                     383

                                  DISSENTING OPINION OF JUDGE YUSUF

                        The Court misconstrued the applicable law — The parameters of review of
                     Japan’s conduct are Article VIII of the ICRW, paragraph 30 of the Schedule, and
                     the Guidelines adopted, not extraneous standards such as “reasonableness” — The
                     question before the Court is treaty interpretation — It is whether Japan’s decision
                     to authorize JARPA II was consistent with the applicable law — The Court should
                     have assessed the effect of recent amendments on the object and purpose of the
                     Convention — Article VIII should have been interpreted in light of that evolution —
                     The Court’s function is not to conduct a scientific review of the design and
                     implementation of JARPA II — Whether or not a programme is for purposes of
                     scientific research cannot be determined on the basis of the reasonableness of the
                     scale of the use of lethal sampling — The distinction between “scientific research”
                     and “for purposes of scientific research” adopted by the Judgment is unpersuasive —
                     It is paradoxical to conclude that something constitutes scientific research but is
                     not for purposes thereof — Paragraph 10 (e), paragraph 10 (d), and paragraph 7 (b)
                     of the Schedule only apply to commercial whaling — The Court has not established
                     that JARPA II was commercial whaling — The finding that Japan has breached
                     the moratorium, the Southern Ocean Sanctuary and the ban on factory ships is
                     thus unwarranted.

                                                    I. Introduction

                        1. I regret not to be able to join the majority that has voted in favour
                     of most of the operative paragraphs of this Judgment. I regret it all the
                     more since I am certainly no less sensitive than my colleagues to the tak-
                     ing and killing of the whales.
                        2. Many of us are disturbed by the killing of these iconic and intelli-
                     gent animals and by the manner in which they are killed. However, these
                     perfectly justified emotional reactions should not make us overlook that
                     it is only by reference to the law that the issues before this Court can be
                     resolved. The judicial settlement of disputes between States cannot be
                     made on emotional or purely ethical grounds.

                        3. I have decided to dissent because I have serious doubts about the
                     legal correctness of the Court’s reasoning and its conclusions. First, the
                     question before the Court is one of treaty interpretation and it is whether
                     or not Japan’s decisions are consistent with the relevant provisions of the
                     ICRW. The parameters to determine the legality of Japan’s special per-

                     161

8 CIJ1062.indb 450                                                                                18/05/15 09:29

                     384 	         whaling in the antarctic (diss. op. yusuf)

                     mits for JARPA II, are to be found in the treaty itself, particularly Arti-
                     cle VIII, paragraph 30, of the Schedule and the Guidelines adopted for
                     the application of Article VIII (such as Annex P) ; and not in some extra-
                     neous and undefined standard of review. Resort to such a standard
                     negates the relevance of the specific provisions of the treaty which consti-
                     tute the law applicable to this dispute.

                        4. The dispute before the Court in the instant case is not about the fit
                     between the aims of JARPA II and its design and implementation as a
                     scientific research programme ; nor is it the task of the ICJ to review and
                     evaluate the design and implementation of a research plan for scientific
                     whaling (para. 67). That is the function of the Scientific Committee of the
                     International Whaling Commission (IWC).

                        5. Secondly, I think that the reasoning of the majority is seriously
                     flawed in characterizing, on the one hand, JARPA II activities as “scien-
                     tific research”, while concluding, on the other, that the special permits
                     granted by Japan for JARPA II are not “for purposes of scientific
                     research”. JARPA II is not implemented for commercial purposes and
                     the Judgment recognizes as much. If it was not designed for purposes of
                     scientific research, it could not have simply stumbled into scientific
                     research activities, unless it is accepted that serendipity was at work here.
                     In any case, it appears to me paradoxical that a programme that is
                     broadly characterized as scientific research is considered by the majority
                     not to be “for purposes of scientific research”, particularly without its
                     qualification as commercial whaling under Article VIII, paragraph 4, of
                     the ICRW and without a definition of the words “scientific research”.

                        6. Thirdly, both the obligation to respect zero catch limits of whales
                     from all stocks (generally known as the moratorium) established in para-
                     graph 10 (e) of the Schedule and the prohibition on whaling in the
                     Southern Ocean Sanctuary (para. 10 (d) of the Schedule) apply only to
                     commercial whaling, not to research whaling. Thus, there is, in my view,
                     no legal basis to the conclusion that JARPA II is in breach of those pro-
                     visions, or of the factory ship moratorium (para. 7 (b)), particularly in
                     the absence of clear evidence which establishes that JARPA II is com-
                     mercial whaling in disguise.

                       7. Finally, the Court should have assessed whether the evolving regula-
                     tory framework of the Convention — particularly the recent amendments
                     to the Schedule setting zero catch limits and establishing whale sanctuar-

                     162

8 CIJ1062.indb 452                                                                                18/05/15 09:29

                     385 	            whaling in the antarctic (diss. op. yusuf)

                     ies — should be taken into account in the interpretation of Article VIII
                     and the discretionary power it grants to States parties for purposes of
                     scientific research to shed light on the extent to which the conservationist
                     approach now adopted in the Convention restricts the right to issue spe-
                     cial permits.

                       8. I will further elaborate on these matters below.

                                       II. The Dispute between the Parties and
                                                 the Applicable Law

                                            A. The Dispute between the Parties
                        9. The dispute between the Parties concerns the interpretation and
                     application of Article VIII of the ICRW and the discretionary power it
                     grants any Contracting Government to issue special permits to its nation-
                     als “to kill, take and treat whales for purposes of scientific research”. This
                     discretionary power is subject to “such restrictions as to number and . . .
                     to such other conditions as the Contracting Government thinks fit” and
                     to the other requirements and obligations arising from Article VIII itself
                     and from other related provisions. More specifically, what is in issue is
                     whether Japan has used that discretionary power for purposes other than
                     scientific research in connection with the authorization granted to
                     JARPA II.
                        10. According to Australia, Japan is not conducting whaling under the
                     JARPA II programme for purposes of scientific research, but for com-
                     mercial purposes, and is therefore in breach of its international obliga-
                     tions under the ICRW, and particularly those relating to commercial
                     whaling included in the Schedule, which is an integral part of the Conven-
                     tion. Japan asserts the contrary and insists on its right to issue special
                     permits under Article VIII, paragraph 1, of the Convention. At the heart
                     of the dispute between the Parties is the lawful exercise of that right by
                     Japan in issuing special permits for JARPA II and its compliance with the
                     corresponding requirements under Article VIII and related instruments
                     adopted by the IWC or by the Scientific Committee.

                       11. In determining whether a given programme is “for purposes of sci-
                     entific research” under the ICRW, and may therefore be granted a special
                     permit by a State party, the relevant legal criteria to be considered are
                     those contained in Article VIII of the Convention, together with para-
                     graph 30 of the Schedule and Annex P 1, the latter being the latest relevant

                        1 The 2009 version of “Annex P” is Annex 116 to the Counter‑Memorial of Japan. The

                     2012 revised version is available on the IWC website at : http://iwc.int/index.php?cID=3100
                     &cType=document&download=1.

                     163

8 CIJ1062.indb 454                                                                                18/05/15 09:29

                     386 	            whaling in the antarctic (diss. op. yusuf)

                     set of Guidelines for the application of Article VIII adopted by consensus
                     at the IWC. It is on the basis of the interpretation and application of
                     these provisions, which constitute the law applicable to the circumstances
                     of the present dispute, together with the assessment of whether Japan has
                     breached any other treaty obligations, that the Court should have tried to
                     resolve the dispute before it, and not on the basis of an analysis of the fit
                     between the design and implementation of a research programme and its
                     stated objectives.

                                     B. The Standard of Review Applied by the Court
                        12. The Court does not, however, use that applicable law to evaluate
                     whether the special permits issued by Japan for JARPA II are for purposes
                     of scientific research. Instead of using those parameters, the Court comes up
                     with a standard of review that is extraneous to the Convention. The need to
                     resort to such a standard is not explained, nor is it indicated that the appli-
                     cable provisions of the Convention are somehow inadequate to the task.
                     Moreover, the Court does not apply the standard it sets forth to the subject
                     of the dispute between the Parties, namely the legality of Japan’s conduct in
                     issuing special permits to JARPA II, but rather to a review of the design and
                     implementation of JARPA II. Thus, it is stated in the Judgment that :
                           “the Court will consider if the killing, taking and treating of whales
                           is ‘for purposes of’ scientific research by examining whether, in the
                           use of lethal methods, the programme’s design and implementation
                           are reasonable in relation to achieving its stated objectives. This
                           standard of review is an objective one.” (Para. 67.)
                        13. Consequently, for the Court the object of the review is “the design
                     and implementation of JARPA II” rather than the legality of the conduct
                     of Japan and whether or not Japan, by issuing special permits for
                     JARPA II, has violated or is violating its obligations under the Conven-
                     tion.
                        14. It is true that Australia, in its oral pleadings, suggested that
                              “[I]n assessing the actual purpose of a Contracting Government in
                           issuing a special permit it is instructive to have regard to the design
                           and implementation of the whaling programme, as well as any results
                           obtained.” 2
                     However, it is one thing to use design and implementation as an “instruc-
                     tive” factor and another to treat it as the sole object of review to which
                     regard should be had by the Court. Similarly, the suggestion by Japan to
                     use the standard of “objective reasonableness” 3 concerned the review of
                     “a State’s decision” to issue special permits and not the “design and
                     implementation” of JARPA II. Japan’s suggestion was also accompanied

                       2   CR 2013/8, p. 53, para. 92 (Crawford).
                       3   CR 2013/22, p. 60 (Lowe).

                     164

8 CIJ1062.indb 456                                                                                18/05/15 09:29

                     387 	            whaling in the antarctic (diss. op. yusuf)

                     by certain criteria for determining what the appropriate standard of
                     review would consist of 4. Even if the Court wanted to use the standard
                     suggested by Japan, it should have defined the criteria underlying its
                     application by the Court, or otherwise tried to define it.

                        15. In any case, I am not persuaded that the standard of “reasonable-
                     ness of the design and implementation of JARPA II in relation to the
                     stated objectives of the programme”, applied by the Court, is grounded in
                     law or in the practice of this Court. The Court used the test of “objective
                     and reasonable” grounds for a decision it was reviewing only once before,
                     in the 2012 Advisory Opinion on the IFAD, where the standard was
                     adopted concerning what was essentially an administrative matter 5. There
                     are of course some cases where the Court employed the more general
                     concept of “reasonableness”, but rarely as a standard of review of discre-
                     tionary acts. For example, in the Barcelona Traction case, the Court held
                     that “in the field of diplomatic protection as in all other fields of interna-
                     tional law, it is necessary that the law be applied reasonably” 6. But this,
                     as other cases, concerned methods of interpretation 7.

                        16. The only case where a standard of review of reasonableness was
                     referred to is the Elettronica Sicula case, concerning “unreasonable requisi-
                     tions” of foreign property. Here the Court had to determine whether under
                     the treaty which the Court was interpreting the requisition of certain prop-
                     erty by Italian authorities was “arbitrary”. On cue from United States
                     counsel, the test of “reasonableness” was used by the Court as one which
                     constituted the opposite of “arbitrariness” 8. But this test arose from the
                     terms of the treaty, and was not adopted by the Court on its own.

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

                     a State’s decision is objectively reasonable, or supported by coherent reasoning and
                     respectable scientific evidence and . . . in this sense, objectively justifiable.” (CR 2013/22,
                     p. 60 (Lowe).)
                        5 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organi-

                     zation upon a Complaint Filed against the International Fund for Agricultural Development,
                     Advisory Opinion, I.C.J. Reports 2012 (I), pp. 27 and 29.
                        6 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second

                     Phase, Judgment, I.C.J. Reports 1970, p. 48.
                        7 See, e.g., Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections,

                     Judgment, I.C.J. Reports 1961, pp. 32‑33 :
                              “Moreover, the Court has held in the Anglo-Iranian Oil Co. case (I.C.J. Reports
                           1952, p. 104) that the principle of the ordinary meaning does not entail that words
                           and phrases are always to be interpreted in a purely literal way ; and the Permanent
                           Court, in the case of the Polish Postal Service in Danzig (P.C.I.J., Series B, No. 11,
                           p. 39), held that this principle did not apply where it would lead to ‘something unrea-
                           sonable or absurd’. The case of a contradiction would clearly come under that head.”

                        8 Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment,

                     I.C.J. Reports 1989, pp. 76‑77.

                     165

8 CIJ1062.indb 458                                                                                18/05/15 09:29

                     388 	          whaling in the antarctic (diss. op. yusuf)

                        17. In the present case, the Court should have focused its analysis on
                     the lawful use by Japan of its discretionary power under Article VIII, in
                     light of the object and purpose of the Convention, in issuing a special
                     permit for JARPA II and whether or not Japan has violated or is violat-
                     ing its obligations under the ICRW in authorizing and implementing
                     JARPA II, instead of reviewing the design and implementation of a scien-
                     tific research programme, which is the task of the Scientific Committee of
                     the IWC. The reasonableness of the design and implementation of
                     JARPA II in relation to achieving its stated objectives is a debatable mat-
                     ter the assessment of which may give rise to genuine differences of opin-
                     ion among scientists who have to deal with the design and implementation
                     of research plans. This is confirmed by the work of the Scientific Commit-
                     tee of the IWC, where the divergences of opinion on JARPA and
                     JARPA II are often reflected in its reports. It is also confirmed by the
                     views expressed by the experts presented by the Parties during the oral
                     proceedings.

                                                C. The Applicable Law
                       18. Article VIII of the ICRW, which is at the core of the dispute
                     between the Parties, reads as follows :
                              “1. Notwithstanding anything contained in this Convention any
                           Contracting Government may grant to any of its nationals a special
                           permit authorizing that national to kill, take and treat whales for
                           purposes of scientific research subject to such restrictions as to num-
                           ber and subject to such other conditions as the Contracting Govern-
                           ment thinks fit, and the killing, taking, and treating of whales in
                           accordance with the provisions of this Article shall be exempt from
                           the operation of this Convention. Each Contracting Government
                           shall report at once to the Commission all such authorizations which
                           it has granted. Each Contracting Government may at any time revoke
                           any such special permit which it has granted.

                              2. Any whales taken under these special permits shall so far as
                           practicable be processed and the proceeds shall be dealt with in
                           accordance with directions issued by the Government by which the
                           permit was granted.
                              3. Each Contracting Government shall transmit to such body as
                           may be designated by the Commission, in so far as practicable, and
                           at intervals of not more than one year, scientific information available
                           to that Government with respect to whales and whaling, including the
                           results of research conducted pursuant to paragraph 1 of this Article
                           and to Article IV.
                              4. Recognizing that continuous collection and analysis of biologi-
                           cal data in connection with the operations of factory ships and land
                           stations are indispensable to sound and constructive management of

                     166

8 CIJ1062.indb 460                                                                                18/05/15 09:29

                     389 	          whaling in the antarctic (diss. op. yusuf)

                           the whale fisheries, the Contracting Governments will take all practi-
                           cable measures to obtain such data.”

                        19. Article VIII constitutes an exception to the regulatory régime
                     established by the Convention for commercial whaling, but it is not, as
                     initially argued by Japan, “outside the scope of the ICRW”. It cannot be
                     outside the scope of the ICRW, because it is an integral part of the Con-
                     vention, and was included therein to deal with a distinct type of whaling,
                     which may be referred to as “scientific whaling” or whaling for purposes
                     of scientific research. It establishes a system of special permits for this
                     type of whaling, a system that is “exempt from the operation of this Con-
                     vention” in so far as the killing, taking and treating of whales is carried
                     out “in accordance with the provisions” of Article VIII.
                        20. The opening words of paragraph 1, i.e., “Notwithstanding any-
                     thing contained in this Convention any Contracting Government may
                     grant a special permit”, have to be interpreted in the sense of a discretion-
                     ary power granted under the Convention to States parties to issue a spe-
                     cial permit for purposes of scientific research subject to such restrictions
                     and conditions “as the Contracting Government thinks fit”. The discre-
                     tionary power granted to States parties distinguishes this type of whaling
                     from the commercial whaling regulated in other parts of the Convention
                     for which the Commission has to fix the conditions and restrictions, such
                     as stock status and commercial quotas, in accordance with the Schedule
                     annexed to the Convention.

                        21. The fixing of the number of whales to be taken, the combination of
                     non‑lethal methods with the lethal ones permitted by Article VIII and any
                     other conditions rest with the discretion of the Contracting Government
                     issuing the permit. Nonetheless, the killing, taking and treating of whales for
                     which special permits are issued have to be carried out “in accordance with
                     the provisions” of Article VIII ; i.e., for purposes of scientific research and in
                     compliance with the requirements laid down in paragraphs 2 and 3 of that
                     provision. Thus, there is a correlative obligation under Article VIII itself not
                     to use such a right or discretionary power for reasons contrary to the pur-
                     pose for which it was granted, or in an arbitrary or capricious manner.
                        22. Consequently, the discretionary power granted under Article VIII is
                     far from being unrestricted. It is to be lawfully used only for the achieve-
                     ment of the purposes laid down in the Convention, namely scientific
                     research, and in accordance with the provisions of Article VIII. Besides
                     the primary requirement that such special permits can only be issued “for
                     purposes of scientific research”, other limitations to the discretionary
                     power of the issuing State under Article VIII include the duty to “report at
                     once to the Commission all such authorizations which it has granted”
                     (para. 1) and to
                           “transmit to such body as may be designated by the Commission, in
                           so far as practicable, and at intervals of not more than one year,

                     167

8 CIJ1062.indb 462                                                                                18/05/15 09:29

                     390 	           whaling in the antarctic (diss. op. yusuf)

                           scientific information available to that Government with respect to
                           whales and whaling, including the results of research conducted pur-
                           suant to paragraph 1 of this Article and to Article IV” 9 (para. 3).

                        23. In addition, the meat of any whales taken for scientific research has
                     to be processed and disposed of in accordance with directions issued by
                     the Government by which the permit was granted (para. 2). As indicated
                     above, these requirements are further complemented by the obligations
                     laid down in paragraph 30 of the Schedule which have been specifically
                     elaborated to enable the Scientific Committee to review and comment on
                     such special permits and by the Guidelines in Annex P both of which are
                     examined in paragraphs 33‑34 below.
                        24. The obligations and requirements limiting the discretionary power
                     granted in Article VIII are not to be sought, as has been done in the Judg-
                     ment, in an assessment of the reasonableness of the relationship between
                     the design and implementation of JARPA II and its stated objectives as a
                     research plan. They are to be found in Article VIII itself and in the related
                     instruments developed by the ICW and by its Scientific Committee to
                     review and ascertain the lawful use of such discretionary power by those
                     States issuing the special permits. It is these provisions and instruments
                     that should have been used by the Court to determine the legality of the
                     conduct of Japan in issuing such permits for JARPA II, and not the
                     extraneous standard of reasonableness of the design and implementation
                     of the programme in relation to its stated objectives.

                       25. Moreover, the amendments made to the Schedule with respect to
                     the regulatory framework for commercial whaling, and in particular the
                     moratorium adopted in 1982, which is still in place, and the Schedule on
                     the prohibition on commercial whaling in the Southern Ocean Sanctuary,
                     cannot be considered to be devoid of influence on the interpretation and
                     implementation of Article VIII of the Convention in so far as they reflect
                     a shift in attitudes and societal values towards the use of lethal methods
                     for whaling in general. Thus, the application of Article VIII in the context
                     of JARPA II should have been interpreted through the prism of all these
                     developments, and in light of their effect on the object and purpose of the
                     Convention.
                       26. On account of the developments that have taken place both in the
                     ICRW and in international environmental law in general, the Court
                     should have assessed whether the continued conduct of JARPA II, as a
                     programme that uses lethal methods for purposes of scientific research
                     under Article VIII, constitutes an anomaly, which may frustrate the
                     object and purpose of the Convention in light of the amendments intro-
                     duced to it in recent years which have resulted in an evolution of the
                        9 Article IV deals with the collaboration of the Commission with independent agencies

                     of the Contracting Governments to encourage, recommend or organize studies and inves-
                     tigations relating to whales and whaling.

                     168

8 CIJ1062.indb 464                                                                                18/05/15 09:29

                     391 	           whaling in the antarctic (diss. op. yusuf)

                     regulatory framework of the Convention. Indeed, the balance between
                     conservation and sustainable exploitation has clearly shifted in the Con-
                     vention in favour of more conservation and less exploitation. Although
                     JARPA II does not appear to have adverse effects on whale stocks at the
                     moment, such an assessment could have perhaps shed light on whether a
                     programme for purposes of scientific research, such as JARPA II, may
                     still be considered to be consistent with the conservationist approach
                     adopted in the Convention or whether this new approach restricts the
                     right to issue permits for scientific research purposes.
                        27. Although the Judgment recognizes the centrality of the interpreta-
                     tion and application of these provisions in its paragraph 50 10, it quickly
                     skates over their analysis to embark in an extremely detailed assessment
                     of “whether the design and implementation of JARPA II are reasonable
                     in relation to achieving the programme’s stated research objectives” (see
                     subtitle B, para. 127), which is adopted as the standard of review on
                     whether or not JARPA II is for purposes of scientific research. It bears to
                     be emphasized that neither the design and implementation of scientific
                     research programmes nor their reasonableness in relation to achieving a
                     programme’s stated objectives are mentioned in Article VIII of the ICRW
                     or in the related instruments mentioned above. Nonetheless, they have
                     surprisingly managed to occupy centre stage in the Judgment.

                       28. The Judgment also recognizes that :
                           “since Article VIII, paragraph 1, specifies that ‘the killing, taking and
                           treating of whales in accordance with the provisions of this Article
                           shall be exempted from the operation of this Convention’, whaling
                           conducted under a special permit which meets the conditions of Arti-
                           cle VIII is not subject to the obligations under the Schedule concern-
                           ing the moratorium on the catching of whales for commercial
                           purposes, the prohibition of commercial whaling in the South-
                           ern Ocean Sanctuary and the moratorium relating to factory ships”
                           (para. 55).

                     However, instead of analysing whether the special permits issued by
                     Japan meet the conditions of Article VIII, the Judgment takes up the
                     examination and application of the extraneous standard of “reasonable-
                     ness in relation to achieving the stated objectives of the programme” and
                     derives its final conclusions from it. Thus, the law applicable to the sub-
                     ject of the dispute between the Parties, recognized by the Court itself in
                     the Judgment, is set aside in favour of an obscure and debatable standard
                     which cannot be found anywhere in the Convention while the effects of
                     the conservationist approach adopted in the Convention in recent years

                        10 Paragraph 50 reads as follows : “The issues concerning the interpretation and appli-

                     cation of Article VIII of the Convention are central to the present case . . .”

                     169

8 CIJ1062.indb 466                                                                                18/05/15 09:29

                     392 	         whaling in the antarctic (diss. op. yusuf)

                     on the interpretation of the discretionary power granted under A
                                                                                rticle VIII
                     are ignored.

                             D. The Assessment of the Legality of the Special Permits
                                                 for JARPA II
                        29. Is the primary purpose of the special permit issued to JARPA II to
                     undertake scientific research or to facilitate the supply of whale meat to a
                     commercial market ? Is there evidence to support that JARPA II was
                     granted special permit for a purpose other than scientific research ? What
                     are the criteria for determining whether a programme is for purposes of
                     scientific research under the ICRW ? To answer these questions and
                     others relating to the legality of the special permits issued by Japan in
                      connection with JARPA II, recourse must be had to the applicable law
                      outlined above.

                        30. An objective test of whether a programme for which a special per-
                     mit has been issued is “for purposes of scientific research” and is carried
                     out “in accordance with the provisions of Article VIII” is not, as stated in
                     the Judgment, whether the use of lethal sampling is on a larger scale than
                     is reasonable in relation to achieving the programme’s stated objectives,
                     nor whether the sample sizes are reasonable with respect to those objec-
                     tives. Those are matters on which scientists and the statistical calculations
                     they use for that purpose can differ. They are not criteria established
                     under Article VIII or in any other provisions of the Convention.

                       31. Likewise, whether or not a programme is for purposes of scientific
                     research cannot be determined on the basis of the reasonableness of the
                     scale of the use of lethal sampling. The killing or taking of even a single
                     whale may be considered illegal today under the provisions of the ICRW
                     unless it is done for purposes of scientific research. Thus, the fact that the
                     sample size of minke whales taken under JARPA II is much larger than
                     that of JARPA makes no difference unless it is established first that both
                     programmes are for purposes of scientific research.

                        32. As indicated above, the assessment of the legality of the special
                     permits issued for JARPA II should focus first and foremost on the pro-
                     cedural and substantive requirements of Article VIII itself and with those
                     of paragraph 30 of the Schedule. It should also take into account the
                     effect of recent developments in the regulatory framework of the Conven-
                     tion on the interpretation of Article VIII in light of its object and pur-
                     pose. Did Japan transmit to the Scientific Committee of the IWC, and at
                     intervals of not more than one year, scientific information available to it
                     with respect to whales and whaling, including the results of research con-
                     ducted, as required by paragraph 3 of Article VIII ? Did it submit the pro-
                     posed permits for review and comment by the Committee, in accordance
                     with paragraph 30 of the Schedule, which was adopted in 1979 ? To

                     170

8 CIJ1062.indb 468                                                                                18/05/15 09:29

                     393 	             whaling in the antarctic (diss. op. yusuf)

                     answer these questions, it is important to examine, in addition to the pro-
                     cedural requirements, whether Japan has breached its treaty obligations
                     by the use of lethal methods in JARPA II, by the scale of the sampling
                     size involved, by authorizing JARPA II to offer for sale the by-products
                     of the whales killed or taken in the implementation of the programme.

                        33. To begin with the procedural requirements, paragraph 30 of the
                     Schedule requires Contracting Governments to “provide the Secretary to
                     the International Whaling Commission with proposed scientific permits
                     before they are issued and in sufficient time to allow the Scientific Com-
                     mittee to review and comment on them”. It elaborates further on the
                     requirement of paragraph 3 of Article VIII, identifies the four types of
                     information to be specified in the proposals 11 and prescribes that “Pro-
                     posed permits shall be reviewed and commented on by the Scientific
                     Committee at Annual Meetings when possible . . .” With regard to these
                     requirements, the Court finds that “[a]s regards the substantive require-
                     ments of paragraph 30 . . . the JARPA II Research Plan, which consti-
                     tutes the proposal for the grant of special permits, sets forth the
                     information specified by that provision” (para. 239). It then concludes
                     that : “the Court is persuaded that Japan has met the requirements of
                     paragraph 30 as far as JARPA II is concerned” (para. 242).
                        34. These findings of the Court contradict its other conclusions that
                     the special permits granted by Japan in connection with JARPA II are
                     not for purposes of scientific research pursuant to Article VIII, para-
                     graph 1, of the Convention. Compliance with the requirements of para-
                     graph 30 is by itself a significant distinguishing feature of a programme
                     for purposes of scientific research. The JARPA II programme was duly
                     reviewed and commented by the Scientific Committee of the IWC in 2005
                     in accordance with the Guidelines contained in Annex Y (now Annex P)
                     with regard to its methodology, the effects of catches on the population
                     concerned and the opportunities for participation in the research 12. In
                     other instances, when the Scientific Committee took the view that a per-
                     mit proposal submitted by a State did not meet its criteria, it specifically
                     recommended that the permits sought should not be issued. Indeed,
                     in 1987 the Scientific Committee explicitly recommended that the Com-
                     mission request the Republic of Korea to refrain from issuing permits
                     until it can show that such permits will not further deplete the stock and
                     that it will materially contribute to the comprehensive assessment of this

                        11 They are : (a) objectives of the research ; (b) number, sex, size and stock of the

                     animals to be taken ; (c) opportunities for participation in the research by scientists of
                     other nations ; and (d) possible effect on conservation of stock.
                         12 Report of the Scientific Committee (SC Report) 2005, J. Cetacean Res. Manage 8

                     (Suppl.), 2006, p. 49. All the reports of the Scientific Committee are available at : http://iwc.
                     int/scientific-committee-reports.

                     171

8 CIJ1062.indb 470                                                                                18/05/15 09:29

                     394 	             whaling in the antarctic (diss. op. yusuf)

                     stock 13. Similarly, in 1990 with relation to a proposal by the USSR, the
                     Committee explicitly noted that “the proposed investigations on the
                     whales to be caught do not appear to be structured either to provide
                     information essential for rational management of these stocks, or to con-
                     tribute to the comprehensive assessment or other critically important
                     research needs” 14. This was not the case with regard to JARPA II despite
                     the fact that 63 out of 195 members of the Scientific Committee declined
                     to participate in the relevant meeting of the Scientific Committee (see
                     paragraph 241 of the Judgment).
                        35. Moreover, as discussed below in paragraph 53, the Scientific Com-
                     mittee in its Report of 2012 specifically recommended the use of data
                     arising, inter alia, from both JARPA and JARPA II for catch‑at‑age
                     based analyses for the minke whale population dynamics model it is
                     investigating ; while in its 2013 Report it referred to non‑lethal sampling
                     of humpback whales occurring within the JARPA/JARPA II programmes
                     as useful in the assessment of certain breeding stocks of humpback
                     whales. If JARPA II were not a programme for purposes of scientific
                     research, as the Judgment concludes, would the Scientific Committee of
                     the IWC continue not only to review and comment on it, but also to rec-
                     ommend the use of its data for the advancement of its own work ?

                        36. A second test for assessing whether JARPA II is for purposes of
                     scientific research is whether it satisfies the criteria laid down in the Annex P
                     Guidelines adopted by consensus by the States parties to the Convention
                     in 2006 and revised in 2009. Annex P establishes clear criteria and condi-
                     tions, which all special permit proposals should meet, and against which
                     they are to be reviewed and commented by the Scientific Committee.
                     Such proposals have to specify the objectives of the study 15, the methods

                       13   Rep. Int. Whal. Commn 38, 1988, pp. 53‑54, the Committee :
                            “reiterated its serious concern at the lack of the collection of even basic biological
                            information from the previous year’s permit catch [proposed by Korea]. There is no
                            reason to believe the new proposal will be any more useful in assisting the Commit-
                            tee’s work. The Committee, therefore, requests that the Commission strongly urges
                            the Government of Korea to refrain from issuing a special scientific permit until it
                            can fully show that the take of 80 whales per year will not further deplete the stock
                            and that it will materially contribute to the comprehensive assessment of this stock.”

                       14   Rep. Int. Whal. Commn 41, 1991, pp. 74‑75.
                       15   The objectives should :
                            (a) be quantified to the extent possible ;
                            (b) be arranged into two or three categories, if appropriate : “Primary”, “Secondary”
                                and “Ancillary” ;
                            (c) include a statement for each primary proposal as to whether it requires lethal
                                sampling, non‑lethal methods or a combination of both ;

                     172

8 CIJ1062.indb 472                                                                                18/05/15 09:29

                     395 	              whaling in the antarctic (diss. op. yusuf)

                     to address objectives 16, the assessment of the potential effects of catches
                     on the stocks involved 17, and provide the results of a simulation study on
                     the effects of the permit takes on the stock and a note of the provisions
                     for co‑operative research 18. These Guidelines are given a curt treatment
                     in the Judgment (para. 240), but their importance cannot be underesti-

                            (d) include a brief statement of the value of at least each primary objective in the
                                context of the three following broad categories objectives :
                                  (i) improve the conservation and management of whale stocks,
                                 (ii) improve the conservation and management of other living marine resources
                                      or the ecosystem of which the whale stocks are an integral part and/or,
                                (iii) test hypotheses not directly related to the management of living marine
                                      resources ;
                            (e) include, in particular for (d) (i) and (d) (ii), at least for each primary objective,
                                the contribution it makes to inter alia :

                                   (i) past recommendations of the Scientific Committee,
                                  (ii) completion of the comprehensive assessment or in‑depth assessments in
                                       progress or expected to occur in the future,
                                 (iii) the carrying out of implementations or implementation reviews of the RMP
                                       or AWMP,

                                 (iv) improved understanding of other priority issues as identified in the Scien-
                                      tific Committee Rules of Procedure (IWC, 2006, p. 180),
                                  (v) recommendations of other intergovernmental organizations.
                       16   Methods to address objectives :
                            (a) field methods, including :
                                  (i) species, number (and see (c) below), time frame, area,
                                 (ii) sampling protocol for lethal aspects of the proposal, and
                                (iii) an assessment of why non‑lethal methods, methods associated with any
                                      ongoing commercial whaling, or analyses of past data have been considered
                                      to be insufficient ;
                            (b) laboratory methods ;
                            (c) analytical methods, including estimates of statistical power where appropriate ;

                            (d) time frame with intermediary targets [emphasis added].
                       17   Assessment of potential effects of catches on the stocks involved :
                            (a) a summary of what is known concerning stock structure in the area concerned ;
                            (b) the estimated abundance of the species or stocks, including methods used and
                                an assessment of uncertainty, with a note as to whether the estimates have previ-
                                ously been considered by the Scientific Committee ;
                            (c) provision of the results of a simulation study on the effects of the permit takes
                                on the stock that takes into account uncertainty and projects (1) for the expected
                                life of the permit (i.e., n years) ; (2) for situations where the proposal is assumed
                                to continue for (a) a further n years, (b) a further 2n years and (c) some longer
                                period of years since the start of the proposal.

                       18   A note on the provisions for co-operative research :
                            (a) field studies ;
                            (b) analytical studies.

                     173

8 CIJ1062.indb 474                                                                                18/05/15 09:29

                     396 	             whaling in the antarctic (diss. op. yusuf)

                     mated since they were used by the Scientific Committee in the initial
                     review and commentary on JARPA II and continue to be used by it to
                     ensure its compliance with paragraph 30 of the Schedule to the Conven-
                     tion as well as Article VIII.

                       37. Japan submitted the JARPA II proposal in March 2005 and fur-
                     nished the information required by paragraph 30 and Annex Y (now P).
                     The Committee recognized that “[t]he proposal provides the information
                     under paragraph 30 of the Schedule” 19. The Committee does not have the
                     power to disallow or authorize a permit, which rests in the discretion of
                     the State party under Article VIII. However, its views and comments are
                     of utmost significance. When the Committee reviews a proposal, the Gov-
                     ernment concerned must take serious account of the discussions which
                     have taken place, and of the conclusions and recommendations of the
                     Committee. Paragraph 30 also requires that “[p]reliminary results of any
                     research resulting from the permits” should be made available.

                        38. The evidence before the Court indicates that Japan continues to
                     submit annual cruise reports to the Scientific Committee to share with it
                     the preliminary results of JARPA II and to show the extent to which the
                     recommendations of the Committee have been taken into account 20.
                     Thus, there appears to be an ongoing dialogue and co‑operation between
                     the Japanese scientists involved in JARPA II and the Scientific Commit-
                     tee. This has recently led the Committee to note in one of its reports that
                     the stock structure model used in JARPA II was “simple and potentially
                     powerful” and that “[a]side from the general relevance of the results to
                     understanding [of] Antarctic minke whale dynamics, it might in the future
                     prove useful in allocating historical catches to stocks” 21. Would the Sci-
                     entific Committee make such favourable comments about JARPA II if it
                     were not for purposes of scientific research ?

                        39. JARPA II is the successor programme to JARPA and although the
                     legality of JARPA is not in issue here, there can be no doubt that the two
                     programmes pursue overlapping objectives as recognized in the Judg-
                     ment. In this connection, it is important to note that in 2007, when
                     reviewing the results from the JARPA programme, the review workshop
                     established by the Scientific Committee reiterated the view already
                     expressed by the Commission in 1997 that some use could be found for
                     the data arising from JARPA :

                        19 J. Cetacean Res. Manage 8 (Suppl.), 2006, p. 50.
                        20 See, for example, SC Report 2012, p. 85. All the JARPA/JARPA II cruise reports are
                     available at : http://www.icrwhale.org/CruiseReportJARPA.htm.
                        21   SC Report 2012, p. 35 and J. Cetacean Res. Manage 14 (Suppl.), 2013, p. 26.

                     174

8 CIJ1062.indb 476                                                                                18/05/15 09:29

                     397 	            whaling in the antarctic (diss. op. yusuf)

                               “The results from the JARPA programme, while not required for
                            management under the RMP, have the potential to improve manage-
                            ment of minke whales in the southern hemisphere in the following
                            ways : (1) reductions in the current set of plausible scenarios consid-
                            ered in Implementation Simulation Trials ; and (2) identification of
                            new scenarios to which future Implementation Simulation Trials will
                            have to be developed (e.g., the temporal component of stock struc-
                            ture). The results of analyses of JARPA data could be used in this
                            way perhaps to increase the allowed catch of minke whales in the
                            southern hemisphere, without increasing depletion risk above the
                            level indicated by the existing Implementation Simulation Trials of
                            the RMP for these minke whales.” 22

                        40. Turning now to the use of lethal methods and the scale of the sam-
                     pling involved under JARPA II, it should be recalled that Article VIII of
                     the Convention authorizes Contracting Governments to grant special
                     permits to their nationals to kill and take whales for purposes of scientific
                     research subject to such restrictions and other conditions that the Gov-
                     ernment “thinks fit”. At the same time, following the adoption of para-
                     graph 30 of the Schedule in 1979, the exercise of that right is subject to
                     the review and commentary of the Scientific Committee of the IWC and
                     the respect for the Guidelines issued by the Committee for that purpose,
                     namely Annex P. This Annex, which was approved by consensus by all
                     the States parties to the Convention, requires, as indicated above, “an
                     assessment of why non‑lethal methods, methods associated with any
                     ongoing commercial whaling, or analyses of past data have been consid-
                     ered to be insufficient”. Thus, the use of lethal methods for purposes of
                     scientific research or the insufficient consideration of non‑lethal methods
                     in scientific research programmes has to be assessed and justified, and is
                     subject to review and comment by the Scientific Committee of the IWC.

                        41. Did Japan comply with these conditions and did it give adequate
                     consideration to the use of non‑lethal methods in JARPA II ? Are such
                     non‑lethal methods used in JARPA II ? The evidence submitted to the
                     Court shows that the JARPA II plan clearly mentions the non‑lethal
                     methodologies which are to be employed in the programme, including
                     “sighting” surveys, “ecosystem surveys” of the habitat environment of
                     whales, “oceanographic and meteorological observations . . ., including
                     sea ice, surface temperature, sea surface height and chlorophyll α concen-
                     tration over the entire research area, using satellite data” 23.

                       22   See at : http://iwc.int/jarpa.
                       23   Counter-Memorial of Japan, Ann. 150, pp. 14‑15.

                     175

8 CIJ1062.indb 478                                                                                18/05/15 09:29

                     398 	            whaling in the antarctic (diss. op. yusuf)

                        42. Moreover, at the oral hearings, Counsel for Japan affirmed that
                     “Japan has put much effort into non‑lethal research methods” and that
                     JARPA II “scientists have . . . had some success with biopsy sampling
                     and satellite tagging of large, slow-moving whale species such as the
                     humpback” 24. As evidence, he referred to the cruise report of the
                     JARPA II scientists for the year 2009-2010, which gives precise details of
                     the non‑lethal sampling conducted on blue, humpback, fin and southern
                     right whales in that year 25. Similar data are also available in the most
                     recent JARPA II cruise report for the year 2012-2013 26. This gives details
                     of the non‑lethal experiments conducted, which included “sighting dis-
                     tance and angle experiment”, “photo‑identification experiment”, “biopsy
                     sampling”, “satellite tag”, “vomiting and faecal observation”, “marine
                     debris observation”, and “oceanographic survey” 27.

                        43. With regard to sample sizes, the only requirement laid down in
                     paragraph 30 of the Schedule is that the proposal should specify “num-
                     ber, sex, size and stock of the animals to be taken” ; while Annex P refers
                     to the need to include a “sampling protocol for lethal aspects of the pro-
                     posal”. The JARPA II plan includes such a protocol in Appendices 6‑8 28.
                     The statistical formula that is used to calculate the sample sizes is also
                     reproduced in the Appendix to Appendix VI of the JARPA II plan. Fuller
                     accounts of the sample size calculations and the statistical methodology
                     used are set out in the JARPA II research plan and in its Appendices 3 to
                     8, which were submitted to the Scientific Committee of the IWC for com-
                     ment in 2005. However, the experts presented by the Parties during the
                     oral proceedings disagreed as to whether the sample size eventually deter-
                     mined by Japan for JARPA II is appropriate to the objectives of
                     JARPA II.

                        44. It is understandable that different scientists could reasonably come
                     to different conclusions about the sample sizes, in view of the computa-
                     tional methodology used in JARPA II, the elements of discretion involved
                     in choosing the statistical parameters upon which sample calculations are
                     made, and the range of variables which can lead to a range of possible
                     sample sizes. However, I must say that I do not understand how the

                        24CR 2013/15, p. 61 (Boyle).
                        25See at: http://www.icrwhale.org/pdf/SC62O3.pdf, p. 9.
                       26 See at: https://events.iwc.int/index.php/scientific/SC65a/paper/viewFile/356/331/SC-65a-

                     O09.
                       27 Ibid., pp. 3‑4.
                       28 JARPA II Research Plan (2005), IWC SC/57/01, Apps. 6-8.

                     176

8 CIJ1062.indb 480                                                                                18/05/15 09:29

                     399 	            whaling in the antarctic (diss. op. yusuf)

                     majority came to the conclusion that “the sample sizes are larger than are
                     reasonable in relation to achieving JARPA II’s stated objectives”
                     (para. 212). It is not indicated anywhere in the Judgment what methodol-
                     ogy or criteria should be used to arrive at “reasonable” sample sizes in
                     light of the objectives of JARPA II or what “reasonable” sample sizes
                     should be. Nor does the Judgment provide an indication of what sample
                     sizes would be most appropriate to the objectives of JARPA II. Indeed, it
                     would be difficult for a Court of law to reach such a determination, which
                     befits scientists, not jurists.

                        45. The above analysis shows that the special permits issued by Japan
                     in connection with JARPA II clearly comply with the requirements and
                     conditions prescribed by the provisions of the ICRW and related Guide-
                     lines dealing with special permits issued for purposes of scientific research,
                     and that JARPA II has been acknowledged by the Scientific Committee
                     of the IWC to contribute to the understanding of Antarctic minke whale
                     dynamics and to be useful in the assessment of certain breeding stocks of
                     humpback whales. These are not characteristics that can be associated
                     with a programme the design and implementation of which are not for
                     purposes of scientific research. The Scientific Committee of the IWC has
                     pointed out on several occasions that “only scientific and not ethical
                     issues should be considered” when issuing scientific permits 29. A similar
                     consideration should apply in the assessment of the legality of the autho-
                     rization granted by Japan in connection with JARPA II.

                        46. Nonetheless, another issue that should have been addressed in the
                     context of the legality of JARPA II is whether the evolving regulatory
                     framework of the Convention setting zero catch limits and establishing
                     the Southern Ocean Sanctuary should be taken into account in interpret-
                     ing Article VIII of the Convention and assessing the extent to which it
                     might restrict the special permits issued under that provision for purposes
                     of scientific research. It is my view that the Court should have assessed
                     whether a programme, such as JARPA II, that continues to use lethal
                     methods for purposes of scientific research under Article VIII, constitutes
                     an anomaly, which may frustrate the object and purpose of the Conven-
                     tion in light of the conservationist approach adopted in the Convention
                     in recent years. Such an assessment, in addition to anchoring the reason-
                     ing and conclusions of the Court on the law applicable to the dispute
                     between the Parties, would have been of great value to the States parties
                     to the Convention in view of the growing disconnect between Article VIII
                     and other provisions of the Convention on commercial whaling.

                       47. Article V of the Convention authorizes the IWC to make such
                     amendments to the Schedule as are necessary to carry out the objectives

                       29   SC Report 2005, J. Cetacean Res. Manage 8 (Suppl.), 2006, p. 48.

                     177

8 CIJ1062.indb 482                                                                                18/05/15 09:29

                     400 	          whaling in the antarctic (diss. op. yusuf)

                     and purposes of the Convention and to provide for the conservation,
                     development and optimum utilization of whale resources. It also provides
                     that such amendments shall be based on scientific research. In view of the
                     recent amendments to the Schedule which have done away with the objec-
                     tive of optimum utilization of whale resources through the establishment
                     of zero catch limits, the special permits issued under Article VIII had to
                     be assessed in light of the overall evolution of the Convention and, in
                     particular, of its object and purpose to ensure an integral and effective
                     interpretation of all its provisions.

                                 III. Is JARPA II Conducted for Purposes other
                                            than Scientific Research ?

                       48. It is stated in the Judgment that :
                             “Taken as a whole, the Court considers that JARPA II involves
                           activities that can broadly be characterized as scientific research . . .
                           but that the evidence does not establish that the programme’s design
                           and implementation are reasonable in relation to achieving its stated
                           objectives. The Court concludes that the special permits granted by
                           Japan for the killing, taking and treating of whales in connection with
                           JARPA II are not ‘for purposes of scientific research pursuant to
                           Article VIII, paragraph 1, of the Convention’.” (Para. 227.)

                       49. On the basis of that conclusion, it is further stated that :
                           “[t]he Court therefore proceeds on the basis that whaling that falls
                           outside Article VIII, paragraph 1, other than aboriginal subsistence
                           whaling, is subject to the three schedule provisions invoked by Aus-
                           tralia” (para. 230).

                     These three provisions are paragraph 10 (e) of the Schedule dealing with
                     the obligation to respect zero catch limits for the killing for commercial
                     purposes of whales from all stocks ; paragraph 7 (b) of the Schedule on
                     the prohibition on commercial whaling in the Southern Ocean Sanctuary
                     and paragraph 10 (d) of the Schedule on the factory ship moratorium.

                        50. The activities conducted under JARPA II are, on the one hand,
                     characterized in the Judgment as scientific research, while, on the other
                     hand, it is concluded that the special permits granted by Japan for JARPA
                     II are not “for purposes of scientific research”. This is very unpersuasive
                     for the following reasons.
                        51. First, the distinction made in the Judgment between a programme
                     that involves “scientific research” and a programme “for purposes of sci-
                     entific research” is rather artificial and unsubstantiated (para. 67), par-

                     178

8 CIJ1062.indb 484                                                                                18/05/15 09:29

                     401 	             whaling in the antarctic (diss. op. yusuf)

                     ticularly in view of the fact that the term “scientific research” is not
                     defined in the Judgment. It is like saying : “I know how to identify the
                     activities undertaken for the purpose of the ‘term X’, but I do not know
                     how to define the term itself”. It also gives the impression that serendipity
                     was at work here and that JARPA II, though not designed for purposes
                     of scientific research, accidently stumbled into scientific research activi-
                     ties.

                        52. Secondly, to the extent that it is not clearly proved that a pro-
                     gramme which involves scientific research activities has as its preponder-
                     ant purpose commercial whaling, and consequently the scientific activities
                     are incidental to the commercial whaling, as provided in Article VIII,
                     paragraph 4, of the Convention, such a programme cannot be deemed
                     not to be for purposes of scientific research.
                        53. Thirdly, the Court’s conclusion that JARPA II is not for purposes
                     of scientific research is also unpersuasive in light of the indisputable evi-
                     dence on the recognition by the Scientific Committee of the IWC of the
                     generation by JARPA II of data which is useful to the work of the Scien-
                     tific Committee, on the use by JARPA II of non‑lethal methods which are
                     uncharacteristic of commercial whaling, on the presence of scientists on
                     vessels, and on the continuing review and commentary on JARPA II by
                     the Scientific Committee. In its 2012 Report, the Committee specifically
                     recommended the use of data arising, inter alia, from both JARPA and
                     JARPA II for catch‑at‑age based analyses 30. In the subsequent Report,
                     reference is made to non‑lethal sampling of humpback whales occurring
                     within the JARPA/JARPA II programmes as useful in the assessment of
                     certain breeding stocks of humpback whales 31. Similar references were
                     made in this Report to JARPA and JARPA II photographic data con-
                     cerning blue whales 32, and to blubber thickness data arising from lethal
                     sampling in JARPA and JARPA II 33.

                        54. Fourthly, there is no clear evidence to show that the special permits
                     issued by Japan for JARPA II were not for purposes of scientific research,
                       30   J. Cetacean Res. Manage 14 (Suppl.), 2013, p. 29 :
                               “Section 10.1.4 Continue development of the catch‑at‑age models : Population
                            dynamics modelling provides a way to explore possible changes in abundance and
                            carrying capacity within Areas IIIE‑VW, where appropriate data are available. The
                            inputs are catch, length, age and sex data from the commercial harvests and both
                            JARPA programmes, as well as abundance estimates from IDCR/SOWER.”

                       31 IWC     Scientific Committee      Report    2013,      https://archive.iwc.int/pages/view.
                     php?ref=2128, para. 10.2.1.1.
                       32 Ibid., para. 10.3.1.4.
                       33 Ibid.

                     179

8 CIJ1062.indb 486                                                                                18/05/15 09:29

                     402 	            whaling in the antarctic (diss. op. yusuf)

                     unless the bad faith of Japan is presumed. As correctly stated in the
                     Lac Lanoux case : “there is a general and well‑established principle of law
                     according to which bad faith is not presumed” 34. In any case, it is not the
                     function of the Court to investigate the motives lying behind Japan’s con-
                     duct in granting special permits to JARPA II, as long as those permits are
                     in compliance with Japan’s obligations. It appears, however, that both
                     the review and the conclusions of the Judgment entail a finding of bad
                     faith which is not explicitly expressed, since JARPA II is considered to be
                     in violation of the commercial whaling provisions of the ICRW.

                        55. Fifthly, there is also no evidence to support the claim that the pro-
                     gramme is being carried out for commercial purposes. The term “for pur-
                     poses of scientific research” does not, under Article VIII of the ICRW,
                     mean that such killing and taking of whales has to be exclusively for pur-
                     poses of scientific research. Article VIII (2) explicitly requires that whales
                     killed under the special permits should be processed and dealt with as
                     directed by the Government concerned including for commercial pur-
                     poses. Thus, Article VIII provides for a subsidiary or incidental purpose
                     which may have a commercial character. Of course, the preponderant
                     purpose must be scientific research, but the sale of whale meat in accor-
                     dance with Article VIII does not deprive a special permit programme of
                     its quality as a programme conducted for purposes of scientific research.

                        56. Turning finally to the conclusion in the Judgment that the authori-
                     zation granted to JARPA II is in breach of three provisions of the Sched-
                     ule (i.e., paras. 7 (b), 10 (d) and 10 (e)), there is, in my view, no legal
                     basis to such a finding unless it could be clearly shown that JARPA II is
                     commercial whaling in disguise, or that its activities are preponderantly
                     of a commercial nature. In order to affirm that a breach of the commer-
                     cial whaling moratorium or the prohibition of whaling in the Southern
                     Ocean Sanctuary has occurred, it would be necessary to demonstrate that
                     JARPA II is a programme for the purposes of commercial whaling.

                        57. The word “commercial” in paragraphs 10 (d) and 10 (e) was not
                     defined at the time of adoption of the amendments of the Schedule, nor
                     afterwards. There is no doubt, however, that it refers to whaling for com-
                     mercial purposes. The Judgment does not characterize JARPA II as com-
                     mercial whaling, but the conclusion that the programme is in breach of
                     the moratorium on commercial whaling (para. 10 (e)) and the prohibi-
                     tion on commercial whaling in the Southern Ocean Sanctuary
                     (para. 10 (d)) implies that it is conducted for commercial purposes.

                        34 Lac Lanoux Case, 16 November 1957, at XII Reports of International Arbitral Awords

                     (RIAA) 305 : “[I]l est un principe général de droit bien établi selon lequel la mauvaise foi
                     ne se présume pas.”

                     180

8 CIJ1062.indb 488                                                                                18/05/15 09:29

                     403 	            whaling in the antarctic (diss. op. yusuf)

                        58. How can such a conclusion be reconciled with the use of non‑lethal
                     methods in the JARPA II programme or with the recognition by the Sci-
                     entific Committee of the IWC of the usefulness of the data obtained with
                     these methods as described in paragraph 53 above ? How does one
                     account for the evidence of the many scientific outputs produced exclu-
                     sively with the use of data arising from the non-lethal methods employed
                     in JARPA II ? This evidence indicates that 100 scientific outputs were
                     produced between 1988 and 2013 exclusively with the data arising from
                     non‑lethal methods in JARPA and JARPA II 35. It is doubtful that such
                     a scientific output could be produced by a programme of commercial
                     whaling.

                       59. It is stated in paragraph 230 of the Judgment that : “the Court sees
                     no reason to evaluate the evidence in support of the Parties’ competing
                     contentions about whether or not JARPA II has attributes of commercial
                     whaling”. This statement is, however, contradicted by the distinction
                     made in the Judgment between activities involving scientific research and
                     a programme for purposes of scientific research. Such a distinction could
                     make sense only if it was proved that JARPA II was a commercial whal-
                     ing programme with incidental collection and analysis of biological data
                     as provided in Article VIII, paragraph 4, of the ICRW. The statement is
                     equally contradicted by the conclusion that JARPA II is in violation of
                     the moratorium on commercial whaling (para. 10 (d) of the Schedule).

                                                        IV. Conclusion

                        60. The evidence before the Court does not support the conclusion
                     that the special permits for JARPA II have been issued for a purpose
                     other than scientific research. Nor does it establish that such special per-
                     mits do not comply with the requirements and conditions prescribed by
                     the provisions of Article VIII of the ICRW, paragraph 30 of the Schedule
                     and related Guidelines dealing with scientific research programmes. The
                     real issue is whether the evolving regulatory framework of the Conven-
                     tion in setting zero catch limits and establishing the Southern Ocean
                     Sanctuary should be taken into account in interpreting Article VIII of the
                     Convention and the legality of the special permits granted by Japan under
                     that provision for purposes of scientific research, and the extent to which
                     Article VIII and the use of lethal methods for purposes of scientific
                     research might have been restricted by the fact that the optimum utiliza-

                       35   See at : http://www.icrwhale.org/pdf/ScientificContributionJARPA.pdf, p. 3.

                     181

8 CIJ1062.indb 490                                                                                18/05/15 09:29

                     404 	         whaling in the antarctic (diss. op. yusuf)

                     tion of whale resources has been set aside as one of the central objectives
                     of the Convention.

                       61. It is a pity that instead of such a legal assessment, the Court has
                     engaged in an evaluation of the design and implementation of the pro-
                     gramme and their reasonableness in relation to its objectives, a task that
                     normally falls within the competence of the Scientific Committee of the
                     IWC, which is scheduled to undertake an overall review of the JARPA II
                     programme in 2014. As a matter of fact, when the Scientific Committee
                     took the view in the past that a permit proposal submitted by a State did
                     not meet its criteria, it specifically recommended that the permits sought
                     should not be issued. This has not been the case with regard to JARPA II,
                     but it shows at least that the Committee’s practice is adequate to the task
                     of evaluating the design and implementation of scientific research pro-
                     grammes under the ICRW and accordingly advising the IWC on that
                     matter.

                                                             (Signed) Abdulqawi A. Yusuf.

                     182

8 CIJ1062.indb 492                                                                                18/05/15 09:29


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

(NOUVELLE REQUETE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 15 SEPTEMBRE 1967

1967

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM y. SPAIN)

ORDER OF 15 SEPTEMBER 1967
Mode officiel de citation:

Barcelona Traction, Light and Power Company, Limited,
ordonnance du 15 septembre 1967, C.I.J. Recueil 1967, p. 12.

Official citation:

Barcelona Traction, Light and Power Company, Limited,
Order of 15 September 1967, I.C.J. Reports 1967, p. 12.

. |
Som. 316

12

INTERNATIONAL COURT OF JUSTICE

YEAR 1967

1967
15 September 1967 15 September
General List:
No. 50

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Article 37
of the Rules of Court,

Having regard to the Order of 12 April 1967 extending to 24 October
1967 the time-limit for the filing of the Rejoinder of the Government of
Spain;

Whereas, by a letter dated 1 September 1967, the Agent for the Govern-
ment of Spain, for the reasons therein set out, requested the extension to
31 May 1968 of the time-limit for the filing of the Rejoinder;

Whereas, on | September 1967, a certified true copy of the afore-
mentioned letter was transmitted to the Agent for the Government of
Belgium who was asked to make known the views of that Government on
the request;

4
BARCELONA TRACTION (ORDER OF 15 IX 67) 13

Whereas, by a letter dated 8 September 1967, the Agent for the Govern-
ment of Belgium stated that that Government raised no objection as to the
principle of the extension of the time-limit;

Having regard to the special reasons invoked by the Respondent to
justify its request for an extension; —

Whereas, in the spirit of Article 37, paragraph 3, of the Rules of Court,
the answer of the Agent for the Belgian Government may be interpreted
as an agreement in principle on the justification for an extension;

Extends to 31 May 1968 the time-limit for the filing of the Rejoinder of
the Government of Spain.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this fifteenth day of September, one
thousand nine hundred and sixty-seven, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to
the Government of Belgium and to the Government of Spain, respectively.

(Signed) J. L. BUSTAMANTE R.,
President.

(Signed) S. AQUARONE,
Registrar.


486

SEPARATE OPINION OF JUDGE KOROMA

The dispute as defined by Spain — Jurisdiction of the Court based on consent,
Article 36, paragraph 2, of the Statute — Interpretation of a declaration and its
reservation in order to ascertain declarant State’s intention — Right of a State
to exclude subject-matter from jurisdiction of Court — Consent and not appli-
cable law decisive in determining whether jurisdiction conferred — Understand-
ing of Court’s determination of lawfulness of excluded acts in a reservation —
Decision of the Court neither a licence for invalid reservations nor the abdica-
tion of its judicial function — Court reserves right to determine its inherent
jurisdiction — Article 36, paragraph 6, of Statute.

1. For Spain, the core of this dispute is whether Canada is entitled
under international law to exercise its jurisdiction over foreign vessels on
the high seas. This, Spain claims, moves the dispute away from the
domain of the reservation made by Canada when it accepted the com-
pulsory jurisdiction of the Court, into the area of a major principle of
international law. Spain further contends that the Canadian reservation,
if accepted by the Court, will preclude the Court from determining
whether Canada’s measures of conservation and management and their
enforcement violate the norms governing the international lawfulness of
those measures, particularly the principle of freedom of the high seas and
the prohibition on the use of force.

2. Although I voted with the majority of the Court in favour of the
Judgment, I consider, nonetheless, that the points raised by Spain are so
important and fundamental, both for the role of the Court as the princi-
pal judicial organ charged with the administration of justice between
States, as well as in relation to its judicial function, that it is incumbent
upon me to present certain views on the matter.

3. First of all, neither Party contests the principle that the jurisdiction
of the Court is consensual and that its compulsory jurisdiction under
Article 36, paragraph 2, of the Statute is predicated upon the existence of
consent as expressed in a declaration of acceptance made by a State. This
principle was not contested as such but, given its different interpretation
by the Parties, it is both pertinent and worth repeating that the absolute
and unfettered freedom to participate, or not participate, in the optional
clause system is the basis on which reservations to a declaration are made
under that system. And as a corollary, when a State attaches to its dec-
laration of acceptance a reservation excluding disputes on a certain sub-
ject, it defines or limits the Court’s jurisdiction to apply the principles and
rules of international law which the Court would have applied, had that

58
487 FISHERIES JURISDICTION (SEP. OP. KOROMA)

subject-matter not been excluded from the jurisdiction of the Court; this
is irrespective of the fact that the field of application of such principles
and rules is wider than the specific subject-matter of the dispute concerned.

4. On the basis of these basic principles, I reached the conclusion that,
since Canada excluded from the jurisdiction of the Court “disputes aris-
ing out of or concerning conservation and management measures”, the
question whether the Court is entitled to exercise its jurisdiction must
depend on the subject-matter and not on the applicable law, or the rules
purported to have been violated. In other words, once it is established
that the dispute relates to the subject-matter defined or excluded in the
reservation, then the dispute is precluded from the jurisdiction of the
Court, whatever the scope of the rules which have purportedly been vio-
lated. Stated differently, once the Court has determined that the meas-
ures of conservation and management referred to in the reservation con-
tained in the Canadian declaration are measures of a kind which can be
categorized as conservation and management of resources of the sea and
are consistent with customary norms and well-established practice, the
Court is bound to decline to found jurisdiction on the basis of the prin-
ciples and rules purported to have been violated or said to apply.

5. In accordance with the foregoing, I take the view that the Court
properly advised itself, when, in order to determine whether or not juris-
diction had been conferred on it in this matter, it considered the follow-
ing questions: whether Canada made a declaration under Article 36, para-
graph 2, of the Statute on 10 May 1994 accepting the compulsory
jurisdiction of the Court. Whether that declaration excludes disputes aris-
ing from or relating to conservation and management measures and their
enforcement. Whether the acts complained of fall within the category of
acts excluded.

6. In answering these questions in the affirmative, the Court not only
correctly appraised and determined the scope of the Canadian declara-
tion, but also reaffirmed that its jurisdiction to adjudicate on a dispute
derives from the Statute and the consent of the declarant State, as defined
in its declaration, and not from the applicable law. It is in this sense that
I understand the conclusion reached by the Court in paragraph 85 of the
Judgment when it stated that:

“the lawfulness of the acts which the reservation to the Canadian
declaration seeks to exclude from the jurisdiction of the Court
has no relevance for the interpretation of the terms of that reserva-
tion ...”.

In this connection, I consider the Court’s statement in paragraph 55 of
the Judgment to be more appropriate to this issue that:

“There is a fundamental distinction between the acceptance by a
State of the Court’s jurisdiction and the compatibility of particular

59
488 FISHERIES JURISDICTION (SEP. OP. KOROMA)

acts with international law. The former requires consent. The latter
question can only be reached when the Court deals with the merits,
after having established its jurisdiction and having heard full legal
argument by both parties.”

Nor, in my view, could the decisive issue be whether various treaty
régimes govern the subject-matter of the reservation, or whether the
interpretation of the declaration should be governed by the régime estab-
lished by the Vienna Convention on the Law of Treaties, or the applica-
tion of general principles of international law, such as the principle that
the exception to a rule should not negate the principal rule. As pointed
out in the Judgment, these legal régimes and principles cannot be applied
in an identical manner to an optional clause declaration, as that is sui
generis and governed by its own rules. Were it otherwise, not only would
the limit of a State’s consent expressed in its declaration not be respected
or not seen to be respected — contrary to the Statute — but also the pro-
cedural distinction between the jurisdictional and merits phases of a case
would be extinguished, with all its implications.

7. However, be that as it may, the Court’s finding should in no way be
viewed, let alone interpreted, as a licence for a State to make a declara-
tion or reservation under the optional clause system which is inconsistent
with the Statute. Rather, the Court’s finding should be interpreted as an
affirmation and a restatement of the principle that reservations limiting
the scope of compulsory jurisdiction is permissible under the optional
clause system and that the Court cannot extend its jurisdiction beyond
the scope of the consent given by the declarant State. Nor should the

- finding be regarded as an abdication of the Court’s judicial function. As
the Judgment confirms, the Court reserves its inherent jurisdiction in
accordance with Article 36, paragraph 6, of the Statute, to decide in the
event of a dispute whether jurisdiction has been conferred in a matter
submitted to it. It is also within the power of the Court to decide that a
reservation has been invoked in bad faith, and to reject the view of the
State in question.

(Signed) Abdul G. Koroma.

60