                     348

                                           SEPARATE OPINION
                                      OF JUDGE CANÇADO TRINDADE

                                                 table of contents
                                                                                Paragraphs

                       I. The Object and Purpose of the ICRW                                2-9
                           1. The teleological approach                                     4-7
                           2. Response of New Zealand to questions from the Bench           8-9

                      II. Collective Guarantee and Collective Regulation                  10-19
                           1. Collective decision‑making under the ICRW                   10-12

                           2. Review of proposed special permits under the Schedule       13-19

                      III. The Limited Scope of Article VIII (1) of the ICRW              20-24

                      IV. The Evolving Law relating to Conservation : Inter
                          actions between Systems                                         25-26
                      V. The ICRW as a “Living Instrument” : The Evolving Opinio
                         Juris Communis27-40
                      VI. Inter‑Generational Equity                                       41-47
                     VII. Conservation of Living Species (Marine Mammals)                 48-59
                           1. The tension between conservation and exploitation : Argu-
                              ments of the Parties                                     48-51
                           2. Whale stocks — conservation and development : Response
                              of the Parties and the intervenor to questions from the
                              Bench52-56
                           3. General assessment                                       57-59
                     VIII. Principle of Prevention and the Precautionary Principle :
                           Arguments of the Parties and the Intervenor                    60-71
                      IX. Responses from the Experts, and Remaining Uncertainties
                          around “Scientific Research” (under JARPA II)                   72-74

                      X. Reiterated Calls under the ICRW for Non‑Lethal Use of
                         Cetaceans75-79
                      XI. Concluding Observations, on the Jarpa II Programme and
                          the Requirements of the ICRW and Its Schedule                   80-90

                                                           *
                     126

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                        1. I have accompanied the Court’s majority, in voting in favour of the
                     adoption of the present Judgment in the case Whaling in the Antarctic
                     (Australia v. Japan : New Zealand intervening). Yet, I would have wished
                     certain points to be further developed by the Court. I feel thus obliged to
                     leave on the records, in the present separate opinion, the foundations of
                     my personal position thereon. To this effect, I shall address the following
                     points : (a) the object and purpose of the International Convention on
                     the Regulation of Whaling (the teleological approach) ; (b) collective
                     guarantee and collective regulation ; (c) the limited scope of Arti-
                     cle VIII (1) of the ICRW ; (d) the evolving law relating to conservation :
                     interactions between systems ; (e) the ICRW as a “living instrument” : the
                     evolving opinio juris communis ; (f) inter‑generational equity ; (g) conser-
                     vation of living species (marine mammals) ; (h) principle of prevention
                     and the precautionary principle ; (i) remaining uncertainties around “sci-
                     entific research” (under the JARPA II programme). The way will then be
                     paved for my concluding observations, on the JARPA II programme and
                     the requirements of the ICRW and its Schedule.

                                    I. The Object and Purpose of the ICRW

                       2. I find it necessary, to start with, to dwell upon the object and purpose
                     of the International Convention on Regulation of Whaling (hereinafter
                     the “ICRW”), so as to set the context for the consideration of the inter-
                     pretation of Article VIII of the ICRW, and of the question whether Japan
                     complied with its obligations under the ICRW and its Schedule (cf. infra).
                     Both contending Parties, Australia and Japan, and the intervenor,
                     New Zealand, have in fact dedicated some attention to the object and
                     purpose of the ICRW. The adoption of a Convention like the ICRW,
                     endowed with a supervisory organ of its own, evidences that the goal of
                     conservation integrates its object and purpose, certainly not limited to the
                     development of the whaling industry.

                        3. To try to reduce the object and purpose of the ICRW to the protec-
                     tion or development of the whaling industry would be at odds with the
                     rationale and structure of the ICRW as a whole. If the main goal of the
                     ICRW were only to protect and develop the whaling industry, the entire
                     framework of the ICRW would have been structured differently. More-
                     over, the fact that the ICRW is a multilateral treaty, encompassing mem-
                     ber States that do not practice whaling, also speaks to the understanding
                     that the ICRW’s object and purpose cannot be limited to the develop-
                     ment of the whaling industry. Furthermore, in the same line of reasoning,
                     the adoption of a moratorium on commercial whaling within the frame-
                     work of the ICRW also seems to indicate that the conservation of whale

                     127

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                     350 	 whaling in the antarctic (sep. op. cançado trindade)

                     stocks is an important component of the object and purpose of the
                     ICRW.

                                              1. The Teleological Approach
                       4. May I turn briefly to the Preamble of the ICRW, which contains
                     indications as to the object and purpose of the Convention. First, the
                     Preamble recognizes “the interest of the nations of the world in safe-
                     guarding for future generations the great natural resources represented by
                     the whale stocks” ; this seems, in my view, to be in line with the purpose
                     of conserving and protecting whales. Secondly, other preambular para-
                     graphs mention “regulation” of whaling to ensure conservation and
                     development of whale stocks. Then, the Preamble also posits that the
                     States parties “decided to conclude a convention to provide for the proper
                     conservation of whale stocks and thus make possible the orderly develop-
                     ment of the whaling industry”.

                        5. It appears that the primary object and purpose of the ICRW can be
                     found in the conservation and recovery of whale populations. The ICRW
                     provides for a mechanism to ensure its own evolution in face of changing
                     conditions and new challenges. The International Whaling Commission
                     (IWC) has a specific role (under Article VI) to make recommendations to
                     States parties, in the form of resolutions, to which they are to give consid-
                     eration in good faith. The practice of the IWC, conformed by its succes-
                     sive resolutions, seems to indicate that conservation of whale stocks is an
                     important objective of the ICRW : for example, in a number of resolu-
                     tions, the IWC has focused on non‑lethal methods of research concerning
                     whales, disclosing a concern with the conservation of whale stocks 1.
                     Thus, in my perception, the use of whales cannot take place to the detri-
                     ment of the conservation of whale stocks.

                        6. The Schedule of regulations annexed to the ICRW is an integral
                     part of it, with equal legal force ; amendments have regularly been made
                     to the Schedule, so as to cope with international environmental develop-
                     ments. States parties thus count on a scheme to act together in the com-
                     mon interest, setting a proper balance between conservation and the use
                     of whale resources. The ICRW, adopted in 1946 to stop the overexploita-
                     tion of whales, presented thus two novelties in comparison with the first
                     treaties on whaling : the creation of the IWC (under Article III), and the
                     inclusion of the Schedule, controlling whaling so as to achieve conserva-

                        1 E.g., resolution 2007‑3 (Resolution on the Non‑Lethal Use of Cetaceans) ; resolu-

                     tion 2007‑1 (Resolution on JARPA).

                     128

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                     351         whaling in the antarctic (sep. op. cançado trindade)

                     tion and recovery of whale stocks. It became a multilateral scheme, seek-
                     ing to avoid unilateral action so as to foster conservation.

                        7. The object and purpose of the ICRW are to be construed in light of
                     its text, its supervisory mechanism, and its nature as a multilateral treaty
                     encompassing both whaling and non‑whaling States. The object and pur-
                     pose of the Convention point to, as a guiding principle, the conservation
                     and recovery of whale stocks ; not to be seen on an equal footing with the
                     sustainable development of the whaling industry or the protection of
                     commercial whaling. A State party — Japan or any other — cannot act
                     unilaterally to decide whether its programme is fulfilling the object and
                     purpose of the ICRW, or the objective of conservation.

                               2. Response of New Zealand to Questions from the Bench

                       8. In this connection, in the course of the oral pleadings before the
                     Court (on 8 July 2013), I deemed it fit to put the following questions to
                     the intervenor, New Zealand :
                              “1. In your view, does the fact that the International Convention
                           for the Regulation of Whaling is a multilateral treaty, with a super-
                           visory organ of its own, have an impact on the interpretation of its
                           object and purpose ?
                              2. You have stated in your written observations (of 4 April 2013)
                           that the object and purpose of the International Convention for the
                           Regulation of Whaling is : ‘to replace unregulated, unilateral whaling
                           by States with collective regulation as a mechanism to provide for the
                           interests of the parties in the proper conservation and management
                           of whales’ (p. 16, para. 33). In your view, is this a widely accepted
                           interpretation nowadays of the object and purpose of the Interna-
                           tional Convention for the Regulation of Whaling ?” 2
                        9. As to these questions, New Zealand at first recalled that, distinctly
                     from the 1937 International Agreement for the Regulation of Whaling,
                     the 1946 ICRW counts on a permanent Commission (the IWC) endowed
                     with a supervisory role, evidencing a “collective enterprise”, and acknowl-
                     edging that whale conservation “must be an international endeavour”. In
                     sum, in New Zealand’s view, the object and purpose of the ICRW ought
                     to be approached in the light of the collective interest of States parties in

                       2   CR 2013/17, of 8 July 2013, pp. 49‑50.

                     129

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                     352        whaling in the antarctic (sep. op. cançado trindade)

                     the conservation and management of whale stocks 3. Secondly, New Zea-
                     land argued that the IWC had recognizedly become the appropriate organ
                     for the conservation and management of whales. Such role of collective
                     regulation of the IWC — New Zealand added — was in the line of the
                     United Nations Convention on the Law of the Sea, which requires States
                     (Art. 65) to co-operate with a view to the conservation of marine mam-
                     mals and to work through the appropriate international organs. Such
                     endeavours of conservation have become a “collective responsibility”,
                     and the IWC — New Zealand added — would “work co‑operatively to
                     improve the conservation and management of whale populations and
                     stocks on a scientific basis and through agreed policy measures” 4.

                              II. Collective Guarantee and Collective Regulation

                                     1. Collective Decision‑Making under the ICRW
                        10. The collective system established by the ICRW is crucial to the
                     understanding and proper handling of the present case of Whaling in the
                     Antarctic (Australia v. Japan : New Zealand intervening). In my view, the
                     system created by the Convention aims at replacing a system of unilateral
                     unregulated whaling, with a system of collective guarantee and regulation
                     so as to provide for the interests of the States parties in the proper con-
                     servation and management of whales. To my mind, the structure of the
                     Convention evidences that one of its aims is to achieve collective guaran-
                     tee through collective regulation, in relation to all activities associated
                     with whaling. This collective regulation is achieved through a process of
                     collective decision‑making by the IWC, which adopts regulations and
                     resolutions (supra).
                        11. In addition, it may be recalled that the IWC may also adopt rec-
                     ommendations addressed to any or all of the States parties on any mat-
                     ters which relate to whales or whaling and to the objective and purpose of
                     the Convention. These recommendations and resolutions, in my under-
                     standing, express the collective views of the parties under the Convention
                     concerning the protection of their interests in the proper conservation
                     and management of whales. Furthermore, membership of the IWC
                     has grown along the years, with many members having no whaling indus-
                     try or history of whaling activities ; their common interest would arguably
                     be the conservation and management of whales themselves, rather than
                     solely the preservation of the whaling industry.

                        3 Written Responses of New Zealand to the Questions Put by Judge Cançado Trindade

                     at the End of the Public Sitting Held on 8 July 2013 at 10 a.m., of 12 July 2013, pp. 6‑7,
                     paras. 1‑3.
                        4 Ibid., pp. 8‑9, paras. 1‑4.

                     130

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                        12. Thus, the nature and structure of the ICRW, the fact that it is a
                     multilateral Convention (comprising both whaling and non‑whaling
                     States) with a supervisory organ of its own, which adopts resolutions and
                     recommendations, highlights the collective decision‑making process under
                     the Convention and the collective guarantee provided thereunder. In the
                     light of the object and purpose of the ICRW, clearly a system of collective
                     guarantee and collective regulation operates thereunder.

                                           2. Review of Proposed Special Permits
                                                    under the Schedule
                        13. In fact, in numerous resolutions, the IWC has provided guidance
                     to the Scientific Committee for its review of special permits under para-
                     graph 30 of the Schedule. This is aimed at amending proposed special
                     permit programmes that do not meet the conditions. The expectation
                     ensues therefrom that, e.g., non‑lethal methods will be used whenever
                     possible, on the basis of successive resolutions of the IWC stressing the
                     relevance of obtaining scientific information without needing to kill
                     whales for “scientific research”. In accordance with the IWC resolutions,
                     the Scientific Committee has, for its part, elaborated a series of Guide-
                     lines to enable it to undertake its function of review of special permits
                     (under paragraph 30 of the Schedule).

                        14. In the present proceedings before the ICJ, this practice has been
                     brought to the attention of the Court, in particular by New Zealand 5,
                     who has further pointed out that over 25 resolutions of the IWC, issued
                     after the Scientific Committee’s review of proposed special permits (under
                     Article VIII of the ICRW), have been consistently requesting the States
                     parties concerned “not to proceed where the Scientific Committee had
                     determined that the proposed activity did not satisfy the Scientific Com-
                     mittee’s criteria” 6. Such is the case of IWC resolutions 1987‑1, 1987‑2,
                     1987‑3, 1987‑4, 1989‑1, 1989‑2, 1989‑3, 1990‑1, 1990‑2, 1991‑2, 1991‑3,
                     1993‑7, 1993‑8, 1994‑9, 1994‑10, 1994‑11, 1995‑9, 1996‑7, 1997‑5, 1997‑6,
                     2000‑4, 2000‑5, 2001‑7, 2001‑8, 2003‑2, 2003‑3, 2005‑1, and 2007‑1 7.
                     Hence, it is clear that one counts nowadays on a system of collective
                     guarantee and collective regulation under the ICRW (cf. also infra).

                        15. Bearing the IWC resolutions in mind, the Scientific Committee’s
                     Guidelines have endeavoured to assist it in undertaking adequately its
                     function of review of special permit proposals and of research results
                     from existing and completed special permits. In its most recent Guide-
                     lines, adopted in 2008 (Annex P), the Scientific Committee’s review pro-

                        5 Both in its written observations, of 4 April 2013, and in its oral arguments ; cf. written

                     observations of New Zealand, of 4 April 2013, pp. 30‑33, paras. 55‑60 ; and CR 2013/17,
                     of 8 July 2013, pp. 30‑31 and 39, paras. 50‑54 and 14.
                        6 Written observations of New Zealand, of 4 April 2013, p. 56, para. 98.
                        7 Ibid., p. 56, para. 98, note 195.

                     131

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                     cess focuses on, inter alia, the possibility of using non‑lethal research
                     methods, the aims and the methodology and the sample size, the point
                     whether the catches will have an adverse effect on the stocks (paras. 2‑3).
                     Moreover, the proposed activity is to be subject to periodic and final
                     reviews. It is clear that there is here not much room for State unilateral
                     action and free will.

                        16. It clearly appears, from paragraph 30 of the Schedule 8, that a State
                     party issuing a special permit is under the obligation to provide the IWC
                     Secretary with proposed scientific permits before they are issued, and in
                     sufficient time so as to allow the Scientific Committee to review and com-
                     ment on them. Paragraph 30 of the Schedule thus plays an important role
                     in the overall structure of the ICRW and in the pursuit of the fulfilment
                     of its object and purpose. It establishes a review procedure that must be
                     followed in relation to the granting of special permits, and that serves as
                     a mechanism through which the granting of special permits may be mon-
                     itored by the IWC. Accordingly, States granting special permits do not
                     have an unfettered freedom to issue such permits.
                        17. It follows therefrom that, even if the recommendations of the Sci-
                     entific Committee and the IWC are not per se legally binding on States,
                     States willing to issue special permits should consider the comments of
                     the IWC and the recommendations of the Scientific Committee in good
                     faith (principle of bona fide). The terms of paragraph 30 make it clear
                     that the particular duty to provide proposed special permits in advance to
                     the IWC is set forth so as to enable the Scientific Committee to “review
                     and comment” on them. It seems that, if States were to decide, at their
                     free will, whether or not to take into account the comments and recom-
                     mendations of the IWC and the Scientific Committee, that provision
                     would be rendered meaningless, dead letter ; the review procedure would
                     then become a sort of unacceptable “rubber stamp” mechanism, whereby
                     States issuing permits would be able to disregard completely the com-
                     ments and recommendations whenever they wished.
                        8 Paragraph 30 of the Schedule states that a State party shall provide the IWC Secre-

                     tary with proposed scientific permits
                           “before they are issued and in sufficient time to allow the Scientific Committee to
                           review and comment on them. The proposed permits should specify : (a) objec-
                           tives 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.”

                       Paragraph 30 adds that proposed permits
                         “shall be reviewed and commented on by the Scientific Committee at Annual
                         Meetings when possible. When permits would be granted prior to the next Annual
                         Meeting, the Secretary shall send the proposed permits to members of the Scientific
                         Committee by mail for their comment and review. Preliminary results of any research
                         resulting from the permits should be made available at the next Annual Meeting of
                         the Scientific Committee.”

                     132

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                       18. Paragraph 30 thus creates a positive (procedural) obligation 9 of the
                     State willing to issue a special permit to co-operate with the IWC and the
                     Scientific Committee. It would seem inconsistent with the purpose of
                     paragraph 30 if a State party would feel entitled to issue a special permit
                     without having co-operated with the IWC and the Scientific Committee,
                     or without having given any consideration whatsoever to the views of
                     other States parties expressed through the comments of the IWC and the
                     recommendations of the Scientific Committee.
                       19. In its 2006 Report (p. 50), the Scientific Committee was of the view
                     that the JARPA II proposed programme provided the specifications
                     required by paragraph 30 of the Schedule. One has here, as already indi-
                     cated, a system of collective guarantee and collective regulation under the
                     ICRW. In the framework of this latter, the Court has determined, on
                     distinct points, that the respondent State has not acted in conformity with
                     paragraph 10 (d) and (e), and paragraph 7 (b), of the Schedule 10 to the
                     ICRW (resolutory points 3‑5).

                                         III. The Limited Scope of Article VIII (1)
                                                       of the ICRW

                        20. Keeping the review system in mind, and given the arguments of the
                     contending Parties and of the intervenor as to the scope of Article VIII 11
                     within the ICRW as a whole, a point to be addressed is that of the require-
                     ments for a whaling programme to be considered “for purposes of scien-
                     tific research”. The key point seems to be whether a whaling programme
                     carried out under a special permit must be exclusively for scientific
                         9 On the conceptualization of positive obligations in a distinct context, cf., e.g.,

                     D. Xenos, The Positive Obligations of the State under the European Convention of Human
                     Rights, London/N.Y., Routledge, 2012, pp. 57‑141.
                         10 Paragraph 10 (d) of the Schedule establishes a moratorium on the taking, killing

                     or treating of (sperm, killer and baleen) whales, except minke whales, by factory ships
                     or whale catchers attached to factory ships. And paragraph 10 (e) provides in addition
                     for a “comprehensive assessment” of the effects of catches on whale stocks and the estab-
                     lishment of new catch limits. And paragraph 7 (b) of the Schedule prohibits commercial
                     whaling in the Southern Ocean Sanctuary (a prohibition to be reviewed every ten years).
                        11   Article VIII (1) of the ICRW reads as follows :
                                “Notwithstanding anything contained in this Convention any Contracting
                             Government may grant to any of its nationals a special permit authorizing that
                             national to kill, take and treat whales for purposes of scientific research subject to
                             such restrictions as to number and subject to such other conditions as the Contracting
                             Government thinks fit, and the killing, taking, and treating of whales in accordance
                             with the provisions of this Article shall be exempt from the operation of this Conven-
                             tion. 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.”

                     133

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                     research and not for any other purpose. In other words, the question is
                     whether the same programme may be carried out under a special permit
                     for the purpose of “scientific research” and, e.g., for purpose of selling the
                     whale meat.

                        21. In my understanding, Article VIII (1) of the ICRW is not to be
                     interpreted broadly, so as to go against the object and purpose of the
                     normative framework of the Convention as a whole. Article VIII (1)
                     appears as an exception to the normative framework of the ICRW, to be
                     thus interpreted restrictively. The purpose, in particular, of granting spe-
                     cial permits, is, to my mind, to allow for scientific research to be under-
                     taken ; other purposes do not seem to be allowed under Article VIII, and
                     should not fall under the exception of Article VIII (1), which, in my
                     understanding, applies solely and specifically to scientific research pro-
                     grammes. If a programme with multiple purposes (including a “scientific
                     research” purpose) could be qualified for a special permit under
                     Article VIII (1), the provision would not have been drafted in the way it
                      was. Article VIII (1) is phrased in terms (“for purposes of”) which seem
                      to make it clear that the sole purpose for which a special permit shall be
                      granted is the conduct of scientific research. Otherwise, it could be
                      expected that the expression “or other purposes” would also have been
                      included.

                        22. The Court has determined that the special permits granted by
                     Japan in connection with JARPA II “do not fall within the provisions of
                     Article VIII (1)” of the ICRW (resolutory point 2). As to whether a State
                     issuing a special permit under Article VIII (1) has the discretion to deter-
                     mine whether a whaling programme is “for purposes of scientific
                     research”, such a question can only be properly considered within the
                     whole framework of the ICRW as a multilateral treaty, nowadays endowed
                     with a supervisory mechanism of its own. Accordingly, a State issuing a
                     permit does not have carte blanche to dictate that a given programme
                     is “for purposes of scientific research”. It is not sufficient for a State
                     party to describe its whaling programme as “for purposes of scientific
                     research”, without demonstrating it.

                        23. In my view, such an unfettered discretion would not be in line with
                     the object and purpose of the ICRW, nor with the idea of multilateral
                     regulation. The State issuing a special permit should take into consider-
                     ation the resolutions of the IWC which provide the views of other States
                     parties as to what constitutes “scientific research”. There is no point in
                     seeking to define “scientific research” for all purposes. When deciding
                     whether a programme is “for purposes of scientific research” so as to
                     issue a special permit under Article VIII (1), the State party concerned

                     134

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                     has, in my understanding, a duty to abide by the principle of prevention
                     and the precautionary principle (cf. infra).
                        24. In my perception, Article VIII, part and parcel of the ICRW as a
                     whole, is to be interpreted taking into account its object and purpose.
                     This discards any pretence of devising in it a so‑called “self‑contained”
                     regime or system, which would go unduly against the ICRW’s object and
                     purpose. In sum, in my understanding, in line with the object and purpose
                     of the ICRW (supra), a State party does not have an unfettered discre-
                     tion to decide the meaning of “scientific research” and whether a given
                     whaling programme is “for purposes of scientific research”. The interpre-
                     tation and application of the ICRW in recent decades bear witness of a
                     gradual move away from unilateralism and towards multilateral conser-
                     vation of living marine resources, thus clarifying the limited scope of
                     Article VIII (1) of the ICRW.

                               IV. The Evolving Law relating to Conservation :
                                        Interactions between Systems

                        25. With the growth in recent decades of international instruments
                     related to conservation, not a single one of them is approached in isola-
                     tion from the others ; not surprisingly, the co‑existence of international
                     treaties of the kind has called for a systemic outlook, which has been pur-
                     sued in recent years. Reference can here be made to e.g., the 1973 Con-
                     vention on International Trade in Endangered Species of Wild Fauna and
                     Flora (CITES Convention), the 1979 Convention on Migratory Species
                     of Wild Animals, the 1980 Convention on the Conservation of Antarctic
                     Marine Living Resources, the 1982 United Nations Convention on the
                     Law of the Sea, the 1992 United Nations Convention on Biological
                     Diversity (CBD Convention).

                         26. The systemic outlook seems to be flourishing in recent years.
                     For example, at its fifth meeting, in 2000, the Conference of States
                     parties to the CBD Convention referred to “the interactions between

                     climate change and the conservation and sustainable use of biological
                      diversity in a number of thematic and cross-cutting areas”, including,
                      inter alia, marine and coastal biodiversity 12. As for the ICRW, the most
                     complete academic work produced to date, on its legal regime,
                     that of Patricia W. Birnie, supports the teleological interpretation of
                     the ICRW, stressing the growing importance of conservation in the
                     evolving interpretation and application of the ICRW ; she further

                     points out that related treaties (e.g., the CITES Convention) have
                     helped to identify the wide range of matters of concern to the inter

                       12 CBD, Scientific Assessments — Note by the Executive Secretary, doc. UNEP/CBD/

                     SBSTTA/10/7, of 5 November 2004, p. 8, para. 29.

                     135

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                     358         whaling in the antarctic (sep. op. cançado trindade)

                     national community as a whole, such as, e.g., inter alia, the protection of
                     wild fauna and flora 13.

                              V. The ICRW as a “Living Instrument” : The Evolving
                                           Opinio Juris Communis

                        27. The interpretation and application of the aforementioned treaties,
                     in the light of the systemic outlook, have been contributing to the gradual
                     formation of an opinio juris communis in the present domain of contem-
                     porary international law. The present Judgment of the ICJ in the Whaling
                     in the Antarctic case has recalled the establishment, in 1950, by the IWC,
                     of the Scientific Committee to assist it in discharging its functions ; as
                     from the mid‑1980s, the Scientific Committee has conducted its review of
                     special permits on the basis of Guidelines, issued or endorsed by the IWC
                     (para. 47). Moreover, the IWC is entitled to adopt recommendations
                     (under Article VI of the ICRW), which may be relevant (when adopted
                     by consensus or unanimity) for the interpretation of the Convention or its
                     Schedule (para. 46). As the ICJ itself has put it, the functions conferred
                     upon the IWC “have made the Convention an evolving instrument”
                     (para. 45).
                        28. The present Judgment of the ICJ proceeds to assert that States par-
                     ties to the ICRW “have a duty to co‑operate with the IWC and the Scien-
                     tific Committee” and to “give due regard to recommendations calling for
                     an assessment of the feasibility of non‑lethal” research methods (para. 83).
                     In this respect, it further recalls, inter alia, that “the two experts called by
                     Australia referred to significant advances in a wide range of non‑lethal
                     research techniques over the past 20 years” (para. 137). The Judgment the
                     Court has just adopted today, 31 March 2014, is likely to be of impor-
                     tance to the future of the IWC, and to secure the survival of the ICRW
                     itself, as a “living instrument” capable of keeping on responding to needs
                     of the international community and new challenges that it faces in the
                     present domain.
                        29. This is not the first time that the Court acknowledges that interna-
                     tional treaties and conventions are “living instruments”. In its célèbre
                     Advisory Opinion (of 21 June 1971) on Namibia, for example, the ICJ
                     referring to the mandates system of the League of Nations era, stated that

                         13 P. W. Birnie, International Regulation of Whaling : From Conservation of Whaling to

                     Conservation of Whales and Regulation of Whale Watching, Vol. II, N.Y./London/Rome,
                     Oceana Publs., 1985, pp. 583 and 635. She further singles out the continuing work of the
                     IWC, with several resolutions addressing “a wide variety of new issues”, such as, inter alia,
                     criteria for aboriginal subsistence whaling, small cetaceans, creation of sanctuary areas,
                     preservation of habitats, “humane killing”, discouragement of whaling, among others ;
                     cf. ibid., Vol. II, p. 641.

                     136

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                           “the concepts embodied in Article 22 of the Covenant (. . .) were not
                           static, but were by definition evolutionary (. . .). [V]iewing the insti-
                           tutions of 1919, the Court must take into consideration the changes
                           which have occurred in the supervening half‑century, and its interpre-
                           tation cannot remain unaffected by the subsequent development of
                           law, through the Charter of the United Nations or by way of custom-
                           ary law. Moreover, an international instrument has to be interpreted
                           and applied within the framework of the entire legal system prevailing
                           at the time of its interpretation. In the domain to which the present
                           proceedings relate, the last fifty years, as indicated above, have
                           brought important developments. (. . .) In this domain, as elsewhere,
                           the corpus iuris gentium has been considerably enriched, and this the
                           Court, if it is faithfully to discharge its functions, may not ignore.”
                           (Legal Consequences for States of the Continued Presence of South
                           Africa in Namibia (South West Africa) notwithstanding Security
                           Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971,
                           pp. 31‑32, para. 53.)
                        30. Subsequently, in its Judgment (of 25 September 1997) in the case
                     concerning the Gabčíkovo‑Nagymaros Project (Hungary/Slovakia), the
                     ICJ pondered that “newly developed norms of environmental law are rel-
                     evant for the implementation of the [1977] Treaty” in force between Hun-
                     gary and Slovakia, that was the object of the dispute. The Court proceeded
                     that the contending Parties are required, “in carrying out their obliga-
                     tions to ensure that the quality of water in the Danube is not impaired
                     and that nature is protected, to take new environmental norms into con-
                     sideration”. Accordingly, the Court added, the 1977 Treaty “is not static,
                     and is open to adapt to emerging norms of international law”
                     (I.C.J. Reports 1997, pp. 67‑68, para. 112).
                        31. Other contemporary international tribunals have pursued the same
                     evolutionary interpretation. For example, the European Court of Human
                     Rights, in its judgment (of 25 April 1978) in the Tyrer v. The United King-
                     dom case, asserted that the European Convention on Human Rights “is a
                     living instrument”, to be “interpreted in the light of present-day conditions”
                     (para. 31). Subsequently, the European Court reiterated, expressis verbis,
                     this obiter dictum, in its judgment (on preliminary objections, of 23 March
                     1995) in the case of Loizidou v. Turkey, wherein it added that, accordingly,
                     the provisions of the European Convention, as a “living instrument”,
                           “cannot be interpreted solely in accordance with the intentions of
                           their authors as expressed more than forty years ago. (. . .) In addition,
                           the object and purpose of the Convention as an instrument for the
                           protection of individual human beings requires that its provisions be
                           interpreted and applied so as to make its safeguards practical and
                           effective.” (Application No. 5856/72, paras. 71‑72.)
                      32. Likewise, the Inter‑American Court of Human Rights, in its Judg-
                     ment (of 31 August 2001) in the case of the Mayagna (Sumo) Awas

                     137

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                     Tingni Community v. Nicaragua, stated that “human rights treaties are
                     living instruments, the interpretation of which ought to adapt to the evo-
                     lution of times, and, in particular, to current living conditions” (para. 146).
                     In the same line of thinking, in its earlier Advisory Opinion (of 1 October
                     1999) on The Right to Information on Consular Assistance in the Frame-
                     work of the Guarantees of the Due Process of Law, the Inter‑American
                     Court observed that the International Law of Human Rights
                           “has made great headway thanks to an evolutive interpretation of
                           international instruments of protection. That evolutive interpretation
                           is consistent with the general rules of treaty interpretation established
                           in the 1969 Vienna Convention. (. . .) [H]uman rights treaties are liv-
                           ing instruments whose interpretation must consider the changes over
                           time and present-day conditions.” (Para. 114.)

                        33. The experience of supervisory organs of various international trea-
                     ties and conventions points to this direction as well. Not seldom they
                     have been faced with new challenges, requiring new responses from them,
                     which could never have been anticipated, not even imagined, by the
                     draftsmen of the respective treaties and conventions. In sum, interna-
                     tional treaties and conventions are a product of their time, being also
                     living instruments. They evolve with time ; otherwise, they fall into desue-
                     tude. The ICRW is no exception to that. Those treaties endowed with
                     supervisory organs of their own (like the ICRW) disclose more aptitude
                     to face changing circumstances.

                        34. Moreover, in distinct domains of international law, treaties
                     endowed with a supervisory mechanism of their own have pursued a
                     hermeneutics of their own 14, facing the corresponding treaties and con-
                     ventions as living instruments. International treaties and conventions are
                     products of their time, and their interpretation and application in time,
                     with a temporal dimension, bears witness that they are indeed living
                     instruments. This happens not only in the present domain of conservation
                     and management of living marine resources, but likewise in other areas of
                     international law 15.
                        35. By the time of the adoption of the 1946 ICRW, in the mid‑twenti-
                     eth century, there did not yet exist an awareness that the living marine
                     resources were not inexhaustible. Three and a half decades later, the
                     adoption of the 1982 United Nations Convention on the Law of the Sea
                     (UNCLOS) — a major international law achievement in the nine-

                        14 Cf., for example, in the domain of the international protection of the rights of the

                     human person, A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
                     Humanos, Vol. II, Porto Alegre/Brazil, S. A. Fabris Ed., 1999, Chap. XI, pp. 23‑200.
                        15 Cf. A. A. Cançado Trindade, International Law for Humankind — Towards a New

                     Jus Gentium, 2nd rev. ed., Leiden/The Hague, Nijhoff, 2013, Chap. II (“Time and Law
                     Revisited : International Law and the Temporal Dimension”), pp. 31‑51.

                     138

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                     teenth century — contributed to the public order of the oceans, and to
                     the growing awareness that their living resources were not inexhaustible.
                     Unilateralism gradually yielded to collective regulation towards conserva-
                     tion. An example to this effect is provided, under the 1946 ICRW, by the
                     1982 general moratorium on commercial whaling.

                       36. Another example can be found in the establishment by the IWC of
                     whale sanctuaries (under Article V (1) of the ICRW) (infra). The IWC
                     has so far adopted three whale sanctuaries : first, the Southern Ocean
                     Sanctuary (1948‑1955) ; secondly, the Indian Ocean Sanctuary (1979,
                     renewed in 1989, and indefinitely as from 1992) ; thirdly, the new South-
                     ern Ocean Sanctuary (from 1994 onwards). Moreover, in its meetings
                     of 2001‑2004, the IWC was lodged with a proposal (revised in 2005) of a
                     new sanctuary, the South Atlantic Sanctuary 16, so as to reassert the need
                     of conservation of whales.

                        37. Over the last three decades, the IWC has repeatedly made clear
                     that lethal research methods are not in line with the aforementioned mor-
                     atorium. In its resolution 2003‑2, for example, the IWC calls for a limita-
                     tion of “scientific research” to “non‑lethal methods only”, and expresses
                     its opposition to commercial whaling, “contrary to the spirit of the mora-
                     torium”, and presents an annotated compilation of its “Conservation
                     Work”, with a systematization of resolutions to this effect (Anns. I‑II).
                     It is nowadays reckoned that States parties to the ICRW that wish to
                     issue special permits are bound to co-operate with the IWC and the Sci-
                     entific Committee, and to give consideration to the views of other States
                     parties expressed through the comments of the IWC and the recommen-
                     dations of the Scientific Committee.
                        38. Parallel to this, multilateral conventions (such as UNCLOS and
                     CBD) have established a framework for the conservation and manage-
                     ment of living marine resources. The UNCLOS Convention contains a
                     series of provisions to that effect 17. As to the CBD Convention, the Con-
                     ference of the parties held in Jakarta in 1995, for example, adopted the
                     Jakarta Mandate on Coastal and Marine Biodiversity, reasserting the rel-
                     evance of conservation and ecologically sustainable use of coastal and
                     marine biodiversity, and, in particular, linking conservation, sustainable
                     use of biodiversity and fishing activities.

                       39. Furthermore, in its meeting of 2002, the States parties to the Con-
                     vention on Migratory Species (CMS) pointed out the need to give greater
                     protection to six species of whales (including the Antarctic minke whales)

                        16 Propounded mainly by Brazil, Argentina, South Africa and Uruguay in the ambit of

                     the IWC. On the proposal, cf. “Chair’s Report of the 57th Annual Meeting of the Interna-
                     tional Whaling Commission”, pp. 33‑34.
                        17 Such as Articles 61, 64‑67, 192, 194 and 204 (2).

                     139

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                     and their habitats, breeding grounds and migratory routes. These are
                     clear illustrations of the evolving opinio juris communis on the matter. In
                     its 2010 meeting, held in Agadir, Morocco, the “Buenos Aires Group” 18
                     reiterated support for the creation of a new South Atlantic Sanctuary for
                     whales, and positioned itself in favour of conservation and non‑lethal use
                     of whales 19, and against so‑called “scientific whaling” (in particular in the
                     cases of endangered or severely depleted species).

                        40. The “Buenos Aires Group” stressed the needed implementation of
                     the moratorium, and recalled the achievements of the IWC since the early
                     1980s. It further called for a reform of Articles V (whaling under objec-
                     tion) and VIII (scientific whaling) of the ICRW, so that their interpreta-
                     tion and application do not go against the principle of conservation of
                     whales underlying the Convention. More recently, on 4 February 2013,
                     the same “Buenos Aires Group” expressed its “strongest rejection” of the
                     ongoing whale hunting (including species classified as endangered) in the
                     Southern Ocean Sanctuary (para. 1), with catches pointing to “an opera-
                     tion of a commercial nature which lacks any scientific justification”
                     (para. 2). After calling for non‑lethal methods and “the maintenance of
                     the commercial moratorium in place since 1986”, the “Buenos Aires
                     Group” stated that the ongoing whale hunting was in breach of “the
                     spirit and the text” of the 1946 ICRW, and failed to respect “the integrity
                     of the whale sanctuaries recognized by the IWC” (paras. 3‑4).

                                           VI. Inter‑Generational Equity

                        41. The 1946 ICRW was indeed pioneering, in acknowledging, in its
                     Preamble, “the interest of the nations of the world in safeguarding for
                     future generations the great natural resources represented by the whale
                     stocks”. At that time, shortly after World War II, its draftsmen could
                     hardly have anticipated that this concern would achieve the dimension it
                     did, in the international agenda and in international law‑making (in par-
                     ticular in the domain of international environmental law) in the decades
                     that followed. The long‑term temporal dimension, underlying the
                     inter‑generational equity, was properly acknowledged. And the concep-
                     tual construction of inter‑generational equity (in the process of which I

                       18 Formed by Argentina, Brazil, Chile, Colombia, Costa Rica, Dominican Republic,

                     Ecuador, Mexico, Panama, Peru and Uruguay.
                       19 Cf. Chair’s Report of the 62nd Annual Meeting of the International Whaling

                     Commission, pp. 7‑8.

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                     363        whaling in the antarctic (sep. op. cançado trindade)

                     had the privilege to take part) was to take place, in international legal
                     doctrine, four decades later, from the mid‑1980s onwards.

                       42. Within this Court, I had in fact the occasion to address the
                     long‑term temporal dimension, in relation to inter‑generational equity, in
                     my separate opinion in the case of the Pulp Mills on the River Uruguay
                     (Argentina v. Uruguay) (Judgment, I.C.J. Reports 2010 (I), p. 14). I pon-
                     dered therein that
                              “The long‑term temporal dimension marks its presence, in a noto-
                           rious way, in the domain of environmental protection. The concern
                           for the prevalence of the element of conservation (over the simple
                           exploitation of natural resources) reflects a cultural manifestation of
                           the integration of the human being with nature and the world wherein
                           he or she lives. Such understanding is, in my view, projected both in
                           space and in time, as human beings relate themselves, in space, with
                           the natural system of which they form part (and ought to treat with
                           diligence and care), and, in time, with other generations (past and
                           future) 20, in respect of which they have obligations. (. . .)
                              In fact, concern with future generations underlies some environ-
                           mental law conventions 21. In addition, in the same line of reasoning,
                           the 1997 UNESCO Declaration on the Responsibilities of Present
                           Generations Towards Future Generations, after invoking, inter alia,
                           the 1948 Universal Declaration of Human Rights and the two 1966
                           United Nations Covenants on Human Rights, recalls the responsibil-
                           ities of present generations to ensure that ‘the needs and interests of
                           present and future generations are fully safeguarded’ (Article 1 and
                           Preamble). The 1997 Declaration added, inter alia, that ‘the present
                           generations should strive to ensure the maintenance and perpetuation

                         20 Future generations promptly began to attract the attention of the contemporary

                     doctrine of international law : cf., e.g., A.‑Ch. Kiss, “La notion de patrimoine commun
                     de l’humanité”, 175 Recueil des cours de l’Académie de droit international de La Haye
                     (RCADI) (1982), pp. 109‑253 ; E. Brown Weiss, In Fairness to Future Generations : Inter-
                     national Law, Common Patrimony and Intergenerational Equity, Tokyo/Dobbs Ferry
                     N.Y., United Nations University/Transnational Publs., 1989, pp. 1‑351 ; A.‑Ch. Kiss,
                     “The Rights and Interests of Future Generations and the Precautionary Principle”, The
                     Precautionary Principle and International Law — The Challenge of Implementation (eds.
                     D. Freestone and E. Hey), The Hague, Kluwer, 1996, pp. 19‑28 ; [Various Authors], Future
                     Generations and International Law (eds. E. Agius and S. Busuttil et al.), London, Earth-
                     scan, 1998, pp. 3‑197 ; [Various Authors], Human Rights : New Dimensions and Challenges
                     (J. Symonides, ed.), Paris/Aldershot, UNESCO/Dartmouth, 1998, pp. 1‑153 ; [Various
                     Authors], Handbook of Intergenerational Justice (J. C. Tremmel, ed.), Cheltenham,
                     E. Elgar Publ., 2006, pp. 23‑332.
                         21 E.g., the 1992 United Nations Framework Convention on Climate Change, the

                     1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change,
                     the 1985 Vienna Convention for the Protection of the Ozone Layer, the 1987 Montreal
                     Protocol on Substances that Deplete the Ozone Layer, among others.

                     141

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                     364         whaling in the antarctic (sep. op. cançado trindade)

                           of humankind with due respect for the dignity of the human person’
                           (Art. 3). Almost two decades earlier, the United Nations General
                           Assembly adopted, on 30 October 1980, its resolution proclaiming
                           ‘the historical responsibility of States for the preservation of nature
                           for present and future generations’ (para. 1) ; it further called upon
                           States, in ‘the interests of present and future generations’, to take
                           ‘measures (. . .) necessary for preserving nature’ (para. 3). (. . .)

                              May I recall that the subject at issue was originally taken up by the
                           Advisory Committee to the United Nations University (UNU) on a
                           project on the matter, in early 1988, so as to provide an innovative
                           response to rising and growing concerns over the depletion of natural
                           resources and the degradation of environmental quality and the rec-
                           ognition of the need to conserve the natural and cultural heritage (at
                           all levels, national, regional and international ; and governmental as
                           well as non‑governmental). The Advisory Committee, composed of
                           professors from distinct continents 22, met in Goa, India 23, and issued,
                           on 15 February 1988, a final document titled ‘Goa Guidelines on
                           Intergenerational Equity’ 24, which stated :

                                 ‘Th[e] temporal dimension is articulated through the formula-
                              tion of the theory of ‘intergenerational equity’ ; all members of
                              each generation of human beings, as a species, inherit a natural
                              and cultural patrimony from past generations, both as beneficia-
                              ries and as custodians under the duty to pass on this heritage to
                              future generations. As a central point of this theory the right of
                              each generation to benefit from this natural and cultural heritage
                              is inseparably coupled with the obligation to use this heritage in
                              such a manner that it can be passed on to future generations in no
                              worse condition than it was received from past generations. This
                              requires conservation and, as appropriate, enhancement of the
                              quality and of the diversity of this heritage. The conservation of
                              cultural diversity is as important as the conservation of environ-
                              mental diversity to ensure options for future generations.

                        22 Namely, Professors E. Brown Weiss, A. A. Cançado Trindade, A.‑Ch. Kiss,

                     R. S. Pathak, Lai Peng Cheng and E. W. Ploman.
                        23 In the meeting held in Goa, India, convened by the United Nations University (UNU),

                     the members of the UNU Advisory Committee acted in their own personal capacity.
                        24 These Guidelines, adopted on 15 February 1988, were the outcome of prolonged

                     discussions, which formed part of a major study sponsored by the UNU. It is not my
                     intention to recall, in the present separate opinion, the points raised in those discussions,
                     annotated in the unpublished UNU dossiers and working documents, on file with me since
                     February 1988.

                     142

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                                    Specifically, the principle of intergenerational equity requires
                                conserving the diversity and the quality of biological resources.
                                (. . .)
                                    The principles of equity governing the relationship between
                                generations (. . .) pertain to valued interests of past, present and
                                future generations, covering natural and cultural resources. (. . .)
                                There is a complementarity between recognized human rights and
                                the proposed intergenerational rights. (. . .)’ 25
                                And the aforementioned UNU document moved on to propose
                             strategies to implement inter‑generational rights and obligations.
                             From then onwards, the first studies on this specific topic of inter‑
                             generational equity, in the framework of the conceptual universe of
                             International Environmental Law, began to flourish 26. From the late
                             1980s onwards, inter‑generational equity has been articulated amidst
                             the growing awareness of the vulnerability of the environment, of
                             the threat and gravity of sudden and global changes, and, ultimately,
                             of one’s own mortality.” 27

                        43. Inter‑generational equity comes again to the fore in the present
                     case of Whaling in the Antarctic. The factual context of the cas d’espèce is
                     of course quite distinct from that of the Pulp Mills case ; yet, significantly,
                     in one and the other, inter‑generational equity (with its long‑term tempo-
                     ral dimension) marks its presence. It does so in distinct international
                     instruments of international environmental law, and in its domain as a
                     whole. And this cannot pass unnoticed here.

                        44. In this respect, the 1973 CITES Convention, e.g., states in its Pre-
                     amble that wild fauna and flora “must be protected for this and the gen-
                     erations to come”, and adds that “peoples and States are and should be
                     the best protectors of their own wild fauna and flora”. The CITES Con-
                     vention provides for control of trade, and prevention or restriction of
                     exploitation of species (Art. II). The 1979 Convention on the Conserva-
                     tion of Migratory Species of Wild Animals asserts in its Preamble the
                     awareness that each generation “holds the resources of the earth for
                     future generations and has an obligation to ensure that this legacy is con-
                     served and, where utilized, is used wisely”. Furthermore, it recognizes in

                        25 The full text of the “Goa Guidelines on Intergenerational Equity” is reproduced in

                     Annexes to the two following books, whose authors participated in the elaboration of the
                     document : E. Brown Weiss, In Fairness to Future Generations : International Law, Common
                     Patrimony and Intergenerational Equity, op. cit. supra note 20, Appendix A, pp. 293‑295 ;
                     A. A. Cançado Trindade, Direitos Humanos e Meio Ambiente : Paralelo dos Sistemas de
                     Proteção Internacional, Porto Alegre/Brazil, S. A. Fabris Ed., 1993, Ann. IX, pp. 296‑298.
                        26 Cf., inter alia, supra note 20.
                        27 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports
                     2010 (I), pp. 177‑180, paras. 114, 118, 120 and 121 of my aforementioned separate opinion.

                     143

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                     the Preamble that “wild animals in their innumerable forms are an irre-
                     placeable part of the earth’s natural system which must be conserved for
                     the good of mankind”.

                        45. The 1992 CBD Convention expresses, in its Preamble, the determi-
                     nation “to conserve and sustainably use biological diversity for the bene-
                     fit of present and future generations”. It further asserts in its Preamble
                     that “the conservation of biological diversity is a common concern of
                     humankind”, and calls for “the conservation of biological diversity and
                     the sustainable use of its components”, also to “contribute to peace for
                     humankind”. In its operative part, the CBD Convention then proceeds,
                     in detail, to provide for conservation of biological diversity and its sus-
                     tainable use (Arts. 1, 6‑10, 11‑13, and 17‑18).

                        46. In the course of a meeting of a UNEP Group of Legal Experts —
                     of which I keep a good memory — which took place in Malta before the
                     holding of the 1992 UNCED Conference in Rio de Janeiro in the period
                     of the travaux préparatoires of the CBD Convention — the need was
                     stressed of relating “preventive with corrective measures, with preventive
                     measures seeming “to lend themselves more easily to an inter‑generational
                     perspective” 28. The Group of Legal Experts then identified “the constitu-
                     tive elements” of common concern of humankind, namely :

                           “involvement of all countries, all societies, and all classes of people
                           within countries and societies ; long‑term temporal dimension, encom-
                           passing present as well as future generations ; and some sort of shar-
                           ing of burdens of environmental protection” 29.

                        47. In effect, inter‑generational equity marks presence nowadays in a
                     wide range of instruments of international environmental law, and indeed
                     of contemporary public international law. It goes beyond the scope of the
                     present separate opinion to dwell extensively upon them. Suffice it here to
                     refer to yet another illustration. The 2001 UNESCO Universal Declara
                     tion on Cultural Diversity, e.g., after expressing, in its Preamble, the aspir
                     ation to “greater solidarity” on the basis of “recognition of cultural
                     diversity, of awareness of the unity of humankind, and of the develop-
                     ment of intercultural exchanges”, adds, in Article 1, that “cultural diver-
                     sity is as necessary for humankind as biodiversity is for nature” ; in this

                        28 UNEP, “Report on the Proceedings of the Meeting Prepared by the Co-Rappor-

                     teurs, Profs. A. A. Cançado Trindade and D. J. Attard”, The Meeting of the Group of Legal
                     Experts to Examine the Concept of the Common Concern of Mankind in Relation to Global
                     Environmental Issues (D. J. Attard, ed. — Malta, University of Malta, 13‑15 December
                     1990), Nairobi, UNEP, 1991, p. 22, para. 6.
                        29 Ibid., p. 21, para. 4.

                     144

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                     sense, “it is the common heritage of humanity and should be recognized
                     and affirmed for the benefit of present and future generations”.

                             VII. Conservation of Living Species (Marine Mammals)

                              1. The Tension between Conservation and Exploitation :
                                            Arguments of the Parties
                        48. In the course of the proceedings (written phase) of the present case
                     Whaling in the Antarctic, both Australia and Japan referred, in distinct
                     terms to the conservation of marine mammals. To start with, Australia’s
                     Memorial devoted some attention to the development, from the mid‑1970s
                     onwards, of a treaty‑based regime for the conservation of marine mam-
                     mals. It observed that, from then onwards, “the international community
                     has adopted an increasingly conservation‑oriented approach in the devel-
                     opment of treaty regimes, including those covering marine mammals”
                     (para. 4.84). This, in its view, has led to “significant developments in the
                     law relating to conservation” (para. 4.85).
                        49. In Australia’s view, those international instruments recognize “the
                     intrinsic value” of all living species, and “the importance of conservation
                     of migratory species and biological diversity as common concerns of
                     mankind”. They are directly relevant to the conservation and manage-
                     ment of whales, and support an interpretation of Article VIII of the
                     ICRW that “contributes to, rather than undermines, the conservation of
                     whales” (para. 4.86). Australia then advances “a restrictive interpretation
                     of the Article VIII exception, and a stringent limitation on the use of
                     lethal methods of scientific research if non‑lethal means are available”
                     (para. 4.86). Australia further refers to the recognition of the “precau-
                     tionary approach” in several “international environmental agreements,
                     concerning both broader environmental matters, and, more particularly,
                     the conservation and protection of marine mammals” (para. 4.89).

                         50. For its part, Japan, in its Counter‑Memorial, argued that, in its
                     view, there is “no contradiction” between the conservation and the exploi-
                     tation of whales, not even under the ICRW (para. 6.15). In the same line
                     of thinking — Japan added — the United Nations Convention on
                     Biological Diversity (CBD) “permits the use of biological resources” in a
                      manner that avoids or minimizes “adverse impacts” on biological diver-
                      sity (para. 6.17). In Japan’s view, the term “use” includes “both commer-
                      cial exploitation and use for the purposes of scientific research”
                      (para. 6.18). Japan then recalled that the concept of “sustainable use” has
                      been further developed by the Conference of the States parties to the

                     145

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                     CBD, which, in 2004, adopted the Addis Ababa Principles and Guide-
                     lines for the Sustainable Use of Biodiversity, recognizing that :

                               “Sustainable use is a valuable tool to promote conservation of bio-
                            logical diversity, since in many instances it provides incentives for
                            conservation and restoration because of social, cultural and economic
                            benefits that people derive from that use. In turn, sustainable use
                            cannot be achieved without effective conservation measures. In this
                            context, and as recognized in the Plan of Implementation of the
                            World Summit on Sustainable Development, sustainable use is an
                            effective tool to combat poverty, and consequently, to achieve sus-
                            tainable development.” (Memorial of Australia, para. 6.19.)
                        51. Japan further argued that the policy of “combination of conserva-
                     tion and sustainable use” under the CBD has been a “matter of practical
                     necessity”, and “what types and levels of utilization are sustainable will
                     depend on the status of the species and the demands upon it at any par-
                     ticular time” (ibid., para. 6.20). As the “level of exploitation” would
                     depend on “the conservation status of the species in question” — Japan
                     added — it followed that “the measures adopted to promote sustainable
                     use of biological resources should be adjusted according to the informa-
                     tion available about a species, bearing in mind the precautionary
                     approach” (ibid., para. 6.22).

                                   2. Whale Stocks — Conservation and Development :
                                       Responses of the Parties and the Intervenor
                                              to Questions from the Bench
                        52. There has been growing awareness in recent years that the ICRW
                     does not allow the use of whales to take place to the detriment of the
                     conservation of whale stocks. The general membership of the ICRW
                     (encompassing both whaling and non‑whaling States) has been attentive
                     to the growing emphasis on conservation, with more protective measures
                     (by the IWC), and the gradual crystallization of the precautionary prin-
                     ciple (cf. infra). In the present case of Whaling in the Antarctic, in the
                     course of the oral pleadings before the Court (on 8 July 2013), I deemed
                     it fit to put the following questions to Japan, Australia and New Zealand
                     together :
                        “[1.] How do you interpret the terms ‘conservation and development’
                              of whale stocks under the International Convention for the Reg-
                              ulation of Whaling ?
                         [2.] In your view, can a programme that utilizes lethal methods be
                              considered ‘scientific research’, in line with the object and purpose
                              of the International Convention for the Regulation of Whaling ?” 30

                       30   CR 2013/17, of 8 July 2013, p. 49.

                     146

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                     And then, I addressed the following additional questions only to Japan :
                        “1. To what extent would the use of alternative non‑lethal methods
                            affect the objectives of the JARPA II programme ?

                            2. What would happen to whale stocks if many, or even all States
                               parties to the International Convention for the Regulation of
                               Whaling, decide to undertake ‘scientific research’ using lethal
                               methods, upon their own initiative, similarly to the modus oper-
                               andi of JARPA II ?” 31
                        53. The questions I put to Australia, Japan and New Zealand together
                     pertained to the interpretation of the terms “conservation and develop-
                     ment” of whale stocks under the ICRW, and to the methods to be used in
                     “scientific research” in the light of the object and purpose of the ICRW.
                     In its answer, Australia drew attention to quotas for “aboriginal subsis-
                     tence whaling”, and to measures for purposes other than consumption
                     (e.g., whale watching) 32. For its part, Japan referred to the co‑existence
                     between “conservationist measures” (e.g., moratorium and sanctuaries)
                     and “scientific whaling” under Article VIII of the ICRW 33.

                        54. In its response, the intervenor, New Zealand, warned against the
                     excesses of commercial whaling (also referring to the sustainable use of
                     whale stocks), invoking the Preamble of the ICRW’s provision, to the
                     effect that whale capture cannot endanger those “natural resources”.
                     New Zealand further referred to the duty of co-operation and “the needs
                     of conservation for the benefit of all”. Invoking the precautionary
                     approach, New Zealand ascribed a limited role to Article VIII for the
                     conduct of scientific research, adding that lethal methods could only be
                     used when they created no risk of an adverse effect on the whales stock 34.

                        55. As to one of the questions I addressed to Japan, pertaining to the
                     objectives of a programme (supra), the argument advanced by Japan was
                     that the research objectives (of JARPA II) dictated the methods, and not
                     vice versa. If certain data could only be collected by using lethal methods,
                     in its view there would be no alternative non‑lethal methods. Japan then
                     added that there were limitations to the use of non‑lethal methods of
                     biopsy sampling and satellite tagging 35.

                       31 CR 2013/17, of 8 July 2013, p. 49.
                       32 CR 2013/19, of 10 July 2013, p. 54, para. 79.
                       33 CR 2013/21, of 15 July 2013, pp. 40‑41, paras. 20‑21.
                       34 Written Responses of New Zealand, op. cit. supra note 3, pp. 4‑5, paras. 1‑4.

                       35   CR 2013/22, of 15 July 2013, p. 48, para. 20.

                     147

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                        56. Australia retorted that the objectives of JARPA II were, in its
                     view, rather vague and general, and seemed to have been adopted and
                     applied so as to allow the killing of whales ; thus, the methods (of
                     JARPA II) dictated the objectives, and not vice versa. After criticizing the
                     stated objectives of JARPA II, Australia advocated the use of non‑lethal
                     methods under that programme. And it added that, if many of the States
                     parties to the ICRW felt entirely free — as Japan does — to decide for
                     itself to issue special permits under Article VIII for the taking of any
                     number of whales, this would certainly have adverse effects on the fin,
                     humpback and other whale stocks 36. Australia expressed its concern that,
                     as the situation stands at present, “an unknown and indefinite number of
                     whales will be taken under JARPA II” 37.

                                                 3. General Assessment
                        57. It has been made clear, in recent decades, that the international
                     community has adopted a conservation‑oriented approach in treaty
                     regimes, including treaties covering marine mammals. The ICRW is to be
                     properly interpreted in this context ; it does not stand alone as a single
                     international Convention aimed at conservation and management of
                     marine mammals. The ICRW is part of a plethora of international instru-
                     ments adopted in recent years, aiming at conservation with a precaution-
                     ary approach. Amongst these instruments stands the United Nations
                     Convention on Biological Diversity (CBD), adopted at the United
                     Nations Conference on Environment and Development (UNCED), in
                     Rio de Janeiro, on 5 June 1992, which can here be recalled as an interna-
                     tional instrument aiming at conservation of living species.

                        58. The CBD is directly pertinent to conservation and management of
                     whales. For example, in its Preamble, it asserts inter alia its determination
                     “to conserve and sustainably use biological diversity for the benefit
                     of present and future generations”. In this respect, the ICRW should be
                     read in the light of other international instruments that follow a
                     conservation‑oriented approach and the precautionary principle. The

                     existence of the ICRW in relation to Conventions aimed at conserva-
                     tion of living resources supports a narrow interpretation of Article VIII
                     of the ICRW.
                        59. Accordingly, Article VIII (1), as already pointed out, cannot be
                     broadly interpreted, and cannot at all be taken as a so‑called “self‑
                     contained” regime or system. It is not a free‑standing platform, not a
                     carte blanche given to States to do as they freely wish. It is part and parcel
                     of a system of collective guarantee and collective regulation oriented

                        36 Written Comments of Australia on Japan’s Responses to Questions Put by Judges

                     during the Oral Proceedings, of 19 July 2013, pp. 8‑13.
                        37 CR 2013/20, of 10 July 2013, p. 16, para. 37.

                     148

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                     towards the conservation of living species. Thus, Article VIII (1) can only
                     be interpreted in a restrictive way ; all States parties to the ICRW have
                     recognizedly a common interest in the conservation and in the long‑term
                     future of whale stocks.

                      VIII. Principle of Prevention and the Precautionary Principle :
                               Arguments of the Parties and the Intervenor

                       60. Although the Court does not dwell upon the precautionary princi-
                     ple or approach in the present Judgment in the case of Whaling in the
                     Antarctic (Australia v. Japan : New Zealand intervening), I deem it fit to
                     recall and point out herein that, in the course of the proceedings in the
                     present case, the two contending Parties as well as New Zealand addressed
                     the principle of prevention and the precautionary principle as related to
                     the cas d’espèce. In its oral arguments, Australia stressed conservation
                     under contemporary international environmental law, invoking its “three
                     main legal pillars”, namely, “intergenerational equity, the principle of
                     prevention and the precautionary approach”, principles that are to “gov-
                     ern the interpretation and the application of the 1946 Convention régime,
                     as they make it possible for its object and purpose to be achieved” 38.
                       61. In the same line of thinking, in its Memorial Australia upheld the
                     precautionary principle, asserting that, for example, “[t]he establishment
                     of sanctuaries reflects also the increasing importance of the precautionary
                     approach in the IWC’s management and conservation of whales” (p. 42,
                     para. 2.80). It has then added that

                            “[t]he IWC now pursues conservation of whales as an end itself. In
                            so doing, it places greater reliance on a precautionary approach to
                            conservation and management combined with a focus on non‑con-
                            sumptive use” (p. 52, para. 2.99).
                       62. Australia, in sum, identified an “increasingly conservation‑oriented
                     approach” (p. 172, para. 4.83). This is so in view of the growing pursu-
                     ance of the precautionary approach. In Australia’s perception,
                               “This development, which has been recognized by the IWC, must
                            be taken into account in interpreting the Article VIII exception. In
                            practical terms, and in the face of uncertainty as to the status of whale
                            stocks and the effect of any lethal take, precaution directs an inter-
                            pretation of Article VIII that limits the killing of whales.

                              The precautionary approach specifically is intended to provide
                            guidance in the development and application of international environ

                       38   CR 2013/7, of 26 June 2013, pp. 56‑58, paras. 50, 55 and 57‑58.

                     149

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                     372        whaling in the antarctic (sep. op. cançado trindade)

                           mental law where there is scientific uncertainty. The core of this
                           approach is reflected in Principle 15 of the Rio Declaration (. . .). The
                           approach requires caution and vigilance in decision‑making in the
                           face of such uncertainty.

                              The precautionary approach has been recognized in a number of
                           international policy documents and international environmental
                           agreements, concerning both broader environmental matters and,
                           more particularly, the conservation and protection of marine mam-
                           mals. (. . .)
                              The Contracting Governments to the ICRW have agreed to the adop-
                           tion of a precautionary approach in a wide range of matters. As applied
                           to Article VIII, this means that the uncertainty regarding the status of
                           whale stocks requires Contracting Governments to act with prudence
                           and caution by strictly limiting the grant of special permits under Arti-
                           cle VIII.” (Memorial of Australia, pp. 173‑176, paras. 4.87‑4.91.) 39
                        63. In sum, in Australia’s understanding, developments in international
                     law confirm that “Article VIII is to be interpreted as an exception that is
                     only available in limited circumstances” ; Article VIII “is not self‑judging”,
                     and its application is to be “determined by reference to objective criteria,
                     consistent with those adopted by the Commission established under the
                     ICRW”. Such an approach — Australia added — is consistent with “the
                     broader international legal framework in which the ICRW now rests”,
                     which promotes a “conservation‑oriented focus” that is consistent with the
                     precautionary approach (ibid., pp. 173‑176, paras. 4.87‑4.91). Australia
                     concluded on this point that “the Article VIII exception” had a “strictly
                     limited application”, in particular where there is “uncertainty regarding
                     the status of the relevant whale stocks” (ibid., p. 187, paras. 4.118). Also in
                     its oral arguments, Australia insisted that “the aim of the precautionary
                     approach is conservation (. . .)”, and this latter applies in particular “where
                     there is scientific uncertainty” 40.
                        64. For its part, in its arguments (in the written and oral phases) Japan
                     did not elaborate on the principle of prevention. Furthermore, in its
                     Counter‑Memorial, it somehow minimized the precautionary approach 41,
                     but it conceded that such an approach entailed “the conduct of further
                     special permit whaling for scientific purposes as a means of improving

                        39 Australia recalled, still in its Memorial, not only the incorporation of the precau-

                     tionary approach (as propounded in Principle 15 of the Rio Declaration on Environment
                     and Development) in “a growing number of international treaties”, but also the contem-
                     porary case law on the subject, of the International Court of Justice (case of the Pulp
                     Mills on the River Uruguay), as well as of the International Tribunal for the Law of the
                     Sea (ITLOS) (the Southern Bluefin Tuna cases, and the Advisory Opinion of its Sea-Bed
                     Disputes Chamber, on the Responsibilities and Obligations of States Sponsoring Persons
                     and Entities with Respect to Activities in the Area) (pp. 173‑176, paras. 4.87‑4.91).

                        40 CR 2013/7, of 26 June 2013, p. 47, paras. 53‑54.
                        41 Counter‑Memorial of Japan, p. 132, para. 3.92.

                     150

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                     understanding of marine ecosystems and the sustainability of whale
                     stocks” ; it was on that basis, Japan added, “that JARPA and JARPA II
                     have been designed and carried out”, in a “prudent and cautious” way,
                     posing “no risk to the survival of abundant minke whale stocks” 42.

                        65. In its oral arguments, Japan further stated that it was conducting
                     “scientific research” in such a way that “no harm to stocks” would occur
                     “in full application of the precautionary approach”. It added that “[l]ittle
                     is known of the ecosystem in the Antarctic Ocean”, and it was “precisely
                     to supply the Scientific Committee with necessary scientific data that
                     Japan is pursuing research whaling”, and, together with “other nations’
                     contribution, conservation and management based on science under the
                     IWC has been making progress” 43. In invoking the precautionary
                     approach (as expressed in Principle 15 of the Rio Declaration on Environ
                     ment and Development), Japan asserted that the JARPA II programme was
                     “consistent” with its requirements ; Japan then called for “a permissive
                     interpretation and application of Article VIII of the ICRW, so as to render
                     it effective” 44.

                        66. For its part, New Zealand, in its oral arguments, in addressing the
                     principle of prevention, stated that “consultations and negotiations” — in
                     pursuance of the duty of co‑operation — are to be “meaningful” 45, also
                     taking into account “the views and legitimate interests of others” 46. Turn-
                     ing to the precautionary principle or approach, New Zealand argued, in
                     its written observations, that States parties to the ICRW do not have full
                     discretion, in the form of a “blank cheque”, to “determine the number of
                     whales to be killed under special permit under Article VIII” ; they have to
                     proceed reasonably, so as to achieve the object and purpose of the Con-
                     vention as a whole 47.

                        67. That number of whales, New Zealand proceeded in its written
                     observations, ought to be “necessary and proportionate to the objectives
                     of the scientific research”, pursuant to the precautionary approach as
                     related to “the conservation and management of living marine resources”.
                        42 Japan added that “possible effects of JARPA II catches on whale stocks were analysed

                     and submitted to the IWC Scientific Committee in 2005”, and those analyses concluded
                     that “there would be no adverse effects on the long‑term status of any of the targeted whale
                     species in the Antarctic”. Japan concluded that, if there was “scientific uncertainty about
                     the conservation status and population dynamics of whale stocks”, then further research
                     would become necessary, and it would keep on “acting prudently in continuing to conduct
                     JARPA II” (Counter‑Memorial of Japan, pp. 424‑426, paras. 9.33‑9.36).
                        43CR 2013/12, of 2 July 2013, pp. 15‑16, para. 9.
                        44CR 2013/16, of 4 July 2013, pp. 29‑35, para. 19, and cf. also paras. 11‑12, 15‑16,
                     and 20‑21.
                       45 CR 2013/17, of 8 July 2013, p. 45, para. 30.
                       46 Ibid., p. 46, para. 33.
                       47 Ibid., pp. 25‑27, paras. 34‑38.

                     151

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                     New Zealand added in its written observations, that States parties are
                     required to act with “prudence and caution”, particularly when “informa-
                     tion is uncertain, unreliable or inadequate”, so as to avoid “any harm”
                     (CR 2013/17, of 8 July 2013, pp. 40‑41, paras. 73‑74). In issuing a special
                     permit, a State party to the ICRW is to demonstrate that it “will avoid
                     any adverse effect on the conservation of the stock” (ibid., p. 41, para. 75).

                        68. Again in its oral arguments, New Zealand sustained that the issue
                     here in contention is the number of whales to be killed, which, in its view,
                     cannot be “entirely self‑judging”, nor completely without review 48. In its
                     view, the determination of that number should take into account certain
                     factors, namely :

                        “(a) first, the number of whales killed must be the lowest necessary
                             for, and proportionate to, the purposes of scientific research ;
                         (b) as a consequence, there is an expectation that non‑lethal methods
                             of research will be used ;
                         (c) third, the number of whales to be killed must be set at a level
                             which takes into account the precautionary approach ; and
                         (d) finally, the discretion to set the number of whales to be killed must
                             be exercised reasonably and consistent with the object and pur-
                             pose of the Convention” 49.
                       69. Insisting on the relevance of the precautionary approach, New Zea-
                     land added that States parties to the ICRW “should act with prudence
                     and caution when applying provisions, such as Article VIII, which may
                     have an effect on the conservation of natural resources”. Such “prudence
                     and caution” are even more needed “when the information is uncertain,
                     unreliable or inadequate” (ibid., para. 15). A “prudent and cautious”
                     approach would ensure that the number of whales to be taken “is neces-
                     sary and proportionate”, and would “give preference to the conduct of
                     non‑lethal methods of research. (. . .) [U]ncertainty is the very reason for
                     acting with caution.” 50

                        70. Even if the Court, in the present Judgment in the Whaling in the
                     Antarctic case, has not seen it fit to pronounce on the principle of preven-
                     tion and the precautionary principle, it is, in my view, significant that the
                     contending Parties, Australia and Japan, and the intervenor, New Zea-
                     land, have cared to refer to these principles, in general, in their arguments
                     as to whether or not Japan’s whaling practices under special permits con-
                     form to them. Such principles are to inform and conform any programmes
                     under special permits within the limited scope of Article VIII of the ICRW.
                     Furthermore, the principles of prevention and precaution appear inter
                     related in the present case of Whaling in the Antarctic.

                       48 CR 2013/17, of 8 July 2013, p. 35, para. 3.
                       49 Ibid., pp. 35‑36, para. 3.
                       50 Ibid., p. 40, para. 17.

                     152

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                        71. May I add just one final remark in this respect. Despite the hesita-
                     tion of the ICJ (and of other international tribunals in general) to pro-
                     nounce and dwell upon the precautionary principle, expert writing
                     increasingly examines it, drawing attention to its incidence when there is
                     need to take protective measures in face of risks, even in the absence of
                     corresponding scientific proof. The precautionary principle, in turn,
                     draws attention to the time factor, the temporal dimension, which marks
                     a noticeable presence in the interpretation and application of treaties and
                     instruments of international environmental law 51. In this domain in gen-
                     eral, and in respect of the ICRW in particular, there has occurred, with
                     the passing of time, a move towards conservation of living marine
                     resources as a common interest, prevailing over State unilateral action in
                     search of commercial profitability 52. This move has taken place by the
                     operation of the system of collective guarantee, collective decision‑making
                     and collective regulation under the ICRW (cf. item II, supra).

                         IX. Responses from the Experts, and Remaining Uncertainties
                                around “Scientific Research” (under JARPA II)

                        72. During the public sittings of the Court, I deemed it fit to put sev-
                     eral questions to the experts of Australia and Japan. In response to my
                     five questions put to him, the expert of Australia (M. Mangel) addressed
                     the availability of non‑lethal research techniques to States parties to the
                     1946 ICRW in the context of conservation and management of whales,
                     pointing out that their use (so as to replace lethal methods) would depend
                     on “having a relevant question”, as there is “always a tension in the sci-
                     entific community about the exact question” 53. Satellite tagging, e.g., has
                     become a non‑lethal tool, with the technological development as from the
                     early 1990s, for the collection of information (e.g., on the movement of
                     whales) 54.

                        73. In response to my three questions put to him, the expert of Japan
                     (L. Walløe) compared biopsy sampling with lethal sampling. He admitted
                     that he could not determine the total of whales to be killed to attain the
                     objectives of “scientific research” (as under JARPA II), as that, in his
                     view, would depend on the question one would be focusing on ; but, “for
                     the time being”, he added, and “for some years”, it would “be justified to

                        51 Cf., generally, e.g., Y. Tanaka, “Reflections on Time Elements in the International

                     Law of the Environment”, 73 Zeitschrift für ausländisches öffentliches Recht und Völker-
                     recht (2013), pp. 143‑147, 150‑156, 165‑167 and 170‑175.
                        52 Cf. M. Bowman, “‘Normalizing’ the International Convention for the Regulation of

                     Whaling”, 29 Michigan Journal of International Law (2008), pp. 139, 163, 175‑177 and 199.
                        53   CR 2013/9, of 27 June 2013, pp. 64‑66.
                        54   Ibid., pp. 66‑67.

                     153

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                     kill 850” 55. He submitted that, for certain purposes, “lethal research”
                     (e.g., on the amount of stomach contents) continued to be necessary 56.
                     Yet, despite these responses, there remained, in my perception, the
                     impression of a lack of general criteria for the determination of the
                     total whales to be killed, and for how long, for the purposes of so‑called
                     “scientific research”.

                        74. “Scientific research” is surrounded by uncertainties ; it is under-
                     taken on the basis of uncertainties. Suffice it here to recall the legacy of
                     Karl Popper, who used to ponder wisely that scientific knowledge can
                     only be uncertain or conjectural, while ignorance is infinite. Scientific
                     research is a search for truth, amidst conjectures, and, given one’s falli
                     bility, one has to learn with mistakes incurred into. One can hope to be
                     coming closer to truth, but without knowing for sure whether one is dis-
                     tant from, or near it. Without the ineluctable refutations, science would
                     fall into stagnation, losing its empirical character. Conjectures and refuta-
                     tions are needed, for science to keep on advancing in its empirical path 57.
                     As for the cas d’espèce, would this mean that whales could keep on being
                     killed, and increasingly so, for “scientific purposes” and amidst scientific
                     uncertainty ? I do not think so ; there are also non‑lethal methods, and,
                     after all, living marine resources are not inexhaustible.

                                     X. Reiterated Calls under the ICRW for
                                           Non‑Lethal Use of Cetaceans

                        75. The reiterated calls for non‑lethal use of cetaceans, under the
                     ICRW, cannot pass unnoticed here. In its resolution 1995‑9, on whaling
                     under special permit, the IWC recommended that “scientific research”
                     intended to assist the comprehensive assessment of whale stocks should
                     be undertaken by non‑lethal means ; furthermore, it recalled that the
                     ICRW recognizes the common interest of all “the nations of the world”
                     in safeguarding the “great natural resources” of whale stocks “for future
                     generations”. Subsequently, in its resolution 2005‑I, on JARPA II, the
                     IWC began by recalling (second preambular paragraph) that

                            “since the moratorium on commercial whaling came into force
                            in 1985‑1986, the IWC has adopted over 30 resolutions on special
                       55  CR 2013/14, of 3 July 2013, pp. 50‑51.
                       56  Ibid., pp. 51‑52.
                        57 Cf. Karl R. Popper, Conjecturas e Refutações — O Progresso do Conhecimento

                     Científico [Conjectures and Refutations — The Growth of Scientific Knowledge], 5th ed.,
                     Brasília, Editora Universidade de Brasília, 2008, pp. 255, 257, 260, 269 and 271.

                     154

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                           permit whaling in which it has generally expressed its opinion that
                           special permit whaling should : be terminated and scientific research
                           limited to non‑lethal methods only (2003‑2) ; refrain from involving
                           the killing of cetaceans in sanctuaries (1998‑4) ; ensure that the recov-
                           ery of populations is not impeded (1987) ; and take account of the
                           comments of the Scientific Committee (1987)”.

                        76. Resolution 2005‑I of the IWC proceeded to express concern (sixth
                     preambular paragraph) that “more than 6,800 Antarctic minke whales
                     (Balaenoptera bonaerensis) have been killed in Antarctic waters under the
                     18 years of JARPA, compared with a total of 840 whales killed globally
                     by Japan for scientific research in the 31‑year period prior to the morato-
                     rium”. It then noted (tenth preambular paragraph) that “some humpback
                     whales which will be targeted by JARPA II belong to small, vulnerable
                     breeding populations around small island States in the South Pacific”,
                     and “even small takes could have a detrimental effect on the recovery and
                     survival of such populations”. The IWC further expressed concern (elev-
                     enth preambular paragraph) that “JARPA II may have an adverse impact
                     on established long‑term whale research projects involving humpback
                     whales”. At last, the operative part of resolution 2005‑I “strongly” urged
                     Japan to withdraw its JARPA II proposal, or else to revise it to consider
                     using non‑lethal means.

                        77. Two years later, the IWC adopted two new resolutions on the
                     non‑lethal use of whale resources. In resolution 2007‑1, the IWC recalled
                     that paragraph 7 (b) of the Schedule establishes the Southern Ocean
                     Sanctuary ; it further recalled its repeated requests to States parties to
                     refrain from issuing special permits for research involving the killing of
                     whales within the Southern Ocean Sanctuary. It then expressed concern
                     at continuing lethal “research” within the Southern Ocean Sanctuary. In
                     relation to JARPA II in particular, the IWC noted that, thereunder, “the
                     take of minke whales has been more than doubled, and fin whales and
                     humpback whales have been added to the list of targeted species” (fourth
                     preambular paragraph). Convinced that “the aims of JARPA II do
                     not address critically important research needs” (six preambular para-
                     graph), resolution 2007‑I, in its operative part, called upon Japan 31 rec-
                     ommendations of the Scientific Committee and “to suspend indefinitely
                     the lethal aspects of JARPA II conducted within the Southern Ocean
                     Whale Sanctuary”.

                       78. In addition, the IWC recalled, in resolution 2007‑3 (on Non‑Lethal
                     Use of Cetaceans), the ICRW’s aim to safeguard “the natural resources
                     represented by whale stocks for the benefit of future generations” (first
                     preambular paragraph). It noted that many coastal States adopted poli-

                     155

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                     378 	 whaling in the antarctic (sep. op. cançado trindade)

                     cies of non‑lethal use of cetaceans in the waters under their jurisdiction,
                     in the light of relevant provisions of the 1982 United Nations Convention
                     on the Law of the Sea and the 1992 Rio Declaration on Environment and
                     Development (second preambular paragraph). It pondered that “most
                     whale species are highly migratory” and are “thus shared biodiversity
                     resources” (third preambular paragraph). Calling for the non‑lethal use
                     of whales, it further noted that “the moratorium on commercial whaling
                     has been in effect since 1986 and has contributed to the recovery of some
                     cetacean populations essential for the promotion of non‑lethal uses in
                     many countries” (sixth preambular paragraph).

                        79. Next, in the same resolution 2007‑3, the IWC expressed its concern
                     that whales in the twenty-first century “face a wider range of threats than
                     those envisaged when the ICRW was concluded in 1946” (seventh pream-
                     bular paragraph). The IWC further notes that the Buenos Aires Declara-
                     tion states that “high quality and well managed implementation of whale
                     watching tourism promotes economic growth and social and cultural
                     development of local communities, bringing educational and scientific
                     benefits, whilst contributing to the protection of cetacean populations”
                     (eighth preambular paragraph). Accordingly, in the operative part of res-
                     olution 2007‑3, the IWC recognized, first, the valuable benefits to be
                     derived from “the non‑lethal uses of cetaceans as a resource, both in
                     terms of socio‑economic and scientific development”, and secondly, the
                     non‑lethal use as “a legitimate management strategy”. Thus, the IWC
                     encouraged member States “to work constructively” towards “the incor-
                     poration” of the needs of non‑lethal uses of whale resources in “any
                     future decisions and agreements”.

                           XI. Concluding Observations, on the JARPA II Programme
                                     and the Requirements of the ICRW
                                              and Its Schedule

                        80. Last but not least, as to the central question of the present case,
                     that is, whether JARPA II is in conformity with the ICRW and its Sched-
                     ule, — object of the main controversy between Australia and Japan — in
                     my perception JARPA II does not meet the requirements of a programme
                     “for purposes of scientific research” and does not fall under the exception
                     contained in Article VIII of the ICRW. There are a few characteristics of
                     JARPA II which do not allow it to qualify under the exception of Arti-
                     cle VIII, to be restrictively interpreted ; in effect, the programme at issue
                     does not seem to be genuinely and solely motivated by the purpose of
                     conducting scientific research.

                       81. This is so, keeping in mind the relation between JARPA II’s stated
                     objectives and the methods used to achieve these objectives : lethal meth-
                     ods, which JARPA II widely applies in its operations, are, in my view,

                     156

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                     379         whaling in the antarctic (sep. op. cançado trindade)

                     only to be used, first, where it is unavoidable to achieve a crucial objective
                     of the scientific research ; secondly, where no other methods would be
                     available ; and thirdly, where the number of whales killed corresponds to
                     those necessary to conduct the research. In practice, the use of lethal
                     methods by JARPA II in relation to what seems to be a large number of
                     whales does not appear justifiable as “scientific research”.
                        82. Furthermore, the fact that JARPA II runs for an indefinite duration
                     also militates against its professed purpose of “scientific research”. To my
                     mind, a scientific programme, when being devised, should have objectives
                     which go along a specific time frame for their achievement. To prolong the
                     killing of whales indefinitely does not seem to be in line with scientific
                     research, nor justifiable. In addition, there subsists the concern with the
                     possible adverse effects of JARPA II on whale stocks. As just indicated,
                     JARPA II utilizes lethal methods and runs for an indefinite time. It is not
                     entirely convincing that, under these parameters, whale stocks subject to
                     the programme will not be adversely affected. This is exacerbated in the
                     hypothesis that other States parties to the ICRW decide to follow the same
                     approach and methodology of Japan, and start likewise killing whales
                     allegedly for similar purposes of “scientific research”.
                        83. There could be an adverse impact on whale stocks if other States
                     parties to the ICRW decided to kill as many whales as Japan, within an
                     unlimited time frame, for purposes of “scientific research”. JARPA II, in
                     the manner it is being currently conducted, can have adverse effects on
                     whale stocks. Even if there is a minor scientific purpose in the JARPA II
                     programme, it is clearly not the main purpose of the programme. In my
                     view, given the methodologies used (widely employing lethal methods —
                     cf. supra), the structure of the programme and its duration, “scientific
                     research” is not the sole purpose of the programme, nor the main one.

                        84. As to the question whether commercial aspects are permissible
                     under Article VIII (2) of the Convention 58, the text of this provision
                     seems clear : it does not seem expressly to allow for commercial aspects of
                     a whaling programme under special permit. Article VIII (2) is aimed, in
                     my perception, solely to avoid waste. The commercialization of whale
                     meat does not seem to be in line with the purpose of granting special per-
                     mits and should not be validated under this provision. Permitting com-
                     mercial aspects of a special permit whaling programme under this
                     provision would go against Article VIII as a whole, and the object and
                     purpose of the ICRW (cf. supra). Commercial whaling, pure and simple,
                     is not permissible under Article VIII (2).

                        58 Which reads as follows : “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.”

                     157

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                     380 	      whaling in the antarctic (sep. op. cançado trindade)

                       85. As to the Schedule, paragraph 30 sets forth a positive procedural
                     obligation of States parties to the ICRW, whereby Japan’s co‑operation
                     with the IWC and the Scientific Committee is expected. The Court has
                     found, in the present Judgment in the Whaling in the Antarctic case, that
                     Japan has not acted in conformity with paragraph 10 (d) and (e) (whaling
                     moratorium, and assessment of effects of whale catches on stocks), and
                     paragraph 7 (b) (prohibition of commercial whaling in the Southern Ocean
                     Sanctuary), of the Schedule (resolutory points 3‑5). Japan does not appear
                     to have fulfilled this obligation to take into account comments, resolutions
                     and recommendations of the IWC and the Scientific Committee.

                        86. For example, I note that many resolutions 59 have been issued over
                     the years concerning JARPA II and its use of lethal methods, which Japan
                     does not seem to have fully taken into account, given its continued use of
                     lethal methods. The Court itself has drawn attention, in the present Judg-
                     ment (para. 144), to the paucity of analysis by Japan of the feasibility of
                     non‑lethal methods to achieve JARPA II objectives ; and it has added that

                              “Given the expanded use of lethal methods in JARPA II, as com-
                           pared to JARPA, this is difficult to reconcile with Japan’s duty to give
                           due regard to IWC resolutions and Guidelines and its statement that
                           JARPA II uses lethal methods only to the extent necessary to meet
                           its scientific objectives.” (Judgment, para. 144.)

                         59 Cf., e.g., Resolution on Japanese Proposal for Special Permits, App. 4, Chairman’s

                     Report of the 39th Annual Meeting, Report of the International Whaling Commission [Rep.
                     Int. Whal. Commn] 38, 1988, p. 29 (resolution 1987‑4) ; Resolution on the Proposed Take
                     by Japan of Whales in the Southern Hemisphere under Special Permit, App. 3, Chair-
                     man’s Report of the 41st Annual Meeting, Rep. Int. Whal. Commn 40, 1990, p. 36 (reso-
                     lution 1989‑3) ; Resolution on Special Permit Catches by Japan in the Southern Hemi-
                     sphere, App. 2, Chairman’s Report of the 42nd Meeting, Rep. Int. Whal. Commn 41,
                     1991, pp. 47‑48 (resolution 1990‑2) ; Resolution on Special Permit Catches by Japan in the
                     Southern Hemisphere, App. 2, Chairman’s Report of the 43rd Meeting, Rep. Int. Whal.
                     Commn 42, 1992, p. 46 (resolution 1991‑2) ; Resolution on Special Permit Catches by Japan
                     in the Southern Hemisphere, App. 5, Chairman’s Report of the 44th Meeting, Rep. Int.
                     Whal. Commn 43, 1993, 71 (resolution 1992‑5) ; Resolution on Special Permit Catches
                     by Japan in the Southern Hemisphere, App. 7, Chairman’s Report of the 45th Annual
                     Meeting, Rep. Int. Whal. Commn 44, 1994, p. 33 (resolution 1993‑7) ; Resolution on Special
                     Permit Catches by Japan in the North Pacific, Resolution 1994‑9, App. 15, Chairman’s
                     Report of the 46th Annual Meeting, Rep. Int. Whal. Commn 45, 1995, p. 47 (resolu-
                     tion 1994‑9) ; Resolution on Special Permit Catches by Japan in the Southern Hemisphere,
                     resolution 1994‑10, App. 15, Chairman’s Report of the 46th Annual Meeting, Rep. Int.
                     Whal. Commn 45, 1995, p. 47 (resolution 1994‑10) ; Resolution on Special Permit Catches
                     by Japan, resolution 1996‑7, App. 7, Chairman’s Report of the 48th Meeting, Rep. Int.
                     Whal. Commn 47, 1997, pp. 51‑52 (resolution 1996‑7) ; cited in CR 2013/8, of 26 June 2013,
                     pp. 34‑35.

                     158

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                     381 	      whaling in the antarctic (sep. op. cançado trindade)

                        87. Moreover, it could hardly be claimed that the sole purpose of the
                     JARPA II programme is “scientific research”, as it appears that some com-
                     mercial aspects permeate the programme. The JARPA II programme does
                     not seem to fall under the exception of Article VIII of the ICRW. In the
                     present Judgment, the Court has found that the special permits granted by
                     Japan in connection with JARPA II do not fall under Article VIII (1) of the
                     ICRW (resolutory point 2). The present case has provided a unique occa-
                     sion for the Court to pronounce upon a system of collective regulation of
                     the environment for the benefit of future generations. The notion of collec-
                     tive guarantee has been developed, and put in practice, to date in distinct
                     domains of contemporary international law. The Court’s present Judgment
                     in the Whaling in the Antarctic case may have wider implications than solely
                     the peaceful settlement of the present dispute between the contending Par-
                     ties, to the benefit of all.
                        88. Last but not least, may I observe that international treaties and
                     conventions are a product of their time ; yet, they have an aptitude to face
                     changing conditions, and their interpretation and application in time
                     bears witness that they are living instruments. They evolve with time, other
                     wise they would fall into desuetude. The 1946 ICRW is no exception to
                     that, and, endowed with a mechanism of supervision of its own, it has
                     proven to be a living instrument. Moreover, in distinct domains of inter-
                     national law, treaties and conventions — especially those setting forth a
                     mechanism of protection — have required the pursuance of a hermeneu-
                     tics of their own, as living instruments. This happens not only in the pres-
                     ent domain of conservation and sustainable use of living marine resources,
                     but likewise in other areas of international law.

                        89. The present case on Whaling in the Antarctic has brought to the
                     fore the evolving law on the conservation and sustainable use of living
                     marine resources, which, in turn, has disclosed what I perceive as its con-
                     tribution to the gradual formation of an opinio juris communis in the pres-
                     ent domain of contemporary international law. Opinio juris, in my
                     conception, becomes a key factor in the formation itself of international
                     law (here, conservation and sustainable use of living marine resources) ;
                     its incidence is no longer that of only one of the constitutive elements of
                     one of its “formal” sources 60. The formation of international law in
                     domains of public or common interest, such as that of conservation and
                     sustainable use of living marine resources, is a much wider process than
                     the formulation of its “formal sources”, above all in seeking the legiti-
                     macy of norms to govern international life 61.

                        60 These latter being only means or vehicles for the formation of international legal

                     norms.
                        61 For the conceptualization of this outlook, cf. A. A. Cançado Trindade, International

                     Law for Humankind . . ., op. cit. supra note 15, pp. 134‑138, esp. p. 137.

                     159

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                     382 	    whaling in the antarctic (sep. op. cançado trindade)

                        90. Opinio juris communis, in this way, comes to assume a considerably
                     broader dimension than that of the subjective element constitutive of cus-
                     tom, and to exert a key role in the emergence and gradual evolution of
                     international legal norms. After all, juridical conscience of what is neces-
                     sary (jus necessarium) stands above the “free will” of individual States
                     (jus voluntarium), rendering possible the evolution of international law
                     governing conservation and sustainable use of living marine resources. In
                     this domain, State voluntarism yields to the jus necessarium, and notably
                     so in the present era of international tribunals, amidst increasing endeav-
                     ours to secure the long‑awaited primacy of the jus necessarium over the
                     jus voluntarium. Ultimately, this becomes of key importance to the real-
                     ization of the pursued common good.

                                            (Signed) Antônio Augusto Cançado Trindade.

                     160

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