AustralianGovernment
Attorney-General's Departmcnt
Office ofInternational Law
5 June 2013
His Excellency
Mr Philippe Couvreur
Registrar
International Court of Justice
Peace Palace
Camegieplein 2
2517 KJ The Hague
NETHERLANDS
Dear Mr Couvreur
Whaling in the Antarctic (Australia v. Japan: New Zealand lntervening)
I have the honour to refer to your letter of 31 May 2013 enclosing a letter with an enclosure from the
Agent of Japan dated 31 May 2013. That enclosure consists of a detailed analysis of the statements
made by the two expert witnesses to be called on behalf of Australia by a scientist, Professor Judy E
Zeh ofthe University of Washington, whom Japan describes as 'a former Chair of the IWC Scientific
Committee'. The Agent of Japan states further that 'the main points of technical criticism [of
Australia's experts' statements] in addition to those already set out in Japan's Counter-Memorial are
reflected in the notes prepared by Professor Judy Zeh ... in preparation for Japan's responses to
Australia's expert statements'. Japan has not offered Professor Zeh as an expert or witness.
Australia isconcemed that Japan should not be permitted to undermine the process that the Court has
put in place in this case for receiving scientific evidence, by submitting such evidence in a form which
is new, untestable and cornes late in the proceedings,just three weeks before the he'.lrings. lt
circumvents ail the timeframes established by the Court for notification of expert witnesses, intènded
to allow each Party to comment on the statements of scientific evidence. To the extent that it is to be
treated as evidence, it is new and does not follow the requirements of the Court.
From the very commencement of this case,.Australia has submitted that the Court should adopt the
approach outlined by the Court in the case concerning Pulp Mills on the River Uruguay
(Argentina v. Uruguay). This indicates that 'persans who provide evidence before the Court based on
their scientific or technical knowledge ... should testify before the Court as experts ... so that they
may be subrnitted to questioning by the other Party as weil as by the Court' (Judgment of20 April
2010, paragraph 167 quoted in Memorial of Australia, paragraph 1.21).
Australia had understood that Japan agreed with this approach. Indeed, Japan, in numerous
interactions with the Court has stated repeatedly that scientific experts should be notified weil in
advance and provide full statements of expert evidence in preparation for examination and cross
examination in the course of the hearing. For example, on 4 September 2012, the Agent of Japan
wrote to the Court stating 'I take this opportunity to confirm that the position of my Govemment
remains the same as stated in my previous letter dated 26 July 2012 which includes the submission in
3-5 National Cit'cuit_,Barton ACT 2600 Telephone (02)www.ag.gov.auABN 92 66l 124436writing of evidence to be produced by the experts six weeks in advance of the oral hearings ... '. In his
letter of26 July 2012, the Agent of Japan stated 'However, my Government would like to reiterate our
view thatit would be advantageous for the good administration of justice that the Parties provide the
Court and each other in advance with written evidence to be produced by their experts ... '.
Japan might seelcto respond that since it is not calling Professor Zeh as an expert it is under no
obligation to notify Professor Zeh as an expert orto provide a written statement from her prior to the
hearing. However, what Japan has done by way oftendering the detailed commentsProfessor Zeh
is to seelcto introduce expert evidence by the bacledoor. This is plainly contrary to the process laid
down in this case, and inconsistent with the viewse Court as expressed in the Pulp Mills Case. In
this respect, it is notable that Japan sought and received the initial comments ofProfessor Zeh nearly
six months ago, at the end ofDecember 2012. This was well before the final date for notification of
witnesses (28 January 2013). Japan offers no explanation why material received so long ago from
someone.who might be said to be an expert was not the subjectotification by 28 January 2013, nor
submission of any statement by 15 April 2013, nor an application for the introduction of new evidence
at a late stage. These actions of Japan would, if allowed to proceed, result in a manifèst unfaimess to
Australia as a Party to the proceedings.
Article 57 of the Rules of Court, to which you advert in your letter of 17 October 2012, requires the
Parties to 'communicate to the Registrar, in sufficient time before the opening of the oral proceedings,
information regarding any evidence which it intends to produce ... '. Japan has not produced that
information in relation to Professor Zeh. If the material is intended not to be expert evidence, but
sorne form of additional written submission or further pleading it plainly falls outside the procedures
that are applicable to this case.
For these reasons, Australia requests that the material set out in the document attached to the letter
from the Agent of Japan dated 31 May 2013 not be treated as part of the Court's dossier and that no
reference should be made to this document or its content during the oral proceedings.
Yours sincerely
{#H~~
W M Campbell QC (/
Agent of Australia
Whaling in the Antarctic (Australia v. Japan: New Zealand lntervening)
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Letter dated 5 June 2013 from the Agent of Australia