime
zone pending its delimitation”, its own interpretation of that limb of the reservation is highly
debatable and unnecessarily restrictive.

In Judge Abraham’s view, t his second limb should be understood as intended to exclude
from the jurisdiction of the Court disputes which, without being directly related to maritime
delimitation, would require the Court to take a position  incidentally  on the nature and extent

of Australia’s maritime zones, since the subject -matter of such disputes would be the exploitation
of a maritime area in respect of which there was a pending dispute as to whether it formed part of
such a zone. When those conditions are satisfied, the reserv ation must therefore apply, even when
the Parties do not have overlapping claims to the maritime areas concerned.

*

On the merits of the case, Judge Abraham fundamentally disagrees with the approach
adopted by the Court.

He disagrees, first, with the int erpretation of the concept of a programme “for purposes of
scientific research” in the sense of paragraph 1 of Article VIII of the International Convention for
the Regulation of Whaling. In this regard, Judge Abraham accepts the proposition that Article VIII

of the Convention should be interpreted neither restrictively nor expansively, and he agrees with
the way in which the Court has addressed the notion of “scientific research”, in particular by
rejecting the definition proposed by an expert called by Australia. On the other hand, he criticizes
the Court’s choice of an “objective” test in seeking to determine whether a programme is “for
purposes of” scientific research. In fact, the phrase “for purposes of” necessarily involves an
examination of the aim s pursued by the State responsible for the programme in question. In - 8 -

seeking to determine whether the design and implementation of a scientific research programme
reasonably correspond with its stated aims, the Court is assuming the status of a scientific

committee rather than carrying out its function of ascertaining the nature of the activities in
question. Judge Abraham further considers that, in a situation where a State relies on Article VIII
to justify authorization of a whaling programme which incl udes scientific research activities, to
find that the programme falls outside the terms of that Article necessarily implies that the good
faith of the State concerned is being called into question; however, good faith must be presumed.

Judge Abraham also disagrees with the Court’s assessment of the facts of the case, and with

the unfavourable presumption which he considers that it has raised against Japan. The Court
constantly requires Japan to provide explanations, demonstrations, justifications, regard ing various
aspects of the design and implementation of the JARPA II programme. It concludes, wrongly,
from a combined examination of certain of these aspects, that the design and implementation of
JARPA II are unreasonable in light of its stated aims. H owever, the examination conducted by the
Court has merely raised what it admits are doubts, which cannot suffice to deny JARPA II the
character of a programme conducted for purposes of scientific research. The Court should have

found that there was no manifest mismatch between JARPA II’s stated aims and the means used to
achieve them, and that the sample sizes had not been set at a manifestly excessive level; and the
Court should accordingly have accepted that JARPA II does have the character of a program me
conducted for purposes of scientific research.

Judge Abraham thus voted against point 2 of the operative paragraph, which finds that the
special permits granted by Japan in connection with JARPA II do not fall within the provisions of
Article VIII, paragraph 1, of the Convention; and, in consequence, against points 3, 4, 5, and 7.

Declaration of Judge Keith

1. In his declaration, Judge Keith addresses three matters in support of the conclusion the
Court has reached and its reasons. The first is the broader context in which the case is to be seen.
Over the 65 years the Convention has been in force there have been massive changes in the
whaling industry and in attitudes and policies towards whaling. At the outset, the Schedule to the

International Whaling Convention allowed a take in southern waters of the equivalent of
16,000 blue whales. By 1965 there was a prohibition on their taking and by 1972, the year in
which the Stockholm Conference on the Human Environment called for a ten- year moratorium on
commercial whaling, the limit for Antarctic minke whales was set at 5,000. The S chedule now
includes many zero catch limits. Has a system established to regulate an industry been used
virtually to prohibit it? Judge Keith points out that Contracting Governments had a number of
options open to them if they wished to avoid those const raints or that outcome. He concludes by

recalling that an attempt, through The Future of the IWC Process, running from 2007 to 2010 to
resolve through negotiation a range of matters, including the dispute before the Court, had failed.

2. The second matter Judge Keith considers is the essential interrelatedness of the power to
grant a special permit under Article VIII (I) of the Convention and the extent of the power of the
Court to review the grant. He identifies three features of the power to grant a sp ecial permit which
indicate real limits on the power of a Contracting Government. He also sees as significant the

extensive body of information in the record before the Court about the process which led to the
decisions to establish the JARPA II programme and about its implementation. He states the
standard of review in this way: is the Contracting Government’s decision to award a special permit
objectively justifiable in the sense that the decision is supported by coherent scientific reasoning?
The test does not require that the programme be “justified”, rather, that on the record, it is
justifiable. Nor is it for the Court to decide on the scientific merit of the programme’s objectives - 9 -

nor whether its design and implementation are the best possible me ans of achieving those

objectives. But the Court does have the role of determining, in the light of the identified features of
the power mentioned earlier, whether the evidence before it demonstrates coherent scientific
reasoning supporting central features of the programme.

3. In the third part of his declaration, Judge Keith emphasizes, by reference to that evidence,
the failure of the Japanese authorities, in planning and implementing the programme, to give any
real consideration or indeed any consid eration at all to the central elements of the programme

discussed in this declaration and more fully in the Judgment: the decisions regarding the use of
lethal methods as opposed to non- lethal ones and the determination of the sample sizes; and the
comparison of the sample size to the actual take. As indicated in the d eclaration, those decisions,
including those relating to the implementation of the programme, were not supported by evidence
of relevant studies, or by coherent scientific reasoning, or by relevant reporting and explanations to
the International Whaling Commission or its Scientific Committee.

4. For those reasons and those given by the Court, Judge Keith concludes that the
programme does not fall within Article VIII (I) of the Convention and, as a result, the actions taken
under it for the killing, taking and treating of the whales, breach particular provisions of the
Convention.

Dissenting opinion of Judge Bennouna

Judge Bennouna has voted against points 2, 3, 4, 5 and 7 of the operative paragraph.

Judge Bennouna does not agree with the majority’s interpretation of the relevant provisions
of the International Convention for the Regulation of Whaling (hereinafter the “Convention”).

Judge Bennouna notes that the issue of whaling carries a heavy emotional and cultural
charge. He points out, however, that this must not interfere with the task of the Court, which is to
do justice by applying international law, in accordance with its Statute.

Judge Bennouna considers that there is nothing to suggest that JARPA, the predecessor to
JARPA II, which was launched in parallel with Japan’s acceptance of the moratorium on
commercial whaling, was a way of continuing commercial whaling under a different legal guise.
On the contrary, Judge Bennouna emphasizes that the launch of JARPA was a means of making
good the lack of scientific data, particularly as regards whales ’ diet, previously obtained under the
commercial whaling programme.

Judge Bennouna deplores the fact that the Court undertook a detailed analysis of sample
sizes, illustrated with tables and graphics, which ultimately resulted simply in a finding of concern
as to the reasonableness of the design of JARPA II in light of its stated aims. In Judge Bennouna’s
view a comparison of sample sizes with actual catches was likewise irrelevant.

Judge Bennouna thus asks himself whether a series of concerns and queries is sufficient to
justify a finding that JARPA II was not designed and implemented “for purposes of scientific
research”.

Judge Bennouna notes that the Court declined to consider the evidence relating to the issue
of JARPA II’s commercial character. However, in Judge Bennouna’s view, the Court was not
entitled to forego showing that JARPA II was a commercial operation, since the provisions of the
Schedule whose breach had been alleged by Australia apply only to commercial whaling. - 10 -

Judge Bennouna considers that JARPA II could not be described as a commercial whaling
programme, since it is not conducted with a view to profit.

Judge Bennouna considers that the position adopted by the majority of the Court has failed to
take account of the spirit of the Convention, which is founded on co- operation between Stat es
parties, under the institutional framework established by the Convention. He considers that the
Court, in engaging in an evaluation of JARPA II, has, in certain respects, substituted itself for the
bodies created by the Convention, namely the International Whaling Commission and the Scientific
Committee. In Judge Bennouna’s view, it is preferable to rely on the institutional framework

established by the Convention, since that is the best way of strengthening multilateral co- operation
between States parties and of arriving at an authentic interpretation of the Convention.

Separate opinion of Judge Cançado Trindade

1. Judge Cançado Trindade begins his Separate Opinion, composed of eleven parts,
observing that, although he has voted in favour of the adoption of the present Judgment in the case
Whaling in the Antarctic , he would have wished certain points to be furth er developed by the

Court. He feels thus obliged to leave on the records, in the present Separate Opinion, the
foundations of his personal position thereon. The first point he identifies pertains to the object and
purpose of the International Convention on the Regulation of Whaling (ICRW Convention —
Part I). The adoption of a Convention like the ICRW, endowed with a supervisory organ of its
own, encompassing member States that do not practice whaling, speaks to the understanding that
the ICRW Convention’s object and purpose cannot be limited to the development of the whaling
industry.

2. The goal of conservation integrates its object and purpose, certainly not limited to the
development of the whaling industry. If the main goal of the ICRW Convention were only to
protect and develop the whaling industry, the entire framework of the ICRW Convention would
have been structured differently. Furthermore, the adoption of a moratorium on commercial
whaling within the framework of the ICRW Convention also see ms to indicate that the
conservation of whale stocks is an important component of the object and purpose of the ICRW

Convention (paras. 2-3). This is also reflected in the preamble of the Convention.

3. Pursuant to a teleological approach, the practice of the International Whaling Commission
(IWC), conformed by its successive resolutions, seems to indicate that conservation of whale
stocks is an important objective of the ICRW Convention (para. 5). The Schedule of regulations
annexed to the ICRW Convention is an integral part of it, with equal legal force; amendments have

regularly been made to the Schedule, so as to cope with international environmental developments.
It has become a multilateral scheme, seeking to avoid unilateral action so as to foste r conservation
(para. 6).

4. Judge Cançado Trindade recalls that, in the response to a question he deemed it fit to put
to it, the intervenor (New Zealand) recalled that, distinctly from the 1937 International Agreement
for the Regulation of Whaling, th e 1946 ICRW Convention counts on a permanent Commission

(the IWC) endowed with a supervisory role, evidencing a “collective enterprise”, and
acknowledging that whale conservation “must be an international endeavour”. In sum, in
New Zealand’s view, the object and purpose of the ICRW Convention ought to be approach ed in
the light of the collective interest of States Parties in the conservation and management of whale - 11 -

stocks. This role of collective regulation of the IWC, was in the line of the U.N. Convention on the

Law of the Sea, which requires States (Article 65) to cooperate with a view to the conservation of
marine mammals and to work through the appropriate international organs. Such endeavours of
conservation have become a “collective responsibility” (para. 9).

5. In Judge Cançado Trindade’s understanding, the collective system established by the
ICRW Convention (Part II) aims at replacing a system of unilateral unregulated whaling, with a
system of collective guarantee and regulation, so as to provide for the interests of the States Parties

in the proper conservation and management of whales. This collective regulation is achieved
through a process of collective decision -making by the IWC, which adopts regulations and
resolutions (paras. 10-11). Thus, the nature and structure of the ICRW Convention, the fact that it
is a multilateral Convention ( comprising both whaling and non-whaling States) with a supervisory
organ of its own, which adopts resolutions and recommendations, hig hlights the collective
decision-making process under the Convention and the collective guarantee (pursuant to collective
regulation) provided thereunder (para. 12).

6. In fact, in numerous resolutions, the IWC has provided guidance to the Scientific
Committee for its review of Special Permits under paragraph 30 of the Schedule. This is aimed at
amending proposed special permit programmes that do not meet the conditions. The expectation
ensues therefrom that, e.g., non- lethal methods will be used whenever possible, on the bas is of
successive resolutions of the IWC stressing the relevance of obtaining scientific information
without needing to kill whales for “scientific research”. In accordance with the IWC resolutions,

the Scientific Committee has, for its part, elaborated a series of Guidelines to enable it to undertake
its function of review of Special Permits (para. 13).

7. Successive IWC resolutions have consistently requested the States Parties concerned not
to continue their activities whenever they do not s atisfy the S cientific Committee’s criteria
(para. 14). Bearing the IWC resolutions in mind, the Scientific Committee’ s Guidelines have
endeavoured to assist it in undertaking adequately its function of review of special permit proposals

and of research results from existing and completed special permits. In recent years, the Guidelines
have insisted on the use of non-lethal research methods. It is clear that there is here not much room
for State unilateral action and free-will (para. 15).

8. It clearly appears, from paragraph 30 of the Schedule, that a State Party issuing a Special
Permit is under the obligation to provide the IWC Secretary with proposed scientific permits before
they are issued, and in sufficient time so as to allow the Scientific Committee to revi ew and

comment on them. States granting Special Permits do not have an unfettered freedom to issue such
permits (paras. 16-17). There is thus a positive (procedural) obligation of the State willing to issue
a special permit to cooperate with the IWC and the Scientific Committee (paras. 18-19). In the
framework of the system of collective guarantee and collective regulation under the ICRW
Convention, the Court has determined, on distinct points, that the respondent State has not act ed in
conformity with p aragraph 10 (d) and (e), and paragraph 7 (b) , of the Schedule to the ICR W
Convention (resolutory points 3-5).

9. Judge Cançado Trindade then moves to what he identifies as the limited scope of
Article VIII (1) of the ICRW Convention (Part III). Article VIII (1) appears as an exception to the
normative framework of the ICRW Convention, to be thus interpreted restrictively. A State issuing
a permit does not have carte blanche to dictate that a given programme is “for purposes of scientific
research”. It is not sufficient for a State Party to describe its whaling programme as “for purposes - 12 -

of scientific research”, without demonstrating it (paras. 21-22). The Court has determined that the
Special Permits granted by Japan in connection with Jarpa -II “do not fall w ithin the provisions of

Article VIII (1)” of the ICRW Convention (resolutory point2). In his perception,

“such an unfettered discretion would not be in line with the object and purpose of the
ICRW Convention, nor with the idea of multilateral regulation. The State issuing a
Special Permit should take into consideration the resolutions of the IWC which
provide the views of other States Parties as to what constitutes ‘scientific research’.
There is no point in seeking to define ‘ scientific research’ for all purposes. When

deciding whether a programme is ‘ for purposes of scientific research ’ so as to issue a
special permit under Article VIII (1), the State Party concerned has, in my
understanding, a duty to abide by the principle of prevention and t he precautionary
principle” (para. 23).

10. Judge Cançado Trindade adds that Article VIII, part and parcel of the ICRW Convention
as a whole, is to be interpreted taking into account its object and purpose, which “discards any

pretence of devising in it a so -called ‘self-contained’ regime or system ” (para. 24). He then
concludes, on this particular point, that

“a State Party does not have an unfettered discretion to decide the meaning of
‘scientific research ’ and whether a given whaling programme is ‘ for purposes of
scientific research’. The interpretation and application of the ICRW Convention in
recent decades bear witness of a gradual move away from unilateralism and towards
multilateral conservation of living marine resources, thus clarifying the limited scope

of Article VIII (1) of the ICRW Convention” (para. 24).

11. Judge Cançado Trindade then turns to the interactions between systems, in the evolving
law relating to conservation (Part IV). He observes that, with the growth in recent decades of
international instruments related to conservation, not one single of them is approached in isolation
from the others: not surprisingly, the co-existence of international treaties of the kind has called for
a systemic outlook, which has been pursued in rec ent years. Reference can here be made, e.g., to

the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES Convention) , the 1979 Convention on Migratory Species of Wild Animals , the
1980 Convention on the Conservation of Antarctic Marine Living Resources, the 1982 U.N.
Convention on the Law of the Sea, the 1992 U.N. Convention on Biological Diversity (CBD
Convention) (paras. 25-26).

12. He adds that the interpretation and application of the aforementioned treaties, in the light
of the systemic outlook, have been contributing to the gradual formation of an opinio juris
communis in the present domain of contemporary international law (Part V). As the ICJ itself has
put it (para. 45), the functions conferred upon the IWC have made the Convention an “evolving
instrument”. This is not the first time that the Court acknowledges that international treaties and
conventions are “living instruments”. The ICJ did so, e.g., in its célèbre Advisory Opinion
(of 21.06.1971) on Nam ibia, and, more recently, in its Judgment (of 25.09.1997) in the case
concerning the Gabčíkovo-Nagymaros Project (Hungary versus Slovakia)(paras. 27 and 29-30).

13. Judge Cançado Trindade further recalls that other contemporary international tribunals
have pursued the same evolutionary interpretation, for example, the European Court of H uman
Rights, in its Judgment (of 25.04.1978) in the Tyrer versus United Kingdom case, and also in its
Judgment (on preliminary objections, of 23.03.1995) in the case of Loizidou versus Turkey; and
the Inter-American Court of Human Rights, in its Judgment (of 31.08.2001) in the case of the - 13 -

Mayagna (Sumo) Awas Tingni Community versus Nicaragua, and also in its célèbre and
ground-breaking Advisory Opinion (of 01.10.1999) on The Right to Information on Consular

Assistance in the Framework of the Guarantees of the Due Process of Law (paras. 31-32). He then
ponders that

“The experience of supervisory organs of various international treaties and
conventions points to this direction as well. Not seldom they have been faced with
new challenges, requiring new responses from them, which could never have been
anticipated, not even imagined, by the draftsmen of the respective treaties and

conventions. In sum, international treaties and conventions are a product of their time,
being also living instruments. They evolve with time; otherwise, they fall into
desuetude. The ICRW Convention is no exception to that. Those treaties endowed
with supervisory organs of their own (like the ICRW Convention) disclose more
aptitude to face changing circumstances.

Moreover, in distinct domains of international law, treaties endowed with a
supervisory mechanism of their own have pursued a hermeneutics of their own, facing

the corresponding treaties and conventions as living instruments. International treaties
and conventions are product of their time, and their interpretation and application in
time, with a temporal dimension, bears witness that they are indeed living instruments.
This happens not only in the present domain of conservation and management of
living marine re sources, but likewise in other areas of international law ”
(paras. 33-34).

14. By the time of the adoption of the 1946 I CRW Convention, in the mid- XXth century,
there did not yet exist an awareness that the living marine resources were not inexhaustible. Three
and a half decades later, the adoption of the 1982 U.N. Convention on the Law of the Sea
(UNCLOS) — a major internatio nal law achievement in the XXth century — contributed to the
public order of the oceans, and to the growing awareness that their l iving resources were not
inexhaustible. Unilateralism gradually yielded to collective regulation towards conservation, as
illustrated by the 1982 general moratorium on commercial whaling under the 1946 ICRW

Convention (para. 35).

15. Another example can be found in the establishment by the IWC of whale sanctuaries
(under Article V (1) of the ICRW Convention). Judge Cançado Trindade recalls that the IWC has
so far adopted three whale sanctuaries: first, the Southern Ocean Sanctuary (1948- 1955);
secondly, the Indian Ocean Sanctuary (1979, renewed in 1989, and indefinitely as from 1992); and
thirdly, the new Southern Ocean Sanctuary (from 1994 onwards). Moreover, in its meetings

of 2001-2004, the IWC was lodged with a proposal (revised in 2005) of a new sanctuary, the South
Atlantic Sanctuary, so as to reassert the need of conservation of whales (para. 36).

16. Parallel to this, multilateral Conventions (such as UNCLOS and CBD) have established a
framework for the conservation and management of living marine resources. The UNCLOS
Convention contains a series of provisions to that effect; as to the CBD Convention, the
Conference of the Parties held in Jakarta in 1995, for example, adopted the Jakarta Mandate on

Coastal and Marine Biodiversity , reasser ting the relevance of conservation and ecologically
sustainable use of coastal and marine biodiversity, and, in particular, linking conservation,
sustainable use of biodiversity, and fishing activities. Furthermore, in its meeting of 2002, the
States Parties to the Convention on Migratory Species (CMS) pointed out the need to give greater
protection to six species of whales (including the Antarctic minke whales) and their habitats,
breeding grounds and migratory routes (paras. 38-39). - 14 -

17. These are, — Judge Cançado Trindade proceeds, — clear illustrations of the evolving
opinio juris communis on the matter. In its 2010 meeting, held in Agadir, Morocco, the

“Buenos Aires Group” reiterated support for the creation of a new South Atlantic Sanctuary for
whales, and positioned itself in favour of conservation and non- lethal use of whales, and against
so-called “scientific whaling” (in particular in case of endangered or severely depleted species).
The “Buenos Aires Group” expressed its “strongest rejection” o f the ongoing whale hunting
(including species classified as endangered) in the Southern Ocean Sanctuary, called for non- lethal
methods and the maintenance of the commercial moratorium in place since 1986, and stated that
the ongoing whale hunting was in breach of “the spirit and the text” of the 1946 ICRW Convention,

and failed to respect the “integrity of the whale sanctuaries” recognized by the IWC (paras. 39-40).

18. The next point examined by Judge Cançado Trindade is that of inter-generational equity
(Part VI). He begins by pointing out that the 1946 ICRW Convention was “indeed pioneering”, in
acknowledging, in its preamble, “the interest of the nations of the world in safeguarding for future
generations the great natural resources represented by the whale stocks”. At that time, shortly after
the II World War, its draftsmen could hardly have anticipated that this concern would achieve the

dimension it did, in the international agenda and in international law -making (in particular in the
domain of int ernational environmental law) in the decades that followed. The conceptual
construction of inter-generational equity (in the process of which he took part) was to take place, in
international legal doctrine, four decades later, from the mid-eighties onwards (para.41).

19. He then recalls (para. 42) his own considerations on the long-term temporal dimension,
in relation to inter-generational equity, expressed in his Separate Opinion in the case of the Pulp

Mills on the River Uruguay (Argentina versus Uruguay, Judgment of 20.04.2010). Although the
factual context of the cas d’espèce is quite distinct from that of the Pulp Mills case, it cannot pass
unnoticed that, significantly, in one and the other, inter -generational equity marks its presence in
distinct international instruments of international environmental law, and in its domain as a whole
(para.43). He examines the point in the 1973 CITES Convention, in the 1979 Convention on the
Conservation of Migratory Species of Wild Animals, in the 1992 CBD Convention (paras. 44-45),
among others (paras. 46-47).

20. Turning to the conservation of living species, he then reviews the tension between
conservation and exploitation in the arguments of the contending Parties in the course of the
proceedings of the present case (Part VII), in both the written phase (paras. 48-51) and the oral
phase. In respect of this latter, he reviews the responses of the contending Parties and the
intervenor to the questions he put to them in the public sitting of the Court of 08.07.2013
(paras. 52-56). He then concludes that it

“has been made clear, in recent decades, that the international community has adopted
a conservation-oriented approach in treaty regimes, including treaties covering marine
mammals. The ICRW Convention is to be properly interpreted in this context (...).
[T]he ICRW Convention should be read in the light of other international instruments
that follow a conservation -oriented approach and the precautionary principle. The
existence of the ICRW Convention in relation to Conventions aimed at conservation

of living resources supports a n arrow interpretation of Article VIII of the ICRW
Convention” (paras. 57-58).

21. Judge Cançado Trindade dedicates Part VIII of his Separate Opinion to the principle of
prevention and the precautionary principle, as from the arguments of the contending Parties and the
intervenor. He begins by pointing out that, although the Court does not dwell upon the
precautionary principle in the present Judgment in the case of Whaling in the Antarctic , in the - 15 -

course of the proceedings in the present case, the two contending Parties (Australia and Japan) as
well as the intervenor ( New Zealand) addressed the principle of prevention and the precautionary

principle as related to the cas d’espèce (para. 60). After reviewing their arguments, he comments
that those two principles, interrelated in the present case, “are to inform and conform any
programmes under Special Permits with in the limited scope of Article VIII of the ICRW
Convention” (para. 70). And he concludes, on this point, that, in the domain of international
environmental law in general, and in respect of the ICRW Convention in particular, “there has
occurred, with the passing of time, a move towards conservation of living marine r esources as a
common interest, prevailing over State unilateral action in search of commercial profitability ”

(para 71).

22. Judge Cançado Trindade then moves on to a review of the responses from the experts (of
Australia and Japan) to the several quest ions he put to them during the public sittings of the Court
(Part IX). Despite their responses, there remained, in his perception, the impression of a lack of
general criteria for the determination of the total whales to be killed, and for how long, for t he
purposes of so-called “scientific research” (para. 73). “Scientific research”, — he continues, — is

surrounded by uncertainties, and is undertaken on the basis of uncertainties. Suffice it here to
recall, — he adds, — the legacy of Karl Popper (mainly his Conjectures and Refutations ), who
used to ponder wisely that

“scientific knowledge can only be uncertain or conjectural, while ignorance is infinite.
Scientific research is a search for truth, amidst conjectures, and, given one’s fallibility,
one has to learn with mistakes incurred into. One can hope to be coming closer to

truth, but without knowing for sure whether one is distant from, or near it. Without
the ineluctable refutations, science would fall into stagnation, losing its empirical
character. Conjectures and refutations are needed, for science to keep on advancing in
its empirical path. As to the cas d’espèce, would this mean that whales could keep on
being killed, and increasingly so, for ‘ scientific purposes ’ and amidst scientific
uncertainty? I do not think so; there are also non-lethal methods, and, after all, living
marine resources are not inexhaustible” (para. 74).

23. Judge Cançado Trindade then reviews the reiterated calls under the ICRW Convention
for non-lethal use of cetacean s (Part X), on the part of the IWC in its resolutions (paras. 75 -79).
The way is then paved for the presentation of his concluding observations, on Jarpa -II programme
and the requirements of the ICRW Convention and its Schedule (Part XI). There are a few
characteristics of Jarpa-II which do not allow it to qualify under the exception of Article VIII, to be
restrictively interpreted; in effect, the programme at issue does not seem to be genuinely and solely

motivated by the purpose of conducting scientific research (para. 80).

24. In practice, the use of lethal methods by Jarpa -II in relation to what seems to be a large
number of whales does not appear justifiable as “scientific research”; furthermore, the fact that
Jarpa-II runs for an indefinite duration also militates against its professed purpose of “scientific
research” (paras. 81-82). Jarpa-II, in the manner it is being currently conducted, can have adverse
effects on whale stocks; commercial whaling, pure and simple, is not permissible under

Article VIII (2) of the ICRW Convention (paras. 83 -84). The Court has found, in the present
Judgment in the Whaling in the Antarctic case, that Japan has not acted in conformity with
paragraph 10 (d) and (e) (whaling moratorium, and assessment of effects of wh ale catches on
stocks), and paragraph 7 (b) (prohibition of commercial whaling in the Southern Ocean Sanctuary),
of the Schedule (resolutory points 3-5). The respondent State does not appear to have fulfilled this
obligation to take into account comments, resolutions and recommendations of the IWC and the
Scientific Committee (para. 85). - 16 -

25. Judge Cançado Trindade then observes that the present case has provided “a unique
occasion for the Court to pronounce upon a system of collective regulation of the environment for

the benefit of future generations”. The Court’s present Judgment in the Whaling in the Antarctic
case “may have wider implications than solely the peaceful settlement of the present dispute
between the contending Parties, to the benefit of all” (para. 87). Although international treaties and
conventions are a product of their time, they have an aptitude to face changing conditions, and their
interpretation and application in time bear witness that they are living instruments; the 1946 ICRW
Convention is no exception to that, and, endowed with a mechanism of supervision of its own, it
has proven to be a living instrument.

26. Moreover, in distinct domains of international law, treaties and conventions — especially
those setting forth a mechanism of protection — “have required the pursuance of a hermeneutics of
their own, as living instruments. This happens not only in the present domain of conservation and
sustainable use of living marine resources, but likewise in other areas of internatio nal law”
(para. 88). Judge Cançado Trindade then concludes that

“The present case on Whaling in the Antarctic has brought to the fore the
evolving law on the conservation and sustainable use of living marine resources,
which, in turn, has disclosed what I perceive as its contribution to the gradual
formation of an opinio juris communis in the present domain of contemporary
international law. Opinio juris , in my conception, becomes a key factor in the
formation itself of international law (here, conserva tion and sustainable use of living
marine resources); its incidence is no longer that of only one of the constitutive

elements of one of its ‘formal’ sources. The formation of international law in domains
of public or common interest, such as that of conservation and sustainable use of
living marine resources, is a much wider process than the formulation of its ‘ formal
sources’, above all in seeking the legitimacy of norms to govern international life.

Opinio juris communis , in this way, comes to assume a considerably broader
dimension than that of the subjective element constitutive of custom, and to exert a
key role in the emergence and gradual evolution of international legal norms. After

all, juridical conscience of what is necessary ( jus necessariu m) stands above the
‘free-will’ of individual States ( jus voluntarium), rendering possible the evolution of
international law governing conservation and sustainable use of living marine
resources. In this domain, State voluntarism yields to the jus necessarium, and notably
so in the present era of international tribunals, amidst increasing endeavours to secure
the long-awaited primacy of the jus necessarium over the jus voluntarium. Ultimately,
this becomes of key importance to the realization of the pursued common good”

(paras. 89-90).

Dissenting opinion of Judge Yusuf

1. Judge Yusuf appends a dissenting opinion to the Judgment of the Court in which he
expresses serious doubts as to the legal correctness of the Court’s reasoning and its conclusions
regarding the conformity to the ICRW of Japan’s decision to authorize J ARPA II, and the legal

standards to be applied to assess such conformity.

2. According to Judge Yusuf, the dispute between the Parties concerns the interpretation and
application of Article VIII of the ICRW. The issue before the Court is whether Japan la wfully
employed the discretionary power granted to any Contracting Government to issue special permits - 17 -

to its nationals to kill whales for purposes of scientific research. It is not about the fit between the

design and implementation of JARPA II and its stated objectives, as the analysis in the Judgment
may suggest.

3. Judge Yusuf observes that the most relevant legal criteria to be considered in the
assessment of the legality of Japan’s actions in connection with JARPA II are those of Article VIII
of the Convention, together with paragraph 30 of the Schedule and the guidelines for the
application of Article VIII contained in “ Annex P”, which was adopted by consensus at the

International Whaling Commission (IWC). For Judge Yusuf, this is the law applicabl e to the
present case, on the basis of which the Court should have tried to resolve the dispute before it. The
Court instead came up with a standard of review that is extraneous to the Convention (Judgment,
paragraph 67) and then applied it directly to “t he design and implementation of JARPA II” rather
than to the legality of the conduct of Japan in issuing special permits for JARPA II. Thus,
Judge Yusuf considers that the law applicable to the dispute between the Parties was set aside by
the Court in favour of an obscure and debatable standard which cannot be f ound anywhere in the

Convention, and which is based on the “reasonableness of the design and implementation of
JARPA II in relation to the stated objectives of the programme”. This, in the judge’s view, is
neither grounded in law nor in the practice of this Court.

4. The judge notes that while the Court recognizes the centrality of the interpretation and
application of the applicable law in paragraph 50 of the Judgment, it quickly skates over their
analysis to embark in an extremely detailed assessment of the fit between design and

implementation of JARPA II and its stated objectives. According to the judge, reviewing the
design and implementation of a scientific research programme is more properly the task of the
Scientific Committee of the IWC, not of the Court. In any case, the reasonableness of the design
and implementation of JARPA II in relation to its objectives is an arguable matter on which
scientists may have genuine differences of opinion.

5. According to Judge Yusuf, Article VIII constitutes an exception to the regulatory r égime

established by the Convention for commercial whaling, but it is not outside the scope of the ICRW.
Nor is the discretionary power granted to States parties to issue a special permit for purposes of
scientific research unrestricted. It is to be lawfully used only for the achievement of the purposes
laid down in the Convention.

6. The judge is however of the view that the evidence before the Court does not support the
conclusion that the special permits for JARPA II have been issued by Japan for a purpose other

than scientific research. Nor does such evidence establish that the special permits for JARPA II do
not comply with the requirements and conditions lai d down in the Convention. According to
Judge Yusuf, the JARPA II programme was duly reviewed and commented by the Scientific
Committee of the IWC in 2005 in accordance with Article VIII, paragraph 30, of the Schedule and
the applicable guidelines (now Annex P) with regard to its methodology, design, and the effect of
catches on the population concerned. In other instances, where the committee was of the view that
a permit proposal did not meet its criteria, it specifically recommended that the permit shou ld not

be issued. This was not the case with regard to JARPA II.

7. Judge Yusuf also points to the fact that the Scientific Committee of the IWC in its Report
of 2012 specifically recommended the use of data arising from both JARPA and JARPA II for
catch-at-age based analysis for the minke whale dynamics model the committee is investigating;
and in its 2013 Report the Committee referred to non- lethal sampling of humpback whales - 18 -

occurring within JARPA/JARPA II programmes as useful in the assessment of cert ain breeding
stocks of humpback whales. In light of these reports by the Scientific Committee of the IWC on

the generation by JARPA II of data which is useful to the work of the Scientific Committee,
Judge Yusuf finds unpersuasive the majority’s conclusion that JARPA II is not for purposes of
scientific research.

8. Judge Yusuf is also not persuaded that there is any legal basis for the Court’s conclusion
that JARPA II is in breach of the moratorium establis hed in paragraph 10 (e) of the Schedule, the
prohibition on whaling in the Southern Ocean Sanctuary (para. 7 (b) of the Schedule), or of the

factory ship moratorium (para. 7 (b)). All of these provisions apply to commercial whaling, not to
research whaling. In the judge’s view, this conclusion by the Court is especially unwarranted in the
absence of clear evidence that JARPA II is commercial whaling in disguise. The Court has not
established that the preponderant purpose of the programme was commercial whaling. In effect,
the Judgment entails a finding of bad faith by Japan which is not explicitly expressed.

9. In the view of Judge Yusuf, the Court should have assessed, on account of the

developments that have taken place both in the ICRW and in international environmental law in
general, whether the continued conduct of JARPA II, as a programme that uses lethal methods
under Article VIII, constitutes an anomaly which may frustrate the object and purpose of the
Convention in light of the recent amendments thereto, as well as the extent to which such
amendments may have restricted the right to issue special permits.

10. For Judge Yusuf, the amendments made to the Schedule with respect to the regulatory

framework for commercial whaling, and in particular the moratorium adopted in 1982, which is
still in place, and the Schedule on the prohibition on commercia l whaling in the Southern Ocean
Sanctuary, cannot be considered to be devoid of influence on the interpretation and implementation
of Article VIII of the Convention in so far as they reflect a shift i n attitudes and societal values
towards the use of lethal methods for whaling in general. Thus, the application of Article VIII in
the context of JARPAII should have been interpreted through the prism of all these developments,
and in light of their effect on the object and purpose of the Convention.

11. In the judge’s view, an interpretation of Article VIII in light of the evolving regulatory
framework of the Convention, in addition to anchoring the reasoning and conclusions of the Court
on the law appl icable to the dispute between the Parties, would have been of great value to the
States parties to the Convention in view of the growing disconnect between Article VIII and the
recent amendments to the Convention, and might have provided them with the tool s necessary to

restore an appropriate balance within the Convention.

Separate opinion of Judge Greenwood

The Court is not concerned with the moral, ethical or environmental issues relating to
Japan’s whaling programmes in the present case but only with whether JARPA II is compatible
with Japan’s international legal obligations under the International Convention for the Regulation
of Whaling (“the Convention”). The answer to that question turns on the interpretation of

Article VIII of the Convention, which grants each State the power to issue special permits
authorizing whaling for purposes of scientific res earch. There is no presumption that Article VIII
should be interpreted either in a restrictive or an expansive way. While recommendations by the
International Whaling Commission (“the Commission”) constitute part of the subsequent practice
of the parties to the Convention, they are not legally binding and offer guidance on the
interpretation of the Convention only to the extent that they reflect agreement among the parties. - 19 -

Most of the recommendations which have been invoked in support of a narrow reading of
Article VIII were adopted only by very narrow majorities and do not reflect such agreement.

If the killing, taking and treating of whales in the course of JARPA II is within Article VIII,
then the effect is that this conduct cannot be contrary to the other provisions of the Convention and
its Schedule. However, if they fall outside JARPA II, then they are contrary to the Schedule,
specifically to paragraphs 7 (b) (prohibiting the taking of fin whales in the Southern Ocean
Sanctuary), 10(d) (prohibiting the taking of fin whales by factory ship) and 10 (e) (prohibiting the
setting of limits above zero in respect of any species of whale for commercial purposes).

Judge Greenwood agrees with the reasoning in the Judgment that JARPA II whaling does
not meet the requirements of Article VIII, paragraph 1, of the Convention. In order to fall within
the exemption contained in Article VIII, paragraph 1, it is necessary that the numbers of whales to
be killed under JARPA II are sufficiently related to the achievement of the objectives of the
programme. The much higher numbers of whales to be taken under JARPA II, compared with
JARPA, is not justified on this basis. A key difference between JARPA and JARPA II is the
latter’s objective of “modelling competition among whale species and future management

objectives”. That objective clearly requires research into more than one species of whale. Yet,
from the outset Japan has taken no humpback whales, and the number of fin whales taken has been
very small. Japan’s independent expert stated that the fin whale sample size was unjustifiable and
would not have yielded any useful data. While Japan is not to be criticized for not having killed
more fin whales or for acceding to the request by the Chair of the Commission not to take
humpback whales, there is no sign that Japan attempted to adapt the JARPA II sample size as a
result of the changed circumstances. Japan has also not provided the Court with any answer as to

why, since data in respect of other species could be obtained by the use of non-lethal methods, such
methods were not employed in respect of minke whales. Further, if the objective of modelling
competition between whale species is set aside, the dramatic increase in the number of minke
whales to be taken under JARPA II as compared to those taken under JARPA is difficult to justify.

Japan has not breached its obligations under paragraph 30 of the Schedule, since it has
provided the required information to the IWC Scientific Committee but Judge Greenwood

questions whether Japan has fully complied with the duty of co-operation under the Convention.

The Court had been right not to order a second round of written argument in the present case.

Separate opinion of Judge Xue

Although Judge Xue concurs with the Court’s finding that special permits granted under
JARPA II do not fall within the meaning of Article VIII, paragraph 1, of the International

Convention for the Regulation of Whaling (the Convention), she does not agre e with certain
reasonings of the majority decision.

I. Interpretation of Article VIII, paragraph 1, of the Convention

Judge Xue takes the view that Article VIII, in setting up the special category of scientific
whaling, allows a contracting party to spe cify the number of killings and other conditions as it

“thinks fit”, and exempts the killing, taking and treating of whales under special permits from
restrictions imposed on commercial whaling under the Convention régime. By these terms the
Convention thus confers a discretionary power on the contracting parties with regard to scientific
whaling. What remains unclear is to what extent a contracting party may exercise such discretion. - 20 -

Judge Xue observed that first, a contracting party must avoid any adverse effect on the
stocks with a view to maintaining sustainable utilization and conservation of the resources.

Secondly, attention must be paid to the situation of commercial whaling, as there is an intrinsic link
between commercial whaling and scientif ic whaling, particularly when scientific whaling is
purportedly to be carried out on a large scale and on a continuous basis. She adds that prior to the
moratorium on commercial whaling, such dispute as the current one with JARPA II programme
would not ar ise; lethal sampling did not pose an issue. Thirdly, discretion under Article VIII,
paragraph 1, also means a duty on every authorizing party to exercise the power properly and
reasonably by virtue of the principle of good faith under the law of treaties. She concludes that for

these reasons, Article VIII has not bestowed a self-defined right on the contracting parties.

The Court should, according to Judge Xue, first address the issue whether the authorizing
party can freely determine, as it “thinks fit”, the number of killing, taking and treating of whales for
purposes of scientific research, an issue that bears on the relationship between Article VIII and the
other provisions of the Convention. She emphasizes that although the terms of Article VIII remain
intact, various restrictions on commercial whaling for purposes of conservation in the course of the

past 68 years have exerted a creeping effect on the way in which scientific research may be
conducted, particularly with respect to methodology and scale of sample size. Revisions of
guidelines and reviews of special permits by the Scientific Committee also move in the direction of
conservation. With these developments, it is hard to claim that scientific whaling is totally
detached, free -standing, from the operation of the Convention and that the “margin of
appreciation”, if any, for the contracting parties in granting special permits stays the same as
before. Judge Xue thus observes that the authorizing party is obliged to use its best knowledge t o
determine, as it perceives proper, whether or not to grant special permits for proposed scientific

research programmes. Once adopted, that decision nevertheless is subject to review, scientific or
judicial. The assessment of the decision of course cann ot simply rely on the perception of the
authorizing party, but must be conducted on an objective basis. The authorizing party should
justify its decision with scientific evidence and sound reasoning.

II. The standard of review

On the standard of review, Judge Xue stresses that the review by the Court should focus on
legal issues. First, in assessing Japan’s exercise of its right under Article VIII, paragraph 1, judicial
review of the Court should link with treaty interpretation. In her opinion, the que stion whether
activities under JARPA II involve scientific research is a matter of fact rather than a matter of law,
therefore it should be subject to scientific review. In accordance with the well-established principle
onus probandi incumbit actori, it is up to Australia to prove with convincing evidence to the Court
that JARPA II does not involve scientific research.

Judge Xue also finds problematic the distinction between the term “scientific research” and
the phrase “for purposes of” in Article VIII, paragraph 1, of the Convention in the Judgment. In
her view, this interpretation unduly complicates the meaning of the phrase “for purposes of
scientific research” in Article VIII, paragraph 1, rendering the Court’s role beyond its judicial
purview. As stated above, determination of scientific research is primarily a matter of fact subject
to scientific scrutiny. When the Court is tasked to determine whether or not, in the use of lethal

sampling, the elements of JARPA II’s design and implementation are reasonable in relation to its
stated scientific objectives, it will inevitably be set to assess the scientific merit of the programme.

III. JARPA II programme in light of Article VIII, paragraph 1, of the Convention

While Judge Xue agrees with some of t he findings reached by the Court, she believes that
the Court should have given further consideration to the question of funding, as it bears directly on

the pivotal issue of the case  the size of lethal sampling. - 21 -

She observes that Japan does not deny funding consideration is involved in the determination
of granting special permits, claiming that such practice is normal in fishery research. In regard to

the scale of lethal sampling of JARPA II, she thinks that Japan fails to explain to the satisfaction of
the Court how the sample sizes are calculated and determined with the aim of achieving the
objectives of the programme; technical complexity of the matter does not release the Party of the
burden of proof.

Moreover, in response to Australia’s clai m that Japan’s real intention in conducting
JARPA II is to maintain its whaling operation and that the programme is commercial whaling in

disguise, Japan’s rebuttal is weak and unpersuasive. Even if fund- raising through commercial
means may not necessaril y render the programme as commercial whaling, or commercial whaling
in disguise, given the scale of lethal sampling and the unlimited duration of JARPA II, the
cumulative effect of its lethal take on the conservation of whale resources is not insignificant and
negligible, which gives all the more reason for requiring Japan to justify its decision on special
permits. For these reasons, Judge Xue is of the opinion that at the time when the moratorium on
commercial whaling is imposed, the term “for purposes o f scientific research” under Article VIII,

paragraph 1, should be strictly interpreted; sample sizes that are dictated by fund- raising
consideration, therefore, cannot be considered as “objectively reasonable”, or “for purposes of
scientific research”.

IV. Relationship between Article VIII, paragraph 1, and the Schedule

On the question of the alleged breach of the three provisions of the Schedule (commercial
whaling moratorium, factory ship moratorium, and Southern Ocean Sanctuary moratorium),

Judge Xue does not agree with the Court’s reasoning that since JARPA II does not fall within the
meaning of Article VIII, paragraph 1, of the Convention, it should be subject to the
above-mentioned three provisions. She is of the view that the shortcomings in JARPA II as
analysed by the Court are, by and large, technical flaws associated with the design and
implementation of the programme, which do not by themselves transform JARPA II into a
commercial whaling operation. Fund- raising, albeit by market sale of whale meat, does not
necessarily alter the scientific nature of the programme, unless the Court finds bad faith on the part

of Japan. According to her view, scientific whaling, even if with flaws, remains scientific in
nature.

Judge Xue finally underlines tha t consequences of breach of Article VIII and that of the
Schedule paragraphs can be different. In the former case, the conditions and the number of special
permits may be revised or revoked upon the review and comments by the Scientific Committee. In
the latter situation, however, as Japan is deemed breaching its international obligation under the

Schedule of the Convention by violating the moratorium on commercial whaling, it shall be
obliged to revoke all the extant special permits and refrain from granting further for JARPA II, thus
forestall the Scientific Committee’s future review. In her opinion, JARPA II remains a programme
for scientific research, and Japan should be given the opportunity to address the shortcomings in
the design and implementation of the programme in the Scientific Committee during the upcoming
periodical review.

Separate opinion of Judge Sebutinde

Judge Sebutinde concurs with the Court’s findings in points 1, 2, 3, 4, 5 and 7 of the
Judgment but considers that the Court should have clarified more precisely the limits of discretion
of a Contracting Government under Article VIII of the International Convention for the Regulation
of Whaling (ICRW) as well as the scope of the Court’s powe r to review the exercise of that
discretion. - 22 -

In particular, Judge Sebutinde is of the view that the Court should have specified the criteria
that have guided and informed its determination of whether the special permits issue d under

JARPA II were “for purposes of scientific research ”, taking account of the parameters that the
States parties to the ICRW consider relevant in this regard. These parameters are reflected in
paragraph 30 to the Schedule and elaborated further in the binding resolutions and guidelines of the
IWC. Among the latter, the Annex P guidelines should be given a particular weight, since they are
the most recent set of guidelines adopted by consensus and on the basis of which JARPA II will be
assessed by the Scientific Committee in 2014. On this basis, Judge Sebutinde considers that the
Court should have taken into account the following parameters.

First, the whaling program me for which the speci al permit is sought must include defined
research objectives and must be based on appropriate scientific methodology. Secondly, the
Contracting Government issuing a special permit for scientific research whaling must set limits on
the number of whales to be killed, in addition to any other conditions it sees fit, and must specify
the number, sex, size and s tock of the animals to be taken. While the Contracting Government
enjoys considerable discretion in determining the catch limits, it must exercise that discretion

consistent with the object and purpose of the ICRW, in that whales may be killed only to the extent
necessary for achieving the stated goals of the scientific research programme. Thirdly, the issuing
State must ensure that the proposed scientific research programme is designed and implemented so
as not to endanger the target whale stocks, and must specify the possible effect of the research
programme on conservation of whale stocks. Lastly, the Contracting Government must submit the
proposed s pecial permits to the Scientific Committee for prior review and comments. This
procedural requirement enables the IWC and its Scientific Committee to play a monitoring role in
respect of special permit whaling, while obligating the issuing State to co -operate with the IWC.

In addition, Judge Sebutinde disagrees with the reasoning and findings of the Court
regarding Japan’s compliance with its obligations under paragraph 30 of the Schedule to the
ICRW. In her view, Japan has failed to fulfil its obligati on of meaningful co-operation with the
IWC and the Scientific Committee.

In particular, against the recommendation of the IWC that no additional Japanese special

permit programmes be conducted in the Antarctic until the Scientific Committee had complete d an
in-depth review of the results of JARPA , Japan launched JARPA II before the Scientific
Committee had completed such review . Secondly, there is no indication that Japan has duly
considered the IWC comments and recommendations in respect of certain con troversial aspects of
JARPA II such as its resort to lethal methods. Thirdly, although the JARPA II Plan provided the
essential information required under paragraph 30 of the Schedule, much of the information is not
detailed enough to be considered compliant with the relevant IWC guidelines, a shortcoming likely

to hamper the Scientific Committee’s upcoming review of JARPA II. Fourthly, Japan has failed to
submit the specific special permits issued in respect of JARPA II to the Scientific Committee for
prior review, as required by paragraph 30. Given that these permits are virtual replicas of the
permits issued under JARPA and that JARPA II differs in implementation at least, from its
predecessor, it is imperative that the Scientific Committee ought to have had prior opportunity to
review and comment on them. Fifthly, as noted in the Judgment (paragraph 222), apart from
reference to collaboration with Japanese research institutes in relation to JARPA I, there is no
evidence of co -operation between JARPA II and other domestic and international research

institutions other than an undertaking, in the J ARPA II Plan, that “[p]articipation of foreign
scientists will be welcomed, so long as they meet the qualifications established by the Government
of Japan”.

In view of these shortcomings Judge Sebutinde was unable to join the majority in finding
that “Japan has complied with its obligations under paragraph 30 of the Schedule to the [ICRW]
with regard to JARPA II”. - 23 -

Separate opinion of Judge Bhandari

In his separate opinion, Judge Bhandari explains the reasons for his vote against operative
subparagraph (6) of the Judgment. While noting the existence of a duty to co- operate arising from
paragraph 30 of the Schedule to the International Convention for the Regulation of Whaling when
States parties interact with the International Whaling Commission and its Scientific Committee
regarding the issuance of special permits for purposes of scientific research, Judge Bhandari rejects
the Court’s conclusion that the Government of Japan has complied w ith paragraph 30. In his view,
while Japan has demonstrated formal compliance with the dictates of paragraph 30, its actions have

not demonstrated substantive compliance with the broad and purposive scope of the duty to
co-operate. Moreover, Judge Bhanda ri believes that in addition to finding that JARPA II is not a
programme for purposes of scientific research under Article VIII, paragraph 1, of the Convention,
the Court ought to have made a further pronouncement that JARPA II is a commercial whaling
programme. In his view, this conclusion is inescapable given the mutually exclusive categories of
whaling envisaged under the Convention, as well as the abundant evidentiary record chronicling
the history surrounding JARPA II, its indefinite duration, and cer tain unmistakably commercial

qualities of the programme.

Separate opinion of Judge ad hoc Charlesworth

In her separate opinion, Judge ad hoc Charlesworth addresses two specific areas in which her
views differ from those of the majority, namely, the nature of the restrictions on the use of lethal
methods “for purposes of scientific research” under Article VIII of the International Convention for
the Regulation of Whaling 1946 (ICRW), and Japan’s compliance with paragraph 30 of the

Schedule.

Judge ad hoc Charlesworth is of the view that Article VIII of the ICRW should be read in
light of resolutions on rese arch methods adopted by consensus by the International Whaling
Commission (IWC). In this regard, she argues that applicable resolutions support an interpretation
of Article VIII that the use of lethal methods should be essential to the objectives of the scientific
research programme. According to Judge ad hoc Charlesworth, the precautionary approach —

which is also relevant to the interpretation of the ICRW — reinforces the conclusion that lethal
methods should be of last resort in scientific research programmes under Article VIII.

Judge ad hoc Charlesworth concludes that Japan has breached paragraph 30 of the Schedule
in that it has failed to comply with States parties’ duty of co- operation with the Scientific
Committee, which she considers a critical el ement of the fabric of the ICRW. While the Scientific
Committee’s views on special permit proposals are not legally binding on States parties under the
terms of paragraph 30, the IWC has empowered the Committee to review and comment on such

proposals, thereby creating an obligation on the proposing State to co- operate with the Committee.
Such an obligation requires States parties to show genuine willingness to reconsider their positions
in light of the Committee’s views.

According to Judge ad hoc Charlesworth, Japan has failed to comply with its duty of
co-operation, inter alia, by (i) launching JARPA II before a review of JARPA by the Scientific
Committee had taken place; (ii) failing to give meaningful consideration to the feasibility of

non-lethal methods in the design of JARPA II; and (iii) continuing to rely on JARPA II’s original
Research Plan as a basis for subsequent annual permits in circumstances where the conduct of
JARPA II has differed in substantial ways from the scheme set out in the Research Plan.

___________