Written Observations of Japan on the written observations submitted by New Zealand

INTERNATIONAL COURT OF JUSTICE

WHALING IN THE ANTARCTIC

(AUSTRALIA v. JAPAN: NEW ZEALAND INTERVENING)

WRITTEN OBSERVATIONS OF JAPAN

ON

NEW ZEALAND'S WRITTEN OBSERVATIONS

31 MAY 2013 TABLE OF CONTENTS

I. PRELIMINARYMATTERS ................................................. l

A. Issues regarding intervention of a third State under Article

63 of the Statute.................................................1..
B. That New Zealand's intervention cannot affect Japan's

0b~ec tlOllt0 JUriSdlC lOll ..........................................

C. Points of concurrence between New Zealand and Japan......5

II. APPROACH TO TREATY INTERPRETATION ......................... 7

A. That there is no subsequent agreement between the ICRW
parties, and that resolutions of treaty bodies do not qualify

ipso facto as subsequent practice ..............................7.
" t . t' . t t t' " 9
B . 0 n the scope o f res nc 1vem erpre a 1on ................... .
C. That the object and purpose cannot be silently rewritten ...ll

III. NEW ZEALAND'S INCORRECT UNDERSTANDING OF THE

TREATY REGIME UNDER THE ICRW................................ l4

A. Discretionary power preserved by Article VIII.................. 14

B. Limited constraints under Art. VIII of the ICRW and

Schedule Paragraph 30.................:.....................17
C. "Duty to co-operate"? ........................................... 21

IV. NO REVERSAL OF BURDEN OF PROOF............................ 22V. "FOR PURPOSESES OF SCIENTIFIC RESEARCH"................. 26

A. That there is no single definition of "for purposes of

scientific research" and it is up to the Contracting
Government. ...........................................26........

B. Standard of review ......................................27.......

VI. LETHAL RESEARCH AND SAMPLE SIZE........................... 32

VII. CONCLUSION........................................................35....

LIST OF ANNEXES..........................................................37......I. PRELIMINARY MATTERS

A. Issues regardingintervention of a third State under Article

63 of the Statute

1. Japan has received and considered the Written Observations dated 4

April 2013, submitted by New Zealand in this case. This is the first case in

which the intervention of a third State under Article 63 of the Statute has
1
been admitted by the Court under the 1978 Rules of Court, and Japan hopes

that some observations on the procedure may be found helpful by the Court.

2. Japan recalls the words of a former President of the Court, who

wrote that one of the purposes of the 1978 revision of the Rules concerning

intervention was to afford litigants "an important protection against

protracted uncertainty." The equality of the Parties is also a fundamental

principle of international justice. In this context, Japan finds itself in a

regrettable position.

3. New Zealand's interpretation of Article VIII of the 1946

International Convention for the Regulation of Whaling (hereafter:

"Convention" or "ICRW") differs from that of Australia in significant

respects. For example, New Zealand has a different conception of what

1Both the PCIJ and the ICJ admitted requests for intervention under Article 63 of the Statute.The PCIJ
admitted a request for intervention by Poland and requalified it as a request under Article 63 of the
Statute, S.S. Wimbledon, Judgment (Question of Intervention by Poland), 1923, P.C.lJ, Series A, No. 1,
pp. 12-13; the ICJ admitted Cuba's request in the Haya de Ia Torre case, Haya de la Torre (Colombia v.
Peru), Judgment, I.C.J. Reports 1951, pp. 74-77. This however would be the first case of Article 63
intervention under the 1978 Rules.
2Manfred Lachs, "The Revised Procedure of the International Court of Justice", quoted in Shabtai
Rosenne, The Law and Practice of the International Court 1920-2005, 2006, p. 1455.

1 counts as "scientific research", and has offered a different understanding of

the role of the Intemational Whaling Commission ("IWC") and the status of

its resolutions and recommendations? Japan has, accordingly, to address two

different cases against it, emanating from two States that have stated openly

that they are acting in a common cause.

4. This submission byNew Zealand of a lengthy and detailed pleading,

after written proceedings have closed and only a short time before the hearing,

at which New Zealand will make oral submissions after the close of Japan's

. first round of oral argument, will require Japan to answer in its final round of

oral pleading two sets of arguments, put forward by two opposing States,

each within its own allotted intervention in the schedule of the oral

proceedings. Japan has already drawn to the attention of the Court certain 4

serious anomalies that arise from New Zealand's admission as an intervenor;

and it has recalled the context of the co-operation between Australia and New

Zealand in which this intervention takes place, as evidenced by the joint

5
statement from their respective Foreign Ministers. Both States have kept
6
silent on this co-operation in their. communications with the Court in

response to Japan's observations of21 December 2012.

3 Seefurther below, para. 8.
4 Japan's Written Observations of21 December 2012 on the Declaration oflntervention filed byNew
Zealand.
5 The Joint Media Release dated 15 December 2010, issued by the Australian and New Zealand
Ministers for Foreign Affairs.
6 The letter datIOJanuary 2013 from the Agent of Australia and that of 1February 2013 from the
Agent of New Zealand.
2 B. NewZealand's intervention cannot affect Japan'sobjection

tojurisdiction

5. In its Counter-Memorial, Japan raised an objection to the

jurisdiction of the Court. Japan submits that New Zealand's intervention

cannot have any bearing upon the decision that the Court will take in respect

to jurisdiction, or upon Japan's right to raise any further arguments

concerning jurisdiction that it would otherwise have been able to raise in
response to Australia's arguments. The jurisdictional question must be

addressed as a matter of priority in the hearings in this case, because the

admissibility of the New Zealand's intervention presupposes that the Court

hasjurisdiction:

"Whereas the Declaration of Intervention of the Republic of El
Salvador (...) addresses itself also in effect to matters, including the
construction of conventions, which presuppose that the Court has

jurisdiction to entertain the dispute between Nicaragua and the
United States of America and that Nicaragua's Application against
the United States of America in respect of that dispute is admissible.''

6. It must also be kept in mind in this respect that, in the Nuclear Tests

case, the Court dismissed a request from Fiji to intervene. The Court took its

decision considering:

"1. Whereas the application of Fiji by its very nature presupposes that

the Court has jurisdiction to entertain the dispute between New
Zealand and France and that New Zealand's Application against
France in respect of that dispute is admissible;

7Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Declaration of Intervention of the Republic of El Salvador, Order, I.C.J. Reports 1984, p.
216, para. 2, emphasis added.
3 2. Having regard to the position taken by the French Government in a
letter dated 16 May 1973 from the Ambassador of France to the
Netherlands, handed by him to the Registrar the same day, that the

Court was manifestly not competent to entertain New Zealand's
Application;

3, Having regard to the fact that by its Order dated 22 June 1973 the
Court decided that the written proceedings in the case should first be

addressed to the questions of the jurisdiction of the Court to entertain
the dispute between New Zealand and France and of the admissibility
ofNew Zealand's Application;" 8 .

The Court decided in consequence

"to defer its consideration of the application of the Government of Fiji
for permission to intervene in the proceedings instituted by New
Zealand against France until it has pronounced upon the questions to

which the pleadings mentioned in its Order dated 22 June 1973 are to
be addressed." 9

7. Similarly, in the present case, Japan submits that the Court should

defer its consideration of New Zealand's request until it has decided whether

it hasjurisdiction to examine Australia's Application. If, for practical reasons,

the Court finds it impossible to change at this stage the arrangements adopted

for·the organization of the hearings in this case, it should be with the

understanding that nothing written or said by New Zealand may be taken into

account by the Court for deciding on the existence or scope of its jurisdiction

in the case introduced by Australia.

8Nuclear Tests (New Zealand v. France), Application by Fijifor Permission to Intervene, Order, LC.J.
Reports 1973, p. 325.
9Ibid p. 325; in its Order of 20 December 1974, Application by Fiji for Permission to Intervene, the
Court stated that as by its Judgment of20 December 1974the Court had found "that the claim of New

Zealand no longer has any object and that the Court is therefore not called upon to give a decision
thereon" there is, in consequence, no longer "any proceedings before the Court to which the
Application for permission to intervenecould relate" (LC.1974,p. 535).
4 C. Points of concurrence between New Zealand and Japan

8. It was noted above that the position of New Zealand is not the same

as that adopted by Australia. The most important differences are that New

Zealand does not share Australia's dogmatic approach to the definition of

what counts as "scientific research" for the purposes of Article VIII of the

ICRW, 10and that New Zealand has a more nuanced approach to the question

of the role of the IWC and the status of its resolutions and

recommendations 11;moreover, while declaring that its policy is "to work to

end whaling in the Southern Ocean" 12, New Zealand accepts, contrary to

Australia's position, that the object and purpose of the Convention is not only

the conservation, but also the proper regulation and development, of the
13
whale stocks.

9. There is a considerable degree.of concurrence between the position

of New Zealand and that of Japan. Japan considers that special permits may

be granted only for whaling that has scientific purposes, and not for

commercial purposes. It considers that Article VIII of the ICRW does not

establish a completely umeviewable and self-judging right to designate any

whaling activity as whaling "for purposes of scientific research". It considers

that Contracting Governments are obliged to set catch limits in special

permits, and that those catch limits must be set at a level no higher than the

Government believes necessary for the purpose of the successful completion

1
°Compare Memorial of Australia (AM) paras. 4.92-4.115, 4.119, with Written Observations of New
11aland (NZWO) paras. 48-64.
Compare AM, paras. 4.29-4.30. with NZWO, paras. 55-60.
12Statement of 16 April 2013 by Mr. McCully, the Foreign Minister of New Zealand [Annex 6]
<h!J.p:Lf~Y~YJ:l:'J:!.l9..9JJ.!JY".S:QA1ziiQI\!.igD_:f11Jh!r?.(PI~1~.:f.S:lsm~~~~.f_QJ1/j£i:;;.<;1.?_:QJJl!;.:JJ:1.r:l'ihfllJng:.?.UQ.ill.l'i~l(,m>
accessed 24 May 2013.
13E.g.NZWO, paras. 6, 15, 25, 27, 31, 32, 33,51, 72, 74,96, 108.
5of the scientific expedition, and that the catch limit must be such as not to

have an adverse effect on the status of the targeted stocks. Japan considers

that a duty of cooperation arises under paragraph 30 of the Schedule, which

obliges all Contracting Governments to give an adequate opportunity for the

IWC Scientific Committee to comment upon proposed special permits before

they are issued, and requires that such comments be given due consideration

with a readiness to modifYthe terms of the Permit or the decision to issue it.

10. Japan does, however, part company with New Zealand on a number

of points which have considerable importance in the context of this case.

Japan's position will be spelled out fully during the oral pleadings in this

case; but there are five main areas where differences of approach appear to
have a bearing upon the questions before the Court.

6II. APPROACH TO TREATY INTERPRETATION

A. That there is no subsequent agreement betweenthe ICRW
parties, and that resolutionsof treatybodiesdo not qualify

ipso(actoas subsequentpractice

11. The first area where Japan's view of the law differs from that set

out m New Zealand's Written Observations is the approach to treaty

interpretation.

12. Section B ("Principles of Interpretation") of New Zealand's Written

Observations refers to the need to "take account of the subsequentpractice of

the parties to the treaty", citing the Vienna Convention on the Law of

Treaties ("VCLT") Article 31(3)(a) and (b). 14Japan considers that this

formulation of the principle omits two crucial elements.

13. First, the VLCT in fact refers in Article 31(3)(a) to "any subsequent

agreement between the parties regarding the interpretation of the treaty or the

application of its provisions"; and in Article 31(3)(b) to "any subsequent

practice in the application of the treaty which establishes the agreement of the

parties regarding its interpretation" (emphasis added). In the present case,

there is no such agreement between the ICRW parties. On the contrary, they
differ strongly on the meaning and scope of Article VIII of the Convention,

as witnessed by the present dispute. New Zealand's formulation in effect

elevates the view of the majority of the parties to a treaty, or of an articulate

and expressive minority of parties, into a defmitive interpretation of that

14NZWO, para. 11.
7treaty. Japan considers that to be a perilous move that is unwarranted under

the VCLT and under the customary international law on treaty interpretation.

The Court's views, as expressed for example in Kasikili/Sedudu, hold true

mutatis mutandis in the present case:

"From all of the foregoing, the Court concludes that the
abovementioned events, which occurred between 1947 and 1951,

demonstrate the absence of agreement between South Africa and
Bechuanaland with regard to the location of the boundary around
Kasikili/Sedudu Island and the status of the Island. Those events
cannot therefore constitute 'subsequent practice in the application of

the treaty [of 1890] which establishes the agreement of the parties
regarding its interpretation' (1969 Vienna Convention on the Law of
Treaties, Art. 31, para. 3 (b)). A fortiori, they cannot have given rise

to an 'agreement between the parties regarding the interpretation of
the treaty or the application of its provisions' (ibid., Art. 31, para. 3
(a))."1s

14. Second, and contrary to New Zealand's presumption that such is the

case, the resolutions of the organs established by the ICRW do not qualify

ipsofacto as subsequent practice, New Zealand refers to advisory opinions
where the Court admitted that such may be the case (Certain Expenses,

Constitution of the Maritime Safety Committee, Legal Consequences of the

Construction of a Wall 16). However, these references are misleading: in each

of these cases the Court was called upon to define the competences of the

conventional organs under the founding treaty, their practice being, in the

particular circumstances of those cases, relevant for that purpose. This is

not so in the present case, where it is not the powers of the IWC as such

that are questioned before the Court, but rather the obligations of the

Contracting Governments under the ICRW, and especially under its

15
16Kasikili/Sedudu Island (Botswana/Namibia), Judgment, IC.J Rep.r1087para.63.
NZWO, para11, fn.l5.
8 Article VIII. Only the practice of the States themselves in regard to Article

VIII of the Convention is relevant in this context.

B. On the scopeof "restrictiveinterpretation"

15. New Zealand's misapprehension of the rights and obligations of the

States under the ICRW is apparent when it argues "for a restrictive rather
17
than an expansive interpretation" of Article VIII. Japan's case rests

primarily on the explicit provisions of the ICRW; and in Japan's submission

the arguments advanced both by New Zealand and Australia seek to displace,

rather than to interpret, the express terms of the Convention. That said, Japan

makes the following points concerning New Zealand's arguments on

"restrictive interpretation".

16. First, it is apparent that New Zealand's conception of the

"restrictive interpretation" is quite contrary to that evident in the case-law.

When the Court resorts to a restrictive interpretation of a treaty, it is always

with a view to protecting the sovereignty and freedom of action of the State.

Thus, in the case concerning the Interpretation of Article 3, Paragraph 2, of

the Treaty of Lausanne the PCIJ noted:

"[I]f the wording of a treaty provision is not clear, in choosing
between several admissible interpretations, the one which involves
18
the minimum of obligations for the Parties should be adopted."

17NZWO, para. 46.
18Inte1pretation ofArticle 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925, P.C.I.J.,
Series B, No. 12, p. 25; see also: S.S.Wimbledon, Judgment, 1923, P.C.LJ., Series A, No. 1, p. 24;
·Access to, or Anchorage in, the port of Danzig, of Polish War Vessels, Advis01y Opinion, 1931,
P.CI.J., Series AlB, No. 43, p. 142; Interpretation of the Statute of Memel Territory, Judgment, 1932,
P.C.IJ., Series AlB, No. 49, pp. 313-314; Interpretation of the Peace Treaties, second phase, Advisory
Opinion, I.C.J. Reports 1950, p. 227; Continental Shelf (Libyan Arab Jamahiria/Malta), Application to
Intervene, Judgment, LC.J. Reports 1984, p. 22, para. 35; see also Interpretation of the Peace Treaty
9Rather than invoking this principle of restrictive interpretation in favour of

States' sovereign rights, New Zealand invokes the principle with a view to

obliterating rights expressly preserved for States under Article VIII of the

ICRW.

17. Second, in reality, as has been noted:

"The doctrine of restrictive interpretation never had a hierarchical

supremacy, but was a technique to ensure a proper balance of the
distribution of rights within a treaty system. The principle of
restrictive interpretation( ...) is not in fact mentioned in the provisions

of the Vienna Convention." 19

The truth is that, as this Court wrote,

"A treaty provision which has the purpose of limiting the sovereign

powers of a State must be interpreted like any other provision of a
treaty, i.e. in accordance with the intentions of its authors as reflected
by the text of the treaty and the other relevant factors in terms of

interpretation." 20

And certainly no principle of interpretation can be invoked in order to make
21
an interpretation of a text that contradicts its explicit terms.

18. Third, and in any case, the proper rule is that of ensuring the effet

utile of the provision to be interpreted:

1946 (No. 196) (France v. Italy), United Nations, Reports of International Arbitral Awards (RJAA),
Vol.XIII, 1955,p. 431.
19Arbitral Award, 24 May 2005, Iron Rhine ("ljzeren Rijn") Railway (Belgium/Netherlands), RJAA,
Vol. XXVII, pp. 64-65, para. 53; see also paras. 24 and 53-55;
20Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J
Reports 2009, p. 237, para. 48.
21S.S.Wimbledon, Judgment, 1923, P.C.I.J, Series A, No.1, pp. 24-25; See also: ICJ, Judgment of 16
April2013, Frontier Dispute (Burkina Faso/Niger), para. 85.
10 "Of particular importance is the principle of effectiveness: ut res

magis valeant quam pereat. The relevance of effectiveness 1s m
relation to the object and purpose of a treaty."2

In other words, the prevailing interpretation must be the one closest to the

object and purpose of a treaty (properly interpreted).

C. That the object and purpose cannot be silently rewritten

19. New Zealand's description of the object and purpose of the

Convention as the framework for "the proper conservation and management

of whales" is incomplete. While it is true that conservation and management

are among the components of the object and purpose of the Convention, this

formulation is a partial paraphrase of the stated object and purpose of the

ICRW. It ignores the Convention's goal of "[making] possible the orderly

development of the whaling industry", which is expressly stated in theiCRW

·Preamble.

20. The Preamble states that the Parties "decided to conclude a

convention to provide for the proper conservation of whale stocks and thus

make possible the orderly development of the whaling industry." While New

Zealand is correct in identifying proper conservation of whale stocks as one

object and purpose of the ICRW, it is inaccurate and misleading (and in a

respect that is crucial in this case) to ignore the concern with the development

of the whaling industry, which was a purpose for which the ICRW was

22
Arbitral Award, 24.May 2005, Iron Rhine ("Jjzeren Rijn ")Railway (Belgium/Netherlands), RIAA,
Vol. XXVII, at para. 49. See also ICJ, Judgment of 1April2011, Application of the International
Conventionon the Elimination of All Forms of Racial Discrimination (Georgia v.Russian Federation),
Preliminary Objections, para. 133 and the authorities quoted therein.
11drafted, adopted, and m due course acceded to by the Contracting

Governments.

21. New Zealand's position eliminates this most important objective

from the Convention. It postulates that the increase of membership of non­

whaling States brought about a change in the object and purpose of the

Convention:

"Their interest (...) lies in the proper conservation and management

of whales themselves, not in the preservation of the whaling
industry."23

22. Whatever the individual intentions of the States parties when

adhering to the Convention, no legal principle allows for a change of the

object and purpose of a convention- especially a change in a direction that is

antagonistic to that established by the text of the convention, and to the will

of the authors of that convention. In particular, the fact that States accede to a

convention that was negotiated without their participation cannot change the

object and purpose of that convention. They accept the Convention as it

stands: to pretend otherwise would encourage an unprecedented form of

hijacking of existing conventions.

23. Moreover, while the ICRW can be (and has been 24) modified, there

has been no modification of any provisions that are material in this case. The

object and purpose of the ICRW have not been amended openly and

explicitly, and they cannot be changed silently on the basis of tenuous

inferences unsupported by evidence.

23NZWO, para32.
24Seethe Protocol to the ICRW.
12 24. Japan's Counter-Memorial has recalled several instances in which

anti-whaling States, and in particular Australia, unsuccessfully attempted to

revise the Convention, in particular its Article VIII. 25 In the same vein, in

2005, New Zealand introduced a document with a view to adopting a

Protocol modifYing several provisions of the Convention. The document

presenting this proposal .specified that such modification could only be

envisaged by means of an instrument having the same legal value as the

Convention itself, i.e.by means of a Protocol:

"A number of delegations have stated that a Revised Management
Scheme is not acceptable without the removal of special permit

whaling. As this cannot be achieved through an amendment to the
Schedule, the suggestion has been made that a voluntary code of

conduct would be a suitable solution. A legally effective and robust
solution, however, is the amendment or removal of Article VIII." 26

Article VIII of the Convention was the first target. New Zealand proposed

27
either purely and simply to suppress Article VIII, or to submit special
8
permit whaling to rules to be decided upon by the IWC?

25. All of these attempts have proved unsuccessful, because the anti­

whaling States were unable to impose their views on the States parties to the

Convention.

25Counter-Memorial of Japan (JCM), paras. 8.33-8.36. For other attempts to restrict the rights enjoyed
by Contracting Governments under Article VIII, see also Circular Communication, 29 August 1986,
RGNJH/16202 [Annex 2]; Circular Communicationo Commissioners and Contracting Governments,
5 January 1987, RG/Vlli/16365 [Annex 3].
26Document Prepareby New Zealand entitled "Protocol Amending the International Convention for
the Regulation of Whaling", Proposed Cover Page, 24 March 2005. [Annex 4].
27
New Zealand, Discussion Document, Protocol Amending the International Convention for the
28gulation of Whaling, 24 March 2005 [AnnJ. 5
Ibid.
13III. NEW ZEALAND'S INCORRECT UNDERSTANDING OF THE

TREATY REGIME UNDER THE ICRW

A. Discretionary power preserved byArticle VIII

26. New Zealand asserts that the ICRW has as its object and purpose

the replacement of unilateral whaling with a system of "collective regulation"

in order to provide for the interests of the parties in the proper conservation

and management of whales? That is inaccurate in several respects.

27. First, the ICRW is not a complete regime that regulates all activities

in respect of whaling and entirely djsplaces all other rights and duties. The

States parties to the ICRW are bound by its express provisions: no more and
no less.

28. It is true that the ICRW constrains "unilateral whaling". The ICRW

is a treaty superimposed upon a pre-existent freedom of whaling - whaling as

an aspect of the freedom of fishing, which is one of the long-established

freedoms of the high seas. The ICRW did not create or crystallize the right to

engage in whaling. Nor did it set out an exhaustive code governing all

activities that affect whales. It consists in a set of rules that regulate certain

aspects of whaling activity, in accordance with the express terms of the

Convention.

29. In this context New Zealand's attempt to surmount the discretion

expressly recognized as belonging to the Contracting Governments under

29
NZWO, para.25.
14Article VIII, by advocating an illusionary transition to a system of "collective

regulation", goes against the plain meaning of Article VIII.

30. In the present case, New Zealand's interpretation of Article VIII

subjects the discretion that a Contracting Government retains under Article

VIII to a requirement that its exercise be validated by the other parties to the

ICRW and by the organs established under the Convention. This deprives

the express words of Article VIII of any real meaning.

31. The words of Article VIII indicate that the Contracting Government

granting a special permit is the Government - the only Government - called

upon to determine whether the granting of a special permit is appropriate and

to establish the conditions under which special permit activities may take

place.

32. Article VIII, paragraph 1,provides that

"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 thinksfit, and the killing, taking, and treating of whales
in accordance with the provisions of this Article shall be exemptfrom
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·permitwhich it has granted." 31

30NZWO, paras45, 68.
31Article VIII (1) ofthe ICRW.

1533. The words "Notwithstanding anything ·contained m this

Convention" and "shall be exempt fro1.1t1 he operation of this Convention"

indicate explicitly that the system established by the ICRW, upon which New

Zealand puts great emphasis 32, does not apply to whaling for purposes of

scientific research.

34. That is perhaps the most crucial fact- and it is an historical fact, not

a matter of interpretation- that is obscured in the New Zealand analysis, as it
is in the Memorial of Australia. The question before the Court is whether or

not Japan has acted contrary to any of the specific undertakings that it made

when it became a party to the ICRW.

35. Furthermore, the "system of collective regulation" to which New

Zealand refers repeatedly 33 is a question-begging label. The fact that the

ICRW provides for binding decisions on some matters to be taken by organs

of the IWC, with legal consequences for the ICRW Contracting Governments,

does not mean that the ICRW has established a "regime" in which all

whaling-related matters are subjectto control by the IWC. Article VIII of the

ICRW does not establish a "system of collective regulation" in the sense that,

for example, the EU treaties establish such a system in certain fields, ousting

the competence of national authorities. This contrasts with the strict

regulation established by the ICRW for the establishment of quotas for

commercial whaling (Article V of the Convention and Paragraph lO(e)of the

Schedule) and for aboriginal subsistence whaling (Article V of the

Convention and Paragraph 13(a) ofthe Schedule).

32
33NZWO, paras6, 7, 14-33, 108, 109, 114.
NZWO, paras6, 7, 14-33, 34, 36, 81, 108, 109, 114.
1636. Similarly, references to a "collective purpose" 34and to "collective

decision-making" 35 are misleading in so far as they suggest an intention on

the part of ICRW States parties to do more than accept the specific

obligations that are set out in the ICRW. Article III of the Convention uses

the term "decisions" for all acts of the Commission, binding and non-binding

alike. It thus refers to Schedule amendments that are in principle binding

(Article V) and to recommendations (Article VI) and other type of

resolutions which have no binding effect whatever. However, a clear-cut

distinction of principle between the two categories must be set out: while

compliance with properly-adopted amendments of the ICRW, being binding,
is in principleamenable to adjudication and judicial enforcement, such is not

the case for purely hortatory instruments, which cannot create binding

obligations by themselves. That is why the law distinguishes between binding

and non-binding instruments.

B. Limited constraints under Article VIII of the ICRW and

Schedule Paragraph 30

37. As far as the restrictions on the exercise of research activities are

concerned, it is apparent from the wording of Article VIII that the

Contracting Government granting the permit enjoys a large margin of

discretion. Ratione materiae, Article VIII imposes upon the Contracting

Governments only one requirement; that of limiting the number of whales to

be taken. However, the establishment of the size of the sample falls under the
competence of the Government that issues the permit. As for any other

34E.g, NZWO, paras. 23, 60.
35E.g, NZWO, para. 28.
17 conditions attached to the permit, it is up to the Government granting the

permit to decide what, if any, limitations are necessary.

38. Aside from the duty to process whales taken under special permits

so far as practicable and to deal with the proceeds in accordance with

directions issued by the Government under Article VIII(2), the only other
express obligations a Contracting Government has towards the Commission

under Article VIII of the ICRW are to report the special permits after it has

granted them and to transmit to such body as may be designated by the

Commission scientific information including the results of research

conducted thereunder. Paragraph 30 of the Schedule, introduced in 1979, has
·added an additional requirement to this reporting procedure, which includes

an obligation to submit to the IWC Scientific Committee the special permit

proposal prior to the issuance of the special permits. It requires that the

Contracting Governments specifYin their proposal certain details as to the

objectives of the research and methods used:

"A Contracting Government shall provide the Secretary to the
International Whaling Commission with proposed scientific permits
before they are issued and in sufficient time to allow the Scientific
Committee to review and comment on them. The proposed permits

should specify:

(a) objectives of the research;
(b) number, sex, size and stock of the animalsto be taken;

(c) opportunities for participation in the research by scientistsother
nations; and
(d) possible effect on conservation of stock.

Proposed permits shall be reviewed and commented on by the

Scientific Committee at Annual Meetings when possible. When
permits would be granted prior to the next Annual Meeting, the
Secretary shall send the proposed permits to members of the
18 Scientific Committee by mail for their comment and review.
Preliminary results of any research resulting from the permits should
be made available at the next Annual Meeting of the Scientific
Committee." 36

39. This obligation under the Schedule cannot be equated to a right for

the other Contracting Governments to veto proposals to grant special permits.

When Paragraph 30 of the Schedule was adopted, it was considered to be

compatible with Article VIII of the Convention only on the understanding

that it could not be construed as limiting the sovereign rights of Contracting
Governments. Sir Derek Bowett's legal opinion, requested by the IWC prior

to the adoption of Paragraph 30 of the Schedule, clearly states that the

amendment to the Schedule cannot purport to restrict Contracting

Governments' rights under Article VIII:

"It is also important to emphasize what the amendment could not do.
The amendment must be so drafted as not to derogatefrom the rights
of contracting Governments under the Convention. Article VIII
makes clear that the decision to grant a special permit rests with the

contracting Governments. The function of the Scientific Committee
must therefore be retained as one of "review and comment' (Rule F).
There can be no question of the Scientific Committee assuming a

power to authorise or disallow a permit. Even the fixing of the
number of whales to be taken, and any.other conditions, rests in the
discretion of the contracting Governments ('as the Contracting
Government thinks fit'), so that the most the Scientific Committee

can do is to comment on these conditions, and this by way of reports
and recommendation to the Commission as Rule J .3recognizes ." 37

40. Thus, the wording of Article VIII has very little that would

constrain the discretion enjoyed by.Contracting Governments. Indeed, except

36Paragraph 30 ofthe Schedule.
37Derek Bowett, "Legal Opinion on Schedule Provision for Prior Review of Scientific Permits and
Prohibition of Whaling by Operations Failing to Supply All Data Stipulated", iWC/31/9, p. 4
(emphasis added) [JCM,Annex 78]. ·
19for an obligation to report (paragraphs 1 and 3) and to join in the efforts to

collect and analyse the data resulting from the research (paragraph 4), no

other objective requirements are established. This situation can be contrasted

with that existing in the Constitution of the Maritime Safety Committee case,

where the Court found that:

"If Article 28 (a) were intended to confer upon the Assembly such an

authority, enabling it to choose the eight largest ship-owning nations,
uncontrolled by any objective test of any kind, whether it be that of
tonnage registration or ownership by nationals or any other, the
mandatory words 'not less than eight shall be the largest ship-owning

nations' would be left without significance. To give to the Article
such a construction would mean that the structure built into the
Article to ensure the predominance on the Committee of 'the' largest

ship-owning nations in the ratio of at least eight to six would be
undermined and would collapse. The Court is unable to accept an
interpretation which would have such a result." 38

41. New Zealand refers to the Pulp Mills case 39,but fails to notice the

important point that the Court, while recognizing a failure on the part of

Uruguay to comply with procedural obligations, did not consider that this

failure amounted to a breach of the related substantive obligations:

"The Court notes that the 1975 Statute created CARU and established

procedures in connection with that institution, so as to enable the
parties to fulfil their substantive obligations. However, nowhere does
the 1975 Statute indicate that a party may fulfil its substantive
obligations by complying solely with its procedural obligations, nor

that a breach of procedural obligations automatically entails the
breach of substantive ones.

38
Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative
39ganization, Advisory Opinion, I.C.J. Reports 1960, p. 166 (emphasis added).
NZWO, para. 86.
20 Likewise, the fact that the parties have complied with their

substantive obligations does not mean that they are deemed to have
complied ipso facto with their procedural obligations, or are excused
from doing so. Moreover, the link between these two categories of

obligations can also be broken, in fact, when a party which has not
complied with its procedural obligations subsequently abandons the
implementation of its planned activity." 40

C. ""Dutyto co-operate"?

42. With regard to the duty of cooperation, Japan does not take issue

with the general proposition that there is a duty of cooperation under the

ICRW. Japan, however, disagrees with New Zealand's proposition that this
duty of cooperation goes so far as to impose upon a State granting special

permits the burden of demonstrating its "readiness to modify its Special

Permit proposal to take account" 41of the views of the States disagreeing with

it. That is an unwarranted reversal of the burden of proof, which has no legal

basis. Moreover, if "taking into account" must be equated to accepting those

other States' views, as New Zealand seems to imply, that would give each

ICRW State (or the majority, or some group of, ICRW States) the right to

impose changes on the conditions of special permits granted by other ICRW

States.Nothing in the ICRW suggeststhat any such power exists.

40Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, LC.J. Reports 2010, p. 49, para.
41 (emphasis added).
NZWO, para. 106. In the same vein, para. 107.
21IV. NO REVERSAL OF BURDEN OF PROOF

43. At a number of points the Written Observations of New Zealand

appear to reverse the burden of proof under international law. One example
42
has just been given. Another clear example appears in paragraph 74 of the

Written Observations, where New Zealand refers to the "precautionary

approach". It quotes a reference by a Chamber of the ITLOS to the "trend

towards making this approach part of customary international law." 43New

Zealand appears subsequently to treat the "precautionary approach" as if it

were already established as a part of customary international law, though

without giving authority for that view or explaining what in its view is the

content of that "approach". It then baldly asserts that the "precautionary

approach" carries with it the requirement "a State interested in undertaking or

continuing an activity has to prove that such activities will not result in any

harm", citing one of the fourteen Separate Opinions and declarations

appended to the ITLOS decision of 3 December 2001 on a provisional

measures application in the MOX case. 44

42See para. 42.
43Responsibilities and obligations of States sponsoring persons and entities with respect to activities in
the Area (Requestfor Advisory Opinion submitted to the Seabed Disputes Chamber), Advisory Opinion,
2011, para. 135; ILM, Vol. 50 (2011), p. 458;
<http:/ /wvvw.itlos.org/fi!eadmin/itlos/documents/cases/case _no_17_OJ0211_eng.pd:l>,
The full quotation is somewhat more cautious, referring to the initiation of a trend: "The Chamber
observes that the precautionary approach has been incorporated into a growing number of international

treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio
Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of
customary international law."
44ITLOS, the Mox Plant Case (Ireland v. United Kingdom), provisional Measures, Order, 2001,
Separate Opinion of Judge Wolfrum, See
<http://www.itlos.org/fileadminlitlos/documents/cases/case_no_l 0/sep.op.Wolfrum.E.orig.pdf>. Judge
Wolfrum, quoted by New Zealand, also said in that Separateon "It is still a matter of discussion
whether the precautionary principle or the precautionary approach in international environmental law
has become part of customary international law."

22 44. The "activity" in the MOX case was the shipment and reprocessing

of nuclear materials. Whatever may be the position in relation to activities

involving nuclear materials, Japan does not consider that the statement

quoted by New Zealand can possibly be understood literally. There is no

evidence that customary international law requires a State that undertakes, for

example, an exercise of its right of navigation or fishing on the high seas "to

prove that such activities will not result in any harm" 45• New Zealand cites no

support for this general reversal of the burden of proof under international

law; and Japan does not consider that any such support exists. Japan agrees

with the statement of the Court in the Pulp Mills case that "while a

precautionary approach may be relevant in the interpretation and application

of the provisions of the Statute [in that case, the 1975 Statute of the River

Uruguay], it does not follow that it operates as a reversal of the burden of
46
proof."

45. Another example appears in paragraphs 107 and 113-114 of the

Written Observations, where New Zealand asserts that a Contracting

Government that issues a special permit must demonstrate that it has

complied with the procedural obligations of cooperation that New Zealand

finds in the ICRW, including: the obligations to allow consultation

procedures to run their full course 47,to take account of the views of others 48,

to take account of the gravity of the proposed actions for the interests of the

other party 49, and to observe due process. 5°New Zealand considers that "due

45NZWO, para. 74.
46Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J Reports 2010, p. 71, para.
164.
47NZWO, para. 101.
48NZWO, para. 102.
49
NZWO, para 104.
23process" reqmres that the Contracting Government demonstrate that it is

ready to modify its approach to special permit whaling. In paragraph 106,

New Zealand says that such readiness must be "demonstrable", which

suggests that the demonstration is due only when another Contracting

Government calls for it; but in paragraphs 113 and 114 New Zealand asserts

that the Contracting Government must "demonstrate" compliance with the

procedural obligations, indicating that New Zealand considers that the onus

lies upon the Contracting Government issuing the special permit to present

the demonstration. In so doing, New Zealand in effect creates a presumption

that a State granting a special permit is acting in bad faith. But "there is a

general and well-established principle of law according to which bad faith is
51
not presumed."

46. Here again Japan sees no reason or support in legal authority for

this reversal of the burden of proof.

"As a general rule, it is for the party which alleges a fact in support of
its claims to prove the existence of that fact." 52

According to New Zealand's view, it would apparently be for the State

issuing a special permit to prove the "accuracy" of its appreciation, and not

50NZWO, para. 103.
51
Lake Lanoux Arbitration (France v. Spain), Arbitral Award of 16 November 1957, ILR, Vol. 24, p.
126. See also Tacna-Arica (Chile v. Peru), Arbitral Award of 4 March 1925, RIAA, Vol. II, pp. 929-930
and Mavrommatis Jerusalem Concessions, Judgment, 1925, P.C.IJ., &ries A, No. 5, p. 43; Certain
German Interests in Polish Upper Silesia, Merits, Judgment, 1926, P.C.I.J., Series A, No. 7,p. 30.
52Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,
IC.J. Reports 2010, p. 660, para. 54; see also Maritime Delimitation in the Black Sea (Romania v.
Ukraine), Judgment, IC.J. Reports 2009, p. 86, para. 68; Dispute regarding Navigational and Related
Rights (Costa Rica v. Nicaragua), Judgment, IC.J. Reports 2009, p. 253, para. 101; Sovereignty over
Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore}, I.C.J. Reports
2008, p. 31, para. 45; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (!), p.
128, para. 204, citing Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of AmericoJ, Jurisdiction and Admissibility, Judgment, J.C.J. Reports 1984, p. 437, para.
101. .

24for other States or the Scientific Committee to disprove it. This cannot be the

law; and this is not what Article VIII or Paragraph 30 of the Schedule say.

47. Yet another example appears in paragraph 54 of the Written

Observations, where New Zealand asserts that it would be inconsistent with

the objective of the ICRW "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". If that implies that the burden lies on Japan to

present on each occasion an objective proof that whaling covered by each

proposed special permit qualifies as whaling for purposes of scientific

research, the proposition cannot be correct. If a State party to a treaty

considers that another State party is acting contrary to its treaty obligations,

the burden lies upon the complaining State to say so and to explain why.

"To begin with, the Court considers that, in accordance with the well­
established principle of onus probandi incumbit actori, it is the duty
of the party which asserts certain facts to establish the existence of

such facts. (...) It is of course to be expected that the Applicant
should, in the first instance, submit the relevant evidence to
substantiate its claims." 53

53Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, J.C.J Rp.71,paras.,
162-163.

25V. "FOR PURPOSES OF SCIENTIFIC RESEARCH"

A. That there is no single definition of "for purposes of scientific

research" and it is up to the Contracting Government

48: New Zealand appears to base its observations on the assumption

that there is one, uniquely correct, view of what constitutes the "purposes of

scientific research".54That view seems, moreover, to be equated with the

view discerned by New Zealand in "guidance" that is provided by a majority

of the members of the IWC. 55

49. However, in reality, the "guidance" of the Scientific Committee is

just that: guidance. While it must be taken into account as part of the good

faith implementation of obligations under the ICRW, Contracting
Governments are not legally bound to follow such guidance, and it does not

add to or modify a Contracting Government's obligations under the

Convention. There is room for Contracting Governments to differ in their

views of the purposes of scientific research.

50. That point was made clear at an early stage in the work of the IWC

Scientific Committee. As the minutes of a meeting in 1957 record:

"The Committee also considered the question whether any practical
definition could be made of 'scientific research' in this context, and,

for instance, whether research on such things as technical methods of
the industry could be included. They felt that it would be very
difficult to make any such definition or to draw a line between one
branch of science or another and that the interpretation and decision

54NZWO,paras.48-54.
55NZWO,paras.55-60.
26 in any particular case should be left to the Contracting Government
56
which issues the permit."

B. Standard of review

51. Japan also disagrees with New Zealand's approach concerning the

right to authorize whaling for purposes of scientific research. Article VIII of

the ICRW reaffirmsthe existence of the right of Contracting Governments to

authorize whaling "for purposes of scientific research'', which right was

firmly establishedprior to the ICRW asan aspect of the freedom of the seas.

Article VIII does not confer that right: it affirms its continuing existence

"notwithstanding anything contained in [the ICRW]", and states that the
killing, taking and treating of whales in accordance with Article VIII is

"exempt from the operation of this Convention".

52. Further, New Zealand asserts that the question whether whaling is

conducted "for purposes of scientific research" is to be determined

"objectively" by the Court. 57That assertion conflates a number of distinct

issues and fails to address some crucial questions, and it does so without

argument or reference to legal authority.

53. Japan accepts that a determination by a Contracting Government

that whaling is "for purposes of scientific research" is not entirely beyond
question. It can be reviewed by the Court.

56
Report of the Scientific Committee, 1957, International Whaling Commission, ninth meeting:
57cument XIII,. 4 [Annex 1).
NZWO, paras 5~54.
2754. However, the Court cannot substitute its own appreciation of the

desirability or utility of a research programme for that of the Contracting

Government. It might decide to strike down the Government's decision on

the basis that it is proven to have been taken in bad faith, for example. But

the Court cannot take the additional step of substituting its own determination.

And, in practice, the Court shows deference to the State's appreciation of the
factual and legal conditions in cases such as the present one, where the State

enjoys a large margin of discretion.

"The Parties have provided the Court with information about

measures Nicaragua has undertaken, and to this day continues to
undertake, in regulating the use of the river. Costa Rica contends that
the information shows that Nicaragua is acting unlawfully, not for
legitimate purposes but for reasons of harassment, and unreasonably

and in a discriminatory way. Nicaragua submits the opposite.

The Court notes that Costa Rica, in support of its claim of unlawful

action, advances points of fact about unreasonableness by referring to
the allegedly disproportionate impact of the regulations. The Court
recalls that in terms of well established general principle it is for
Costa Rica to establish those points (cf. Maritime Delimitation in the

Black Sea (Romania v. Ukraine), Judgment, IC.J Reports 2009, p.
86, para. 68, and cases cited there). Further, a court examining the
reasonableness of a regulation must recognize that the regulator, in
this case the State with sovereignty over the river, has the primary

responsibilityfor assessing the needfor regulation andfor choosing,
on the basis of its knowledge of the situation, the measure that it
deems most appropriate to meet that need. It will not be enough in a
challenge to a regulation simply to assert in a general way that it is

unreasonable. Concrete and specific facts will be required to persuade
a court to come to that conclusion." 58

58Dispute regarding Navigational and Related Rights (Cosv.Nicaragua), Judgment, IC.J
Reports 2009, p. 253, paras. 100-101 (emphasis added).
2855. Like Australia, New Zealand does not address the standard of

review that is applicable by the Court. To take only two possible approaches

to this question, does New Zealand consider that the Court should ask (i) if

Japan's view that JARPA II is scientific research is a view that no reasonable

Government could reach or was adopted in bad faith, or should it ask (ii) if

Japan's view was "correct" and substitute its own (the Court's) assessment
for that of the Contracting Government? Those are very different questions;

and there are many more formulations of the criterion that might be adopted.

Even at this late stage in the proceedings, Japan does not know what standard

of review Australia and New Zealand say the Court should apply.

56. Answering the first of those questions implies that a high threshold

of discretion is recognized to Contracting Government in accordance with the

clear text of Article VIII. By contrast, answering the question whether or not

Japan's view that JARPA II is scientific research is "correct" does not square

with the text. It implies that the Court (or other States) could substitute its
(their) appreciation for that of Japan, which is not what the Convention says.

57. Then there is the separate question of the intensity of review.

Whichever standard is adopted, it is necessary to explain how the Court

should go about applying it. It is doubtful that the Court can make its own
enquiry into the facts. As in most cases where both Parties appear before the

Court, the Court makes its own appreciation on the basis of facts submitted

by the Parties:

"The Court has in this case been presented with a vast amount of
materials proffered by the Parties in support of their versions of the

facts. The Court has not only the task of deciding which of those
materials must be considered relevant, but also the duty to determine
29 which of them have probative value with regard to the alleged facts.
The greater part of these evidentiary materials appear in the annexes
of the Parties to their written pleadings. (...)

As it has done in the past, the Court will examine the facts relevant to
each of the component elements of the claims advanced by the Parties.

In so doing, it will identify the documents relied on and make its own
clear assessment of their weight, reliability and value." 59

The same is true for expert documentation or testimonies:

"[T]he Court does not find it necessary in order to adjudicate the
present case to enter into a general discussion on the relative merits,

reliability and authority of the documents and studies prepared by the
experts and consultants of the Parties. It needs only to be mindful of
the fact that, despite the volume and complexity of the factual

information submitted to it, it is the responsibility of the Court, after
having given careful consideration to all the evidence placed before it
by the Parties, to determine which facts must be considered relevant,
to assess their probative value, and to draw conclusions from them as

appropriate. Thus, in keeping with its practice, the Court will make its
own determination of the facts, on the basis of the evidence presented
to it, and then it will apply the relevant rules of international law.to
60
those facts which it has found to have existed. "

58. The facts are not the only issue. When the facts have been gathered,

how is the Court, as a non-technical body, to appraise them? This is not a

case of the kind that may arise in the WTO, where the issue takes the form of

the technical question whether there are any "less restrictive" measures that

may achieve the chosen aim. That may be a technical question to which there
is a clear technical answer. In the present case, however, the question is one

of the propriety of the research aims themselves, which is a matter of science

policy, and science policy is neither a technical nor a legal question.

59Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
60dgment, I C.J Reports 2005, p. 200, paras. 58-59.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment,IC.J. Reports 2010, pp. 72-73,
para. 168.
3059. In its Written Observations, New Zealand has side-stepped these

problems. Its version of "objectivity" is to say that it disagrees with Japan's

appraisal and to invite the Court to agree with New Zealand, without

explaining how the Court can reason its way to that conclusion.

31VI. LETHAL RESEARCH AND SAMPLE SIZE

60. It is clear that there is a duty not to threaten the existence of whale
stocks by whaling conducted for purposes of scientific research. That is not

controversial. But it is also clear that a certain number of whales can be

caught without any significant risk whatever to the health of a whale stock.

The two points which arise in this context on which Japan and New Zealand

have different views are (i) whether lethal whaling must be the scientific

methods of last resort in the collection of data, used only where there is no

practical alternative and (ii) how the limit on the number of whales is to be

determined.

61. As to the first, there is no basis whatever in the ICRW for an

absolute ban on lethal whaling for scientific purposes: and New Zealand does

not go so far as to assert that there is such a ban. On the contrary, the

possibility of lethal whaling for scientific purposes clearly follows from

Article VIII, which states that "the killing, taking, and treating of whales in

accordance with the provisions of this Article shall be exempt from the
61
operation of this Convention."

62. It is, however, equally clear that nothing in the ICRW establishes

any presumption against the use of lethal methods for the collection of data.

Nor can such a presumption be found in other fisheries conventions.

61Article VIII (1) ofthelCRW.
3263. Moreover, non-lethal methods cannot entirely replace lethal

methods for two reasons. First, certain essential data can only be obtained by

lethal means. Second, while certain data may be obtainable by non-lethal

means it would not be of the same quality and reliability, and in some

circumstances it would take an unrealistic amount of time and expense to
collect a sufficient number of samplesto meet the research objectives.

64. The important question is whether or not the use of lethal methods

can enable a better understanding (and consequently, better management) of

the whale population dynamics - though Japan of course accepts that the

number of whales caught must be such as will not threaten the existence of
the stock. Japan does not in fact use lethal means more than it considers

necessary; but that restraint flows not from any specific prohibition under the

ICRW but from reasons of scientificpolicy in the implementation of its rights

and duties under the Convention.

65. As to the second point, New Zealand says that the numbers of

whales taken must be necessary and proportionate to the objectives of the
62
research and have no adverse effect on the stock. It appears to infer ·the

requirements of "necessity" and "proportionality" from the uncontroversial

proposition (which Japan accepts) that the discretion that a Contracting
Government has to determine the number of whales to be taken under a

special permit is not wholly unlimited - it is not a blank cheque. No

explanation is given to justify these inferences,and Japan does not consider

that there is any warrant for making them. As regards the numbers taken,

62NZWO, paras.65-80.
33they should be sufficient to meet the research objectives and to ensure that

the data collected is accurate - without, of course, endangering the stock.

66. Nor does New Zealand explain how "proportionality" 63 with

"research objectives" is to be determined. Sample sizes are calculated by

standard algorithms. Differences of opinion over the justification for the

sample size flow primarily from disagreements over the need to collect the

data, the level of precision in the data that is sought, the level of statistical

confidence in the analysis of the data that is sought, and the probability and

scale of the impact upon the stock. Such determinations are not supposed to

be made by the Court, which cannot substitute its own appreciation for that of

the State party. Only if the determination made by a Contracting Government
were, for example, clearly arbitrary could it criticize the State decision to

grant special permits.

67. While Japan understands and respects the fact that some other

States- including New Zealand- are opposed to whaling of any kind and in

any circumstances, that is not the question before the Court. The question is

whether there is such an absolute prohibition already in existence as a matter

of international law under the ICRW, and binding upon Japan. There is not.

68. Although more nuanced and considered than the Australian
Memorial, New Zealand's interpretation of the Whaling Convention relies on

similar misleading postulates and leads to the same erroneous conclusions.

63
NZWO, paras. 76-79.

34 VIL CONCLUSION

69. Despite a considerable degree of concurrence between New

Zealand and Japan, Japan sees differences of particular significance in certain

areas, as has been explained above. Starting from the perspective that there

was a transition to a "system of collective regulation" with the adoption of

the ICRW, and disregarding one of the stated goals of the Convention
(namely, "mak(ing) possible the orderly development of the whaling

industry"), New Zealand reaches erroneous conclusions on a number of

points that are pertinent to the present case. New Zealand elevates the views

of an articulate and expressive group of ICRW parties into a definitive

interpretationof the Convention, and consequently misstates the scope of the

discretion expressly reserved to the Contracting Governments by Article VIII
of the ICRW, particularly in relation to research methods and sample sizes as

well as to the duty of cooperation. New Zealand also attempts to reverse the

burden of proof with regard to the precautionary approach, to the procedural

duties incumbent upon Contracting Governments issuing special permits, and

to the determination of what constitutes "scientific purposes" under Article
VIII of the ICRW. Japan submits that New Zealand's characterization of

each of these points is incorrect.

70. New Zealand implicitly requests the Court to substitute its own

judgment for that of the Government of Japan as to the character of the

special permits granted by Japan. It is respectfully submitted that the Court

does not have such a power and cannot substitute its own appreciation for

that of a Contracting Government granting a special permit.

35 Koji TSURUOKA

Agent of Japan

31 May 2013

36 LIST OF ANNEXES

1. Report of the Scientific Committee, 1957, International Whaling

Commission, ninth meeting: Document XIII.

2. International Whaling Commission, Circular Communication to

Commissioners and Contracting Governments, 29 August 1986,

RGNJH/16202.

3. International Whaling Commission, Circular Communication to

Commissioners and Contracting Governments, 5 January 1987,
RGNJH/16365.

4. Document Prepared by New Zealand entitled "Protocol Amending the

International Convention for the Regulation of Whaling", Proposed

Cover Page, 24 March 2005.

5. New Zealand, Discussion Document, Protocol Amending the

International Convention for the Regulation Whaling, 24 March 2005.

6. Statement of 16April2013 by Mr. McCully, the Foreign Minister ofNew

Zealand.

37ANNEX!: Report ofthe Scientific Committee, 1957, International Whaling
Commission, ninth meeting, Document XIII

3839404142ANNEX2: International Whaling Commission, Circular Communication to

Commissioners and Contracting Governments, 29 August 1986,

RG/VJH/16202

~

~ Chairman The Red House,
Mr. I. L G. Stewart {New Zealand! . StationRoad. Histon,
International VYce~Chairman Cambridge CB4 4NP
Mr. M. T. Haddon IVnite,d Kingtjom) TelephOne: Histon !0239"11
Whaling St}Cretary Telex: B17960
Commission 0,. Ray Gambell

Ottr Ref. RG/VJH/16202 29 August 1986
Your Ref.

CIRCULAR COMMUNICATION '1'0 COMMISSIONERS AND. CONTRACTING GOVERNMENTS

The Commiss:Lo~r for the USA has asked for the enclosed Letter on whaling
under special scient:ific permits to be circulated, to all Commissioners and
Contracting Governments.

Dr Cal:!.osuggests 'that:any comments which Cammission,.rs may mllke in response
should be sent t:othe IWC Secretariat by 31 October 1986 for circulation to
the ot:her members.

R.f:fcf~

Dr R.. Gambell
Secretary to the Commission

Enc.

43 EMBASSYOF THE
.UNITED STATESOF AMERICA
24 Grosven~ rquare
London W.l.

August 26, 1986.

Dr, Ray Gambell,
Secretary,
International Whaling Commission, ·
Stationd HRoad,
Histon,
Cambridge,
CB4.4NP.

Dear Dr. Gambell:

·I would appreciate it if you would send out this letter
as a circular communication to all commissioners and contracting
governments as soon as possible and would facilitate our communication
.in the manner suggested in the concluding paragraph.
Recently, I have been engaged in an.effort to interpret and
apply the provisions of the-resolution adopted by the 38th Annual
Meetinc:r--concerning whalin~ .under special scientific permits. In
my view, the long and difficult process leadihq to the consensus
resolution in Malmo was motivated out of. a unanimous view that
whalilfg should not continue that would otherwise cease by terms
of schedule paragraph lO(E) simply because it occurs under special
scientific permits. I am writing now out of a concern that the
resolution does not fully meet the intent that gave rise to it •.

At the 38th Annual Meeting, we recognized both the rights
of contracting governments secured by article VIII of the
scheduleon paragraph colO(E).al We alsolinrecognizediumthatsetthe Commission
has accorded· high priority to undertaking by 1990 the comprehensive
assessment. It is my understanding, therefore, that the 38th Annual
Meeting was striving to find words for the thought that any whale
killing under special ·scientific permits be limited to that found
to be consistent with the comprehensive assessment and that it be
unquestionably noncommercial.

In contrast, the implications of the present resolution are
that a country can allow the taking of an un~imite dumber of whales
.under special scientific permits so long as the whale meat as well as­
other products are used primarily for local, Le., domestic, consurnptiol
and other provisions of the resolution are accounted for. Our
'prim.ar:i,ly'faileetto make clear what proportions thin excessus wof 50 percent
of the two categories of products should be used domestically, b~t,
whatever the proper proportion, this provision fails to provide a
limiting factor on catches_. The forms that local consumption can
and will take include use as human food and animal fodder.

44 2

D.r. Ray Gambell Aucrust 26, 1986.

I am not satisfied with that aspect of the rwc conservation
program that deals with whaling under special scientific permits
while schedule paragraph lO{B) is in effect, both with.respect to
the zero catch limits the latter establishes and the col'1prehensive
assessment it mandates. As the needs and conduct of this assessment
are further defined, any whalinq under special scientific oermits
should be evaluated in light of those needs.. The· INC should make
its positfon clear.

I would like to sugqest that interested commissioners work
cooperatively prior to the 39th Annual Meeting in three areas to
propose that the IWC:

(1} Define and articulate a linkaqe between the needs
and conduct of tne comprehensive assessment called for .
in schedule paragraphs lO{E) and l3(A) and the issuance
of.special scientific permits;

(2) further define the nature of the scientific
committee's role and r:esponsibilities for review and
comment with respect to proposed and. existing scientific
permits; and

0) articulate guidelines tor~th eCientific community
to assist in planninq and carryinq out international
whale research involvinq these permits that addresses
the needs of the commission as a high priority,
particularly in respect of the comprehensive assessment.

I suggest that commissioners who have concerns or views in
this matter share them in correspondence throuqh the secretarv's
circular communication facility by the end of October 1986" I
would be pleased to communicate again with you soon thereafter on
the basis of the comments received.

Sincerely,

Anthony J. Calio
United States Commissioner
to the International
Whaling Commission

45ANNEX3: International Whaling Commission, Circular Communication to

Commissioners and Contracting Governments, 5 January 1987,

RGNJH/16365

~

~ Mr.lL. G. Stewart (New Zealand) The Red House,
International SCambridgeCB4 4NPon,
Vice-Chairman
Whaling . Mr. M. T. Haddon (United Kingdom)Telephone: His(0220231 3971
Dr. Ray Gambell Telex817960
Commission
OurRef. RG/VJH/16365 5 January 1987
YouRef.

CIRCULARCOMMUNICATION TO COMMISSIONERSANDCON'l'RACTING GOVERNMENTS

Special Permits for Scientific Research

The Secretary refers to the Circular Communication dated 29 August 1986 (ref:
RG/VJH/16202) by which comments on a letter from the Commissioner for the USA
were requested.

Copies of the responses received from Australia, Ireland, Japan, Republic of
Kore>!.,Netherlands, Norway, Seychelles, Sweden and the UK are now enclosed for
the information of all C~ssioners.

Also enclosed is a summary list of Permits issued since 1951, compiled by the

Secretariat.

Dr R. Gambell
Secretary to the Commission

Encs.

46 SUMMl OF PERMITS ISSUED FOR SCIENT~ iC PURPOSES

YEAR COUNTRY SPECIES OF WHALE NO, OF AREA PURPOSE RESULT REFERENCE
WHALES

1951 Canada Californian Gray 10 Scientific None taken
Research

1952/3 USSR Baleen of different 6 Antarctic Scientific
species Research

1952 Canada Californian Gray 10 None taken
"
USSR Baleen of different
1952 6 Antarctic
species

1953 Canada Californian Gray 10 " 10 taken April Report SC1 31A & 34
1953 and IWC/5/11

1953/4 USSR Baleen of different 6 Antarctic .. t--
species '<T

1953 Norway Baleen whales 5 Antarctic Report IWC/6/4
"
..
1954 UK Humpback 6 Antarctic 6 taken Interim Report June 1954.
Final Report Feb. 57, also
file Scl doc 103A.

1954 Japan Right 2 Pacific coast " None taken
N/E of Japan

1954/55 USSR Baleen of different 8 Antarctic
species

1955 USSR Right 10 Kurile Isles " Taken & given to
Californian Gray 5 Oceanographic
Sperm 50 Institute of USSR
Academy of Science

1955 Australia Humpback 6 .. 2 cows and Referred to in paper
2 calves taken presented to Scientific
Sub-Committee 1957 - 2 -
Year Country Species of Whale No. of Area Purpose Result Reference
Whales
-

1955 Netherlands Fin 2 calves
2 mothers
+ 2 young fins
35-40ft.

1955/56 USSR Baleen of different 12
species

1956 Japan Right 1 Scientific 1 fema.le IWC/8/12
Research taken

..
1957 Japan Right 2 Pacific N/E Report March 1957 filed
of Japan SC1 106 and IWC/9/6

1956 Netherlands. Fin 1 calf
lactating
3 x 45-50ft.

1957 UK Baleen 12 To test new Permit suspended ..q-
electric for consideration
harpoon following objections

1956/57 gssR 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 Pacific off Live scientific Report June 1958
California Research filed SCl doc 138

1958 USA Any 4 " .. Renewal of
above permitYear Country Species of Whale ~o. of Area Purpose Result Reference - 3 -
Whales

--

1958 Australia Sperm adult female 6
Sperm juvenile female 6

1958 Netherlands Baleen 9 Report May 1959 filed SC1

1959 USA Any 4 Pacific off Specific 2 gray 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 season

1961 Japan Right 3 N. Pacific Scientific 3 taken IWC/14/8

N of 45°N, Research
Bering Sea, Sea
of Japan, Sea of
Okhotsk & Arctic 0'.
Ocean '<:j"

1961/62 USSR Right 12

1962 Australia Bryde's 25 less
than 40ft.

Blue 10 - Nor West
Whaling &
3 - Cheynes
Beach all below
70 ft.

Sperm 48 less than
35 ft. Each
station max. of
4 per month

June/Nov.
IWC/15/13
1962 Japan Right 3 N. Pacific N 3 taken
of 45°N, Bering
Sea, Sea of Okhotsk,

Sea of Japan , &
Arctic Ocean Purpose Result
Year Country Species of Whale No. of Area Reference - 4 -
Whales

1962 Japan Sperm Whole herd of N. Pacific N. Scientific Abandoned. No
30-60 incl. of 35°N Lat. Research suitable herd
undersized, found
calves &

suckling whales

1962 USA Gray 4 " 4 taken IWC/14/8

1962/63 USSR Whalebone 8 (2 per

ship) before
season and
8 after
season

1963 Sout,h Africa Sperm 200 under-

sized excl.
calves - max.
40 per month 350 taken Report July 1964 filed 0
Scientific lJ')
Sperm 150 under- Research SC2 doc 3A
sized excl.
calves - max.
25 per month

..
1963 South Africa Sei 50 50 taken Report July 1964 filed
SC2 doc 3A

1963 Japan Right 3 N. Pacific N. .. 3 taken IWC/16/14
of 45°N, Bering

Sea, Sea of
Okhotsk & Sea of
Japan & Arctic
Ocean

1963 Australia Sperm 140 under- off carnarvon .. 56 taken

sized

1963 USA Any except 4 " Permit unused.
Right Experiments were
carried out on

whales caught
commerciallyYear Country Species of Whale .• of Area Purpose Result Reference - 5 -
Whales

1963/64 New Zealand Sperm 100 max.

of 30 per
month

1964 Canada Sperm 20 under- N. Pacific Scientific None taken,
sized or off West coast Research p~it re-issued
lactating of Canada 1965

1964 USA Gray 20 " 20 taken Report filed SCi.
and IWC/16/14

1964 USA Any except 4 " Renewal of
Right 1963 permit

USA ..
1964 Sperm 1 entire None taken Report filed SC2 doc13
harem school

1964 Japan Sperm 3 entire N. Pacific N. .. None taken
schools each of 45°N, Bering ,.....;
not more than Sea, Sea of V)
30 animals Okhotsk, Sea of

Japan & Arctic
Ocean

1964 USA Gray 3 Scammon Lagoon,
Baja, California

1964 Japan ..
Fin 2 over Pacific 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 with

calves and
suckling whales

1965 USA Sperm up to 50 .. None taken

1965 Australia Sperm 120 under- None taken

sized up to 40
in 3 fortnightly
periodsYear Country Species of Whale No. of Area Purpose Result Reference - 6 -
Whales

1965 canada Sperm 20 under- N, Pacific Scientific None taken, IWC/19/9
sized or off West coast Research permit re-
lactating of Canada issued 1966

1965 Japan Sperm school up N. Pacific " 26·taken Report filed SC2 doc60
to 30 N of 35°N and IWC/18/12

1965 USA Any except 12 (not
Right more than 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
Scanunon Lagoon Research o.n.1
& E. Pacific

1966 Norway Blue
Humpback

1966 USA Gray 40 later .. 26 taken IWC/18/12 and IWC/19/9
amended to
60
Sperm 50 Renewal of
1965 permit.
22 taken IWC/19/9

1966 Canada Sperm 20 under- N. Pacific off ..
Renewal of IWC/19/9
sized or West coast of 1965 permit
lactating Canada

1966 USA Minke 2 For live None taken
public displayYear Country svec.i:es of Whale NO,,of Area Purpose Result Reference - 7 -
Whales

1966/67 Japan F.i:n 2 females s. of 4o'>.sLlJ.t, .Scientific 3 female fins Report filed SC2 doc140
+ calves Rel!.earch + calves taken, and lWC/19/9
0 3 pygmy blues
Blne 3 S. o£.40 SLat. and 51 sperm
Sperm 100 s. of :3o s Lat.
Fin 1 :f:emale whales taken
+calf S, .if40°S Lat.

196.6/67 USSR Bryde 3 " 3 Bryde and IWC/20/10
Sei 3 1 Blue taken
Pygmyl;>lue 1
Fin 2

1967 USA Gray 100 99 taken lWC/19/10

1967 USA Minke 2 Ji'orlive None taken Sightings report filed
pul;>lic sc2 Cloc169·
.('!')
displaY! re- '-()
newal of
1Ql56 .J?erl!lit

1967 USA spe:rm 50

1967/68 Canada Fin 5 unaer 4Q£t. Scientific 1 taken IWC/20/10
Sei 5 under 33ft. R.esearch 1 taken and report filed SC2 doc14~
Spe;rm
5 under 32:ft. ·" 5 taken

1968 USA Gray 100 66 taken Report filed SC3 doc23A
and IWC/20/10

1968 USA Gray 5 max. Live RePc::>rfiled SC3 doc13
Research

1968
USA Sp~rm 100 Scientific 53 taken Report filed SC3 doc23A
Research

1968 USA Mirike 2 For live
public display,
re1,1ewalof
1967permitYear Country Species of Whale No. of Area Purpose Result Reference - 8 -
Whales

1968 Japan Sei 5 lactating Scientific 1 mother Report filed SC3 doc28A,
+ 5 calves Research + calf taken IWC/20/10 and SC/21/10

1968 USA Humpback unspecified Off Bermuda To attach
acoustic
beacons

1968 Japan Right 2 Okhotsk Scientific 2 taken Report filed SC3 doc28A
Sea Research and SC/21/10

1969 USA Gray 100

1969 USA Gray 1 To allow Whale died Report filed SC3 doc23B
stranded whale
to be kept in
captivity
'<j"
1969 USA Minke 2 For live public VI
display, renewal
of 1968 permit

1969 USA Sperm 100 Scientific 31 taken Report filed SC3 doc40D
Research and SC/22/8

1969 USA Gray 1 or Live research
more to attach elec-
tronic tracking
devices

1969 USA Humpback unspecified Off Bermuda To attach Report filed SC3 42A
acoustic

beacons

1969 canada Humpback 20 over NWAtlantic SC'ientifH.' None taken
45ft. off east Research
coast of
Canada
.. Report filed SC3 doc54
1969/70 Japan Pygmy Blue 9 40°S Lat. - 2 taken
N. of 55 0s Lat. and SC/22/4Year Country Species of Whale I of Area Purposr Result Reference - 9 -
Whales

1970 USA Sperm 3 Live public
display

1970 USA Sperm 100 30 taken Report filed SC3 doc67A
and SC/22/8

1970 USA Humpback unspecified To attach
acoustic

beacons

1970 USA Sperm 4 To mai.ntain None taken
Humpback 2 in captivity

1970 Norway Fin 20 E. Greenland Scientific 19 taken Report filed SC4 docl and
waters Research IWC/23/SC/18

1970 canada Fin 40 NWAtlantic

Canada Humpback 20 NWAtlantic Renewal of 20 taken IWC/24/SC7 V"l
1970
1969 permit

1970 South Africa Minke 25 lactating SWIndian Scientific 12 lactating + Report filed SC3 doc65C
+ calves Ocean off E. Research 2 calves taken and IWC/23/SC/19
coast S. Africa

1970 Japan Sei 5 lactating N. Pacific " None taken IWC/SC/22/4 and IWC/23/17
+ calves

1970/71 USSR Pygmy right 3 N. from 40°S .. 3 pygmy right, IWC/23/SC22

Bryde 10 Lat. 5 blue & 24
Pygmy blue 5 Bryde •s taken
Humpback 2

1971 USA Sperm 4 To maintain None taken

Humpback 2 in captivity,
renewal of
1970 permit

1971 South Africa Sperm 15 calves sw Indian
Ocean off E. Scientific 9 taken Report filed SC3 doc81A
Research and IWC/23/SC/19 and
coast s. Africa IWC/24/SC7Year Country Species of Whale No. of Area Purpose Result Reference - 10 -
Whales

---

Sperm 3
1971 USA To maintain
in captivity

1971 USA Gray 2 calves For live
research

South Africa Minke
1971 12 lactating SWIndian Scientific 9 taken Report filed SC4 doc22B
+ 2 calves Ocean off E. Research and IWC/24/7
coast s. Africa

1971 Canada Fin 40 NWAtlantic ..
Humpback 30 20 humpbacks IWC/24/7
taken

1971 Japan Sei 5 lactating N. Pacific Renewal of None taken Report filed SC4 doc41

+ calves 1970 permit \0
VI
1971 USA Sperm unspecified .Live None taken Report filed SC4 doc28A
research

1971 South Africa Sperm 15 calves SWIndian
Scientific None taken Report filed SC4 doc22A
Ocean off E Research
coast s. Africa

1971 USA Humpback 2 For live
display

1971 Japan Sperm . 200 Scientific 200 taken from Report filed SC4 doc41
Research 15 schools and IWC/24/7

1971/72 USSR Sei & Bryde 12 .. 8 sei, 1 Bryde, IWC/24/7
Pygmy Blue 6 3 pygmy blue and

Humpback 3 3 humpback taken

1971/72 Japan Fin 15 females s. of 40°S .. 2 taken Reoort filed SC4 doc 42A
+ calves Lat.Year Countrv Species of Whale • -'• of Area Purpose ·Result Reference - 11 -
Whales

1972 USA Sperm 4 For live

Humpback 2 studies.
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. Pacific Scientif:i.:c 13 Bryde & SC/25/39
Sperm 1 or 2 harem Research 11 Sperm taken
schools
t--
o.n
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 taken
1972 permit

1973 USSR Fin 5 Scientific
Sei 5 Research
Bryde 5
Sperm 5

1976 Japan Sperm 80 N. Pacific

1976 Japan Minke 100 N. Pacific .. 1 taken SC/29/Doc39

1976 Japan Bryde 240 s. Hemisphere Population
105 taken SC/29/Doc38
StudiesYear Country Species of Whale No. of Area Purpose Result Reference - f2 -
Whales

1977 Japan Bryde 120 S. Hemisphere Population 120 taken SC/30jDoc30
Studies

1977 USSR Bryde 5 s. Hemisphere Population 5 taken SC/30/Doc55
Studies

1978 Japan Bryde 120 s. Hemisphere Population 120 taken SC/31/0oc31
Studies

Fin
1985 Iceland 80 N. Atlantic 5-year
Research
sei 40 Programme

Minke so
annually

1£) AUSTRALIAN NATIONAL PARKSAND WILDLIFE SERVICE
HEAD OFFICE DARWIN OFFICE
Canberra. A.C1.2601 Oarwm.N l579d
ConsnucnonHouse Ground Floor.Commere•atUn1onBut:Qong
TurnerA..C.l. 2601venue PhMe!08918l 5299w1n. N T 579'4
Phonei0621<1662'1i Te-!e"AA85130
Tetex.AA-02971
Our ref
<ouu•l 610/l/31

24 october 1986

Dr R. Gambell
Secretary
International Whaling Commission RECEIVED
The Red House
Station Road, Histon 2 1 OCT 1786
CAMBRIDGE ENGLAND CB4 4NP
I.W.C.

Dear Dr Gambell,
I refer to Dr Calia's letter to you of 26 August 1986
seeking the views of Commissioners on the subject of special
permits for scientific research.

I fully support the statements made by the us
commissioner and in particular I share his concern that the
resolution on special permits drafted at Malmo has failed to
provide unambiguous guidance for countries intending to pursue
whaling for scientific purposes during the period of the
moratorium. Recent events have demonstrated that although very
considerable effort was expended to develop a resolution which
could be adopted by consensus, the differences in its
interpretation are, as indicated by the US Commissioner,
sufficient to subvert the intent of the resolution. I am deeply
concerned that unless some procedure is established to regulate
the killing of whales under national scientific permits the
effectiveness of the IWC will be further undermined to the extent
that it may lose international control over whaling.

For these reasons I would welcome co-operative efforts
by interested Commissioners in the three areas Dr Calio has
identified as priorities, in the period leading up to the 39th
Annual Meeting. He has proposed that interested Commissioners
work to: establish a clearer link between the comprehensive
assessment and further research catches; build on the existing
Scientific Committee Guidelines for Assessment of Scientific
Permits (Annex L) in further defining the role of the scientific
Committee in the review of such permits; and facilitate
international co-operation on research under scientific permits
in line with the objectives of the Commission.

The Republic of Korea and Iceland have argued that
their research will contribute to the work of the Comprehensive
Assessment. I believe that member governments undertaking
research under national scientific permits should have as a major
goal the development of experimental design which will provide
max~mal information of relevance to the long term objectives of the

59 2

Commission through the Comprehensive Assessment. It would be
appropriate for the Scientific Committee, as the body planning and c<
ordinating the Comprehensive Assessment, to be involved in all stagel
of experimental design, methodology and analysis of results.

In addition to those tasks already detailed, I feel that tr
Commissioners could supplement the existing Schedule definition
of "small type whaling" through consideration of the
characteristics of commercial whaling operations, with the final
aim being the development of an unambiguous definition for
inclusion in the Schedule,

It should then be possible to consider the elements
which together constitute the taking of whales for scientific
purposes and then reach agreement on a definition embodying those
elements. An agreed interpretation of the phrase "primarily for
local consumption" for inclusion in the Schedule definition of
"whaling under scientific permit" would be an essential component
of the definition. The next step would be to determine the
extent to which whaling for scientific purposes that took place
outside the agreed Schedule definition should be treated as
infractions by the Commission.

I would suggest that discussions on these. issues could
most successfully be conducted through correspondence over the
next seven months and by holding a meeting of interested
commissioners immediately prior to the next Annual Meeting in
Bournemouth. I also believe it would be beneficial for Dr Calia
to consider bringing this matter to the attention of the
Scientific Committee for their consideration and comment at the
next Annual Meeting.

Yours sincerely

Professor J.D. ovington
Director

Australian Commissioner to the IWC

60 An Roinn Turasitireachta, lascaigUna <;hillMochargan Tcleafon0 1-6{)().1-!4
a~usFuraoiseachta Baile AthaClia1~ Teikac'90~5 3fWS
\!aca>amhail01-7895::~

Tckphonc 01-I>OH.J+l
Ilcpartmenl of TourisFisheries L~eso nanl!'
and Forestr) l)ublin 2 Tele.x 90153 FFWS
facsimil01-7895~7

T~gain

Our Re(oren.:cK7/9/18

J_[f-cctober, 1986
/

The Secretary
The International Whaling Commission
The Red House

Station Road
His ton RECEIVED!
Cambridge 30
CB4 4NP °CT h86 I
England
rw.c. .

Special Permits for Scientific Research

Dear Sir

I wish to refer to your letter of 29 August in connection with correspondence
from the U.S. Commissioner concerning the resolution dealing with special
permits ·for scientific research adopted by the 38th Annual meeting.

We feel that the U.S. Commission has a valid point when he states that the
scientific permits could allow for unlimited taking of whales. This situation
could perhaps be rectified by.the addition, at the 39th meeting, of a fourth

recommendation along the following lines:

"Recommends that the number of animals which may be taken under any such permit
issued by the Contracting Governments should be strictly limited to the need
for completion of the proposed research".

Regarding Commissioner Calio' s concern about the subsequent utilisation of
whale products, we are of the opinion that once the research is essential
(as it should be in view of indent (2) on page 2 of the Recommendation), the
as crucial as might first appear.

Yours

Fi.;hr!ril!\:l.·~!r
Fon:q and \YiklliS0r< ke
POD

61 ·.RECEIVED

\\ 3 1 \,..:1.i)1 • GM7«JJ

\ I.Vl.C.

iTHE VIEW OF JAPANESE COMMISSIONERON THE PROPOSAL
BY THE COMMISSIONF.R OF THE UNITeD STATES

1. , we consider that whales are a renewable marine
I .
resource which should be rationally utilized through

application of conservation me~sureo based on the results

of continued scientific research so that this valuable
resource could be passed onto future generations.

Japan is proud of her record of having made

significant contributions to various scientific res•arch

on the status of whale stocks by providing monetary funds

and human resources, which she regards as a duty given to

her as a member of the rwc.

We regard it as extremely unreasonable that some

member nations indulge themselves only in criticizing the

results of research conducted by other nations, without

offering to undertake any field research which obviously

:-;-:;.•c~st then1 substantial sums of money.·

Since there are divergent views among the member

nations of the !WC at the present time on the question of

the moratorium on all commercial whaling, the Commission

should strengthen its policy to encourage scientific

research on the status of whale stocks, rather than

restrain such research.

62 /
GH7~JJ J
I

I 2
"!

2. Japan considers that it is a prerogative accorded to

each contracting Government under Article 8 of the

Convention that a Contracting Government may issue special

permits for scientific research and that nothing should

restrict such a prerogative of a member nation. It is

obvious that the commission has no authority to restrict

the right of a Contracting Government to issue such

permits, by introducing -its own criteria to evaluate

whether or not such research is scientific.

Japan believes that there exist adequate

opportunities to reflect in scientific research programs a

broader range of views of the scientific community,

through the procedures adopted by the IWCScientific

Committee in 1985.

3. Japan firmly believes that the resolution on special

permits adopted at the Annual Meeting this year is a

product of all possibl~ compromises that could be reached

among ~he contracting Governments, within the limit that

the right of the member nation as provided for in

Article 8 remains unviolated.

If the proposal by .the u.s. commissioner is to modify

this resolution in an attempt to impose additional

restrictions an special permits, it obviously runs counter

to Article S of the convention and such proposal would,

therefore, be unacceptable to Japan.

63.. i 3 -

4. The u.s. commissioner's comment empha$izes that

scientiric research must be limited to that which·

contrib~tes to the comprehensive assessment. It is
without doubt that we must by all means actively undertake

a comprehensive assessment in order to resolve problems

facing the IWCwhich generate confrontation among the

member nations due to the divergent views on the

· moratorium.

Any nation that proposes research under Article 8 of

the convention during this time period sho con~ider ways

by which it contributes to the comprehensive assesment.

This does not mean, however, that the commission may set

up criteria to evaluate the value of such research solely

on the basis of its usefulness to the comprehensive

assessment, because it introduces restrictions upon the

membec nations' preVrogative in making its own decisions
1\
with rega~d to the issue of special p~rrnits.

(3)

64 NATIONALFISHERIES RESEARCH ANDDEVELOPMENTAGENCY

2-16NAMHANG-DONG. YEONGOO-GU,
PUSAN 606.REPUSLIC OF KOREA TEl.'-!.9 0021-26

Dr. Ray Gambell October 2111986
Secretary
International Whaling Commission
The Red House, Station Road, Histon
Cambridge CB4 4NP

Dear Dr. Gambell

I am pleased to refer to your letter of 26 August, 1986 regarding special
permits for scientific research suggested by Dr. Calio, the USA Commissioner.

I think it is quite desirable to consult about the matter for clarification

of the extent of scientific research at the 39th Annual Meeting.

However, I believe, in such consultations it should be taken into account

that any Contracting Government may grant special permits under Article VIII
of the International Convention for the Regulation of Whaling, and that there

are differences in research funct.ions of ContractingGovernments wh.ich wish to
conduct scientific research, the sea conditions by area, and the whale species

to be researched.

Sincerely yours,

RECEIVED ~PP:~
Korea~ to IWCiss~oner
3o >~r r:e6 Director General
National Fisheries Research and
Development Agency
I.W~C. # 16,2-Ga,Namhang-dong Youngdo-Ku
Pusan 606, Republic of Korea

F1shenes ResearchDeveicprr;:~nt:-:.::y

Tn1s <>aentv a hlstortc
tradttxoiserv1to thNan-:..n

65RETYPEDCOPYOF TELEXRECEIVEDON 19 NOVEMBER 1986 FROM

F.C.M. VANRIJCKEVORSEL,NETHERLANDC SOMMISSIONERTO THE IWC

WITHREFERENCE TO THE LETTEROF THE COMMISSIONEROF THEUNITEDSTATESOF
AMERICADATED26 AUGUST1986 I WISHTO INFORMYOUOF THE FOLLOWING.

THE NETHERLANDG SOVERNMEN T CONCERNED ABOUTTHETENSIONBETWEEN THE
ACCEPTEDGENERALIWCPOLICY, FOUNDED ONTHE PROVISIONSOF THE SCHEDULE,
IN PARTICULARPARAGRAPH lO(E),ANDTHE POSSIBILITY THATCONTRACTING
GOVERNMENTS U,SINGTHEIR RIGHTSLAID DOWN IN ARTICLEVIII OF THE CONVENTION
TO ISSUE SPECIAL PERMITSFOR SCIENTIFIC RESEARCH,ACT IN A WAYTHATIS NOT
CONSISTENTWITHTHATGENERALPOLICY.

I SHARETHECONCERN OF THE US COMMISSIONETHATTHE WORDING OF THE PRESENT
RESOLUTIONONSPECIAL PERMITSDOESNOTFULLYMEETTHE INTENTTHATGAVERISE
TO IT.

THEREFOREI WELCOMT EHE SUGGESTIONTHATPRIOR TO THE 39TH ANNUALMEETING
INTERESTEDCOMMISSIONERW S ORKCOOPERATIVELIN ORDERTO FURTHERDEFINE THE
CONDITIONSUNDERWHICHSCIENTIFIC PERMITSSHOULDBE GRANTED BY CONTRACTING
GOVERN~ffiNTINCLUDINGTHE ROLEOF THESCIENTIFIC COMMITTEE.

AS TO THEDISCUSSIONAREASPROPOSEDBY THEUS C~liSSIONER I WOULDLIKE TO
SUGGESTTHAT C0~1ISSIONERSCONSIDERTHE PROBLEM OF THESPECIAL PERMITSNOT
ONLYIN THE CONTEXTOF THECOMPREHENSIVA ESSESSMENTBUTALSOIN THE LIGHT
OF THE MORATORIUOMNCOMMERCIAW LHALING.

66 RECEIVED

15 DEC,: 86

I.W.c.

LE' OlR£eTEDES AFfAIRJUA1DfQU£S

Oslo, /0 December 1986

Re Special Permits for Scientific Research

This is by way of a comment to your circular
communication to Commissioners and Contracting Governments

of 29 August 1986 (your ref. RG/VJH/16202).

We had a long, serious and difficult discussion

in Malmo of special permits issued under Article VIII of
the 1946 Convention. Personally, I am very glad that it was

possible to reach a consensus on a resolution on certain
procedures and modalities which Contracting Governments will

be expected to observe in connection with the future discussion

of scientific research projects and the issuance of special
permits.

There is a suggestion in Dr. Calia's letter of

26 August 1986, distributed with your circular communication,

that there was a unanimous view in the Commission that our
discussion - and the resolution on guidelines - was directly

linked to the moratorium on commercial whaling set out in
paragraph 10 (e) of the Schedule.

I believe I made the point very clear in working
groups and in informal contacts that the issuance of special

permits under Article VIII of the Convention is not restricted
to any particular branch or specialty of science, or to any

./2

D.r. R. Gambell
Secretary

International Whaling Commission

C a m b r i d g e

67 - 2 -

speci fie purpose mentioned in the Schedule. There would
be no necessary link to the comprehensive assessment, or

to investigations otherwise directed toward an evaluation

of population developments or stock conditions. I think
I stressed that the issuance of special permits would be

legitimate for any bona fide scienti fie purpose, such as
medical or veterinary or general biological investigations.

In our Plenary discussion, I stressed Norway's concern
over the risk that the IWCmight set an unhealthy

precedent by establishing criteria which could restrict
the freedom of scientific research.

I remain convinced that broader concerns for

commonpolicies of scientific freedom continue to support
such a latitudinarian view, and I cannot therefore agree

with Dr. Calia that it would be helpful to seek to

establish any rigid linkages between Article VIII of the
Convention and any specific part of the Schedule.

Otherwise, I would welcome further efforts to

engage Commissioners in constructive discussion on other
aspects of special permits before the next Annual Meeting.

68SWEDISH MINISTRY OF AGRICULTURE

1986-11-03

Dr. Ray Gambell,
Secretary,
International l'lnaling CCmnission,
The Red Ibuse,
Station Road, Histon,
CAMBRIDGE, CB4 4NP

England

Dear Dr. Gambell,

With reference to the letter of August 26, 1986 by Anthony J.
calio, US CCmnissioner to the IWC, I w::>uld like to make the
following carments.

At the 37th Annual Meeting SWeden put forward a draft resolution
on scientific permits {n'lC/37/27} out of fear that an intensive
use of article VIII might circumvent the carrnercial moratorium
set forth in schedule paragraph lO(E) •

I am not fully satisfie1 with the outcane of this issue at the
38th Annual Meeting of the me. We are all aware of the
laborious and difficult process that led to the resolution
adopted unanimously.

It goes without saying that by the very nature of the process of
reaching consensus all your original intent will not be met.

During the process we realized the difficulty, or rather
impossibility, of reaching a binding resolution. Rather than
getting a split decision the ccmnissioners preferred a weaker
consensus resolution, even if it might be difficult to inter-
. pret.

8\veden thereby declared, after the adoption, that it had, in the

spirit of consensus, agreed to accept the reccmnendation and
hoped that all Whaling nations will :ir.tplement it conservatively
so as not to make the special permit a cover for continued
carmercial whaling.

I agree with Mr. Calia about the implications of the present
resolution, "primarily" is not an easy ;..ord to interpret, but I

doubt that "mainly", "chiefly" or "predc:rni.nantly" might have
been any better.

Postal addreu Visiting address Teldphone
S-10333 STOCKHOLM Drottninggatan 21 08·76310 00

69 2

The c:Cmprehensive assessment is one of the lOClstimportant tasks
challenging IWC. A defined and articulated linkage between that
assessment and the issuance of special scientific permits might
therefore be useful. I think that such a linkage is an :irnportant

element in keeping the international credibility of IWC. In my
opinion difficulty to enforce its own decisious and use of
article VIII as a lo:>phole cannot be elements in an organization
that has a responsibility to protect the whale stocks. Perhaps,
as Mr. Calio suggests, v.ork prior to IWC 39 could find a solu­
tion to that linkage as well as to the other tv.o areas mentioned
in Mr. Calio's letter. SWeden would like to participate in that
work.

Another task for that v.ork might be to consider sane kind of
reporting procedure for the countries engaged in "scientific
whaling" or h<M and to what extent they are observing the
recrnrnenda.tions and especially the "take account of" of the
first, second and fifth operative paragraphs of the resolution.

Sincerely yours

Sture Irberger
Swedish COmmissioner to
the International Whaling
COmmission

70 Seychelles High Commission,

BOX No. 4PE, 4th FLOOR,
50 CONDUIT STREET, LONDON Wi A 4PE.

Telephone 01-439 0405Telex 21236 SEYCOM G

Your Ref:

OurRef: CUL/12

lOth November 1986

Dr. Ray Gambell,

Secretary,

International Whaling Commission,
The Red House,

Stat~on Road, Histon,
Cambridge,

CB4 4NP.

Dear Dr. Gambell,

I refer to the letter from the United State Commissioner dated
Augus·t 26th, wrU.ch you circulated to other Commissioners.

We !~nd Mr. Ca1io•s suggestions to be an appropriate way for

the Commission now to approach a very important problem. If

not satisfactorily resolved, and soon, the matter of "Scientific
Whaling" on a large scale is in the opinion of the Seychelles

Delegat~on; one which will continue to reduce both the effective­
ness, the credibility and ultimately, perhaps the viability of

the I'WC. In an effo·rt to reduce this trend this delegation is
ready to cooperate in the actions proposed by the United State

Commissionei:.

Yours sincerely,

____ ... _
~
R.F.Delpech

Ag. Seychelles Hi'gh Commissioner. RECEIVED
12NOV 17·86

1.\V.C.

71 MINISTRY OF AGRICULTURE, FISHERIES AND FOOD.
GREAT WESTMINSTER HOUSE
HORSEFERRY ROAD LONDON SW1P 2AE
Direct linor-2.r6

or Switchboardor-zr6 63It

Dr Ray Gambell Our ref: MCC48
International Whaling commission
The Red House
Station Road
His ton
Cambridge
CB4 4NP 11 November 1986
RECEIVED
i4<JV'S6

1.w.c.

SPECIAL PERMITS FOR SCIENTIFIC RESEARCH

I am responding to your circ~la ·rf 29 August enclosing a letter from
the commissioner for the United States of America.

The United Kingdom Government also attaches importance to the question
of whaling under special scientific permits during the period of the
moratorium on commerical whaling. We take very much the same view as
the us Commissioner on the aim of the resolution adopted on this
matter at the 38th Annual Meeting. ·

It is perhaps not surprising if the provisions of this resolution,
which was adopted by consensus, have intially proved somewhat difficult
to apply. We would certainly welcome any further attempts to improve
its effectiveness ·and would gladly co-operate in any further work on
the matter prior to the 39th Annual Meeting.

M T HADDON
Commissioner for the United Kingdom

72ANNEX4: Document Prepared by New Zealand entitled "Protocol Amending
the International Convention for the Regulation of Whaling",
Proposed Cover Page, 24 March 2005.

732

U1at
that

74ANNEX5: New Zealand, Discussion Document, Protocol Amending the

International Convention for the Regulationng,
24 March2005

O[SCUSSION DOCUMENT

PROTOCOL AMENDiNG THE ~NTERNAT!ON ALtdVENTiON FOR TH'E
REGULATION OF'~~~HALlNG

75Artieje 1 (Speci.a.! Permits)

Option 1

T!l!S\iVOU entalf"""'"'""n~l•na•·•t..,.
and

Te:xt for Consequential Amendments
r·eferences. to ""commereiaF'

7677 be

r"'"'""'nd

of the

2 ti'te ftH1Cttuns sout !n
tf!e

3 The

~sin st:tttaroracKe~~s.
as a m.ax!rnu1nnumber

7879 -6

This

80Anew

812 No reservations

m~:rru::a. O1t :rh., .•-o.nr·.c

t!1isProtocol.83 10

Annex i

Functions of the Comptl:anceRev.ievi Committee

84 a

of
of

I'{Oc<:'i'\lifit\1\I'Q'

C;l'!<c1irlnanof the
rt~'""' he'P'es"te::'>!"'a!'~thin

r~~~lcr~

c:nairrnan, of
a furthe.- two-mont11

Jsa nath:ma! of
re~::Hle nce

nas
s!mHmake the

85 12

868788 15

89ANNEX6: Statement of 16 April2013 by Mr. McCully, the Foreign Minister

ofNew Zealand (http://w>vvw.rpccullv.eo.nz/foreign:_affairs/press:
releases/202/icj-sets-date-tor-whaling-submission, last consulted
on 24 May 2013)

90