INTERNATIONAL COURT OF JUSTICE
WHALING IN THE ANTARCTIC
(Australia vpan)
New Zealand Intervening
WRITTEN OBSERVATIONS
OF
NEWZEALAND
4APRIL2013 TABLE OF CONTENTS
SECTION I: INTRODUCTION ........................................................................
.... 1
A: Outline of Written Observations ................................................................... 3
B: Principles of Interpretation ........................................................................
.... 4
SECTION II: THE SYSTEM OF COLLECTIVE REGULATION UNDER THE
CONVENTION AND ITS SCHEDULE ................................................................ 7
A: History of the Development of the Convention ............................................ 8
B: The Object and Purpose of the Convention as set out in its Preamble ....... 10
C: The Scheme and Structure of the Convention Provide for Collective
Regulation ........................................................................
..................................
D: Recognition of the System of Collective Regulation under the Convention
........................................................................
...................................................
E: Conclusion ...............................................................16.......
...........................
SECTION III: THE ROLE OF ARTICLE VIII WITHIN THE CONVENTION 17
SECTION IV: ARTICLE VIII ONLY PERMITS WHALING "FOR
PURPOSES OF SCIENTIFIC RESEARCH" ....................................................... 26
A: Whaling must be Exclusively for "Purposes of Scientific Research" ........26
B: Whether a Special Permit has been issued for the "Purposes of Scientific
Research" is to be Determined Objectively ....................................................... 28
C: The Scientific Committee and the Commission itself have provided
guidance on the meaning of "Scientific Research" ........................................... 30
D: Whether Whaling is for the Purposes of Scientific Research can be
ascertained from the Methodology, Design and Characteristics of a Proposed
Whaling Programme ........................................................................
.................. 33
E: Conclusion ........................................................................
........................... 35
SECTION V: THE NUMBERS TAKEN UNDER A SPECIAL PERMIT MUST
BE NECESSARY AND PROPORTIONATE AND HAVE NO ADVERSE
EFFECT ON THE STOCK ........................................................................
........... 36 A: The Number ofWhales Killed must be Consistent with the "Purposes of
Scientific Research" ........................................................................
................... 37
B: International Law Requires a Precautionary Approach .............................. .40
C: The Practice of the IWC Confirms that the Number of Whales Killed under
a Special Permit must be "Necessary and Proportionate" to the Objectives of the
Scientific Re search ........................................................................
..................... 42
D: Conclusion ........................................................................
........................... 45
SECTION VI: A CONTRACTING GOVERNMENT GRANTING A SPECIAL
PERMIT HAS PROCEDURAL OBLIGATIONS AND AN OBLIGATION OF
MEANINGFUL COOPERATION WHICH CAN BE DISCHARGED ONLY BY
TAKING ACCOUNT OF THE VIEWS OF THE SCIENTIFIC COMMITTEE
AND THE COMMISSION ........................................................................
............ 46
A: Contracting Governments Issuing Special Permits must comply with
Procedural Obligations set out in Article VIII and elsewhere in the Convention
........................................................................
.................................................... 46
B: The IWC has continued to Monitor Decisions to Issue Special Permits
under Article VIII ........................................................................
....................... 51
C: The Procedural Obligation to Submit Special Permits for Prior Review by
the Scientific Committee Creates a Duty of Cooperation .................................. 53
D: The Obligation of Cooperation in Complying with Procedural
Requirements is Reinforced by General International Law ............................... 55
E: The Practice of the IWC confirms the Expectation of Cooperation by
Contracting Governments ........................................................................
........... 56
F: The Obligation to Cooperate requires Meaningful Cooperation .................57
G: Conclusion ........................................................................
........................... 61
SECTION VII: CONCLUSION -THE PROPER CONSTRUCTION OF
ARTICLE VIII ........................................................................
............................... 62
LIST OF ANNEXES ........................................................................
..................... 68
11 SECTION I: INTRODUCTION
1. These Written Observations are submitted to the Court in accordance
with its Order of 6 February 2013 in relation to the intervention of the
Government of New Zealand pursuant to Article 63 of the Statute of the Court in
the case concerning Whaling in the Antarctic (Australia v lapan) 1. In that Order,
the Court decided that the Declaration of Intervention filed by New Zealand
pursuant to Article 63, paragraph 2, of the Statute was admissible, and fixed the
time-limit for the filing of these Written Observations, as provided for in Article
86, paragraph 1, of the Rules of the Court 2 .
2. New Zealand intervenes in its capacity as a party to the treaty at the
centre of these proceedings, the International Convention for the Regulation of
Whaling ("Convention") 3 . These Written Observations present to the Court
New Zealand's views on the issues of interpretation under the Convention that are
relevant to a determination of the case before the Court. In accordance with the
Order of the Court, New Zealand's intervention is confined to observations on the
construction of the convention at issue in the proceedings, and does not deal with
any other aspect of the case before the Court.
3. As outlined in its Declaration of Intervention, New Zealand considers
that the proper construction of Article VIII of the Convention, and in particular
1
Whaling in the Antarctic (Australia v lapan), Declaration of Intervention of New Zealand, Order
of6 February 2013 ("Order'').
2Ibid., paragraph 23.
3International Convention for the Regulation of Whaling, Washington D.C., 2 December 1946,
161 UNTS 74 (entered into force on 10 November 1948) ("Convention").
1 4
paragraph 1 of that Article, is in question m the case .In its Declaration of
Intervention, New Zealand has provided the following summary of the proper
5
interpretation of Article VIII of the Convention :
(a) Article VIII forms an integral part of the system of collective
regulation established by the Convention.
(b) Parties to the Convention may engage in whaling by Special Permit
only in accordance with Article VIII.
(c) Article VIII permits the killing of whales under Special Permit only
if:
1. an objective assessment of the methodology, design and
characteristics of the programme demonstrates that the killing
is only "for purposes of scientific research"; and
11. the killing is necessary for, and proportionate to, the
objectives of that research and will have no adverse effect on
the conservation of stocks; and
111. the Contracting Government issuing the Special Permit has
discharged its duty of meaningful cooperation with the
Scientific Committee and the Commission.
(d) Whaling under Special Permit that does not meet the requirements of
Article VIII, and is not otherwise permitted under the Convention, is
prohibited.
4
Declaration of Intervention Pursuant to Article 63 of the Statute hy the Government of
New Zealand, Whaling in the Antarctic (Australia v lapan), 20 November 2012 ("Declaration of
Intervention''), paragraph 16.
5Ibid., paragraph 33.
24. An outline of the interpretation of the Convention in these four respects
6
was provided in New Zealand's Declaration of Intervention . These Written
Observations further elaborate on the reasoning and authority for this
interpretation.
A: Outline of Written Observations
5. Section I of these Written Observations provides an introduction,
including a summary of the principles that guide the interpretation of Article VIII.
6. Section II describes the development and scheme of the Convention, and
identifies its abject and purpose, which is to replace unilateral whaling with a
system of collective regulation in arder to provide for the interests of the parties in
the proper conservation and management of whales.
7. Section III addresses the role of Article VIII within the structure of the
Convention. Itestablishes that Article VIII forms an integral part of the system of
collective regulation under the Convention, not an exemption from it. Article VIII
cannat be applied to permit whaling where the effect of that whaling would be to
circumvent the other obligations of the Convention or to undermine its abject and
purpose.
8. Sections IV to VI then describe the requirements for the application of
Article VIII in detail, namely that Article VIII only permits the killing of whales:
"for purposes of scientific research" (Section IV); where that is necessary and
proportionate to the purposes of research and will have no adverse effect on the
conservation of the stock (Section V); and where the Contracting Govemment
6
Ibid., paragraphs 18 to 32.
3issuing the Special Permit has discharged its duty of meaningful cooperation and
taken proper account of the views of the Scientific Committee and the
Commission (Section VI).
9. On the basis of that analysis, Section VII concludes with a summary of
the proper construction of Article VIII.
B: Principles of Interpretation
10. The interpretation of the Convention, as an international agreement, is
governed by the provisions of Articles 31 and 32 of the 1969 Vienna Convention
7
on the Law of Treaties ("Vienna Convention") . Article 31 provides as the
general rule of interpretation that "[a] treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its abject and purpose" 8.The "context" includes
the text and structure of the treaty as a whole 9, including its preamble and any
10
annexes . The "abject and purpose" may emerge from a consideration of the
aims of the treaty as may be reflected, for example, in the scheme of the treaty and
1tspream e .l 11
7 Vienna Convention on the Law ofTreaties, Vienna, 23 May 1969, II55 UNTS 331 (entered into
force on 27 January 1980) ("Vienna Convention"). Australia acceded to the Vienna Convention on
83 June 1974; Japan acceded on 2 July 1981.
Article 31(1) ofthe Vienna Convention.
9See, for example, Application of the Interim Accord of 13 Septemher 1995 (The Former Yugoslav
Repuhlic of Macedonia v Greece), Judgment of5 Decemher 2011, at paragraphs 97 and 98.
10
11Article 31(2) ofthe Vienna Convention.
See, for example, Oil Platforms (!stamic Repuhlic of Iran v United States of America),
Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 803 at p. 813 (paragraph 27); Case
concerning a dispute hetween Argentina and Chile concerning the Beagle Channel, Award, 18
February 1977, XXI UNRIAA 53 at p. 89 (paragraph 19).
411. Such interpretation must also take account of the subsequent practice of
12
the parties to the treaty , and may also be confirmed by reference to
supplementary means of interpretation 13. This Court has frequently examined the
subsequent practice of the parties in the application of a treaty as an aid to its
14
interpretation and such reference is not conditional upon ambiguity in the text .
In the context of a multilateral treaty, decisions or resolutions of constituent
organs have routinely been referred to as evidence of such practice, including
15
where these have been adopted by a vote . Similarly, this Court has referred to
supplementary means of interpretation for confirmation when it has found that
useful in conjonction with the general rule 16. Such "supplementary means of
17
interpretation" are not restricted to the preparatory work of a treaty , and may
include statements or decisions of the parties or related bodies concerning the
treaty's interpretation or application 18.
12Article 31(3)(a) and (b) ofthe Vienna Convention.
13
14Article 32 of the Vienna Convention.
See, for examp1e, Kasikili/Sedudu Island (Botswana/Namihia), Judgment, I.C.J. Reports I999,
p. 1045 at p. 1076 (paragraph 50) and the authorities cited therein.
15
See, for examp1e: Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136 at pp. 149-150 (paragraphs 27
& 28); Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports 1962, p. 151 at pp. 160-161; Constitution of the Maritime Safety
Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion,
I.C.J. Reports 1960, p. 150 at p. 168.
16
See, for examp1e: Territorial Dispute (Lihyan Arah Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 6 at p. 27 (paragraph 55); Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v Russia), Preliminary Objections, Judgment of 1
17ril 2011, at paragraph 142.
Article 32 of the Vienna Convention: "Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the circumstances of its
18nclusion..." (emphasis added).
See, for example: Kasikili/Sedudu Island (Botswana/Namihia), Judgment, I.C.J. Reports 1999,
p. 1045 at p. 1096 (paragraph 80); United States- Measures Affecting the Cross-Border Supply of
Gamhling and Betting Services, Report of the Appellate Body, WT/DS285/AB/R (7 April 2005); 111
[2005] WTO AB 2 at paragraph 196; R Jennings & A Watts Oppenheim 's International Law, 9
ed (Oxford University Press, 2008), Voll §633 at p. 1276.
512. An interpreter must also take into account any relevant rules of
international law applicable in the relations between the parties, including any
developments in those rules since the adoption of the treaty 19.Furthermore, the
principle of good faith requires a party to apply a treaty provision "in a reasonable
way and in such a manner that its purpose can be realised" 20.
13. On that basis, when interpreting Article VIII of the Convention, the
ordinary terms of the article have to be considered in the context of the
Convention as a whole including the provisions of its Schedule, which is an
"integral part" of the Convention 21 , and in light of its abject and purpose.
Consideration must be given to the practice of the parties under the Convention,
including decisions and resolutions adopted by the International Whaling
22
Commission and its Committees . Bath as evidence of subsequent practice under
Article 31(3)(b), or as supplementary means of interpretation under Article 32, of
the Vienna Convention, such decisions and resolutions shed valuable
interpretative light on the meaning of the terms of Article VIII and their proper
application. In so doing, they do not modify the terms of Article VIII, but rather
confirm the interpretation that flows from their ordinary meaning in their context.
19
Article 31(3)(c) of the Vienna Convention; see, for example: Oil Platforms (!stamic Repuhlic of
Iran v. United States of America), Judgment, I.C.J. Reports 2003, p.l61 at p. 182 (paragraph 41);
Gahéikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p.7 at pp. 67-
68 (paragraph 112); and Legal Consequences for States of the Continued Presence of South Africa
in Namihia (S.W Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p.l6 at p. 31 (paragraph 53).
20Gabéikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 Septemher 1997, I.C.J.
21ports 1997, p.7 at p. 79 (paragraph 142).
Article 1(1) ofthe Convention.
22Copies of all resolutions adopted by the International Whaling Commission referred to in these
Written Observations are published and readily available at:http://iwc.int/resolutions>Annual
Reports of the International Whaling Commission are published and readily available at:
<http://iwc.int!annual-reports>The text of the Convention, Schedule, and Rules of Procedure are
published and readily available at: <http://iwc.int/convention>.
6Interpretation of the Convention must also take account of other relevant rules of
international law applicable to the parties to the Convention.
SECTION II: THE SYSTEM OF COLLECTIVE REGULATION UNDER
THE CONVENTION AND ITS SCHEDULE
14. The International Convention for the Regulation of Whaling was
concluded on 2 December 1946 and entered into force on 10 November 1948.
23
Eighty-nine countries are currently party to the Convention . Minor amendments
24
were made by way of a Protocol adopted in 1956 .
15. The Convention creates a system for the collective regulation of whaling
in light of the common interest of States in the long-term future of whale stocks.
Whatever their individual interests in relation to whaling, parties to the
Convention have agreed to work collectively "to ensure proper conservation and
development of whale stocks" 25. The history, preamble, and scheme and structure
of the Convention each affirm that collective character. lts central objective is to
replace unregulated whaling conducted unilaterally by States with a binding
system of collective regulation in arder to provide for the interests of the parties in
the proper conservation and management of whales. States that have become
party to the Convention have in so doing chosen to forgo unilateral whaling and to
engage in whaling only in accordance with the Convention.
23Website of the International Whaling Commission, "IWC Members and Commissioners", at
24ttp://iwc.intimembers> accessed on 15 March 2013.
Protocol to the International Convention for the Regulation of Whaling, Washington D.C.,
19 November 1956, 338 UNTS 366 (entered into force 4 May 1959).
25Paragraph 6 of the Preamb1eto the Convention.
7 A: History of the Development of the Convention
16. The Convention was developed against the backdrop of a significant
decline in global whale stocks, following the dramatic increase in commercial
catches during the late 19th and early 20th centuries 26. lt followed various efforts,
commencing in 1927, to "control the enormous expansion of the whaling industry,
which was constituting a real menace to the maintenance of the whale stocks'm.
As a first step, a Convention for the Regulation of Whaling was developed under
the auspices of the League of Nations, and opened for signature in Geneva in 1931
("1931 Geneva Convention") 28. Althougb attracting twenty-eight parties, the
l931 Geneva Convention failed to altract the membership of severa[ countries
29
activdy engaged in \vhaling . It thus similarly failed to curb catch levels, which
. d . . 'f' l 30
contmue to nse s1gm tcant y .
n. In 1937 the British Government invited a group of interesied nations io
meet in London "in the hope that we may all agree upon measures of protection so
that the endeavours of some countries may not be defeated by the enterprise of
others'' 31• That conference conduded with the adoption of the International
32
Agreement for the Regulation of W1wling ("l 937 Agreement") , This
26
See International Whaling Commission Report, Eighth Report of the Commission, 1957, at
pp. 3-5.
27Ibid., at p. 3 (paragraph 4).
28
Convention for the Regulation ofWhaling, Geneva, 24 September 1931, 155 LNTS 349 (entered
into force 16 January 1935).
29See L. Leonard "Recent Negotiations toward the International Regulation of Whaling" (1941)
35 Am. J.lnt'l L. 90, ("Leonard, Recent Negotiations toward Regulation ofWhaling"), at p. 100.
30
31Ibid., at p. 93.
Minister of Agriculture and Fisheries for the United Kingdom, "Minister's Speech at the
Opening ofthe Conference", (ICW/1937/3), 24 May 1937, Japan's Counter-Memorial, Annex 7,
Vol li, atp.101.
32
International Agreement for the Regulation of Whaling, London, 8 June 1937, 190 LNTS 79
(entered into force 7 May 1938).
8Agreement \vas extended by the agreement of the parties through a number of
Protocols adopted between 1937 and 1945 33.
18. As with its predecessor, the 1937 Agreement was less than fully
comprehensive. It provided for restrictions on whaling to be renegotiated
annually on a season by season basis 34. ln addition, despite efforts to meet their
concerns, some of the major \vhaling nations (induding Japan) did not join and
continued to develop their whaling industries outside the framework of the
1937 Agreement:;:;. Despite the effmts of the 1937 Agreement, whaling ihus
remained largely uncontrolied.
19. Such uncontrolled whaling continued to pose a significant risk to the
long-tem1 survival of whale stocks. That risk was foreshadowed in the Final Act
on the adoption of the 1937 Agreement itselJ: "the purpose of this present
agreement may be defeated by the development of unregulated whaling by other
36
countries" . As the Minister for Agriculture and Fisheries for the United
Kingdom put it when the parties to the 1937 Agreement met one year later,
regulation under lhat agreement \Vas ineffective so long as "other Governments
stand aside and, under whatever excuse, permit, or even encourage, uncontrolled
37
exploitation'' •
33These are outlined in detail in Australia 'sMemorial at p. 14 (note 34).
34
International Whaling Commission Report, Eighth Report of the Commission, 1957, at p. 3
(paragraph 5).
35Leonard, Recent Negotiations toward Regulation ofWhaling, at pp. 105, 111
36International Agreement for the Regulation of Whaling [with Final Act of the Conference],
UKTS 037/1938: Cmd 5757, pp 9-11, at p. 11 (paragraph 10), Japan 's Counter-Memorial, Annex
13, Vol li,p.119.
37 Minister of Agriculture and Fisheries for the United Kingdom, "Minister's Speech at the
Opening of the Conference", 14 June 1938, London, quoted in Leonard, Recent Negotiations
toward Regulation ofWhaling, at p. 103.
920. As the Commission itself has noted, with that in mind "the member
governmenis now decided lhai a reappraisat of the whole situation was required
and that a new and more abiding agreement would be preferable to the 1937
[Agreement]" JR • In 1946 the United States' Government convened an
International Conference in Washington D.C., to negotiate a new agreement "io
place whale conservation on a permanent basis" 39. The purpose of ihe agreement,
as explained by the Chairman of the Conference, was "to develop a sound
conservation program which will maintain an adequate and healthy breeding
40
siock" . And the iask set was that of "concluding an international convention
which will give furthcr impelus to worid-wide cooperation in ihe conservation of
41
whale resources" •
21. The Convention concluded in 1946 represented the outcome of those
negoüaüons. Itwas signed on 2 Dccembcr of that year, and entcred into force Iwo
years lateL
B: The Object and Purpose of the Convention as set out in its Preamble
22. The preamble to the Convention reflects the history behind its
development and provides valuable insight into the objectives of the negotiating
38International Whaling Commission Report, Eighth Report of the Commission, 1957, at p. 4
(paragraph 8).
39
Statement of the Delegate of the United States of America; International Whaling Conference,
Washington D.C., I946, Opening Session, Japan 's Counter-Memorial, Annex 16, at p. 129.
40 Statement of the Chairman; International Whaling Conference, Washington D.C., I946,
"Minutes ofthe Second Session" (IWC/14), p. 13, para 137, Japan 's Counter-Memorial, Annex
17, Vol li, at p. 140.
41
Address by the Hon. C Girard Davison, Assistant Secretary of the United States Department of
the Interior at a Dinner in Honor of the Delegates to the International Whaling Conference",
Japan 's Counter-Memorial, Annex 21, Vol li, at p. 171.
10 42
parties . lt is generally accepted that the provisions of the preamble to a treaty
"may be relevant and important as guides to the manner in which the Treaty
should be interpreted, and in arder, as it were, to 'situate' it in respect of its abject
and purpose" 43 .
23. As expressed in the preamble, the adoption of the Convention results
from the acknowledgement by the negotiating governments of their common
interest in whale stocks, their recognition of the threat to that interest posed by
unregulated whaling, and their accompanying desire to establish a collective
regime for the regulation of all aspects of whaling. That collective purpose stands
in contrast to what had occurred before - rampant uncontrolled whaling and the
consequent catastrophic decline in whale stocks.
24. The preamble opens with the recognition of the "interest of the nations of
the world in safeguarding for future generations the great natural resources
represented by whale stocks" 44 . Governments additionally recorded their
45
"common interest" in the restoration of whales stocks "as rapidly as possible" .
They identified the greatest threat to that common interest as "the history of
whaling [which had seen] over-fishing of one area after another and of one species
of whale after another" 46 . The negotiating governments accordingly
acknowledged the need for whaling to be "properly regulated" 47 and for whaling
42 See, for examp1e, Oil Platforms (!stamic Repuhlic of Iran v United States of America),
Preliminary Objection, Judgment, I.C.J. Reports !996, p. 803 at p. 813 (paragraph 27).
43
Case concerning a dispute hetween Argentina and Chile concerning the Beagle Channel, Award,
18 February 1977, XXI UNRIAA 53 at p. 89 (paragraph 19).
44Paragraph 1 of the Preamb1e to the Convention.
45Paragraph 4 of the Preamb1e to the Convention.
46
47Paragraph 2 of the Preamb1e to the Convention.
Paragraph 3 of the Preamb1e to the Convention.
11 48
operations to be "confined" , and recorded their desire to "establish a system of
international regulation for the whale fisheries to ensure proper and effective
conservation and development of whale stocks" 49.
25. On that basis, the parties "decided to conclude a convention to provide
for the proper conservation of whale stocks and thus make possible the orderly
50
development of the whaling industry" . The object and purpose of the
Convention was, and is, therefore to replace unregulated, unilateral whaling by
States with a system of collective regulation through which the interests of the
parties in the proper conservation and management of whales can be achieved.
C: The Scheme and Structure of the Convention Provide for Collective
Regulation
26. That object and purpose is evident from the scheme and structure of the
Convention itself. In order to achieve the aims of the Convention, no room is left
for the parties to engage in whaling outside the Convention's rules. No aspect of
whaling is left unaddressed within the Convention - regulation extends to all
act1v1tles assocmte. d w1t w a mgl' 51, w erever an d h owever con ucte d 52 . In
support of this the regulations in the Schedule contain an extensive number of
53
restrictions on whaling activity, including restrictions on seasons ,methods and
54 55 56
means of capture ,catch limits ,and the treatment of whales after capture .
48Paragraph 5 of the Preamble to the Convention.
49Paragraph 6 of the Preamble to the Convention.
50
51Paragraph 7 of the Preamble to the Convention.
See Article V(l) of the Convention, and the detailed regulations contained in the Schedule to the
Convention (as amended hy the Commission at the 63rdAnnual Meeting, July 2011) ("Schedule").
52Article 1(2) of the Convention.
53
54See Part Il of the Schedule.
See Part Ill of the Schedule.
1227. Reflecting the "interest of the nations of the world" in safeguarding
whale stocks, as recognized in the preamble, membership of the Convention is
open to all States, not merely those with an active whaling industry 57• All parties,
whether they have a whaling industry or not, are placed on an equal footing under
the Convention because all parties share an interest in the proper conservation and
management of whales. lt is therefore not correct to characterise "the key and
final aim" of the Convention solely as "the orderly development of the whaling
industry", as Japan attempts to do 58.
28. The Convention's objective of collective regulation is in turn achieved
through a process of collective decision making. The Convention establishes the
International Whaling Commission, composed of one member from each
Contracting Government 59. The Commission may adopt regulations governing
protected and unprotected species, whaling seasons, open and closed waters
including sanctuaries, size and catch limits, methods of whaling including gear
60
types, and methods of measurement and catch returns .
29. The regulations adopted by the Commission take the form of
amendments to the Schedule, which forms an integral part of the Convention 61 .
The Schedule as it currently stands consists of 31 paragraphs, containing detailed
55
56See Part Ill of the Schedule, in particular paragraphs lü to 13.
See Part IV of the Schedule.
57Article X(2) of the Convention.
58Japan 's Counter-Memorial, paragraph 6.11.
59
Article lll(l) of the Convention. ln these Written Observations, "IWC" is used to refer to the
inter-governmental organisation established under the Convention (including its Secretary, the
Commission and its committees ), while the term "Commission" is used to refer to the organ
responsible for exercising the functions set out in theention.
60
61Article V(l) ofthe Convention.
Article l(l) ofthe Convention.
13restrictions on all aspects of whaling. Central within those restrictions are three
prohibitions on commercial whaling activity. Paragraph 7 of the Schedule
prohibits all commercial whaling in certain areas of the Indian and Southem
Oceans that have been designated as sanctuaries 62 . Paragraph lO(e), commonly
referred to as "the moratorium", provides that "the catch limits for the killing for
commercial purposes of whales from all stocks for the 1986 coastal and the
1985/86 pelagie seasons and thereafter shall be zero". Paragraph 10(d) imposes a
moratorium on the use of factory ships, except in relation to minke whales.
30. A regulation can be adopted by a three-fourths majority of those casting
63
an affirmative or negative vote . Once adopted it is binding on each Contracting
64
Govemment unless it presents an objection to it . Each Contracting Govemment
is required to take appropriate measures to ensure the application of the provisions
of the Convention and the punishment of infractions committed by persans or
vessels under its jurisdiction 65. Information on any such infractions is to be
transmitted to the Commission 66. Parties to the Convention have therefore agreed
to abide by the outcomes of the collective decision making mechanisms it
contains, and have accepted that they may not engage in whaling except in
compliance with the Convention's rules.
31. In addition, the Commission may make recommendations to "any or all"
of the Contracting Govemments to the Convention "on any matters which relate
62
63Provided for at paragraphs 7(a) and (b) of the Schedule.
International Whaling Commission July 2012, Rules of Procedure and Financial Regulations
(as amended hy the Commission at the 64 Annual Meeting) ("Rules of Procedure"), Rule E (3)(a).
64Article V(3) of the Convention.
65
66Article IX(l) of the Convention.
Article IX(4) of the Convention.
14 67
to whales or whaling and to the objectives and purposes of [the] Convention" •
Such recommendations can be adopted by the vote of a simple majority of those
68
casting an affirmative or negative vote . Since its first meeting in 1949, the
Commission has adopted over 200 resolutions, bath directed to all members and
to specifie States, on a wide range of issues relating to whales and whaling 69.
Those resolutions serve as an expression of the collective views of parties under
the Convention in relation to the protection of their interests in the proper
conservation and management of whales.
D: Recognition of the System of Collective Regulation under the Convention
32. The preeminent role of the IWC in regulating whaling, rather than
leaving it in the hands of individual States, is reflected in the fact that its
70
membership has grown over time from twelve States at its first meeting in 1949
71
to eighty-nine today . Many of the Contracting Govemments have no whaling
industry, or history of whaling activity. Their interest therefore lies in the proper
conservation and management of whales themselves, not in the preservation of the
whaling industry. That wider emphasis is supported by the repeated
acknowledgement of the role of the IWC in the regulation of whaling in
international conferences and by other bodies, including the 1972 Stockholm
Conference on the Human Environment, the 1992 Rio Conference on
Environment and Development and the Conference of the Parties to the
67
68Article VI of the Convention.
69Rules of Procedure, Rule E (3)(a).
Website of the International Whaling Commission, "Resolutions",
<http://iwcoffice.org/resolutionaccessed on 15 March 2013.
70International Whaling Commission Report, First Report of the Commission, 1950, at p. 3
71aragraph 8).
Website of the International Whaling Commission, "Membership and Contracting Governments",
<http://iwc.int/members>,accessed on 15 March 2013.
15Convention on International Trade in Endangered Species of Wild Fauna and
72
Flora . The system of collective regulation under the Convention has thus been
recognised as the mechanism by which the proper conservation and management
of whales can be achieved.
E: Conclusion
33. The preamble to the Convention and its scheme and structure indicate
clearly the abject and purpose of the Convention. It flows from the "interest of
the nations of the world in safeguarding for future generations the great natural
resources represented by whale stocks'm. Whatever their individual interests in
relation to whaling, parties to the Convention have agreed to work collectively "to
establish a system of international regulation ...to ensure proper conservation and
development of whale stocks" 74. The Convention provides for the "proper
conservation of whale stocks" and the "orderly development" of the whaling
industry- bath to be achieved through collective rather than unilateral State action.
The abject and purpose of the Convention was, and is, therefore to replace
unregulated, unilateral whaling by States with collective regulation as a
mechanism to provide for the interests of the parties in the proper conservation
and management of whales. This abject and purpose of the Convention provides
an important background against which Article VIII of the Convention is to be
understood.
72
See, for example: Recommendation 33 adopted by the UN Conference on the Human
Environment at Stockholm, 16 June 1972 (IIILM 1416 (1972)); paragraph 17.62 of Agenda 21
approved by the UN Conference on Environment and Development at Rio de Janeiro, 13 June
1992 (UN Doc A/CONF.l5l/26 (Vols l, II & Ill) (1992)); Resolution 11.4 adopted by the 11
Meeting of the Conference of the Parties to the Convention on International Trade in Endangered
Speciesof Wild Fauna and Flora at Gigiri, 10-20 April2000 (Conf 11.4 (Rev. CoPl2)).
73Paragraph l of the Preamble to the Convention.
74Paragraph 6 of the Preamble to the Convention.
16 SECTION III: THE ROLE OF ARTICLE VIII WITHIN THE
CONVENTION
34. Scientific information is central to the role of the IWC under the
Convention and forms a key part of the system of collective regulation under the
75
Convention. The Commission must base its regulations "on scientific findings" •
Article IV of the Convention identified the collection of scientific information as a
core function of the Commission 76• Accordingly the Commission has specifically
established a Scientific Committee to review scientific information and research
77
programmes . The Convention provides for such information to be gathered in
78
connection with the operation of whaling activities , and by research encouraged,
79
recommended or organised by the Commission itself , or conducted by
individual parties under Special Permit 80. Contracting Governments are obliged
to transmit data and statistical information relating to whales and whaling to a
81
central body designated by the Commission . The collection and sharing of
scientific information by the IWC and its individual members is thus intended as a
means, within the system of collective regulation under the Convention, to
achieve its abject and purpose.
35. The conduct of scientific research by individual Contracting
Governments through Special Permits is provided for in Article VIII as follows:
75Article V(2)(b) ofthe Convention.
76Article IV of the Convention.
77
78Rules of Procedure, Rule M(4)
Articles VII and Vlll(4) ofthe Convention.
79Article IV of the Convention.
80Article VIII of the Convention.
81
Articles VII and Vlll(3) of the Convention; Section VI of the Schedule.
17 (1) 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.
(2) Any whales taken under these special permits shall so far as
practicable be processed and the proceeds shall be dealt with in
accordance with directions issued by the Government by which the
permit was granted.
(3) Each Contracting Government shall transmit to such body as may be
designated by the Commission, insofar as practicable, and at
intervals of not more than one year, scientific information available
to that Government with respect to whales and whaling, including
the results of research conducted pursuant to paragraph 1 of this
Article and to Article IV.
(4) Recognizing 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, the Contracting Governments will take all
practicable measures to obtain such data.
36. Whaling under an Article VIII Special Permit has a character that is
distinct from other whaling provided for in the Convention, in that it is permitted
only for the specifie limited purpose of "scientific research". Article VIII has
82
accordingly been described as a "concession" . lt enables a party to the
Convention to carry out research to obtain scientific data necessary to support the
82
P. Birnie International Regulation of Whaling: From Conservation of Whaling to Conservation
of Whales and Regulation of Whale-Watching (Oceana Publications, 1985), Vol l, ("Birnie,
International Regulation ofWhaling")p.a190.
18work of the IWC freed from the constraints placed on commercial whaling
83
operations . In that sense, it forms an integral part of the system of collective
regulation under the Convention rather than a complete exemption from it. That
is clear bath from the terms of the article and its context. In this regard, the
analogy that Japan attempts to draw in its Counter Memorial between Article VIII
84
and "self-contained regimes" is misplaced .
37. An indication of the link between the provision for Special Permits in
Article VIII and the Convention as a whole is the fact that Article VIII itself is not
limited to Special Permit whaling. While the first two paragraphs of the article
relate to issuing permits for whaling for the purposes of scientific research, the
third and fourth paragraphs are broader in scope, relating to scientific information
acquired by Contracting Govemments more generally, and not just scientific
information acquired under Special Permits. This reinforces the fact that Special
Permit whaling is an integral part of the overall Convention regime for the
gathering of scientific information and not something that is separate and apart
from the rest of the Convention.
38. The scope of the discretion granted to Contracting Govemments in
respect of issuing Special Permits is set out in the first paragraph of Article VIII.
This provides that "any Contracting Govemment may grant to any of its nationals
a Special Permit" (emphasis added). ltis a discretion to grant Special Permits for
purposes of scientific research, "notwithstanding anything contained in this
83See comments of the Chairman introducing draft Article VIII to the negotiating conference,
International Whaling Conference, Washington D.C., !946: Minutes of the Third Session
(IWC/20), p. 10 at para 103, Australian Memorial, Annex 69, Vol li, pp. 315-316: "Itexempts
certain scientific investigationsfrom the Conservation Regulations applicable to ordinary
commercial operation."
84Japan 's Counter-Memorial, paragraph III.6, p. 299.
19Convention". In its Counter Memorial Japan seeks to interpret these words as a
blanket exclusion of Article VIII from the provisions of the Convention 85. But,
this is to ignore the words as they are actually used in their particular context in
paragraph one and in Article VIII as a whole. As already mentioned, Article VIII
does more than provide for Special Permit whaling - it contains provisions
applicable to information gained from scientific research by all means. On that
basis alone the Article clearly is intended to form part of the fabric of the
Convention and cannot be viewed as "free-standing".
39. The words "notwithstanding anything contained in this Convention" do
not apply to Article VIII as a whole, or even to the whole of the first paragraph of
Article VIII. They apply only to the words that immediately follow them- "any
Contracting Government may grant to any of its nationals a Special Permit. ...".
They relate to the discretion of Contracting Governments to grant Special Permits.
In other words, a Contracting Government may issue a Special Permit for
purposes of scientific research despite the restrictions imposed on commercial and
other forms of whaling under the Schedule. The words provide no greater
concession from the Convention provisions than that. And their need is obvious.
Without such a provision, a "Special Permit" could not be issued; the rules
relating to commercial whaling would continue to apply. But the words do not
constitute a blanket exemption for Special Permit whaling from all aspects of the
Convention. They provide a limited discretion for Contracting Governments to
issue Special Permits for the specifie articulated purpose of scientific research.
85 Japan 's Counter-Memorial, paragraph 7.8: "The opening words of Article VIII
("Notwithstanding anything contained in this Convention") make clear that the provisions of
Article VIII are free-standing and not to be read down by reference to any other provision of the
ICRW."
2040. The interpretation that the words "notwithstanding anything contained in
the Convention" were intended to apply only to the granting of a permit and not to
all aspects of Special Permit whaling is reinforced by what is contained in the rest
of the first paragraph. The paragraph contemplates that Special Permits will be
subject to conditions, specifically mentioning restrictions as to the number of
whales to be taken, and gives the Contracting Govemment granting the Special
Permit sorne discretion in the setting of those conditions. If the opening words of
the first paragraph had intended to be a complete exemption from the provisions
of the Convention for all aspects of Special Permit whaling, then no such
reference to the discretion of the Contracting Govemment in relation to the
conditions attached to a Special Permit would have been necessary.
41. A further indication that the words "notwithstanding anything contained
in this Convention" were not to apply to all aspects of Special Permit whaling is
found in the latter part of the first paragraph of Article VIII. There it is provided
that the "killing, taking or treating" of whales in accordance with Article VIII, is
"exempt from the operation of this Convention". Again such a provision would
have been unnecessary if the opening words of the paragraph, "notwithstanding
anything in the Convention", were intended to caver all aspects of Special Permit
whaling. lt is contrary to basic principles of treaty interpretation to assume that
the Parties intended to include in their treaty a provision that was meaningless 86.
42. There is further confirmation for this more limited scope of the words
"notwithstanding anything contained in this Convention" when the phrase 1s
considered within the context of the Convention's provisions requiring a
86 111
See, for examp1e, R. Jennings & A. Watts Oppenheim 's International Law, 9 ed. (Oxford
University Press, 2008), Vo1I §633 at pp. 1280-1281.
21Contracting Government to submit Special Permits to the Scientific Committee
for prior review and comment, notify them to the Commission once issued, and
report the results obtained through the Commission and Scientific Committee.
Article VIII, paragraph 1, requires that "[e]ach Contracting Government shall
report at once to the Commission" any Special Permit it has issued. Paragraph 3
of the Article further requires that the Contracting Government "shall transmit to
such body as may be designated by the Commission ...the results of research
conducted pursuant to paragraph 1 of this Article". Under Paragraph 30 of the
Schedule to the Convention, Contracting Governments are obliged to submit
proposed Special Permits to the Scientific Committee before they are issued in
arder "to allow the Scientific Committee to review and comment on them". Such
requirements are fundamentally at odds with Japan's characterisation of Special
87
Permit whaling as "entirely outside the scope of the [Convention]" • But they are
fully consistent with Article VIII's role as an integral part of the collective regime
of the Convention. As will be described in detail in Section VI, the established
practice of the Commission and Scientific Committee in monitoring the issue of
Special Permits further underscores the fact that Contracting Governments see
8
Special Permit whaling as firmly within and not outside the Convention regimé .
43. Thus, Article VIII provides that Contracting Governments may issue
Special Permits for whaling subject to important restrictions. A Contracting
Govemment may issue a Special Permit "notwithstanding" the ordinary rules of
the Convention, provided it does so for the "purposes of scientific research" and
subject to conditions, including limiting the number of whales to be killed or
taken. Only Special Permit whaling that is conducted "in accordance with" the
87Japan 's Counter-Memorial, paragraph 7.8.
88Infra paragraphs 90 to 93.
22requirements of Article VIII is exempt from the operation of the Convention.
Contrary to Japan's daims in its Counter Memorial 89, there is no regime of
Special Permits for whaling for the purposes of scientific research that is separate
and apart from the rest of the Convention. Special Permits are a mechanism
authorized under the Convention to aid in fulfilling the needs of the Contracting
Governments to obtain the scientific research necessary for the IWC to carry out
its functions. As such, they form an integral part of the collective regime of the
0
Convention, not a free-standing "right" as Japan seeks to characterise ië .
44. In light of this, Contracting Governments issuing Special Permits have
certain obligations. They can issue permits only for the purposes of scientific
research. They have an obligation to set a limit on the catch under any Special
Permit. And they have an obligation to comply with procedural requirements in
the issuing of Special Permits. As will be described in Section VI, that obligation
requires meaningful cooperation between a Contracting Government granting a
Special Permit and other Contracting Governments through the Scientific
Committee and the Commission.
45. Beyond this, Contracting Governments have obligations under customary
international law when acting under Article VIII. Any discretion that Contracting
Governments have with respect to Special Permits, including the discretion to
determine the number of whales to be taken under a Special Permit, is not
unfettered and its exercise remains subject to review to ensure that it is exercised
91
properly and in good faith . A "proper" exercise of discretion requires that
89 Japan 's Counter-Memorial, paragraph 7.8.
90Ibid., paragraph 7.9.
91Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment,
I.C.J. Reports 2008, p. 177 at p. 229 (paragraph 145): "The Court begins its examination of
23Article VIII must be applied for the purpose for which it has been included in the
92
Convention, namely "scientific research" . The principle of good faith requires
not merely a proper purpose, but also the exercise of the powers provided under
Article VIII in a reasonable way within the collective regulatory regime of the
Convention so that its abject and purpose can be achieved: "The principle of good
faith obliges the Parties to apply [the treaty] in a reasonable way and in such a
93
manner that its purpose can be realized" . As an integral part of the Convention,
Article VIII forms part of the collective system by which the parties' interests in
the proper conservation and management of whales are to be realised. lt follows
that Article VIII cannat be applied to permit whaling where the effect of that
whaling would be to circumvent the other obligations of the Convention or to
94
undermine its central objective . This has been specifically acknowledged by the
95 96
Commission . Indeed, Japan appears to accept this in its Counter Memorial .
Article 2 of the 1986 Convention by observing that, while it is correct, as France daims, that the
terms of Article 2 provide a State to which a request for assistance has been made with a very
considerable discretion, this exercise of discretion is still subject to the obligation of good faith
codified in Article 26of the 1969 Vienna Convention on the Law of Treaties [...]. This requires it
to be shawn that the reasons for refusai to execute the letter rogatory fell within those allowed for
in Article2."
92 See, for example: Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v
France), Judgment, I.C.J. Reports 2008, p. 177 at p. 229 (paragraph 145); Navigational and
Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2009, p. 213, at p. 241
(paragraph 61): "Thus, the language found in Article VI means that the right of free navigation
granted to Costa Rica in that provision applies exclusive! y within the ambit of navigation "for the
purposes of commerce" and ceases to apply beyond that ambit."
93
Gabéikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 Septemher 1997, I.C.J.
Reports 1997, p. 7, at pp. 78-79 (para 142).
94See, for example, the International Law Commission commentary to what became Article 26 of
the Vienna Convention: "Sorne members felt that there would be advantage in also stating that a
party must abstain from acts calculated to frustrate the abject and purpose of the treaty. The
Commission, however, considered that this was clearly implicit in the obligation to perform the
treaty in good faith and preferred to state the pacta sunt servanda rule in as simple a form as
possible."(Yearhook of the International Law Commission, 1966, Vol li, at p. 211 (paragraph 4))
95JWC Resolution 1995-9, "Resolution on Whaling under Special Permit", (adopted by majority
vote; 23 Y: 5N: 2A), at preambular paragraph 4: ""WHEREAS Contracting Governments, in
exercising their rights under Article Vlli, should nevertheless respect fully the Commission's
2446. The particular characteristics of Special Permit whaling under
Article VIII, which is conducted by individual States within the framework of a
Convention that focuses on collective regulation in place of unilateral action,
suggests that caution has to be exercised in the interpretation and application of
Article VIII. An expansive interpretation of Article VIII could lead to an
undermining of the system of collective regulation under the Convention- flying
in the face of its very abject and purpose. In light of this, a restrictive rather than
an expansive interpretation of the conditions in which a Contracting Government
may issue a Special Permit under Article VIII is warranted.
47. In the following sections, New Zealand will elaborate on, first, the
content of the requirement that permits be granted only for purposes of scientific
research; second, the nature of the obligation on Contracting Governments
granting Special Permits to limit the number of whales taken under such permits;
and third, the content of the procedural requirements for the granting of Special
Permits and the fact that they must be complied with in a way that involves
meaningful cooperation on the part of the granting Contracting Government with
the Scientific Committee and the other Contracting Governments through the
Commission.
arrangements to conserve whales and ensure that the killing, taking and treating of whales for
scientific research is only undertaken in a manner consistent with the provisions and principles
96e Convention."
Japan 's Counter-Memorial, paragraph 7.16. See also Australia 'sMemorial, paragraph 4.54.
25 SECTION IV: ARTICLE VIII ONLY PERMITS WHALING "FOR
PURPOSES OF SCIENTIFIC RESEARCH"
A: Whaling must be Exclusively for "Purposes of Scientific Research"
48. Article VIII, paragraph 1, provides that Special Permits may only
authorise "killing, taking or treating of whales for purposes of scientific research"
(emphasis added). The terms of the article are thus clear that it does not permit
whaling for purposes other than "scientific research". As the Court observed in
Navigational and Related Rights (Costa Rica v Nicaragua) "expressly stating the
purpose for which a right may be exercised implies in principle the exclusion of
all other purposes'm. This is reinforced when Article VIII is read in the broader
context of the Convention as a whole, which elsewhere refers to whaling "for
commercial purposes" 98and "aboriginal subsistence whaling" 99. The statement of
a specifie purpose in Article VIII clearly indicates that other purposes referred to
elsewhere in the Convention are not intended to be included within that provision.
49. While Article VIII, paragraph 2, recognises that meat and other products
obtained from a whale killed under a Special Permit may be distributed, it is
equally clear that whaling for the purpose of the sale or supply of whale meat is
not a permitted purpose under Article VIII. If the whaling is directed or designed
towards another purpose, such as the sale or supply of meat, then its purpose
ceases to be "scientific" and becomes "commercial", even if it still involves the
collection of sorne scientific data. The Commission has emphasised that any
whaling under Special Permit must be "conducted strictly in accordance with
97Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2p.9,
213 at p. 241 (paragraph 61).
98Paragraph 10(e) ofthe Schedule.
99Paragraph 13(a) ofthe Schedule.
26scientific requirements" 100. This is confirmed by subsequent statements of the
Commission that "Article VIII of the Convention is not intended to be exploited
in arder to provide whale meat for commercial purposes and shall not be so
101
used" .
50. The exclusivity of purpose in Article VIII is further confirmed by
subsequent State practice under the Convention. As discussed further in
Section VI, at the eighth meeting of the Commission, Norway formally objected
to a permit that had been issued by the United Kingdom on the grounds that the
stated purpose (to test an electric harpoon) was "outside the ambit of
Article VIII" 102. The United Kingdom subsequently suspended the application of
103
the permit and no whales were taken . Russia, too, has in the past refrained
from pursuing Special Permit whaling in light of concerns expressed about the
design and purpose of its proposed programme by the Scientific Committee and
the Commission 104. These examples underscore an acceptance by the parties to
the Convention that Article VIII does indeed mean what it says- the only purpose
for which a Special Permit may be issued is "scientific research".
100 !WC Resolution !985:2 "Resolution on Special Permits" (adopted by consensus), at
101agraph 4.
!WC Resolution 2003:2 "Resolution on Whaling under Special Permit" (adopted by majority
vote, 24Y:20N:1A), at paragraph 3.
102International Whaling Commission Report, Eighth Report of the Commission, 1957, at p. 8
(paragraph 31).
103 Ibid.
104Chairman's Report of the 43rdAnnual Meeting, Rep. !nt. Whal. Commn. 42, 1992 at pp. 14-15;
111
Chairman's Report of the 44 Annual Meeting, Rep. !nt. Whal. Commn, 43, 1993, at p. 29.
27 B: Whether a Special Permit has been issued for the "Purposes of Scientific
Research" is to be Determined Objectively
51. "Scientific research" is the only purpose for which a Special Permit may
be issued. ltis thus the essential condition on which invocation of Article VIII is
predicated. Whether whaling is conducted for "purposes of scientific research" is
not a matter for unilateral determination by a Contracting Government issuing a
Special Permit. The question is not "self-judging" - the language of the provision
does not leave it to the Contracting Party to determine whether an activity is "for
105
purposes of scientific research" . Further, Article VIII is clearly distinguishable
from classic "self-judging" provisions, such as Article XXI of the General
Agreement on Tariffs and Trade (GATT), which authorizes a Contracting Party to
take measures "which it considers necessary". The first sentence of Article VIII
paragraph 1 does not provide for such subjectivity. lt simply provides that a
Contracting Government may grant a permit "for purposes of scientific research".
lt is stated as an objective requirement, not as something to be determined by the
granting Contracting Government. And in any event "self-judging" provisions
typically relate to the essential sovereign interests of a State, such as national
security 106. No such essential sovereign interest is engaged by Article VIII. To
the contrary, scientific research provided for in Article VIII relates directly to the
collective interests of the parties to the Convention in obtaining scientific
information necessary for the proper conservation and management of whales.
105See, for example: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America), Merits, Judgment, I.C.J. Reports 1986, 14, at p. 116 (para 222) and
p. 141 (para 282); Sempra Energy Limited v Argentine Repuhlic, ICSID Case No Arb/02/16,
Award, 28 September 2007, at pp. lll-112 (para 379) and p. 113 (para 383).
106 See, for example: S Schill/R Briese "If the State Considers: Self-Judging Clauses in
International Dispute Settlement" (2009) 13 Max Planck UNYB 61 at p. 63; S. Rose-Ackerman/B.
Bilia "Treaties and National Security", (2009) 40 NU.J. lnt L. & Pol., 437 et seq.
2852. lt is therefore not enough that a Contracting Govemment itself describes
its whaling as "for purposes of scientific research". That purpose must also be
demonstrable from an objective assessment of the activity. lt is a question of
substance, not form. Parties to the Convention have unanimously recognised that
whaling conducted for self-declared "scientific purposes" may in fact have the
107
"characteristics of commercial whaling" . Renee, it is important that whaling
for scientific purposes can be objectively demonstrated to be so. Contrary to
Japan's suggestion 108,the Court can determine whether that purpose has been
demonstrated in a particular case 109.
53. The objective character of the requirement that whaling under Special
Permits be conducted only for purposes of scientific research is further apparent
when Article VIII is read in the context of the Convention as a whole, in particular
the procedural obligations under Article VIII and Paragraph 30 of the Schedule.
A proposed Special Permit must state the "objectives of the research" in arder to
enable the Scientific Committee to "review and comment on them" 110. The
Scientific Committee's Rules of Procedure further provide that the Committee
"shall review the scientific aspects of the proposed research"lll. This requirement
was adopted expressly in arder to "assure the validity and utility of the proposed
research" 112 . The review process required by Paragraph 30 of the Schedule
clearly indicates that the question of whether a proposed whaling programme
107
!WC Resolution 1985-2 "Resolution on Scientific Permits" (adopted by consensus), at
paragraph 3.
108Japanese Counter-Memorial at paragraph 9.7.
109See, for example: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America), Merits, Judgment, I.C.J. Reports 1986, 14, at p. 116 (para 222) and
p. 141 (para 282).
110Paragraph 30(a) of the Schedule.
111Scientific Committee Rules of Procedure, Rule F.
112 111
Report of the Scientific Committee to the 29 Meeting of the Commission, Rep. !nt. Whal.
Commn, 28, 1978, p. 41 at paragraph 9.3.2; and infra paragraphs 87 to 89.
29under Special Permit is for "scientific purposes" is intended to be capable of
objective assessment. ltis not determined simply by the expressed intention of
the Contracting Government proposing to issue the permit.
54. The point is further reinforced when Article VIII is considered in light of
the object and purpose of the Convention as a whole. The object and purpose of
the Convention is to replace unilateral whaling by States with a binding system of
collective regulation through the IWC. ltwould be entirely inconsistent with that
objective if a Contracting Government could just state that its whaling is "for
purposes of scientific research" whether or not it could be shown objectively to be
so. Such an interpretation would undermine the collective regulatory system
established by the Convention, rendering much of that collective effort essentially
worthless.
C: The Scientific Committee and the Commission itself have provided
guidance on the meaning of "Scientific Research"
55. The Commission has adopted a series of resolutions providing guidance
to the Scientific Committee when carrying out its review of Special Permits under
Paragraph 30 of the Schedule. Those resolutions, and the Guidelines adopted by
the Scientific Committee in accordance with them, shed significant light on what
constitutes "scientific research" under Article VIII. They confirm the intended
meaning of, rather than modify, the terms of Article VIII. As such, the resolutions
provide a valuable interpretative aid, in accordance with both Articles 31(3) and
113
32 of the Vienna Convention .
113See, for examp1e: Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion,C.J. Reports 2004, p. 136 at pp. 149-150 (paragraphs 27
& 28); Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
3056. In 1986, the Commission unanimously recommended that when
considering issuing special research permits Contracting Govemments:
"should take into account whether:
(1) the objectives of the research are not practically and scientifically
feasible through non-lethal research techniques;
(2) the proposed research is intended, and structured accordingly to
contribute information essential for rational management of the
stock;
(3) the number, age and sex of whales to be taken are necessary to
complete the research and will facilitate the conduct of the
comprehensive assessment;
(4) whales will be killed in a manner consistent with the provisions of
Section III of the Schedule, due regard being had to whether there
114
are compelling scientific reasons to the contrary."
57. In 1987, the Commission further recommended that the Scientific
Committee report its views asto whether Special Permit programmes:
"at least satisfy the following criteria in addition to such guidelines as
may be applicable, including the criteria in the Resolution adopted in
1986... :
(1) The research addresses a question or questions that should be
answered in arder to conduct the comprehensive assessment or to
meet other critically important research needs;
Opinion, I.C.J. Reports I962, p. 151 at pp. 160-161; Constitution of the Maritime Safety
Committee of the Inter-GovernmentalMaritime Consultative Organization, Advisory Opinion,
I.C.J. Reports I960, p. 150 at p. 168; Kasikili/Sedudu Island (Botswana!Namihia), Judgment, I.C.J.
Reports I999, p. 1045 at p. 1096 (paragraph 80); United States - Measures Affecting the Cross
Border Supplyof Gamhling and Betting Services, Report of the Appellate Body, WT/DS285/ AB/R
(7 April 2005); [2005] WTO AB 2 at paragraph 196; R Jennings & A Watts Oppenheim 's
International Law, 9 ed (Oxford University Press, 2008), Voll §633 at p. 1276.
114IWC Resolution I986-2 "Resolution on Special Perrnits for Scientific Research" (adopted by
consensus), at paragraph 5, Australia 'sMemorial, Annex 43, Vol li, pp. 148-9.
31 (2) The research can be conducted without adversely affecting the
overall status and trends of the stock in question or the success of the
comprehensive assessment of such stock;
(3) The research addresses a question or questions that cannat be
answered by analysis of existing data and/or use of non-lethal
research techniques; and
(4) The research is likely to yield results leading to reliable answers to
115
the question or questions being addressed."
58. Those recommendations were further updated in 1995 116and 1999 117.
In bath of those resolutions, the Commission requested the Scientific Committee
to advise on the necessity of the proposed research for the management of the
species or stock in question and the possibility of delivering the proposed research
objectives by non-lethal means.
59. In accordance with those resolutions, the Scientific Committee has
elaborated a detailed series of Guidelines to enable it to carry out its review
function. Under the most recent Guidelines adopted in 2008 118 the Scientific
Committee's review concentrates on whether:
"(1) the permit adequately specifies its mms, methodology and the
samples to be taken;
(2) the research is essential for rational management, the work of the
Scientific Committee or other critically important research needs;
115!WC Resolution !987-I "Resolution on Scientific Research Programmes" (adopted by majority
116e; 19Y: 6N: 7A), at paragraph 1, Australia 'sMemorial, Annex 44, Vol li, pp 150-151.
!WC Resolution !995-9 "Resolution on Whaling Under Special Permit" (adopted by majority
vote; 23Y: 5N: 2A), paragraph 2.
117!WC Resolution !999-2 "Resolution on Special Permits for Scientific Research" (adopted by a
majority), paragraph 1.
118
"Process for the Review of Scientific Permits and Research Results from Existing Permits",
Report of the Scientific Committee, Annex PJ.Cetacean Res. Manage. II (Suppl.), 2009, 398-401,
Australia's Memorial, Annex 49, Vol li, pp. 158-161.
32 (3) methodology and sample size are likely to provide reliable answers
to the questions being asked;
(4) the questions can be asked using non-lethal research methods;
(5) the catches will have an adverse effect on the stock;
(6) the potential for scientists from other nations to join the research is
adequate." 119
60. Those elements provide a useful indication of the key characteristics of
whaling carried out "for purposes of scientific research" under Article VIII as
identified by the IWC's own scientific representatives. Inparticular, they indicate
the expectation of parties that such research must: be specifically defined; be
essential for rational management under the Convention; be likely to provide
reliable answers; avoid lethal methods where possible; and have no adverse effect
on the stock.
D: Whether Whaling is for the Purposes of Scientific Research can be
ascertained from the Methodology, Design and Characteristics of a Proposed
Whaling Programme
61. An objective identification of the purpose of a programme of whaling
necessarily requires consideration not only of its stated purpose, but also the facts
and circumstances surroundings its development and implementation. In this
respect, assistance can be drawn from the Appellate Body of the World Trade
Organisation (WTO), which has provided guidance on how an objective
determination can be made of whether a trade measure taken by a State has a
protectionist purpose. Itsaid:
119
Website of the International Whaling Commission "Scientific Permit Whaling: Scientific
Committee Review" <http://iwc.int/permits> accessed on 15 March 2013.
33 "Although it is true that the aim of a measure may not be easily
ascertained, nevertheless its protective application can most often be
discemed from the design, the architecture, and the revealing structure of
a measure. The very magnitude of the dissimilar taxation in a particular
case may be evidence of such a protective application, as the Panel
rightly concluded in this case. Most often, there will be other factors to
be considered as well. In conducting this inquiry, panels should give full
consideration to all the relevant facts and all the relevant circumstances
m any giVencase. ,120
62. Applying such an approach in the context of Article VIII, whether or not
a programme of whaling can be characterised as being for "scientific purposes"
can be determined from a consideration of the methodology, design and
characteristics of the programme, giving full consideration to all relevant factors.
In this regard, those factors that reflect purely scientific requirements must be
balanced against those that reflect commercial considerations. Drawing on the
Scientific Committee's Guidelines key factors to be considered include: the scale
of the programme; its structure; the manner in which it is conducted; and its
results.
63. These factors need to be taken into account and assessed as a whole. In
that regard, the fact that a programme of whaling might have generated sorne
scientific information is not in itself determinative of purpose. ltis clear from the
Convention that information about whale stocks can, and should, be collected in
the course of all whaling activities, including commercial whaling. The
Convention requires Contracting Govemments to take "all practicable measures"
to collect biological data in connection with the operations of factory ships and
121
land stations , and imposes concurrent obligations to report information to the
120lapan - Taxes on Alcoholic Beverages, Report of the Appellate Body, WT/DSS/AB/R,
WT/DSlO/AB/R, WT/DSll/AB/R (1 November 1996), at p. 29.
121Article Vlll(4) ofthe Convention.
34 122
IWC . The fact that a programme of whaling may have generated sorne
scientific information therefore does not necessarily mean that its purpose was
scientific researchas required under Article VIII.
E: Conclusion
64. Article VIII only permits a Special Permit to be issued for the exclusive
"purposes of scientific research". The question of the purpose for which a Special
Permit has been issued is not a matter for unilateral determination, but is subject
to review and objective determination by the Court. Any other interpretation is
inconsistent with the terms of Article VIII and its role within the Convention, and
would undermine the abject and purpose of the Convention as a whole. The
resolutions and Guidelines adopted by the Commission and its Scientific
Committee provide useful guidance as to what is meant by "scientific research"
under Article VIII, in particular the requirements that such research must: be
specifically defined; be essential for rational management under the Convention;
be likely to provide reliable answers; avoid lethal methods where possible; and
have no adverse effect on the stock. The purpose of a programme of whaling
emerges from a consideration of its methodology, design and characteristics
including: the scale of the programme; its structure; the manner in which it is
conducted; and its results.
122
Article Vlll(3) of the Convention; Section VI of the Schedule.
35 SECTION V: THE NUMBERS TAKEN UNDER A SPECIAL PERMIT
MUST BE NECESSARY AND PROPORTIONATE AND HAVE NO
ADVERSE EFFECT ON THE STOCK
65. Article VIII, paragraph 1, provides that a Contracting Government may
issue a Special Permit authorising its nationals to "kill, take and treat" whales.
The terms of the article therefore recognise that killing of whales may be
permitted under Article VIII in certain circumstances. However, the number of
whales that may be killed must be limited under the terms of the Special Permit to
a number that is necessary and proportionate to the objectivesof the research, and
will have no adverse effect on the stock.
66. The first paragraph of Article VIII requires that Special Permits are to be
granted "subject to such restrictions as to number and subject to such other
conditions as the Contracting Government thinks fit". While this clearly gives the
granting Contracting Government discretion in determining a range of conditions,
the specifie mentionof restrictions as to number places this condition in a separate
category. What Article VIII does is to give the granting Government a discretion
as to what that number should be, but the discretion does not include making no
restriction at alls to numbers. In short there must be sorne restriction on the
number of whales to be taken under any Special Permit.
67. This interpretation of the first paragraph of Article VIII flows clearly
from the language itself. The provision does not say that the Contracting
Government can establish "whatever conditions it thinks fit", thus allowing a
Government to decide whether it wanted to place a restriction on the numbers of
whales to be taken under a Special Permit. Instead it refers specifically to
36"restrictions as to number" as a condition to be attached to a Special Permit. This
is simply giving effect to the ordinary meaning of the terms used in the first
paragraph.
123
68. As noted above , the discretion of a Contracting Government to
determine the number of whales to be killed under Special Permit under
Article VIII is not a blank cheque - its exercise remains subject to review to
ensure that it is exercised properly in light of the central obligation of good
124
faith . That principle requires that it must be exercised consistently with the
125
specified purpose of Article VIII for "scientific research" and in a reasonable
126
way to achieve the abject and purpose of the Convention as a whole . As
pointed out below 127, general principles of international law also require that
Contracting Governments must act in a precautionary manner when issuing
Special Permits under Article VIII.
A: The Number of Whales Killed must be Consistent with the "Purposes of
Scientific Research"
69. The terms of Article VIII, paragraph 1, require that a Special Permit may
only authorize the holder to "kill, take and treat whales for the purposes of
123Infra paragraph 45.
124Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment,
125.J. Reports 2008, p.177, at p. 229 (paragraph 145).
See, for example: Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v
France), Judgment, I.C.J. Reports 2008, p.177, at p. 229 (paragraph 145); Navigational and
Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2009, p. 213, at p. 241
126ragraph 61).
Gabéikovo-Nagymaros Project (Hungary v Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at
pp. 78-79 (para 142); Yearbook of the International Law Commission, 1966, Vol Il, at p. 211
(paragraph 4, and the authorities cited in paragraph 2).
127
Infra paragraphs 73 to 75.
37scientific research" (emphasis added). A Contracting Govemment's discretion to
determine the number of whales to be killed is therefore not open-ended- it must
128
be exercised consistently with the purpose of scientific research . That is, the
number of whales to be killed under Special Permit must be determined solely by
reference to scientific objectives. This clearly means that whales may only be
killed under Special Permit where science requires it- where lethal research is the
only means available to achieve identified scientific research objectives. lt
follows also that the number of whales killed cannot be greater than is required to
meet those objectives. Similarly, the number of whales to be killed under a
Special Permit must be reasonable in proportion to Article VIII's limited role as a
mechanism for the collection of scientific research within the collective
129
framework of the Convention as a whole .
70. This is borne out by Paragraph 30 of the Schedule, which reqmres a
Contracting Govemment to provide the IWC with proposed Special Permits
130
before they are issued, specifying the "objectives of the research" and the
131
"number, size and stock of the animais to be taken" as well as the "possible
132
effects on conservation of the stock" in order to "to allow the Scientific
128
See, for example, Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J.
Reports 2009, p. 213, at p. 241 (paragraph 61): "Thus, the language found in Article Vl means
that the right of free navigation granted to Costa Rica in that provision applies exclusively within
the ambit of navigation "for the purposes of commerce" and ceases to apply beyond that ambit."
129Case concerning rights onatio of hL ~ nited States of America in Morocco, Judgment,
I.C.J. Reports 1952, p. 176 at p. 212: "The power of making the valuation rests with the Customs
authorities, but it is a power which must be exercised reasonably and in good fSee also
B. Cheng General Princip/es of Law as Applied hy international Courts Tribuna (L~otius
Publications Ltd), 1987, at p. 136: "Where the right confers upon its owner a discretionary power,
this must be exercised honestly, sincerely, reasonably, in conformity with the spirit of the law and
with due regard to the interests of others."
130Paragraph 30(a) of the Schedule.
131Paragraph 30(b) of the Schedule.
132
Paragraph 30(d) of the Schedule.
38Committee to review and comment on them". The Scientific Committee in tum
has an obligation - "shall" - to conduct such a review and make comments and
recommendations to the Commission 133. In conducting its review, the Scientific
Committee is to consider whether: the methodology and sample size are likely to
provide reliable answers to the questions being asked; the questions can be
answered using non-lethal research methods; and the catches will have an adverse
effect on the stock 134. These matters are all clearly relevant to determining
whether the number of whales proposed to be killed is consistent with "the
purposes of scientific research".
71. The obligation on a Contracting Govemment to submit the "number, size
and stock" of whales to be killed under Special Permit to the Scientific Committee
therefore is intended to provide an opportunity for an objective assessment of the
necessity and proportionality of the proposed number of whales to be killed under
the Special Permit in light of the "objectives of the research" and the "possible
effects on the conservation of the stock". The inclusion of this specifie obligation
underscores that Article VIII was not intended to create an unfettered discretion
with respect to the number of whales to be killed under a Special Permit. lt was
designed to permit the killing of only that number of whales that was necessary
and proportionate to the objectives of the research and that would not have any
adverse effects on the conservation of the stock.
72. This interpretation is fully consistent with the Convention's object and
purpose of collective regulation in order to provide for the interests of the parties
in the proper conservation and management of whales. Neither "the proper
133Paragraph 30 of the Schedule; Rules of Procedure, Rule M(4)(a).
134Website of the International Whaling Commission, "Scientific Permit Whaling: Scientific
Committee Review", at <http://iwc.int/perrnits> accessed on 15 March 2013.
39conservation of the stock" nor the "orderly development of the whaling
135
industry" is served by interpreting Article VIII to allow for large-scale
unilateral whaling outside other catch limits or moratoria imposed under the
Convention. Interpreting Article VIII to provide carte blanche to a Contracting
Govemment to kill more whales than is necessary or proportionate to the purposes
of scientific research undermines the very objective for which the Convention was
adopted.
B: International Law Requires a Precautionary Approach
73. The requirement that the numbers of whales killed must be necessary and
proportionate to the objectives of the scientific research is further reinforced when
Article VIII is interpreted in light of general principles of international law
according to which Contracting Govemments should take a precautionary
approach when interpreting and applying provisions such as Article VIII 136.
74. The Court recognised the importance of such a precautionary approach in
the interpretation and application of treaties in its decision in Pulp Mills on the
135Paragraph 7 of the Preamble to the Convention.
136
This approach has been widely recognised in international environmental agreements, see, for
example: Rio Declaration on Environment and Development, adopted at the United Nations
Conference on Environment and Development, UN Doc. A/CONF.l5l/26 (Vol 1), 12 August
1992, Principle 15; Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760 UNTS
79 (entered into force 29 December 1993), Preamble; United Nations Framework Convention on
Climate Change, Rio de Janeiro, 9 May 1992, 1771 UNTS 107 (entered into force 21 march 1994),
article 3(3); Agreement for the Implementation of the Provisions of the United Nations Convention
on the Law of the Sea of 10 Decemher 1982 Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995, 2167 UNTS
3 (entered into force ll December 2001), Article 6(1) and (2); Cartagena Protocol on Biosafety to
the Convention on Biological Diversity, Montreal, 29 January 2000, 2226 UNTS 208 (entered into
force ll September 2003), article l; Regulations on Prospecting and Exploration for Polymetallic
Sulphides in the Area adopted by the Assembly ofthe International Seabed Authority, 7 May 2010,
Regulations 2(2), 5(1) and 33(2) (available at:< http://v/V/V/jsa.org.jm/en/mcode>).
40River Uruguay (Argentina v Uruguay) 137.Subsequent decisions of other tribunals
have drawn on that recognition to note the "trend towards making this approach
138
part of customary international law" . While there are various formulations of
the precautionary approach, at its most basic expression in relation to the
conservation and management of living marine resources, that approach requires
parties to act with "prudence and caution" 139. The need for caution is greatest
140
where information is uncertain, unreliable or inadequate . lt also carries with it
the requirement that aState interested in undertaking or continuing an activity has
141
to prove that such activities will not result in any harm .
75. A precautionary application of Article VIII necessarily requires that no
whales will be killed unless that is necessary to achieve the objectives of the
intended research- non lethal research alternatives should be given preference. If
whales are to be killed, precaution requires that the number taken must be as low
as necessary to meet those objectives. And, it must also be set at a level that the
Contracting Government issuing the Special Permit can demonstrate will avoid
any adverse effect on the conservation of the stock.
137Pulp Mil Ln~the River Uruguay (Argentina v Uruguay), ludgment, I.C.l. Reports 2010, p. 14,
at p. 51 (paragraph 164).
138
Responsihilities and Obligations of States Sponsoring Persans and Entities with respect to
Activities in the Area, Advisory Opinion, 1 Fehruary 2011; (2011) 50 ILM 458 at paragraph 135.
The customary nature of the precautionary principle was also earlier addressed in: EC Measures
Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, WT/DS26/AB/R
(16 January 1998); 1998 WL 25520 (WTO) at paragraph 123; and the dissenting judgments of
Judge Weeramantry and Judge Ad Hoc Palmer in Request for an Examina tion of the Situation in
Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear
139ts (New Zealand v France) Case, I.C.l. Reports 1995, 288 at pp. 342-344 and 412.
See Southern Bluefin Tuna cases (New Zealand v lapan; Australia v lapan), Provisional
Measures Order, 27 August 1999; (1999) 38 ILM 1624 at paragraph 77.
140See Rio Declaration on Environment and Development, adopted at the United Nations
Conference on Environment and Development, on 13 June 1992, (UN Doc. A/CONF.151/26
(Voll)), Principle 15.
141See, for example, Max Plant Case (freland v UK), Provisional Measures Order, 3 Decemher
2001; (2002) 41ILM 405 (Separate Opinion of Judge Wolfrum).
41 C: The Practice of the IWC Confirms that the Number of Whales Killed
onder a Special Permit must be "Necessary and Proportionate" to the
Objectives of the Scientific Research
76. The practice of the IWC is fully consistent with this interpretation, and
clearly reflects the parties' expectation that the number of whales to be killed
under Special Permit will be necessary and proportionate to its objectives. The
statements and resolutions adopted by the Commission on this point are fully
consistent with the language of Article VIII, further confirming the interpretation
that flows naturally from its terms in their context. As such, they are a valuable
interpretative guide, in accordance with bath Articles 31(3) and 32 of the Vienna
Convention 142.
77. At its Fifteenth meeting in 1963, the Commission unanimously endorsed
the proposais of the Scientific Committee, which had noted "that there had been
recent instances of special permits having been given by Contracting
Govemments for the taking of much larger number of whales [...] than in the
143
past" , and had agreed that "the numbers shawn in each permit should be the
144
lowest necessary for the purposes indicated in the permit" (emphasis added).
142See, for example: Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion,.C.J. Reports 2004, p. 136 at pp. 149-150 (paragraphs 27
& 28); Certain Expenses of the United Nations (Article I7, paragraph 2, of the Charter), Advisory
Opinion, I.C.J. Reports I962, p. 151 at pp. 160-161; Constitution of the Maritime Safety
Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion,
I.C.J. Reports I960, p. 150 at p. 168; Kasikili/Sedudu Island (Botswana/Namihia), Judgment, I.C.J.
Reports I999, p. 1045 at p. 1096 (paragraph 80); United States- Measures Affecting the Cross
Border Supply ofGamhling and Betting Services, Report ofthe Appellate Body, WT/DS285/AB/R
(7 April 2005); [2005] WTO AB 2 at paragraph 196; R Jennings & A Watts Oppenheim 's
International Law, 9 ed (Oxford University Press, 2008), Voll §633 at p. 1276.
143 111
Chairman's Report of the 15 Meeting, Fifteenth Report of the Commission, 1965, at p. 20
(paragraph 17).
144Ibid.
42A year later, the Commission agam noted that the Scientific Committee had
commented negatively on the size of catches taken under Special Permits,
observing that "rather large samples had been taken lately" 145. The "rather large"
samples in question were between two and 120 whales 14.
78. Consistent with this clearly expressed expectation that the number of
whales taken under Special Permit would be "the lowest necessary for the
purposes indicated in the permit", the overwhelming majority of catches under
Special Permit prior to the commencement of the commercial moratorium in 1985
numbered less than 25 whales, with many less than 10 147. The average number of
whales taken under each Special Permit prior to 1985 was 33, with the largest
148
single Special Permit take being Japan's catch of 240 Bryde whales in 1978 .
Since the commencement of the commercial moratorium in 1985 only Iceland,
Norway, Republic of Korea and Japan have issued Special Permits under
Article VIII. Since 1985, the average annual catch under Special Permit by
Iceland, Norway, and Republic of Korea was 60 whales, while that of Japan has
149
been 570 .
79. In 1986, the Commission recommended by consensus that the Scientific
Committee "should take into account whether [...] the objectives of the research
are not practically and scientifically feasible through non-lethal research
145International Whaling Commission Report, Sixteenth Report of the Commission, 1966 at p. 20
(paragraph 18).
146
147 Ibid., at pp.9-l0 (paragraph 12).
International Whaling Commission, Circular Communication to Commissioners and
Contracting Governments: Special Permitsfor Scientific Research, 5 January 1987 [Annex l].
148 Ibid.
149
Website of the International Whaling Commission, "Special Permit Catches Since 1985", at
<http://iwc.intitable permit.htm> accessed on 15 March 2013 [Annex 2].
43 150
techniques" . This clearly indicates an expectation that whales would be killed
under Special Permit only where the objectives of the research could be met no
other way. In the same resolution the Commission emphasised that Special
Permit catches should not have an adverse effect on the conservation of the
151 152
stock . lt reiterated this point the following year . Over the past four decades,
the Commission has repeatedly encouraged Contracting Governments to carry out
their research through non-lethal means 153 , stating that "scientific research
involving killing should only be permitted in exceptional circumstances" 154, and
that Contracting Governments should "refrain from issuing Special Permits for
research involving the killing of cetaceans in [the Indian and Southern Ocean
Sanctuaries ]" 155.
150
!WC Resolution 1986-2 "Resolution on Special Permits for Scientific Research" (adopted by
consensus), at paragraph 5(1).
151Ibid., at paragraph 8.
152
!WC Resolution 1987-1 "Resolution on Scientific Research Programmes" (adopted by majority
vote; 19Y: 6N: 7A) at paragraph 1(2).
153See, for example: !WC Resolution 1990-5 "Resolution on Redirecting Research Towards Non
Lethal Methods" (adopted by majority vote; 23 Y: ON:6A), at paragraph 2; !WC Resolution 1994-
10 "Resolution on Special Permit Catches by Japan in the Southem Hemisphere" (adopted by
consensus), at paragraph 4; !WC Resolution 1995-9 "Resolution on Whaling under Special Permit"
(adopted by majority vote; 23Y: 5N: 2 A), at paragraph 1; !WC Resolution 1996-7 "Resolution on
Special Permit Catches by Japan" (adopted by majority vote 21Y:7N:lA), at paragraph 4; !WC
Resolution 1997-6 "Resolution on Special Permit Catches in the North Pacifie by Japan" (adopted
by majority vote; 15Y:10N:6A), at paragraph 3; !WC Resolution 2003-2 "Resolution on Whaling
under Special Permit" (adopted by majority vote; 24Y: 20N: lA), paragraph 5; !WC Resolution
2003-3 "Resolution on Southem Hemisphere Minke Whales and Special Permit Whaling"
(adopted by majority vote; 24Y:20N:lA), at paragraph 2; !WC Resolution 2005-1 "Resolution on
JARPA Il" (adopted by majority vote; 30Y: 27N: lA), at paragraph 2; !WC Resolution 2007-1
"Resolution on JARPA" (adopted by majority vote; 40Y:2N:lA), at paragraph 2.
154!WC Resolution 1995-9 "Resolution on Whaling under Special Permit" (adopted by majority
vote; 23Y: 5N: 2A), paragraph 1.
155!WC Resolution 1995-8 "Resolution on Whaling under Special Permit in Sanctuaries" (adopted
by majority vote; 23Y: 7N: lA), paragraph 1.
44 D: Conclusion
80. Article VIII requires that a Contracting Government issuing a Special
Permit must also set sorne restriction on the number of whales to be killed or
taken under that Special Permit. lts discretion in doing so is not unfettered. lt
must be exercised consistently with the purpose for which it is given, "scientific
research", and in a reasonable and precautionary way. That requires that whales
may be killed under Special Permit only where that is necessary for scientific
research and it is not possible to achieve the equivalent objectivesof that research
by non-lethal means. Where whales are to be killed, the number killed must be
"the lowest necessary" to achieve the objectives of the research and in proportion
to Article VIII's role within the Convention as a whole. Further, the Contracting
Government issuing the Special Permit must be able to demonstrate that the
number of whales killed will not have an adverse effect on the conservation of the
stock. In this way, Article VIII can be applied in a manner that does not
undermine the collective regime of the Convention and is consistent with its
abject and purpose.
45 SECTION VI: A CONTRACTING GOVERNMENT GRANTING A
SPECIAL PERMIT HAS PROCEDURAL OBLIGATIONS AND AN
OBLIGATION OF MEANINGFUL COOPERATION WHICH CAN BE
DISCHARGED ONLY BY TAKING ACCOUNT OF THE VIEWS OF THE
SCIENTIFIC COMMITTEE AND THE COMMISSION
A: Contracting Governments Issuing Special Permits must comply with
Procedural Obligations set out in Article VIII and elsewhere in the
Convention
81. As set out in Section Ill, the qualification "notwithstanding anything in
this Convention" applies only to the discretion to grant a Special Permit. lt
clarifies that a Special Permit may be issued despite the rules that would otherwise
apply to whaling - creating a limited discretion within the collective system of
regulation under the Convention rather than an exemption from it.
82. Thus, the qualification "notwithstanding anything in this Convention"
does not provide a barrier to the applicationof procedural obligations that the
Convention specifically applies to the grantingof Special Permits. Indeed, the
first paragraphof Article VIII itself imposes such a procedural obligation - to
report any SpecialPermits that have been issued to the Commission. Moreover,
the language of Article VIII is clear that only the "killing, taking and treating of
whales in accordance with the provisions of this Article shall be exempt from the
operation of the Convention" (emphasis added). Accordingly, only those acts of
whaling carried out under a Special Permit that has been issued in compliance
with the requirements of Article VIII as a whole are exempt from the other
provisions of the Convention.
4683. In fact, Special Permits under Article VIII are subject to distinct
procedural requirements. The very existence of these specifie procedural
156
requirements, which in fact Japan acknowledges in its Counter Memorial ,
contradicts Japan's daim that "[s]pecial permit whaling under Article VIII is
entirely outside the scope of the ICRW" 157• Article VIII itself requires that the
Contracting Government must not only notify the Commission "at once" when a
158
Special Permit has been issued , but it must also transmit the "results of the
159
research conducted" to the Commission . Further, there are obligations on
Contracting Governments even before Special Permits are issued. In accordance
with Paragraph 30 of the Schedule Special Permits under Article VIII are subject
160
to prior review and comment by the IWC through the Scientific Committee .
84. Paragraph 30 of the Schedule obliges a Contracting Government to
provide proposed Special Permits to the IWC "in sufficient time to allow the
Scientific Committee to review and comment on them". Such proposed permits
161
"shall be reviewed and commented on by the Scientific Committee" , which
162
"shall submit reports and recommendations to the Commission" . The
Commission may then in turn make recommendations to the Contracting
Government in relation to the proposed Special Permit 163. As a provision of the
156Japan 's Counter-Memorial, paragraph 7.8 and footnote 880.
157
158Ibid., paragraph 7.8.
Article Vlll(l) ofthe Convention.
159Article Vlll(3) of the Convention.
160Paragraph 30 of the Schedule, Rule M(4)(a) Rules of Procedure, Rules F(l) to (4) Scientific
Committee Rules of Procedure.
161Paragraph 30 ofthe Schedule.
162Rules of Procedure, Rule M(4)(a).
163
Article VI of the Convention.
47 164
Schedule, Paragraph 30 forms an integral part of the Convention . No party has
issued an objection to Paragraph 30 of the Schedule under Article V of the
165
Convention, and it is therefore binding on all Contracting Govemments .
85. Japan's Counter Memorial demonstrates a curious ambivalence towards
Paragraph 30. On the one hand it appears to describe it as "secondary legislation"
or a "secondary instrument" which "cannat daim to provide for an authentic
interpretation of the Convention" 166. On the other hand, Japan goes on to state
that "[o]f course, Paragraph 30 of the Schedule is binding on Contracting
167
Govemments by virtue of Article V of the Convention" . And, ultimately, Japan
confirms that it regards Paragraph 30 as having "introduced an obligation for the
Contracting Govemments to notify the Secretariat of the IWC and, through it, the
Scientific Committee and the Commission, of any Special Permits they propose to
grant" 168. Such a final concession by Japan is inevitable because Article 1(1) of
the Convention provides expressly that the Schedule is an "integral part of the
Convention" and that all references to "the Convention" are to be understood as
including the Schedule as amended from time to time. There can be no doubt,
then, that Paragraph 30 imposes an obligation on a Contracting Govemment that
is planning to grant a Special Permit.
86. There is a natural linkage between the procedural obligations of
notification and reporting in Article VIII and the provisions for prior review under
Paragraph 30 of the Schedule, and the substantive objectives of Article VIII and
of the Convention as a whole. The gathering and disseminating of scientific
164Article 1(1) ofthe Convention.
165Article V(3) ofthe Convention.
166
167Japan 's Counter-Memorial, paragraph 8.22.
Ibid.
168Ibid., paragraph 8.28.
48research is central to the functioning of the IWC and forms part of the system of
collective regulation under the Convention. The Paragraph 30 review procedure
thereby serves as the mechanism through which the use of Special Permits may be
monitored and the interests of the parties in the Special Permit process can be
169
protected. Indeed, it was adopted by the Commission for that very purpose .
The important link between procedural obligations and substantive obligations
was noted by the Court in Pulp Mills on the River Uruguay (Argentina v
Uruguay), where the Court said that procedural obligations had been established
170
to "enable the parties to fulfil their substantive obligations" .
87. This role of procedural requirements m secunng the fulfilment of
substantive obligations is illustrated by the history of the development of the prior
review mechanism in Paragraph 30. The requirement for prior review was
instituted as a result of "allegations that sorne States abused [the Article VIII]
171
concession to evade the increasingly stringent regulations of the Commission" .
In the words of the IWC's Scientific Committee, the purpose of prior review was
to "recognise and assure validity and utility of the proposed research, and to
assure that proposed permits will not adversely affect the conservation of whale
172
stocks" . This procedural requirement was thus deliberately created in arder to
ensure proper compliance with the substantive obligations under Article VIII, and
to avoid Contracting Govemments using Article VIII in a way that would
169Birnie, International Regulation ofWhalingat p.190.
170
Pulp Mil on the River Uruguay (Argentina v Uruguay) Judgment, I.C.J. Reports 20!0,p.14 at
p. 49 (paragraph 78): "The Court notes that the 1975 Statute created CARU and established
procedures in connection with that institution, so as to enable parties to fulfil their substantive
obligations. However, nowhere does the 1975 Statute indicate that a party may fulfil its
substantive obligationsy complying solely with its procedural obligations, nor that a breach of
procedural obligations automatically entails the breach of substantive ones."
171Birnie, International Regulation ofWhalingat p.190.
172Report of the Scientific Committee to the 2911Meeting of the Commission, Rep. !nt. Whal.
Commn. 28, 1978, p. 41 at paragraph 9.3.2.
49circumvent the other obligations of the Convention or undermine its abject and
purpose.
88. In 1963, bath the Scientific Committee and the Infractions Sub
Committee of the Technical Committee drew attention to "recent instances of
special permits having been given by Contracting Govemments for the taking of
173
much larger numbers of whales under this Article than in the past" • As a
consequence, the Commission unanimously endorsed the Scientific Committee's
proposai that the Committee should be consulted before permits were granted
under Article VIII 174• The review process was formalised through the Scientific
Committee's Rules ofProcedure in 1977, following Japan's granting of a Special
Permit for the catch of 240 Bryde's whales, the commercial catch limit for which
175
had been set at zero • Prior review was further entrenched in 1979 through the
amendment to the Schedule and the adoption of Paragraph 30 in its current
176
form •
89. The prior review procedure was thus designed to ensure that Article VIII
is applied as the parties to the Convention intended. To that end, all aspects of a
Special Permit are subject to prior review by the Scientific Committee, including
its "objectives", the "number, sex, size and stock of the animais to be taken",
"opportunities for participation in the research by scientists of other nations", and
173Chairman's Report of the 15thMeeting, Fifteenth Report of the Commission, 1965, at p. 20
(paragraph 17).
174
175Ibid.
Chairman's Report of the 29thMeeting, Rep. !nt. Whal. Commn. 28, 1978, p. 23 (paragraph
14(ii)).
176Chairman's Report of the 31st Annua1 Meeting, Rep. !nt. Whal. Commn. 30, 1980, at p.31
(paragraph 17); Paragraph 30 of the Schedule. Note that Paragraph 30 was adopted following a
vote within the Commission (13Y: 4N: 6A): Chairman's Report ofthe 31st Annua1 Meeting, Rep.
!nt. Whal. Commn. 30, 1980, at p.31 (paragraph 17).
50 177
"possible effect on conservation of stock" . As will be discussed further below,
the Scientific Committee is thus not merely to act as a rubber stamp - its role is
substantive both in its content and its character.
B: The IWC has continued to Monitor Decisions to Issue Special Permits
under Article VIII
90. Consistent with the Commission's role in ensuring the proper application
of the Convention, decisions to issue Special Permits under Article VIII have been
monitored closely by the IWC from the outset. In doing so the Commission has
reinforced the basic expectation of Contracting Governments that Article VIII
should not be applied to permit whaling where the effect of that whaling would be
to circumvent the other obligations of the Convention or undermine its object and
purpose. The monitoring of Article VIII Special Permits undertaken by the
Commission clearly has this objective in mind.
91. As early as 1955, the Commission unanimously recommended that
Special Permits "must be issued in advance of the season and reported to the
178
Commission at the same time" in order to prevent such permits being issued ex
post facto in an attempt to legitimise otherwise unauthorised catches. A year later,
the United Kingdom suspended the operation of a Special Permit that had been
issued "for the purpose of testing an electric harpoon" following Norway's
objection on the ground that "the purpose mentioned was outside the ambit of
Article VIII" 179• The following year, the Commission unanimously recommended
177
178Paragraph 30 (a) to (d) ofthe Schedule.
International Whaling Commission Report, Seventh Report of the Commission, 1956, at pp. 5-6
(paragraph 20).
179International Whaling Commission Report, Eighth Report of the Commission, 1957, at p. 8
(paragraph 31).
51that "the taking of whales for scientific purposes should be confined by
Contracting Governments to the period of the whaling season unless the reasons
180
for permitting their capture at other times were of the utmost cogency" .
92. At its Fifteenth meeting in 1963, the Commission unanimously endorsed
the proposais of the Scientific Committee, which had noted "that there had been
recent instances of special permits having been given by Contracting
Governments for the taking of much larger number of whales [...] than in the
181
past" and had agreed that:
"(i) wherever possible the Committee should be consulted before the
granting of such permits;
(ii) the Commission should always be advised at once, by
correspondence or by report to one of its meetings of each permit given,
showing the reasons for such permits;
(iii) the numbers shown in each permit should be the lowest necessary
for the purposes indicated in the permit;
(iv) the Committee should be informed fully and specifically of the
results obtained by taking whales under each such permit." 182
93. A year later, the Scientific Committee again commented negatively on
183
the size of catches taken under Special Permits . In the past 30 years, the
Commission has adopted 40 detailed resolutions in relation to Special Permit
whaling, including over 25 in relation to specifie Special Permit proposais. Those
resolutions (many adopted by consensus) consistent! y confirm the concerns of the
parties to the Convention in relation to the proper interpretation and application of
180International Whaling Commission Report, Ninth Report of the Commission, 1958, at p. 4
181ragraph 8). 111
Chairman's Report of the 15 Meeting, Fifteenth Report of the Commission, 1965, at p. 20
(paragraph 17).
182Ibid.
183Chairman's Report of the 16 Meeting, Sixteenth Report of the Commission, 1966, at p.20.
52Article VIII. In this regard, it is noteworthy that all of the decisions of the
Commission in relation to Special Permits made prior to the commencement of
discussions in relation to a moratorium on commercial whaling were taken by
consensus. lt was only after the commercial moratorium was adopted (and Japan
lifted its objection toit in 1987) that significantly different views in relation to the
application of Article VIII began to emerge.
C: The Procedural Obligation to Submit Special Permits for Prior Review
by the Scientific Committee Creates a Duty of Cooperation
94. Paragraph 30 imposes not only a procedural obligation on Contracting
Governments, it also imposes a substantive duty of cooperation between the
Contracting Government and the IWC and its Scientific Committee. This is
apparent from its terms. The obligation to provide proposed Special Permits to
the IWC is specifically to enable the Scientific Committee to "review and
comment" on them- bath active verbs carrying with them the expectation that the
Scientific Committee will consider the proposed permit with a view to suggesting
changes if necessary 184. The requirement for the Scientific Committee to issue
"recommendations" to the Commission with respect to a proposed Special
185
Permit further makes clear that it is playing an active, rather than a passive, role
186
in the Special Permit process . The practice of the IWC is consistent with this.
In 1991, for example, the Scientific Committee unanimously: "expressed serious
concern that catching may have started before [the particular] proposai was
184"Review" has as its ordinary meaning "a formai assessment of something with the intention of
institnting change if necessary" while "to comment" means to "express an opinion or reaction":
111
185cise Oxford English Dictionary, 12 ed (Oxford University Press, 2011) at pp.1232 and 287.
Rules of Procedure, Rule M(4)(a).
186"Recommendation" has as its ordinary meaning "a suggestion or proposai asto the best course
of action": Concise Oxford English Dictionary, 12 ed (Oxford University Press, 2011) at p. 1201.
53received by the Scientific Committee and thus before the Committee's comments
187
could be transmitted to the Commission" • The Scientific Committee itself thus
clearly expected that its comments would be received, considered and acted upon
by the Commission before the proposed Special Permit was implemented.
95. Although the recommendations of the Scientific Committee and
Commission are not binding on a Contracting Government, it is equally clear that
a Contracting Government is required to give due consideration to them. lt is a
basic principle of interpretation that the parties to a treaty must be "assumed to
intend the provisions of [that treaty] to have a certain effect, and not be
meaningless" 188. That principle has been recognised and applied by this Court on
numerous occasions 189. If the terms of Paragraph 30 of the Schedule are to have
any effective meaning, then the comments it specifically requires the Scientific
Committee to make must be considered to have sorne value and significance. At
the very least, the Contracting Government must take account of the advice it
receiVes from the Scientific Committee as well as any subsequent
recommendations of the Commission. lt would be fundamentally inconsistent
with the obligation under Paragraph 30 for a Contracting Government to issue a
Special Permit having given no consideration at all to the views of other
Contracting Governments expressed through the Scientific Committee and the
Commission.
187
188Chairman's Report of the 41stAnnua1Meeting, Rep. !nt. Wha111Commn. 41, 1991, at pp. 12-13.
R. Jennings & A. Watts Oppenheim's International Law, 9 ed. (Oxford University Press,
2008), Vo1I §633 at pp. 1280-1281.
189See, for examp1e: Fisheries Jurisdiction case (Spain v Canada), Jurisdiction, Judgment, I.C.J.
Reports 1998, p. 432 at p. 455 (paragraph 52); Territorial Dispute (Lihyan Arah Jamahiriya/Chad),
Judgment, I.C.J. Reports 1994, p. 6 at p. 23 (paragraph 47); Interpretation of the Peace Treaties
with Bulgaria, Hungary and Romania, Advisory Opinion (Second Phase), I.C.J. Reports 1950,p.
64 at 77; Corfu Channel case (United Kingdom v Alhania), Judgment of 9 April 1949, I.C.J.
Reports 1949, p.4 at p. 24.
5496. The duty of cooperation is also consistent with the collective character of
the Convention, and its abject and purpose to replace unilateral whaling with a
system of collective regulation in arder to provide for the interests of the parties in
the proper conservation and management of whales. That abject and purpose is
only achieved if parties to the Convention work together. As this Court
recognised in Interpretation of the Agreement of 25 March 1951 between the
WH 0 and Egypt, membership in an organisation "entails certain mutual
obligations of co-operation and good faith" 190.
D: The Obligation of Cooperation in Complying with Procedural
Requirements is Reinforced by General International Law
97. International law recognizes a general duty of cooperation, particularly in
relation to the environment. Indeed, cooperation has been described as "the
overriding principle of international environmental law" ensunng that
"community interests are taken into account vis-a-vis individualistic State
interests" 19. In respect of the conservation of marine mammals that general duty
of cooperation is specifically acknowledged in Article 65 of the United Nations
Convention on the Law of the Sea 192, which provides: "States shall co-operate
190Interpretation of the Agreement of 25 March !95! hetween the WHO and Egypt, Advisory
Opinion, I.C.J. Reports !980, p. 73 at p. 93 (paragraph 43).
191
Max Plant Case (freland v UK), Provisional Measures Order, 3 Decemher 200!; (2002) 41
ILM 405; Separate Opinion of Judge Wolfrum at p. 4 "1 fully endorse, however, paragraphs 82 to
84 of the Order, considering that the obligation to cooperate is the overriding principle of
international environmentallawin particular when the interests of neighbouring States are at stake.
The duty to cooperate denotes an important shift in the general orientationthe international
legal order.lt balances the principle of sovereignty of States and thus ensures that community
interests are taken into account vis-a-vis individualistic States."
192United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833
UNTS 3, (entered into force 16 November 1994).
55with a view to the conservation of marine mammals and in the case of cetaceans
shall in particular work through the appropriate international organizations for
their conservation, management and study." The procedural requirements
applicable to Article VIII must be applied in the light of these general obligations
under international law.
E: The Practice of the IWC confirms the Expectation of Cooperation by
Contracting Governments
98. The duty of cooperation is further reflected in the consistent practice of
the IWC. Since Paragraph 30 of the Schedule was adopted, the Commission has
passed a significant body of resolutions with respect to the use of Special Permits
under Article VIII. Those resolutions acknowledge that the decision to grant a
Special Permit "remains the responsibility of each Contracting Government" 193
but at the same time repeatedly recommend that Contracting Governments "take
account of the advice and guidelines of the Scientific Committee" when doing
so 194. Over 25 resolutions issued after the Scientific Committee's review of
specifie proposed Special Permits consistently request Contracting Governments
not to proceed where the Scientific Committee had determined that the proposed
195
activity did not satisfy the Scientific Committee's criteria . Those
recommendations provide a clear expression of the expectation of Contracting
193See, for example, !WC Resolution !987-2 "Resolution on Republic of Korea's Proposai for
194cial Permits" (adopted by majority vote, l9Y: 3N: 9A), at preliminary paragraph 3.
See !WC Resolution !985-2 "Resolution on Scientific Permits", (adopted by consensus), at
paragraph 2; !WC Resolution !986-2 "Resolution on Special Permits for Scientific Research"
(adopted by consensus), at paragraph 2; !WC Resolution !995-9 "Resolution on Whaling under
Special Permit" (adopted by majority vote, 23Y: 5N: 2A), at paragraph 6; and the country-specifie
195olutions at note 195 below.
See !WC Resolutions 1987-1, 1987-2, 1987-3, 1987-4, 1989-1, 1989-2, 1989-3, 1990-1, 1990-2,
1991-2, 1991-3, 1993-7, 1993-8, 1994-9, 1994-10, 1994-11, 1995-9, 1996-7, 1997-5, 1997-6,
2000-4, 2000-5, 2001-7, 2001-8, 2003-2, 2003-3,2005-1, and 2007-1.
56Governments that their interests will be respected and their v1ews taken into
account when a Special Permit is issued under Article VIII. And they have been
heeded as such - consistent with that expectation, for example, the USSR/Russian
Federation did not proceed with its proposed Special Permit catches in 1991 and
1992 following concerns about its programme expressed by the Scientific
196
Committee and the Commission .
F: The Obligation to Cooperate requires Meaningful Cooperation
99. The obligation of cooperation is an obligation of substance - it is not just
a matter of form. As early as the Lac Lanoux Arbitration (France/Spain) it was
recognised that "consultations and negotiations [...] must be genuine, must comply
197
with the rules of good faith and must not be mere formalities" . This Court has
recognized in North Sea Continental Shelf cases (Germany!Denmark;
Germany!Netherlands) that the duty to negotiate, which is a specifie form of the
duty to cooperate, requires the Parties "so to conduct themselves that the
negotiations are meaningful" 198. In short, the duty to cooperate requires that
cooperation be meaningful.
100. Sorne guidance on the content of the duty of meaningful cooperation can
be obtained from the practice of this Court and other international tribunals. Four
specifie elements can be identified.
196Chairman's Report of the 43rdAnnua1Meeting, Rep. !nt. Whal. Commn. 42, 1992 at pp. 14-15;
111
197irman's Report of the 44 Annua1Meeting, Rep. !nt. Whal. Commn. 43, 1993, at p. 29.
Lac Lanoux Arhitration (France/Spain) (1957) 24ILR, p. 101, at p. 119.
198North Sea Continental Shelf cases (Germany/Denmark; Germany/Netherlands), Judgment,
I.C.J. Reports !969, p.3, at p. 47 (paragraph 85).
57101. First, as the Court made clear in Pulp Mills on the River Uruguay
(Argentina v Uruguay), consultation procedures must be allowed to run their
course. The Court said:
"In the view of the Court, there would be no point to the co-operation
mechanism provided for by Articles 7 to 12 of the 1975 Statute if the
party initiating the planned activity were to authorize or implement it
without waiting for that mechanism to be brought to a conclusion.
Indeed, if that were the case, the negotiations between the parties would
199
no longer have any purpose."
Thus, there cannat be "meaningful cooperation" where a party acts without
waiting for the consultation process to be completed.
102. Second, meaningful cooperation also requires that account be taken of
the views of others, with a willingness to modify one's approach. This point was
emphasised by the Court m North Sea Continental Shelf cases
(Germany!Denmark; Germany!Netherlands) when it spoke of negotiations having
to be meaningful. Negotiations would not be meaningful, the Court said, when
either party"insists upon its own position without contemplating any modification
of it"00.
199PulpMil on the River Uruguay (Argentina v Uruguay) Judgment, I.C.J. Reports 2010, p. 14
200p. 67 (paragraph 147).
North Sea Continental Shelf cases (Germany/Denmark;Germany/Netherlands), Judgment,
I.C.J. Reports 1969, p.3, at p. 47 (paragraph 85)See a1so Gabéikovo-Nagymaros Project
(Hungary/Slovakia) Judgment,.C.J. Reports 1997, p 7 at p. 68 (paragraph 112): "The obligations
contained in Articles 15, 19 and are, by definition, general and have to be transformed into
specifie obligations performance through a process of consultations and negotiatTheir
implementation thus requires a mutual willingness to discuss in good faith actual and potential
environmentalrisks".
58103. Third, in the specifie context of Article VIII, which has been described as
201
a "concession" from certain other provisions of the Convention , due process
must be observed in exercising the rights provided in arder to avoid encroaching
on the rights of the other Contracting Governments. Such a principle was
enunciated clearly by the Appellate Body of the World Trade Organization when
speaking about the invocation of "General Exceptions" to the General Agreement
on Tariffs and Trade (GATT). The Appellate Body said:
"it is only reasonable that rigorous compliance with the fundamental
requirements of due process should be required in the application and
administration of a measure which purports to be an exception to the
treaty obligations of the Member imposing the measure and which
effectively results in a suspension pro hac vice of the treaty rights of
other Members." 202
104. Fourth, the content of the duty of meaningful cooperation is not fixed but
must instead take account of the gravity of the proposed actions for the interests of
the other party. Just as "the standard of due diligence against which the conduct
of [a State] should be examined is that which is generally considered to
be appropriate and proportional to the degree of risk [... ] in the particular
instance" 203, so too is the standard of cooperation required. The greater the impact
of a State's action on other interests, the greater the expectation of cooperation on
the part of the State proposing to act. Such is particularly true where those
interests lie in a shared resource 204. This is even more so where the express abject
201
202Birnie, International Regulation ofWhaling, at p. 190.
United States - Import Prohibition of Certain Shrimp And Shrimp Products, Report of the
Appellate Body, WT/DS58/AB/R (12 October 1998), at paragraph 182.
203"Draft Articles on the Prevention ofTransboundary Harm", commentary to Article 3, Yearbook
of the International Law Commission, 2001, Vo1II (Part Two) at p. 154 (paragraph 11).
204
Responsibilities and Obligations of States Sponsoring Persans and Entities with respect to
Activities in the Area, Advisory Opinion, 1 February 2011; (2011) 50 ILM 458 at paragraphs 147,
148 and 150.
59and purpose of the treaty govemmg the action 1s to establish a collective
cooperative mechanism to provide for the protection of those interests205.
105. The duty of meaningful cooperation has particular application in the
context of the procedural requirements of Paragraph 30 of the Schedule. As a
starting point, that procedure must be respected and allowed to run its course.
Meaningful cooperation thus requires that a Contracting Govemment will carry
out in good faith its obligation not to issue a Special Permit until the proposed
Special Permit has been provided to the Scientific Committee, that it will ensure
that the Scientific Committee has been able to review and comment on the
proposed Permit, and the recommendations of the Scientific Committee have been
considered by the Commission.
106. Over and above all this, it is incumbent on a Contracting Govemment to
consider and take account of the advice of the Scientific Committee and
Commission when issuing, renewing or authorising activity under a Special
Permit. ltis not just as Japan daims, that there is "a duty on the part of the
Contracting Govemments to consider a recommendation in good faith and, if
206
requested, to explain their action or inaction" . Meaningful cooperation requires
the Contracting Govemment to engage with the views of other parties, with
respect for their interests, and a readinesso modify its Special Permit proposai to
take account of those views. The greater the impact of the proposed Special
Permit programme on those interests, the greater the level of engagement with the
views of other parties that is required. Greater openness to other views can be
expected in the case of a Special Permit programme that proposes the catch of
205PulpMil on the River Uruguay (Argentina v Uruguay) Judgment, I.C.J. Reports p.114
at p. 77 (paragraph 188).
206Japan 's Counter-Memorial, paragraph 8.63.
60hundreds of whales, for instance, than in relation to one involving no lethal catch.
Such considerations may require the Contracting Government to adjust its
programme to use non-lethal research techniques, orto alter the number or stock
of whales to be taken, or the areas to be targeted for research. Finally, the due
process element of meaningful cooperation requires that such a readiness must be
demonstrable. 207 A Contracting Government must be able to provide an
explanation for any decision not to follow the recommendations of the Scientific
Committee or the Commission that is itself objectively justifiable.
G: Conclusion
107. The Convention imposes specifie procedural requirements in relation to
the issuing of Special Permits, including the obligation under Paragraph 30 of the
Schedule to provide Special Permits to the IWC before they are issued in arder "to
allow the Scientific Committee to review and comment on them" and give its
208
recommendations to the Commission • That requirement imposes not only a
procedural obligation- it also imposes a substantive duty of cooperation between
the Contracting Government and the Commission and its Scientific Committee.
Such cooperation must be meaningful- that is, the Paragraph 30 process must be
respected in substance, not merely in form. lt must be allowed to run its full
course. The Contracting Government must consider and take account of the
advice it receives from the Scientific Committee and the Commission, engaging
with other parties with a readiness to modify its approach to take account of their
views. The greater the level of impact of the proposed Special Permit programme,
207See, similarly and for example, the procedural steps from assessment and notification to
consultation and taking account of interests in the "Draft Articles on the Prevention on
Transboundary Harm", Articles 7-10, Yearhook of the International Law Commission, 2001,liol
(Part Two) at pp. 157-164.
208
Paragraph 30 of the Schedule; Rules of Procedure, Rule M(4)(a).
61the greater the level of engagement with the views of other parties that is required.
Finally, it is incumbent on the Contracting Government issuing the SpecialPermit
to demonstrate that it has in fact engaged in such a cooperative process and given
proper weight to the views of other Contracting Governments, including where
appropriate adaptation of its proposed programme of research.
SECTION VII: CONCLUSION- THE PROPER CONSTRUCTION OF
ARTICLE VIII
108. The Convention was an historie attempt to bring whaling activity under
control in recognitionof the common interest of States in the long-term survival
of whale stocks. lts abject and purpose was to replace unilateral whaling by
States with collective regulation in arder to provide for the intereststhe parties
in the proper conservation and management of whales. By becoming party to the
Convention, States have chosen to work collectively to achieve this end, and to
abide by the obligations they have assumed.
109. In furthering this objective, Article VIII of the Convention creates a
mechanism for States to issue permits to carry out research to obtain scientific
data to support the work of the IWC and to conduct whaling in accordance with
such permits freed from the constraints placed on commercial whaling operations.
However, only whaling that is conducted "in accordance with the provisions of
[Article VIII]" is exempt from the other provisions of the Convention. The
discretion given in Article VIII is thus an integral part of the system of collective
regulation under the Convention, and is bath limited and conditional in its
character. In accordance with the principle of good faith, Article VIII must be
62applied in a reasonable way, consistent with its specified purpose, and m
accordance with the abject and purpose of the Convention as a whole.
110. The Convention provides that Contracting Governments issuing Special
Permits have three specifie obligations: the permits can be issued only for the
purposes of scientific research; a limit must be set on the catch under any Special
Permit; and procedural requirements in the issuing of Special Permits must be met.
111. First, Article VIII only permits a Contracting Government to issue a
Special Permit for the exclusive "purposes of scientific research". The question of
the purpose for which a Special Permit has been issued is not a matter for
unilateral determination, but is subject to review and objective determination. The
resolutions and Guidelines adopted by the Commission and the Scientific
Committee provide useful guidance as to what is meant by "scientific research"
under Article VIII, in particular the requirements that such research must: be
specifically defined; be essential for rational management under the Convention;
be likely to provide reliable answers; avoid lethal methods where possible; and
have no adverse effect on the stock. The purpose of a programme of whaling
emerges from a consideration of its methodology, design and characteristics
including: the scale of the programme; its structure; the manner in which it is
conducted; and its results.
112. Second, Article VIII requires that a Contracting Government issuing a
Special Permit for the purposes of scientific research must set sorne restriction on
the number of whales to be killed or taken under that Special Permit. lts
discretion in doing sois not unfettered. lt must be exercised consistently with the
purpose for which it is given, namely "scientific research", and in a reasonable
63and precautionary way. This requires that whales may be killed only where that is
necessary for scientific research and it is not possible to achieve the equivalent
objectives of that research by non-lethal means. Where whales are to be killed,
the number killed must be "the lowest necessary" to achieve the objectives of the
research and in proportion to Article VIII's role within the Convention as a whole.
In addition, the Contracting Government issuing the Special Permit must be able
to demonstrate that the number of whales killed will not have an adverse effect on
the conservation of the stock.
113. Third, the Convention imposes specifie procedural requirements m
relation to the issuing of Special Permits, including the obligation under
Paragraph 30 of the Schedule to provide Special Permits to the IWC before they
are issued in arder "to allow the Scientific Committee to review and comment on
them" and give its recommendations to the Commission 209. That requirement
imposes not only a procedural obligation - it also imposes a substantive duty of
cooperation between the Contracting Government and the Commission and its
Scientific Committee. Such cooperation must be meaningful - that is, the
Paragraph 30 process must be respected in substance, not merely in form. ltmust
be allowed to run its full course. The Contracting Government must consider and
take account of the advice it receives from the Scientific Committee and the
Commission, engaging with other parties with a readiness to modify its approach
to take account of their views. The greater the level of impact of the proposed
Special Permit programme, the greater the level of engagement with the views of
other parties that is required. Finally, it is incumbent on the Contracting
Government issuing the Special Permit to demonstrate that it has done so.
209
Paragraph 30 of the Schedule; Rules of Procedure, Rule M(4)(a).
64114. In summary, the provisions of Article VIII must be interpreted in good
faith in their context and in light of the abject and purpose of the Convention,
taking account of subsequent practice of the parties and applicable rules of
international law, as confirmed by supplementary means of interpretation. On the
basis of those considerations, Article VIII is properly to be interpreted as follows:
(a) Article VIII forms an integral part of the system of collective
regulation established by the Convention, not an exemption from it.
As such, it cannat be applied to permit whaling where the effect of
that whaling would be to circumvent the other obligations of the
Convention orto undermine its abject and purpose.
(b) Only whaling that is conducted "in accordance with" Article VIII is
exempt from the operation of the Convention.
(c) Article VIII only permits a Contracting Government to Issue a
Special Permit for the exclusive "purposes of scientific research".
The purpose for which a Special Permit has been issued is a matter
for objective determination, taking account of the programme's
methodology, design and characteristics, including: the scale of the
programme; its structure; the manner in which it is conducted; and
its results.
(d) Article VIII requires a Contracting Government issuing a Special
Permit to limit the number of whales to be killed under that permit to
a level that is the lowest necessary for and proportionate to the
objectives of that research, and that can be demonstrated will have
no adverse effect on the conservation of stocks.
65(e) A Contracting Government issuing a Special Permit must discharge
its duty of meaningful cooperation, and demonstrate that it has taken
proper account of the views of the Scientific Committee and the
Commission.
(f) Only whaling under Special Permit that meets all three of the
requirements of Article VIII outlined above is permitted under
Article VIII.
P.J. Ridings
Agent of New Zealand
28 March 2013
66 CERTIFICATION
1 certify that the annexes attached by way of Annexes to these Written
Observations are true copiesf the documents referred to.
P.J. Ridings
Agent of New Zealand
28 March 2013
67 LIST OF ANNEXES
1. International Whaling Commission, Circular Communication to
Commissioners and Contracting Governments: Special Permits for Scientific
Research, 5 January 1987.
2. International Whaling Commission, "Special Permit Catches Since 1985",
Website of the International Whaling Commission, at
<http://iwc.int/table permit.htm> accessed on 15 March 2013.
68 Annex 1
Annex 1: International Whaling Commission, Circular Communication to
Commissioners and Contracting Governments: Special Permits for
Scientific Research, 5 January 1987
~
%§]7 Chairmen
Mr 1 L G Stewart (New Zealandl Station Road, Histon,
International Vice-Cha1rmar CambridgeCB4 4NP
Mr M.T. Haddan (Unrted K;ngdo'll\
Whaling Secretary Teleph::me:Histon {022023)3971
Commission Dr. Ray Gambell Telex 817960
Your Ref. Ou• Ref.RG/VJH/16365
5 January 1987
CIRCULARCOMMUNICATIOTNO COMMISSIONERA SNDCONTRACTING GOVERNMENTS
SpecialPerm.its forScientificResearch
The Secretary refers to the CirculerCommunication dated 29 August 1986 (ref:
RG/VJH/16202) by wbich comments on a letterfrom the Commissionerfor the USA
were requested ..
Copies of the responses received from Australie, Ireland,Japan, Republicof
Korea, Netherlands,Norway, Seychelles,Sweden and the UKare naw enclasedfor
the information of allCommissioners.
Also enclosed is a summary list of Permitsissued since 1951, compiled by the
Secretariat.
Dr R. Gambell
Secretary to the Commission
Enes.
69 SUMMA~'.;c :EQFMITS ISSUED FOR SCIENTIY~:: PUC:P.QSES
COUNTRY SPECIES OF' WH/ILE NO. OF :RESUL'f
YEAR AREA PURPOSE REFERENCE
WHAI,ES
Californian Gray 10 Scientific None taken
1951 Canada
Research
Antare tic Scientific
1952/3 USSR Baleen of different 6
species Research
None taken
1952 Canada Californian Gray 10
1952 USSR Baleen of different 6 Antare tic
species
1953 Canada Californian Gray 10 10 taken April Report sel 3111& 34
1953 and IWC/5/11
1953/4 !JSSR Daleen of different 6 Antarctic
species
.._.]
0 1953 Norway Baleen whales 5 Antarctic Report IWC/6/4
1954 UK Hwnpback 6 Antarctic 6 taken Interim Report June 1954.
Final Report Feb. 57, also
file sel doc 10311.
1954 Japan Right 2 Pacifie coast None taken
N/E of Japan
1954/55 USSR Baleen of different 8 Antare tic
species
1955 USSR Right 10 Kur.ile Isles Takein & given to
Callfornlan Gray 5 Ocea,nographic
Ins~itut ef USSR,
Sperm 50
Acad,emy of Science
l\.ustra1ia Elnmpback 6 2 co:ws and Referred to in paper
1955 2 c~lve tken presented to Scientific
Sub-eo~oitte e957 - 2 -
Year Country Species of Whale No. of Area PurpoSE! Re~ult .Reference
··ales
1955 Neth er lands Fin 2 calves
2 moth ers
+ 2 young fins
35-40ft.
1955/56 USSR Baleen of different 12
species
1956 Japan Right Scientific 1 feinale IWC/8/12
Research ta ken
1957 Japan Right 2 Pacifie N/E Report March 1957 filed
of Japan SC1 106 and IWC/9/6
calf
1956 Netherlands Fin
lactating
x 45-SOft.
.._.] 1957 UK Baleen 12 To test new Penn~ uspended
...... electric for bonsideration
harpoon follbwing objections
1956/57 USSR Whalebone whales 10 Antarctic
various excluding
Balcienidae
1957/58 -Netherlands Fin 2 calves Antarctic
2 lactating
2x1 year olds
35-40 ft.
1957/58 USSR Fin 4
Blue 2
Humpback 2
1957 USA Any 4 Pacifie off J.ive sei en ti fic Report June 1958
Californi.a Research filed sel doc 138
Rene~· ofml
1958 USA Any 4
abov~ pennl.t :::::
Year country Species of Whale ,~rNo. of Area Purpose RP,sult Reference - 3 - :::::
'hales , (1)
:><
,__.
1958 Australia Sperm adult female 6
Sperm juvenile female 6
195B Netherlands Baleen 9 Report May 1959 filed sel
1959 USA Any 4 Pacifie off Specifie 2 g"iay whales Report Dec. 1959
California Research taken
1959/60 USSR - Slava Any 2 pre-season
2 after season
Ukraine Any 4 pre-season
2 after se ason
1961 Japan Right N. Pacifie Scientific 3 ta,ken IWC/14/8
N of 45°N, Research
Bering Sea, Sea
of Japan, Sea of
Okhotsk & Arctic
--.] Ocean
N
1961/62 USSH Right 12
1962 Australia Bryde 1s 25 less
than 40ft.
Blue 10 - Nor West
Whaling &
3 - Cheynes
Beach ail below
70 fL
Sperm 48 less than
35 ft. Each
station maX a of
4 per month
June/Nov.
3 taken IWC/15/13
1962 Japan Hight N. Pacifie N
of 45°N, Bering
Se a, Sea of Okhotsk,
Sea of Japan &
Arctic Ocean 1
Year Country Species of Whale Np] ,,of Area Purpose R~sult Reference - 4 -
w es 1
1962 Japan Sperm Whole herd of N. Pacifie N. Scientific: Abandoned. No
30-60 incl. of 35°N Lat, Research suit<)ble herd
nndersized, found
calves &
suckling whales
1962 USA Gray 4 4 tali.en IWC/14/8
1962/63 USSR Whalebone 8 (2 per
ship) be fore
season and
8 after
season
1963 South Africa Spenn 200 under-
sized excl.
calves - max.
--.,] 40 per month Scientific 350 1!:aken Report July 1964 filed
VJ
Spenn 150 under- Research SC2 doc 3A
sized excl~
calves - max,
25 per month
50 taken Report July 1964 filed
1963 South Africa Sei 50
SC2 doc 3A
1963 Japan Right 3 N. Pacifie N. 3 t;.aken IWC/16/14
of 45°N, Bering
Sea, Sea of
Okhotsk & Sea of
Japan & Arctic
Ocean
l'J63 Australia Spenn 140 under- off Carnarvon 56 t;aken
sized
1963 USA Any except 4 Penn:i,t unused.
Right Experjiments v;ere
carr~e oudt on :::::
whalejs caught :::::
connnelrcially (1)
:><
,__., Year Country Species of Whale No. of Are a Purpose Re:sult Reference - 5 -
'T les
1963/64 Ne• 7.ealand Sperm 100 max.
of 30 per
month
1964 Canada Sperm 20 under N. Pacifie Scientific None !taken,
sized or off West coast Research p-ermit re-issued
lactating of Canada 1965
1964 USA Gray 20 20 taken Report filed SC!.
and lWC/16/14
1964 USA Any except 4 Renewi'll of
Right 1963 permit
1964 USA Sperm entire None taken Report filed SC2 doc13
harem school
1964 Japan Sperm 3 entire N. Pacifie N. None taken
.._.] schools each of 45°N, Hering
.j:.
not more than Sea, Sea of
30 animals Okhotsk, Sen. of
Japan & Arctic
Ocean
1964 USA Gray Scammon Lageon,
Baja, california
1964 Japan Fin 2 over Pacifie N. of 1 female fin Report filed SC2 doc33
17.4m 45°N excl. Sea taken'
of Okhotsk & Sea
Sei 2 over of Japan
12.2m excL
females wi th
calves and
suckling whales
1965 USA Sperm up to 50 None taken
1965 AufltraUa Sperm 120 under None Utken
sized up to 40
in 3 fortnightly
perio.dS ~,,,.,._
Year Country Spccies of Whale of Area Purpose Resul1 Reference - 6 -
.les
1965 Canada Sperm 20 under- N. Pacifie Scientific None ~aken, IWC/19/9
sized or off West coast Research permit. re-
lactating of Canada issue~ 1966
1965 Japan Sperru school up No Pacifie 26 taRen Report filed SC2 doc60
to 30 N of 35°N and IWC/10/12
1965 USA Any except 12 (not
Right more t.han 6
gray)
1965/66 USSR Sei 6 1 female fin IWC/18/12
Fin 6 taken::
Blue 3
Bryde 4
1965 USA Gray 3 Magdalene Bay, Live Report filed SC2 doc82
.._.] Scammon Lagoon Research
lJl & E. Pacifie
1966 Norway Blue
Humpback
1966 USA Gray 40 la ter 26 ta e~ IWC/18/12 and· IWC/19/9
amended to
60
Sperm 50 Renewal of
1965 permit.
22 ta* en IWC/19/9
1966 Canada Sperm 20 under- N.. Pacifi.c off Renew<;tl of IWC/19/9
sized or West coast of 1965 permit
lactating Canada
1966 USA Minke 2 F'or live None i:.aken
pubLic disp~ay
<"( >
:::::
Country Species of Whale Are a Purpose Re:sult Reference - 7 - (1)::
Year '/r''7t of :><
"miales ,......
Japan Fin 2 females s. of 40°S Lat, Scientific femal.e fins Report filed SC2 doc140
1966/67
+ calves Research + ca~ves taken, and IWC/19/9
3 pygmy blues
Blue 3 s. of 40°S Lato and 51 spenn
Sperm 100 s. of 30°S Lat. whal~s taken
Fin 1 female
+ calf s. of 40°S Lat,
1966/67 USSR Bry de 3 3 Bryde and IWC/20/10
Sei 3 1 Blue taken
Pygmy blue 1
Fin
1967 USA Gray 100 99 taken IWC/19/10
1967 USA Minke 2 For live None taken Sightings report fi led
public SC2 doc169
display, re-
.._.] newal of
0'\ 1966 permit
1967 USA Sperm 50
1967/68 Canada Fin 5 under 40ft. Scientific taken IWC/20/10
Sei 5 under 33ft. Research 1 tak,en and report filed SC2 doc145
Sperm 5 under 32ft. 5 ta ken
!968 USA Gray 100 66 ta)<:en Report fil ed SC3 doc23A
and IWC/20/10
Gray 5 max. Live Report filed SCJ doc13
1968 USA
Research
1968 OSA Sperm 100 Scientific 53 taken Report filed SC3 doc23A
Research
1968 USA Minke For live
public dis play,
renewal of
1967 permi·o Year Country Species of Whale of Area Purpose ,c- RE!sult Reference - 8 -
~1-
~t: .es
1968 Japan Sei 5 lac ta ting Scientific mot;her Report filed SC3 doc28A,
+ 5 calves Research + ca]f taken IWC/20/10 and SC/21/10
1968 USA Humpback unspecified Off Bennuda To attach
acoust.ic
bea cons
1968 Japan Right 2 Okhotsk Scientific 2 tal<ien Report filed SC3 doc28A
Sea Research and SC/21/10
1969 USA Gray lOO
1969 USA Gray Ta allow WhalEj died Report filed SC3 doc23B
stranded whale
to be kept. in
captivity
1969 USA Minke 2 For live public
---.] display, :renewal
---.]
of 1968 permit
1969 USA Sperm 100 Scientific 31 t<1ken Report filed SC3 doc40D
Research and SC/22/B
1969 USA Gray 1 or Live research
more to attach elec-
tronic tracking
deviees
1969 USA Humpback unspecified Off Bermuda 'l'o attach Report filed SC3 42A
acoustic
beacons
None tt-aken
1969 Canada Humpback 20 over NWAtlantic ScientifiB
45ft. off east Research
coast of
canada
0 2 takj?n Report filed SC3 doc54
1969/70 Japan Pygmy Blue 9-· 4Q'S .at. 0 - and SC/22/4
T N. of 55 S Lat. >:::::
from 300E Long. :::::
(1)
:><
,_., Country Species of Whale No. of Area Purpose Result ~eference >
Year - 9 - :::::
~ir"·",es :::::
(1)
:><
,__...
1970 USA Sperm Live public
display
Sperm 100
1970 USA 30 Paken Report filed SC3 doc67A
and SC/22/8
USA Humpback unspecified To attach
1970
acoust.ic
beacons
1970 USA Sperm 4 To maintaiu None: taken
llumpback in captivity
Scientific 19 taken ReJJort filed SC4
1970 Norway Fin 20 E. Greenland doel and
waters ·Research IWC/23/SC/18
NWAtlantic
1970 Canada Fin 40
._J 1970 Canada Humpback 20 NWAtlantic Renewal of 20 taken IWC/24/SC7
00 1969 permit"
1970 South Africa Minke 25 lactating sw Indian Scientific 12 üwtating ~ Report filed SC3 doc65C
+ calves Ocea.J? off E. Research 2 caives taken and IWC/23/SC/19
coast S. Africa
1970 Japan Sei 5 lactating N. Pacifie None: ·tak.en IWC/SC/22/4 and IWC/23/17
+ calves
1970/71 USSR Pygmy right 3 N. from 40°8 3 pygmy dght, IWC/23/SC7.2
Bryde lü Lat, 5 büJe & 24
Pygmy blue 5 Bryd~ 1s taken
Hurnpback 2
1971 USA Sperrn 4 To maintain None' taken
HWD!Jback 7. in captivity,
renewal of
1970 permit
Sperm 15 calves SW Inùian
1971 South Africa Scientifjc 9 taken ReJJort filed SC3 doc81A
Ocean off E, Research and IWC/23/SC/19 and
coast S. Africa IYIC/24/SC7 Year Country Species of Whale Nov_ of Area Purposè (~---""\ Result Reference - 10 -
WI! !S 1
1971 USA Sperm To maintaj~n
in captiv:Lty
1971 USA Gray 2 calves For live
research
1971 South Africa Minke 12 lactating SW Indian Scientifi<' 9 taj<en Report filed SC4 doc22B
+ 2 calves Ocean off E. Research and IWC/24/7
coast s. Africa
1971 Canada Fin 40 NWAtlautlc
Humpback 30 20 hjlmpbacks IWC/24/7
taken
1
1971 Japan Sei 5 lactating No Pacifie Renewal of None taken Report filed SC4 doc41
+ calves 1970 permit
.._.]
'-D
1971 USA Sperm unspecified Live None taken Report filed SC4 doc2BA
research
~971 South Africa Sperm 15 calves SW Indian Scientific None taken Report filed SC4 doc22A
Ocean off E Research
cqast s..Africa
1971 USA Htunpback 2 For live
display
1971 Japan Sperm 200 Scientific 200 taken from Report filed SC4 doc41
Research 15 sehools and IWC/24/7
19'/1/72 USSR Sei & Bryde 12 8 se~, 1 Bryde, IWC/24/7
Pygrny Blue 6 3 py~my blue and
llumpback 3 hllfi;lpbacktaken
S, 40°S 2 taJten Reoort filed SC4 doc 42A
1971./72 Japan Fin 15 females of
+ calves Lat. >
Year Country Species of ·whale ,;f-: of Area Purposr..----.- Result Reference - 11 - :::::
__.~~nes (1)
:><
,__..
1972 USA Sperm 4 E:'orlive
studies ..
llumpback 2
Renewal of
1971 permit
1972 USA Sperm up to 5 For live
Gray up to 5 studies
1972 South Africa Sperm 10 calves Off E coast Scientific: None taken Report filed SC4 doc31A
of s. Africa Research
1972 USA Gray 2 juveniles For live
studies
1972 USSR Bryde 20 under 12.2m N. Pacifie Scientifio 13 Bryde & SC/25/39
Sperm 1 or 2 harem Research Il Sperm taken
schools
00
0 1973 USSR Humpback 5 s. Hemisphere Scientific 6 humpback & SC/25/39
Blue 5 Research 6 blue taken
Pygmy Blue 5
Dwarf Right 3
1973 South Africa Sperm 15 calves Renewal & ex- 10 calves IWC/SC/25/38
tension of tak~n
1972 permit
1973 USSR Fin 5 Scientific
Sei 5 Research
Bryde 5
Sperm 5
1976 Japan Sperm 80 N. Pacifie
Minke Pacifie 1 ta ken SC/29/Doc39
1976 Japan 100 N.
1976 Japan Bryde 240 s. Hemisphere Population
Studies 105 taken SC/29/Doc38 Year Country Species of Whale No. of Area Purpose Result Reference - 12 -
Whales 1
1977 Japan Bryde 120 s. Hemisphere Population 120' taken SC/30/DocJO
Studies
1977 USSR Bryde s. Hemisphere Population 5' taken SC/30/Doc55
Studies
1978 Japan Bryde 120 s. Hemisphere Population 120' taken SC/31/Doc31
Studies
1985 Icelanù Fin 80 N. Atlantic 5-year
Research
Sei 40 Programme
Minke 80
annually
00
......Annex 2
Annex 2: International Whaling Commission, "Special Permit Catches Since
1985", Website of the International Whaling Commission, at
<http://iwc.int/table_permit.htm> accessed on 15 March2013
SPECIAL PERMIT CATCHES SINGE 1985
Nation IAreIl Dates IFiIlSperISeIlBrydIMink~~
1986 (86/87) 1
lleela.nd llfE.:_:_]Jun-II:?D~§:.:.Jio I~LTIC:J
IRepulKorea IIB.E.:JIApr-JIID~Dio l~@c:::J
Total [ZO~§::]Io
1987 (87/88) ~~~
1
lleeland IŒE.::JIJun-Sell~~~]o ~~~
IJapnpelagie) 1~1Jan-Mar88 IEJ~Dio llill:::::J~
Total ~~~lo llill:::::Jlill::::.:.]
1 1988 (88/89) 1
llceland IŒE.::JIJun-Au~~~BI:Jio ~~~
IJapnpelàgie) 1~1Jan-Mar89 I[.:.]~Dio I~E.:..:.J
INorw(aslpe)lyIŒE.::JIAug-88
Total IEJ~Dio ~~~
~~BI:Jio ~~~
1989 (89/90) 1
lleeland IŒE.::JIJun-JuI@D~Dio ~~~
IJapnpelagie) I~IDec89-Feb90IEJ~Dio ~~~
INorw(aslpe)lyIŒE.::JIJul-89IEJ~Dio 1BI:::.:..:.Jo:z:::=:J
Total ~~Dio lê.CJ~
1990 (90/91)
INorw(aslpe)ly 1
IŒE.::JIAug-90IEJ~Dio lrc=JE=:J
IJapnpelagie) 1~1Dee90-Mar91I[.:.]~Dio lê.=.:.J~
Total [:J~Dio ~~~
1991 (91/92) 1
IJapnpelagie) I~IDec91-Mar92I[.:.]~Dio ~~~
1 1992 (92/93) 1
INorw(malpe) IŒE.::JIJui-AuIEJ~Dio
IJapnpelagie) 1~1Dee92-Mar93 ~~~
IEJ~Dio ~~~
Total EJ~Dio l~lill.:.:=J
1 1993 (93/94) 1
INorw(malpe) IŒE.::JIApr-SeIEJ~Dio l~@c:::J
IJapnpelagie) 1~1Dee93-Mar94IEJ~Dio ~~~
Total ID~Dio ~~~
1994 (1994/95) 1
INorw(malpe) IŒE.::JIMay-Sep94
IEJ~Dio IE=.:.J~
IJapan IIB.E.:JIJui-SIEJ~Dio IIIT.:..:.:::J~
IJapnpelagie) I~IDec94-Mar95IEJ~Dio Il~~
http://iwc.int/table_permit.hlm
82 Annex 2
Scientific Permit Whaling Page 2 of3
Total
1 1995 (1995/96) 1
IJapan IIBE:::]IJIEJ~Dio5 ~~~
:=IJa~p=an=(=pe=l IaEJ~;DI~==:o==)==§==i~i@E:=JINov95-Mar96
Total [:]~Dio IIBCJ~
1996 (1996/97) 1
IJapan 1[8~::]JuiIEeJ~Dio liT:::::::::]~
:=IJa~p=an=(=pe= Il!Q=g::=J~)=io=~=ii@E:=JINov96-Mar97
Total !Q:::J~Dio ~~~
1997 (1997/98) 1
IJapan I~IMay-JulI!Q:::J~Dio ~~~
IF.Ja=p=an=(;=pe=:'laIE[Jie9Moar98=~~~
Total !Q:::J~Dio I@}C]~
ml u•1998(1998199)u uuu+u
P.IJa=p=an=;==;=;I =E====Jji~IMa y~~Jun98
IJa(pelagielêE["JIJanI!Q:::J~EJio ~~~
Total EJ~DI1 ~~~
1999 (1999/2000) 1
I20pan 1~1Jun-JulI99J~Dio ~~~
I:=pJ"a"an=(;=pe=:'laI"DJ~9MirO====~~~E[
Total EJ~Dio ~~~
2000 (2000/01) 1
IJapan I~IAug-SepIOJE::=JEJI43 ~~~
:=IJa=p=an=:'(p=e;=laI[Je~0-ar1===i1§0~
Total [:JE::=JEJI43~~~
1 2001 (2001102) 1
IJapan I~IMay-AugIEJIC:::::::JB~~~iso
[F.Ja=p=an=:'(p=e;=laI[JJ~0-Ja0o==i[§0~
Total EJ~EJiso IIBCJ~
2002 (2002103) 1
:=IJa=p=an=(~pe=la ~!::~=)G::s=ii~~~Jui-Sep02
[Ja(coastalIIEO[sep-OIEJ~EJio ~~~
F.[Ja=p=an~(=pe=l IaEJ~iEJi)o===[lilll:[:::i:::c:::-]~ar03
Total EJE::=JGIJ[so~~~
2003 (2003104) 1
[lceland IŒE::::::JIEJ~EJ[o03 I@I::::::::::J~
F.[Ja=p=an=(=pe=:'la=MayA~g3]soii!E[~E:::J
[Ja(coastal[~[Aprii-MI[Q3:::::::J~EJ[o
:=[Ja="p='an=(=p IeEJlaEJg[o~c!)==l==:=[ê:E[:"J[~Nov03-Mar04
Total EJ~~[so [~lill::::::::::]
2004 (2004105) 1
[lceland [ŒE::::::JIEJ~EJ[oly0 lê::::::::::]~
F.[Ja=p=an=(=pe=la=gi[n-Q:0::Jl~:~J:=~=m:QQJ[s1
[Ja(coastalI~[Sept-Oc[[:J~EJio ~~~
:=[Ja""p='an=(=p IeEJlaEJgio~c)1§=0~=lêE["JIDec04-Mar05
Total EJE::::::::::~~~IQQJI51
2005 (2005/06) 1
http://iwc.int/table _permit.htm
83Annex 2
Scientific Permit Whaling Page 3 of3
i=lle=el=an=d==o== 1[:-::::JII~IJ~~l~y-Aug05
F.IJa~p=an"'(" I=D'~[e!=QQaJ=~Iis=ooe:=====~II~ITM§a:C-JA~ug05
i=IJa2::p~an~(~eo~ 1[:-::::JIo ==~~i~i~IApr-Oct05
IJa(pelagieI~IDec05-MaIQJ::::::::JD~~~
§To2::ta~~~~~==:!S~:!S~~~~[iQJ lli:i"]Iso
2006 (2006/07) 1
lleeland 1~1Jun-AugIIE::::::::JLI~~~
i=IJa=p=an=(=pec IIc:J.cDii=cc l~==[~I=JIMay-Aug06
IJa(coastal1~1Apr-Oct1:-:-JE:::::::~~~Dio
li=Ja2::p~an~(~p I!:~:::Ji;gi~ ~~)~====ii~IDec06-Feb07
Total II::]c::JIT.Qllill:::::J~
2007 (2007/08) 1
lleeland 1~1Apr-Sep17:-:-JE::::::~~~JDio
----ldapan(pelagic}-------lff'.--l0-lAprlt(-l2--IIo--lls
IJ(eoastal)1~1May-Aug1:-:-JE:::::::~~~LIIo
IJ(pelagie)1~1Dec07-Ma:--:::::::::J~~~
Total [:]~~!Iso ~~~
2008 (2008/09) 1
i=IJa2::p=an~(~pe;: 1;;l-:-gi=[i_Q==~::J~IJoun-Aug08
i=IJaOfp=an~(=1 eo:=a:s-==E~=I[:II:C=J~~:IJ~I~Apor-Oet08
IJ(pelagie)I~IDee08-MIr0::::::JDio ~~~
Total D~[!QQ]Iso ~~~
2009 (2009/10) 1
i=IJaOfp=an~(~pe;:; I:la=:J:gis="e)==~IIBE::JIMay-Jui09
!J(coastalIIBE::J!Apr-Oct09 IIDE:::~~~::JD!o
F.!Ja~p=an"'(=pe IDla::g!i~e)= ~~~I~!Dee09-Mar10
Total DIT=:=:=:IT.Qllill:=:Jiill=:::J
2010 (2010/11) 1
F.!Ja~p=an"'("=' 0pe=[la=g~i=!e)J=lE:I]~E::]!Jun-Aug1
!J(coastalIIBE::J!Apr-Oet10 1[:-:-J~~~:::::::JD!o
~!Ja=p=an='( =-e1eIEEa::gDo='c) IB==.II~.!D:Jc1
Total EJ~[!QQ]!so !~§I=:]
1 2011 (2011/12) 1
IJ(eoastalI~!May-Oct11:-:-JE:::::::!liT:==:]~ug11
i=!Ja2::p~an~(~p !eE::aJ!gi~c) ~~=~==i!!§l.[]IJan11-Mar12
Total DIT=:=:=:~! s~~
1--------------------------------------------------1--------------------
-
~lo~ve___________~ta~l: ~ll15,1123
Ali InternationalWhalingCommission2013
http://iwc.int/table _permit.htm
84
Written Observations of New Zealand